V  >\  fc.   v 


OFFICIAL   REPORT 


OF   THE 


DEBATES  AND  PROCEEDINGS 


C|e  State  C0ttimtti0tt, 


ASSEMBLED 


MAY   4TH,    1853, 


TO 


REVISE  AND  AMEND  THE  CONSTITUTION 


OF  THE 


of 


VOLUMK   THIRD. 


BOSTON: 

WHITE   &   POTTER,  PRINTERS   TO  THE  CONVENTION. 

1853. 


OFFICIAL  REPORT 


OF  THE 


DEBATES  AND   PROCEEDINGS 


OF  THE 


CONVENTION    OF    1853. 


Friday,] 


BUTLER  —  CUSHMAN. 


[July  15th. 


FRIDAY,  July  loth,  1853. 

The  Convention  assembled  pursuant  to  adjourn 
ment,  and  was  called  to  order  by  the  President  at 
nine  o'clock. 

Prayer  by  the  Chaplain. 

•  The  Journal  of  yesterday's  proceedings  was 
read. 

Orders  of  the  Day. 

On  motion  of  Mr.  BUTLER,  of  Lowell,  the 
Convention  proceeded  to  the  consideration  of  the 
Orders  of  the  Day. 

Limitation  of  Speeches. 

The  PRESIDENT  stated  the  first  business  in 
order  to  be  the  consideration  of  an  order  present 
ed  yesterday  by  the  gentleman  from  Bernardston, 
(Mr.  Cushman,)  to  limit  the  time  allowed  to  each 
member  to  speak  upon  any  question,  to  half  an 
hour. 

Mr.  BUTLER  observed,  that  he  did  not  mean 
to  oppose  the  adoption  of  the  rule  ;  but,  he  would 
remark,  that  we  had  for  sometime  had  a  rule  of 
the  Convention,  limiting  the  speeches  of  members 
to  an  hour  each,  yet  that  rule  had  never  been  en 
forced  in  one  single  instance.  Whenever  a  gen 
tleman  had  consumed  his  hour  without  concluding 
his  remarks,  members  would  cry,  "go  on,"  "go 
on,"  and  he  would  go  on  so  long  as  he  pleased. 
Under  such  circumstances,  of  course,  it  would  be 
a  personal  matter  for  any  gentleman  to  get  up  and 
object.  He  was  in  favor  of  limiting  the  debate, 
but  he  saw  no  benefit  in  adopting  a  rule  you 


could  not  enforce,  and  gentlemen  had  better  carry 
out  their  hour  rule  before  they  undertook  to  make 
any  new  ones  upon  the  subject.  Unless  there 
could  be  an  amendment  to  the  order  now  before  the 
Convention,  which  should  limit  gentlemen  to  half 
an  hour,  and  then  make  general  consent  for  them 
to  go  on,  go  for  nothing,  he  thought  the  rule  would 
be  of  little  avail.  He  saw,  very  much,  the  need 
of  curtailing  the  debate.  He  could  say  all  he  had 
to  say,  and  more  too,  in  the  course  of  half  an 
hour.  And  if  any  gentleman  thought  any  good 
could  be  effected  by  the  adoption  of  the  order,  it 
should  have  his  vote. 

Mr.  CUSHMAN,  of  Bernardston,  thought  there 
was  a  great  necessity  for  something  of  this  kind 
to  be  adopted.  The  Convention  were  now  in  the 
eleventh  week  of  their  session.  They  had  already 
consumed  much  more  time  than  was  expected 
when  they  commenced,  and  some  measure  should 
be  adopted  to  bring  their  labors  to  a  close.  He 
appealed  to  gentlemen  to  say  if,  at  this  period  of 
the  session,  half  an  hour  was  not  long  enough  for 
any  member  to  speak  ?  The  Convention  would 
not  listen  patiently  to  them  for  a  longer  time.  If 
they  desired  their  speeches  to  produce  an  effect 
upon  the  Convention  itself,  they  would  certainly 
fail  to  accomplish  the  object  by  continuing  them 
beyond  that  limit ;  and  if  they  desired  that  their 
speeches  should  go  upon  the  record  for  the  perusal 
of  posterity,  they  would  be  much  more  likely  to 
be  read  by  making  them  short. 

In  regard  to  the  suggestion  of  the  gentleman 
from  Lowell,  (Mr.  Butler,)  he  thought  it  would 


248962 


•LOAN   OF   STATE   CREDIT,  &c. 


[58th  day. 


Friday,]  EARLE  —  KNOWLTON  —  STEVENS  —  WALKER  —  ALLEN  —  THOMPSON.         [July  15th. 


be  rather  inconsistent  for  him  to  accept  it  as  an 
amendment ;  but  he  would  say,  for  himself,  that 
if  the  order  was  adopted,  and  hereafter  at  the  close 
of  any  half  hour  speech,  there  should  be  a  cry  of 
"go  on,"  "go  on,"  he  would  pledge  himself  to 
rise  in  his  place,  and  object.  If  the  order  was 
adopted,  he  hoped  it  would  be  adhered  to  rigidly, 
and  he  could  see  no  reason  why  it  should  not  be. 

A  MEMBER  suggested  that  all  the  subjects  of 
importance  had  been  before  the  Convention,  and 
had  been  discussed  to  a  considerable  extent, 
and  there  was,  therefore,  no  more  need  of  long 
speeches. 

Mr.  EARLE,  of  Worcester,  said,  that  so  far  as 
he  was  personally  concerned,  he  did  not  care 
whether  the  order  was  adopted  or  not,  but  if  it 
was  adopted,  he  hoped  that  members  would  not 
be  allowed  to  go  on  by  general  consent,  beyond 
the  time  allotted  to  them  under  the  rule.  If  one 
member  was  allowed,  by  general  consent,  to  go 
on  beyond  his  time,  no  gentleman  would  think  of 
enforcing  the  rule  against  another  member  who 
desired  also  to  speak  more  than  his  time.  He 
hoped  the  rule  would  be  rigidly  enforced  if  it 
was  adopted.  And  he  gave  notice  that  if,  should 
it  become  one  of  the  rules  of  the  Convention,  and 
any  member  in  future  was  allowed  to  go  on  beyond 
his  time,  he  would  move  to  abrogate  the  rule 
itself. 

Mr.  KXOWLTON,  of  Worcester,  said,  he 
was  as  anxious  as  any  member  in  the  Convention 
to  bring  this  session  to  a  close.  He  had  given  a 
practical  demonstration  of  his  anxiety  in  that  res 
pect,  by  sitting  quietly  in  his  seat  ever  since  the 
session  first  commenced.  But  there  were  impor 
tant  questions  upon  the  table  of  the  Convention, 
which  had  not  been  touched.  There  was  one, 
especially,  which  he  had  been  waiting  a  fortnight 
for  an  opportunity  to  call  up,  but  had  not  yet 
found  a  chance — a  subject  which  is  regarded  by  a 
portion  of  the  community,  and  an  influential  por 
tion  too,  as  one  of  the  most  important  that  can  be 
brought  before  the  Convention.  While,  there 
fore,  he  did  not  wish  that  any  man  should  occupy 
the  time  of  the  Convention  for  a  moment  more 
than  necessity  required,  he  desired  that  the  sub 
ject  to  which  lie  had  referred  should  receive  more 
consideration  than  it  could  receive  in  a  half  hour 
discussion.  For  that  reason,  he  hoped  the  order 
would  not  be  adopted. 

Mr.  STEVENS,  of  Rehoboth,  remarked  that 
he  had  noticed,  since  the  hour  rule  was  adopted, 
that  when  members  had  spoken  to  the  extent 
of  their  limit,  there  was  a  general  cry  of  "go 
on,"  and  they  had  taken  it  for  granted  that  such 
was  the  desire  of  the  Convention,  and  without  any 
formal  action  upon  the  part  of  the  Convention 


granting  them  leave,  have  gone  on.  That  was  all 
right.  He  supposed  that  when  any  one  came  to 
the  end  of  his  hour,  and  no  one  cried  "  go  on," 
he  would  take  it  for  granted  that  the  Convention 
did  not  want  to  hear  him,  and  sit  down. 

Again,  he  had  noticed  that  when  any  attempt 
had  been  made  here  to  curtail  debate  in  any 
shape  whatever,  for  the  purpose  of  progressing 
more  rapidly  with  the  business,  nothing  had  been 
accomplished  by  it,  and  he  believed  no  good 
would  be  accomplished  by  the  adoption  of  this 
limit.  There  was  yet  important  business  to  come 
before  the  Convention.  The  gentleman  from 
Worcester,  (Mr.  Knowlton,)  had  referred  to  an 
important  matter  which  he  had  been  for  some 
time  waiting  for  an  opportunity  to  call  up. 

So  far  as  the  one  hour  system  was  concerned, 
if  any  gentleman  could  not  say  all  he  wanted  to 
say  in  that  time,  and  it  should  be  the  general 
wish  for  him  to  continue,  he  saw  no  objection. 
He  should  vote  against  the  adoption  of  the  order. 

Mr.  WALKER,  of  North  Brooktield,  trusted 
that  the  motion  would  prevail,  as  the  Convention 
ought  to  adjourn  next  week,  and  the  adoption  of 
this  rule  would  facilitate  such  a  result.  The  hour 
rule  had  worked  well,  and  although  in  a  few 
instances  speakers  had  been  allowed  to  go  on 
beyond  their  hour,  yet  we  had  gained  a  good 
deal  of  time  in  the  long  run  by  its  adoption.  He 
hoped,  therefore,  that  the  present  proposition 
would  be  adopted. 

Mr.  ALLEN  moved  the  following  amendment, 
to  come  in  at  the  end  of  the  resolution  : — "  Pro 
vided  the  chairman  of  each  Committee  of  the 
Convention  shall  be  allowed  one  hour  upon  the 
subject  of  his  Report." 

The  question  was  taken  on  the  amendment,  and 
it  was  agreed  to. 

The  question  was  then  taken  on  the  order  as 
amended,  and  it  was  agreed  to. 

Loan  of  State  Credit. 

The  PRESIDENT.  The  first  question  before 
the  Convention  is  upon  the  motion  of  Mr.  Thomp 
son,  of  Charlestown,  to  reconsider  the  vote  by 
which  the  resolve  concerning  the  loan  of  the 
State  credit,  was  ordered  to  a  second  reading. 

Mr.  THOMPSON,  of  Charlestown.  I  have 
but  few  words  to  say  in  reference  to  the  motion 
I  had  the  honor  to  submit  a  few  days  since.  I 
deem  the  question  to  be  too  important,  involving 
as  it  does  the  great  interests  of  the  Common 
wealth,  to  be  settled  by  so  thin  a  House  as  it  was 
the  day  when  the  amendment  was  offered  to  the 
original  Report,  and  adopted  by  the  Convention. 
I  am  opposed  to  that  amendment,  and  desire  to 
submit  some  reasons  why  I  am  thus  opposed. 


58th  day.] 


LOAN    OF    STATE   CREDIT. 


Friday,] 


THOMPSON  —  GRISWOLD. 


[July  loth. 


Sir,  I  am  opposed  to  thus  restricting  the  legisla 
ture  in  their  action  upon  a  matter  of  so  much 
interest  to  the  Commonwealth.  What  has  been 
the  experience  of  the  State  in  relation  to  the 
action  heretofore  taken  by  the  legislature  upon 
this  subject  of  loaning  the  credit  of  the  State  r 
Has  it  not  been  promotive  of  her  best  interests  ? 
I  believe  no  one  will  deny  that  it  has,  at  least  no 
member  has  as  yet  denied  it.  Has  it  not  done 
more  to  develop  the  mineral  and  other  resources 
of  the  Commonwealth,  to  build  up  villages  and 
increase  the  taxable  property  of  the  State  on  the 
lines  of  the  several  roads  to  which  the  loans  have 
been  made,  than  any  other  cause  ?  And  I  would 
ask,  has  the  Commonwealth  suffered  any  loss,  or 
is  it  within  the  range  of  probability  that  she  can 
suffer  any  loss,  from  the  course  pursued  on  this 
matter  ?  I  believe  no  one  will  for  a  moment  pre 
tend  that  she  has,  or  that  she  can.  Two  corpo 
rations  to  whom  smaller  loans  have  been  made  by 
the  State,  have  been  prepared  to  reimburse  to  the 
State,  and  if  I  am  correctly  informed,  have  offered 
to  redeem  the  whole,  or  a  large  portion  of  that 
loaned  to  them,  but  the  Commonwealth  declined 
taking  it.  How  stands  the  matter  with  reference 
to  the  oiher  great  corporation,  about  which  so 
much  has  been  said  here,  and  to  which  the  loan 
of  four  millions  of  dollars  was  made.  The  Com 
monwealth  holds  stock  of  that  corporation  to 
the  whole  amount  of  the  loan,  besides  having  a 
preference  over  the  whole  stock  held  by  individu 
als  in  that  corporation,  which  is  now  worth 
about  par,  and  has  been  within  a  short  time  above 
par,  and  could  have  been  sold  in  the  market  at  a 
profit  of  over  $50,000.  It  may  be  asked,  why 
was  not  that  done  ?  I  believe  a  good  and  suffi 
cient  answer  to  that  is,  it  was  for  the  interest  of 
the  Commonwealth  to  allow  it  to  remain,  for  the 
reason  that  the  State  was  receiving  from  that 
stock  seven  or  eight  per  cent,  interest,  and  she 
could  not  have  obtained  over  five  per  cent,  upon 
the  money  derived  from  the  sale  thereof ;  hence, 
as  a  business  transaction,  I  say  it  was  a  wise  and 
judicious  course  for  the  executive  to  refuse  to 
sell  the  stock,  or  take  any  portion  of  the  money. 

We  are  told  these  loans  were  an  experiment. 
Admit  they  were;  but  does  the  success  of  an 
experiment  furnish  any  argument  why  it  should 
not  be  repeated  ?  I  think  not. 

The  amendment  which  was  adopted,  I  conceive 
to  be  one  that  amounts  to  an  entire  prohibition  of 
loaning  the  credit  of  the  State,  under  all  or  any 
circumstances.  What  is  it,  and  what  does  it  re 
quire  ?  A  vote  of  two-thirds  of  both  branches  of 
the  legislature — a  greater  vote  than  is  required  to 
amend  the  Constitution.  I  think,  Sir,  it  would 
be  more  to  the  credit  of  the  Convention,  to  come 


up  openly  and  boldly,  and  assert,  in  the  organic 
law,  that  the  credit  of  the  State  shall  never  be 
loaned,  than  to  attempt  to  prohibit  it  by  such  an 
indirect  measure  as  this  amendment  would  prac 
tically  carry  out.  Sir,  I  am  in  favor,  in  all  cases, 
of  doing  things  openly  and  boldly,  and  not  by 
any  covert  means,  or  the  introduction  of  amend 
ments  which  may  have  some  plausibility  in  them, 
but  which,  when  they  come  to  be  applied  practi 
cally,  amount  to  a  prohibition,  as  much  as  if  ex 
plicit  words  to  that  effect  had  been  used  in  the 
Constitution.  I  wish  that  the  legislature  may 
stand,  in  reference  to  this  matter,  as  they  have 
stood  heretofore;  and,  as  I  before  remarked  in 
relation  to  the  experience  of  the  Commonwealth, 
it  does  strike  me  that  it  is  the  dictate  of  wisdom 
to  profit  by  the  experience  of  the  past.  Gener 
ally,  in  business  matters,  the  lessons  of  experience 
are  the  most  advantageous  and  profitable ;  and  I 
think  we  need  not  fear  any  loss  by  following  the 
experience  of  the  past  in  this  matter,  and  allow 
every  case  that  comes  up  to  be  judged  of  or  acted 
upon  in  reference  to  its  merits.  There  may  be, 
and  I  have  no  doubt  there  will  be,  cases  come  up 
when  the  interests  of  the  Commonwealth  may  be 
promoted  to  as  great  an  extent  as  they  have  been 
in  times  past ;  but  if  we  allow  this  amendment  to 
remain  as  the  action  of  this  Convention,  however 
great  may  be  the  necessity,  and  however  much  the 
interests  of  the  Commonwealth  might  be  pro 
moted  by  carrying  out  or  adopting  the  same 
policy  which  has  been  heretofore  pursued,  the 
gates  are  entirely  closed  against  the  adoption  of 
any  such  policy.  I  hope,  therefore,  that  the  re 
strictive  amendment  will  be  rejected,  upon  farther 
consideration,  and  that  we  shall  trust  the  servants 
of  the  people  to  legislate  upon  this  subject  as  they 
have  in  times  past,  believing,  as  I  do  most  fully, 
that  the  interests  of  the  Commonwealth  will  be 
guarded  and  protected,  and  that  we  may  expect  a 
promotion  of  our  true  interests,  instead  of  any 
loss  which  may  accrue  from  such  a  course. 

Mr.  GUIS  WOLD,  for  Erving.  I  have  been 
desirous,  at  some  stage  of  the  proceedings,  to  make 
a  few  remarks  in  relation  to  this  matter,  and  I 
will  now  occupy  but  a  few  minutes  of  the  time 
of  the  Convention.  It  seems  to  me  that  some 
false  issues  have  been  raised  in  the  course  of  this 
discussion.  In  the  first  place,  the  proposition 
which  has  been  adopted  by  the  Convention,  and 
which  it  is  now  proposed  to  reconsider,  will  have 
the  effect  of  putting  it  out  of  the  power  of  the 
legislature  hereafter  to  make  a  loan  in  any  case ; 
because,  if  you  make  a  restriction  that  it  shall 
require  a  vote  of  two-thirds  of  each  branch  of  the 
legislature,  any  gentleman  can  see  that  it  is  equiv 
alent  to  shutting  down  the  gate  altogether.  I 


LOAN   OF   STATE   CREDIT. 


[58th  day. 


Friday,] 


GRISWOLD. 


[July  15th. 


have  taken  the  trouble  to  go  back  and  examine 
the  yeas  and  nays  upon  the  loans  which  have 
been  made  heretofore,  and  I  find  that  where  they 
were  taken  in  the  House,  in  no  one  instance— I 
have  only  examined  those  in  relation  to  the  West 
ern  Railroad— did  one  of  these  loans  pass  by  a 
vote  of  two- thirds  of  the  members  present.  If 
you  require  a  vote  of  two-thirds  of  all  elected,  it 
is  nearly  absolutely  certain  that  no  loan  hereafter 
can  be  passed  by  the  legislature,  so  that  the  ques 
tion  before  this  Convention  is,  whether  you  will 
do  as  you  have  done  in  times  past,  and  leave  it  to 
the  legislature  to  settle  these  matters  upon  their 
merits,  or  whether  you  will  put  an  absolute  pro 
hibition  into  the  Constitution.  That  is  the  prac 
tical  effect  of  the  proposition  which  we  now  pro 
pose  to  reconsider.  I  am  not  a  little  surprised  at 
the  course  which  this  question  has  taken.  Who 
supposed,  when  this  Convention  was  called,  that 
the  proposition  would  be  seriously  entertained 
here  of  incorporating  a  provision  in  your  Consti 
tution  which  should  forever  after  tie  up  the  hands 
of  the  legislature,  and  put  it  out  of  their  power  to 
enter  upon  and  maintain  such  a  policy,  however 
great  the  emergency  might  be  for  a  different 
course  of  policy.  This  is  a  new  proposition.  It 
was  not  entertained  by  gentlemen  who  first  advo 
cated  the  proposition  for  calling  this  Convention. 
I  think  that  our  true  policy  requires  that  we 
should  make  such  changes,  and  such  only,  in  the 
Constitution  as  are  clearly  warranted  and  de 
manded  by  the  public  sentiment  of  the  Common 
wealth.  I  think  it  would  be  a  short-sighted  and 
dangerous  policy  for  this  Convention  to  enter 
upon  experiments  and  incorporate  into  the  Consti 
tution  a  provision  in  regard  to  which  no  great 
feeling  was  entertained — a  provision  which,  per 
haps,  in  its  results,  might  endanger  the  whole 
Constitution.  I  say  then,  as  a  matter  of  expedi 
ency,  let  us  confine  ourselves  in  our  action  here 
to  those  changes  which  the  public  clearly  de 
mands,  and  upon  which  there  cannot  be  that 
diversity  of  sentiment  which  must  exist  in  regard 
to  the  question  now  before  us.  In  the  first  place, 
is  there  any  necessity,  any  exigency  for  incorpo 
rating  such  a  provision  into  the  Constitution  ?  I 
do  not  now  raise  the  question  as  to  the  expediency 
or  propriety  of  granting  loans  by  the  State  at  all ; 
but  is  there  anything  in  the  past  experience  of 
Massachusetts  which  requires  that  any  such  pro 
vision  should  be  incorporated  into  the  Constitu 
tion  ?  None  whatever.  Massachusetts  has  loaned 
her  credit  to  seven  different  railroad  corporations. 
Almost  every  portion  of  the  Commonwealth  has 
received  the  benefit  of  the  resources  of  the  Com 
monwealth  in  this  respect,  and  every  one  of  these 
loans  has  been  perfectly  safe  to  the  Common 


wealth.  I  have  taken  the  trouble,  in  order  to  put 
this  question  at  rest,  to  examine  this  matter  my 
self,  and  I  have  a  letter  also  before  me  from  the 
auditor  of  the  Commonwealth,  who  of  course  is 
perfectly  familiar  with  this  whole  subject,  in 
which  he  says  that  there  is  no  probability  that 
the  State  will  ever  lose  the  first  dollar  by  it. 
Every  one  of  these  lines  is  perfectly  secure ;  the 
interest  has  been  promptly  paid  whenever  it  was 
due,  and  the  principal  itself  is  sufficiently  secured 
in  future,  and  two  of  the  roads  have  paid  up  the 
loans.  If  this  be  so,  what  is  the  reason  for  incor 
porating  into  the  Constitution  a  provision  such 
as  this,  when  the  legislature  has  hitherto  been  a 
wise  and  safe  depository  of  this  power.  Why, 
gentlemen  say,  because  other  States  have  run  fool 
ishly  into  debt.  This  reminds  me  of  a  person  in 
health  sending  for  a  physician.  The  physician 
calls,  and  he  tells  his  patient  that  he  is  not  sick, 
and  that  he  has  no  need  of  a  physician  ;  but  the 
individual  says,  My  neighbor  is  sick,  and  I  shall 
certainly  be  sick,  and  I  must  take  some  medicine  ; 
and  thus,  against  the  protestations  of  the  physi 
cian,  he  concludes  to  take  medicine  and  thus  de 
stroys  his  health,  when,  if  he  had  let  it  alone,  he 
would  have  been  quite  well.  The  fact  that  other 
States,  upon  this  subject  of  granting  loans,  have 
run  into  experiments,  is  no  argument  for  Massa 
chusetts. 

Allow  me  to  say  a  single  word  in  relation  to 
the  matter  of  our  farms  being  mortgaged.  I  do 
not  know  that  I  should  have  said  anything  upon 
this  point,  had  it  not  been  that  an  appeal  was 
made  to  the  Democratic  portion  of  this  Conven 
tion.  I  know  very  well  that  at  one  time  there 
was  a  great  cry  in  this  Commonwealth  that  our 
farms  were  all  mortgaged  in  consequence  of  loans 
to  the  Western  Railroad.  I  am  free  to  confess 
that  I  joined  in  that  cry  myself;  and  it  was  one 
of  those  things  which  the  party  with  which  I  was 
associated  used  for  political  capital  for  several 
years.  I  was  honest  in  the  sentiments  I  then  en 
tertained,  that  our  farms  were  mortgaged,  and 
that  these  loans  were  not  safe  ;  but  a  most  care 
ful  examination  of  the  whole  matter,  together 
with  the  experience  of  eight  or  ten  years,  has 
convinced  me — and  I  am  equally  honest  in  say 
ing  now  what  I  know  to  be  true — that  there  is 
no  incumbrance  whatever  upon  our  farms  in  this 
respect,  but  on  the  other  hand,  there  can  be  no 
doubt  that  the  real  and  personal  property  of  Mas 
sachusetts  has  been  advanced  in  value  by  these 
loans,  many  millions. 

Why,  Sir,  I  speak  from  the  book  in  relation  to 
this  matter,  for  I  have  been  now  nearly  four  years 
in  the  direction  of  the  Western  Railroad,  as  one 
of  the  State  Directors.  Will  gentlemen  just  look 


58th   day.] 


LOAN   OF   STATE   CREDIT. 


Friday,; 


GRISWOLD. 


[July   15th. 


for  one  moment  at  the  position  of  the  Common 
wealth  of  Massachusetts  in  relation  to  the  Western 
Railroad.  That  road,  in  round  numbers,  cost 
$10,000,000  ;  $5,000,000  of  which  is  represented 
by  capital  stock,  $4,000,000  of  which  is  owned  by 
private  stockholders,  and  $1,000,000  by  the  State. 
The  other  $5,000,000  is  represented  by  scrip ; 
$4,000,000  of  which  is  State  scrip,  or  sterling 
bonds,  and  $1,000,000  of  which  is  scrip  of  the 
city  of  Albany.  Two  sinking  funds  are  provided, 
one  for  each  amount  of  scrip.  These  funds  are 
instituted  by  the  premium  on  the  sale  of  the  scrip, 
one  per  cent,  which  the  Western  Railroad  is 
obliged  by  law  to  pay,  annually,  into  each  fund, 
and  the  annual  increase  of  the  funds  by  interest. 

Since  the  opening  of  the  road  from  end  to  end, 
that  is,  since  about  1844,  the  Western  Railroad 
has  paid  the  interest  on  this  five  millions  of  scrip, 
has  paid  one  per  cent,  annually  into  each  of  the 
sinking  funds ;  has  built  a  second  track  from 
Worcester  to  Springfield ;  has  greatly  improved 
its  baggage  and  passenger  cars  ;  has  built  new, 
large  and  commodious  depot  buildings  and  freight 
houses  along  its  whole  line  ;  has  paid  an  annual 
loss  of  from  five  to  $8,000  on  the  guaranty  on 
the  Pittsfield  and  North  Adams  Railroad ;  has 
paid  its  president  a  salary  of  $5,000  annually,  and 
other  officers  and  agents  in  proportion,  has  suf 
fered  a  defalcation  which  shocked  the  whole  finan 
cial  community,  resulting  in  a  loss  of  from  $50,- 
000  to  $75,000 ;  has  a  contingent  fund  of  over 
$100,000,  and  during  this  period  has  paid  upon 
the  five  millions  of  stock  a  semi-annual  dividend 
of  four  per  cent. 

Now,  what  is  the  state  of  this  matter  ?  The 
sinking  fund  of  the  Western  Railroad  loan  is  now 
nearly  $800,000  ;  the  sinking  fund  of  the  Albany 
loan  is  more  than  $350,000.  The  sterling  bonds, 
the  scrip  issued  by  the  State,  is  payable  in  thirty 
years  from  the  time  it  was  issued,  and  of  course 
about  1870,  and  the  Albany  scrip  is  payable,  I 
believe,  about  the  same  time.  If  you  will  go 
down  to  the  auditor's  room  and  see  him,  (he 
having  made  the  calculations,)  he  will  tell  you 
that  if  the  Western  Railroad  continues  as  it  has 
for  the  last  few  years,  it  is  absolutely  certain  that 
in  1870  it  will  be  nearly  or  quite  able  to  meet  the 
$4,000,000  scrip,  the  sterling  bonds,  and  the 
$1,000,000  Albany  scrip.  Then  what  have  you  ? 
You  will  have 

Mr.  HOPKINSON,  of  Boston.  I  wish  to  ask 
the  gentleman  for  Erving,  a  question.  I  wish  to 
know  if  the  Western  Railroad  Company  has  paid 
four  per  cent,  annually  from  the  time  the  stock 
was  paid  in. 

Mr.  GRISWOLD.  I  said  from  about  the  time 
the  road  was  completed,  which  was  in  1844  or  1845. 


Mr.  HOPKINSON.  I  think  it  is  not  more 
than  about  three  and  a  half  per  cent,  since  the 
stock  was  paid. 

Mr.  GRISWOLD.     I  presume  that  may  be  so. 

Mr.  HOPKINSON.  Does  the  gentleman  say 
that  the  double  track  was  built  out  of  the  income 
of  the  road  ? 

Mr.  GRISWOLD.  I  suppose  it  was  not.  I 
am  only  stating  general  facts  in  relation  to  the 
road.  What  I  say  is  this, — and  you  will  not  rely 
on  my  authority,  if  you  will  look  through  the 
Auditor's  Reports  of  the  last  few  years,  you  will 
see  the  same  facts  stated  there, — that  you  will 
find  that  in  1870,  these  five  millions  of  scrip  will 
be  nearly  or  quite  paid  off.  Then  how  will  the 
Western  Railroad  stand  ?  Why,  the  entire  income 
of  that  road  will  be  applied  upon  the  five  mil 
lions  of  stock,  one  million  of  which  the  State  owns. 

Now  the  interest  which  the  Western  Railroad 
pays  annually  on  the  $5,000,000  of  scrip,  and  the 
one  per  cent,  which  it  pay  sinto  the  sinking  funds, 
will  then  be  divided  upon  the  five  millions  of 
stock,  in  addition  to  the  eight  per  cent.  Avhich  we 
now  divide  annually,  making  fifteen  cents  on  the 
dollar,  which  they  will  divide  after  about  1870, 
upon  the  five  millions  of  stock.  So  that,  instead 
of  the  State's  ever  losing  a  dollar  from  the 
Western  Railroad,  if  we  can  believe  in  the  future, 
she  will  double  the  value  of  her  million  dollars 
of  stock  which  she  now  owns.  Every  dollar  will 
be  worth  double  its  par  value.  The  auditor  has 
reached  the  same  conclusions  in  his  reports  for 
the  last  few  years. 

Now  what  incumbrance  is  that  upon  the  farms 
in  Massachusetts  ?  It  is  the  same  incumbrance 
which  the  issue  of  scrip  in  the  city  of  Boston, 
for  obtaining  Cochituate  water  is,  or,  rather  it  is 
not  half  as  bad,  for  I  understand  that  the  in 
come  from  the  water  does  not  pay  the  interest  on 
the  scrip  issued  for  obtaining  this  water.  But 
the  introduction  of  this  water,  at  the  expense  of 
more  than  five  million  dollars  of  scrip  of  the  city 
of  Boston,  has  advanced  the  value  of  the  real 
estate  in  this  city,  and  why  ?  Because  the  bene 
fits,  present  and  prospective,  arising  from  the 
Cochituate  water,  are  greater  than  the  interest  on 
the  five  millions  or  more  of  scrip  which  they 
have  issued  to  bring  that  water  into  the  city  of 
Boston.  It  is  just  so  in  the  matter  of  the  State 
scrip,  only  it  is  a  much  better  case.  I  am  willing 
to  stand  upon  the  facts  in  the  case,  and  I  dislike 
to  have  gentlemen  take  us  back  to  the  old  issue 
upon  the  subject  of  having  our  farms  mortgaged. 
I  know  very  well  that  the  party  with  which  I 
was  connected,  thought,  at  that  time,  the  loans 
would  be  unsafe,  and  I  dare  say,  if  I  had  been  a 
member  of  the  legislature  at  that  time,  I  should 


LOAN   OF   STATE   CREDIT. 


[58th  day. 


Friday/ 


GRISWOLD. 


[July   15th. 


have  voted  against  them  myself.  But  all  experi 
ence  has  shown  us  that  the  loans  are  safe,  and 
that  the  State,  so  far  from  losing  anything,  will 
make  a  half  a  million  or  a  million  of  dollars,  if 
she  holds  her  stock  till  1870. 

But  the  great  point  in  this  question,  is  this. 
Will  you  leave  this  matter  to  the  legislature,  or 
will  you  submit  it  to  the  people,  or  require  a 
two -thirds  vote  ?  The  question  of  submitting  it 
to  the  people,  I  think,  is  now  out  of  the  case ; 
that  has  been  decided  shall  not  be  done.  It  seems 
to  me  that  as  this  policy  has  worked  well  hereto 
fore,  as  the  State  has  incurred  no  risk,  as  the 
State  is  in  no  possible  danger  from  any  loan 
hitherto  made,  it  is  the  part  of  wisdom  and  good 
policy  to  leave  it  where  we  find  it.  It  will  be 
soon  enough  to  put  in  a  constitutional  provision 
upon  the  subject,  whenever  the  State  is  in  danger 
in  this  respect. 

I  will  say  that,  as  something  has  been  said  in 
relation  to  the  Iloosac  Tunnel,  that  is  not  the 
issue  before  this  Convention.  It  is  not  properly 
raised  in  this  connection.  The  question  is,  whether 
we  will  trust  the  legislature,  who  are  the  proper 
judges,  and  before  whom  the  facts  in  one  case 
and  another  can  be  presented,  so  that  they  will 
be  able  to  understand  them.  The  question  is, 
not  as  to  this  measure  or  that  measure  ;  and  I 
am  not  to  be  drawn  into  a  controversy  on  such 
an  issue,  for  I  am  unwilling  to  tie  up  my  hands 
in  that  manner.  Other  counties,  the  county  of 
Bristol,  the  county  of  Plymouth,  the  county  of 
Barnstable,  the  county  of  Essex,  and  even  the 
county  of  Suffolk,  may  need  this  aid.  The  time 
may  come  when  it  will  be  an  object  of  immense 
importance  that  a  loan  should  be  nade  by  the 
State,  for  an  object  in  one  or  the  other  of  these 
counties,  which  every-body  will  agree  is  impor 
tant  and  safe.  Now  will  you  put  a  provision 
into  this  Constitution  which  will  tie  forever  the 
hands  of  the  legislature,  when  you  might  as  well 
leave  it  as  it  has  been  left  in  the  past,  to  the  dis 
cretion  of  the  legislature,  which  has  acted  wisely 
and  safely  heretofore  ? 

I  wish  to  say  a  single  word  farther.  I  dislike 
to  allude  to  matters  that  concern  party,  and  I 
rarely  or  never  do  it  in  debate.  But  an  appeal 
has  been  made,  evidently  with  a  design  to  influ 
ence  some  gentlemen  with  whom  I  am  politically 
connected,  or  the  party  with  which  I  am  asso 
ciated.  Now,  allow  me  to  say,  it  has  always  been 
a  Democratic  doctrine  in  this  country,  so  far  as  I 
understand  it,  to  favor  internal  improvements  ; 
and  every  Democratic  president,  from  Jefferson 
down  to  president  Pierce,  has  done  it.  Jefferson, 
Madison,  Monroe,  Jackson,  and  Polk,  each  in 
urn,  suggested  to  the  people  of  this  country,  the 


propriety  of  changing  their  Constitution,  so  that 
a  system  of  internal  improvements  could  be  car 
ried  on  by  the  general  government,  so  powerfully 
were  these  great  men  impressed  with  the  necessity 
of  internal  improvements,  and  with  the  belief  that 
the  Constitution  did  not  permit  them  to  be  made 
by  the  general  government,  except  to  a  limited 
extent.  And  several  of  them  strongly  recom 
mended  that,  so  long  as  it  could  not  be  done  by 
the  general  government  with  the  United  States 
Constitution  unamended,  it  should  be  done  by 
the  States  themselves,  which  would  better  un 
derstand  the  wants  of  each  locality.  I  do  not 
wish  to  ad  vise  to  enter  upon  any  rash  experiments. 
I  would  not  grant  a  loan  in  every  case,  but  I 
would  leave  that  power  with  the  legislature ;  so 
that  whenever  there  is  a  necessity,  and  wherever 
there  is  a  great  public  exigency,  and  the  loan  can 
be  safely  made,  I  would  make  it,  at  least.  I 
would  leave  it  to  the  legislature,  which  is  the 
proper  body  to  settle  that  question.  Shall  we 
sit  here  to  forge  chains  and  shackles  and  sepul 
chres,  I  may  say,  for  the  industry  of  Massachu 
setts  ?  For  one,  I  will  not  do  it. 

I  have  not  time,  but  I  should  like  if  I  had  a 
few  moments,  and  if  I  had  the  ability,  to  set  forth 
the  advantages  which  have  accrued  to  Massachu 
setts,  to  Boston,  and  to  every  part  of  the  State,  from 
the  great  railroad  enterprises  which  were  aided,  to 
a  very  great  extent,  by  the  credit  of  the  Common 
wealth,  many  of  which  would,  probably,  not 
have  been  built  without  that  aid.  And  this  aid 
has  been  granted,  too,  without  the  Commonwealth 
being  in  danger  of  losing  the  first  mill,  and  by 
simply  endorsing  this  paper.  I  would  like,  if  I 
had  time,  to  set  forth  in  my  poor  way,  some 
advantages  which  have  accrued  to  the  people  of 
this  Commonwealth  from  these  loans,  or  from  the 
railroads  to  which  they  were  loaned.  Sir,  stand 
ing  here,  we  seem  to  underrate  the  great  advan 
tages  to  the  farmers,  the  mechanics,  to  the  manu 
facturers,  to  the  mercantile  interests,  and  to  all 
the  industrial  pursuits  in  Massachusetts,  accruing 
directly  and  immediately  from  the  construction  of 
these  railroads.  Look  over  the  valuation  of  1850 ; 
look  at  Pittsfield,  and  Springfield,  and^Vorcester, 
and  Boston,  and  Lowell,  and  Fitchburg,  and  all 
the  main  points  where  these  great  railroads  pass, 
and  look  at  the  millions  and  millions  of  increase 
of  property.  It  is  a  direct  and  immediate  result, 
to  a  very  great  extent,  of  the  construction  of  these 
roads.  Sir,  when  the  policy  of  Massachusetts  has 
resulted  in  such  beneficence  and  advantage  to 
the  State,  I  am  surprised  that  there  is  any  man 
of  any  party  who  will  come  up  here  and  seriously 
propose  to  shut  down  the  gate  entirely,  and  put 
it  out  of  the  power  of  the  legislature,  even  in  the 


58th  day.] 


LOAN   OF   STATE   CREDIT. 


Friday,] 


WILKINS. 


[July  15th. 


greatest  exigency  and  the  safest  loan,  to  grant  the 
credit  of  the  State. 

Sir,  for  one,  I  take  my  stand  on  the  side  of 
internal  improvements  ;  not  that  I  would  embark 
the  credit  of  the  State  to  an  unreasonable  or  un 
safe  extent ;  but,  for  one,  living  in  this  age,  I 
take  my  stand  in  favor  of  internal  improvements, 
and  I  undertake  to  say  that  no  man  can  stand  up 
and  defend  himself  in  Massachusetts,  in  New 
England,  in  New  York,  or  in  this  country,  who 
is  opposed  to  internal  improvements. 

I  hope,  Mr.  President,  that  this  matter  will  be 
left,  as  it  has  been  before,  with  the  legislature. 
There  is  no  danger  of  any  unsafe  loan  being 
made.  The  great  corporations  which  are  inter 
ested  to  defeat  any  loans,  using  their  influence  in 
comiection  with  men  who  are  themselves  opposed 
to  these  loans,  will  be  power  enough  for  any  com 
pany  who  wish  for  a  loan,  to  meet ;  and  there 
will  be  no  danger  whatever,  that  an  imprudent 
or  unsafe  loan  will  be  made  hereafter. 

Mr.  WILKINS,  of  Boston.  Mr.  President. 
It  has  been  no  purpose  of  mine,  to  occupy  a  mp- 
ment  of  the  time  of  this  Convention  in  discuss 
ing  this  subject.  I  have  listened  to  the  discus 
sion,  thus  far,  without  wishing  to  be  heard,  be 
cause  I  thought  I  saw  that  the  sense  of  this  body 
was  correct,  and  needed  no  aid  from  me,  in  com 
ing  to  a  correct  conclusion.  But  the  position  of 
this  matter  has  undergone  a  change — the  right 
appears  to  me  in  jeopardy — and  I  must  claim  the 
indulgence  of  the  Convention,  while  I  briefly 
express  my  views  upon  it. 

It  is  altogether  too  late  to  attempt  to  disguise 
the  fact,  that  the  topic  under  discussion  is  indis- 
solubly  connected  with  the  Hoosac  Tunnel.  The 
first  speech  made  on  the  subject,  by  the  gentle 
man  from  Abington,  (Mr.  Keyes,)  has  dovetailed 
them  together ;  and  nearly  every  subsequent 
speech  and  vote  has  only  demonstrated  the  con 
nection.  Hence,  it  has  seemed  to  me,  that  we 
have  been  engaged,  while  discussing  this  matter, 
in  legislation,  and  that  of  the  worst  kind  :  special 
legislation.  And,  it  would  have  been  hardly  an 
inappropriate  mode  of  proceeding,  to  have  issued 
an  order  of  notice  to  the  Troy  and  Greenfield 
Railroad,  so  that  they  might  appear  with  their 
counsel  and  witnesses,  and  have  a  full  hearing 
upon  the  merits  of  their  case,  before  the  Com 
mittee  of  the  Whole. 

It  is  true  that  some  few  have  addressed  this 
body,  either  in  Convention  or  in  Committee,  upon 
the  merits  of  the  question,  without  any  apparent 
bias.  My  colleague,  who  early  addressed  the 
Committee,  (Mr.  Hillard,)  in  favor  of  the  Report 
of  the  Committee,  and  the  gentleman  represent 
ing  Manchester,  (Mr.  Dana,)  and  my  colleague, 


(Mr.  Gray,)  who  immediately  followed  him,  both 
in  favor  of  the  Report,  seem  to  me  to  have  fully 
and  satisfactorily  met  every  argument  that  has 
been  or  can  be  brought  on  the  other  side — and 
they  have  kept  aloof  from  present  exigencies,  and 
from  preconceived  opinions. 

But  how  is  it  with  some  others  who  have  taken 
part  in  this  debate  ?  Are  they  in  a  position  to 
bring  to  this  topic  unbiased  opinions,  and  candid 
judgment — and  are  their  arguments  entitled  to 
the  right  in  this  matter,  which  we  should  all 
deem  them  entitled  to  on  indifferent  subjects  ? 

The  gentleman  from  Taunton,  (Mr.  Morton,) 
has  taken  a  conspicuous  part,  and  made  untiring 
efforts  to  defeat  the  acceptance  of  the  Report,  and 
what  is  his  position  ?  Why,  Sir,  he  has  himself 
told  us,  that  his  views  on  State  credit  were  put 
upon  record  many  years  ago ;  and  some  of  us 
well  remember  them.  He  has  himself  alluded  to 
the  probable  fact,  that  in  consequence  of  these 
recorded  opinions,  he  found  that  he  was  obliged 
to  quit  a  temporary  office,  for  the  attainment  of 
which  he  had  given  up  a  permanent  one.  If 
that  gentleman  has  any  regrets  for  the  change  he 
then  made,  I  will  assure  him  that  I  believe  he 
has  the  hearty  sympathy  of  his  political  oppo 
nents.  We,  then,  and  still  think,  he  left  an 
office,  the  duties  of  which  he  was  eminently  well 
qualified  to  discharge,  and  was  discharging,  with 
great  usefulness  and  acceptance,  and  entered  upon 
another  office,  about  his  qualifications  to  fill 
which,  there  were  at  least  two  opinions  at  the 
time,  though  there  appears  to  have  been  an  ap 
proximation  to  one  sentiment  on  the  subject  be 
fore  the  year  expired. 

Now,  Sir,  it  appears  that  this  sentiment  con 
cerning  the  credit  of  the  State,  formed  and  enun 
ciated  in  the  dark  prospects  which  then  over 
hung  the  Western  Railroad  enterprise,  is  still, 
with  him,  a  cherished  sentiment.  It  has  cost 
him  too  much  not  to  be  highly  prized,  and  he 
now  is  desirous  that  the  Convention  and  the  peo 
ple  should  adopt  what  the  people  then  repudiated. 
The  gentleman  undoubtedly  formed,  and  still  cher 
ishes  this  opinion,  in  all  honesty  and  sincerity ; 
but  I  submit,  whether  there  be  not  with  him 
some  pride  of  opinion,  some  stickling  for  con 
sistency,  which  may  obscure  his  better  judgment, 
under  the  particular  circumstances  of  the  present 
case ;  and  whether  he  has  not  attached  a  value 
to  this  opinion,  derived  rather  from  what  it  has 
cost  him,  than  what  it  is  worth  to  us. 

And  how  is  it  with  other  gentlemen,  who  are 
throwing  obstacles  in  the  way  of  accepting  the 
Report  ?  One  of  my  colleagues,  (Mr.  Hopkin- 
son,)  who  has  twice  spoken  on  the  matter  in  op 
position,  (though  I  was  not  present  to  hear  him,) 


LOAN   OF   STATE   CREDIT. 


[58th  day. 


Friday,] 


WlLKJNS. 


[July  15th. 


daily  eats  the  bread  that  flows  from  the  bounty  of 
the  State.  Though  not  connected  with  the  West 
ern  Ilailroad,  that  I  know  of,  yet  he  is  most  inti 
mately  connected  with  another  corporation  whose 
life's  blood  is  derived  from  the  Western,  and  the 
Norwich  and  Worcester  Railroads — both  of  which 
owe  their  existence  to  the  credit  of  this  State. 
Now,  Sir,  situated  as  that  gentleman  is,  sur 
rounded  by  such  accidents  as  he  is,  he  must  feel 
no  surprise  if  much  less  weight  be  attached  by 
others  to  his  arguments  and  suggestions,  than 
he  thinks  them  entitled  to,  and  which,  under 
other  circumstances,  they  would  undoubtedly  be 
entitled  to. 

But  my  catalogue  is  not  yet  finished.  One 
other  colleague,  (Mr.  Giles,)  has  proposed  an 
amendment  which  threatens  the  acceptance  of  the 
Report ;  and  still  another  colleague  has  announced 
his  intention  to  offer  another  in  opposition,  if  an 
opportunity  occurs.  And,  what  is  the  position  of 
these  gentlemen  in  relation  to  this  matter  ?  I  find 
them,  Sir,  both  to  have  been  opponents  to  the 
Hoosac  Tunnel  bill,  in  the  House  of  Represent 
atives  in  April  last.  Among  the  nays  upon  the 
passage  of  that  bill,  I  find  both  their  names  re 
corded,  with  those  of  seven  others  only  of  the  Bos 
ton  delegation.  Now,  Sir,  these  gentlemen  are 
committed,  both  of  them,  upon  this  matter.  They 
have  pree'xistent  opinions  to  sustain,  a  consis 
tency  to  maintain ;  and  they  appear  to  be  throw 
ing  the  weight  of  their  talents  into  a  scale  here  to 
defeat  a  measure  which  they  were  unable  to  defeat 
in  the  House  of  Representatives.  If,  Sir,  these 
gentlemen  had  voted  for  that  bill,  and  now 
should  propose  to  take  from  the  legislature  the 
power  to  make  such  grant,  then  we  should  have 
proof  that  these  gentlemen  were  actuated  by 
principle  and  an  unbiased  judgment ;  and  that  in 
this  course  they  were  seeking  the  public  good, 
though  it  would  conflict  with  a  great  enterprise, 
to  which  they  had  showed  themselves  to  be  en 
tirely  friendly.  But,  we  have  no  such  exhibition 
before  us  ;  but  on  the  contrary,  we  witness  en 
deavors  011  their  part  to  induce  measures  that  will 
embarrass  and  defeat  a  great  public  enterprise, 
and  this  under  circumstances  calculated  to  raise  a 
doubt  of  the  unbiased  character  of  their  judg 
ments  and  opinions  upon  those  measures. 

Here,  Sir,  I  close  what  I  have  to  say  upon  the 
debate  thus  far.  I  will  now  address  myself  to 
the  matter  in  hand,  and  advert  to  some  matters 
not  yet,  I  believe,  touched  upon. 

In  settling  the  basis  of  representation,  this 
Convention  has  departed  from  what  it  regarded 
right,  and  has  bowed  to  the  paramount  force — 
exigency.  Were  we  beginning  the  formation  of  a 
government,  we  should  have  formed  one  different 


ly.  We  found  we  were  too  late  in  the  day  to  fol 
low  out  theory,  but  were  obliged  to  be  controlled 
by  practice.  Now,  Sir,  it  seems  to  me  that  we  are 
in  precisely  the  same  predicament  in  relation  to 
State  credit.  It  is  too  late  to  set  up  a  theory, 
but  we  must  be  controDed  by  practice.  The 
current  of  State  bounty  and  of  State  credit  is 
already  in  motion ;  its  refreshing  influence  has 
already  been  felt,  and  its  sustaining  power  has 
imparted  its  blessings.  Credit,  both  public  and 
private,  is  the  great  instrument  by  which  the 
miracles  of  civilization  are  being  wrought  in  this 
nineteenth  century.  We  have  all  read  the  beau 
tiful  simile  of  Junius,  which  is  no  more  beautiful 
than  true.  "  Individual  credit,"  says  he,  "  is 
wealth ;  public  honor,  is  security ;  the  feather  that 
adorns  the  royal  bird,  supports  his  flight— strip 
him  of  his  plumage  and  you  fix  him  to  the 
earth." 

Credit,  Sir,  both  public  and  private,  is  the  great 
element,  the  chief  ingredient,  of  all  true  progress 
in  civilization  and  refinement.  By  it,  the  expe 
rience  of  the  past  and  the  hopes  of  the  future  are 
made  to  blend  and  work  in  the  present.  With 
out  it,  we  should  retrograde,  and  with  rapid 
strides  should  return  to  barbarism.  It  enters 
deeply  into  our  social  system  and  civil  relations. 
It  is  like  the  air  we  breathe,  everywhere  circum 
ambient,  but  ever  unfelt.  Deprive  us  of  it,  even 
in  a  slight  degree,  and  we  pine  and  die.  It  is  a 
system  of  mutual  obligation  and  mutual  forbear 
ance.  It  grows  and  flourishes  upon  mutual 
wants  and  mutual  benefits  ;  and  it  unites  and  knits 
together  the  mass  of  a  community,  so  that  it  acts 
and  works  to  one  end  like  one  man. 

Now,  Sir,  I  say  it  is  too  late  to  rise  up  and  stay 
this  current  of  public  credit  in  this  State.  It  has 
been  beneficially  exercised.  Its  blessing  are  felt 
every  day  ;  and  these  blessings  are  of  two  kinds, 
one  public  and  the  other  private.  The  credit  of 
the  State  has  been  applied  to  improvements  in 
the  northern,  the  eastern,  the  southern,  and  the 
western  parts  of  the  State  ;  but  not  in  the  north 
western.  The  ground  on  which  this  credit  was 
loaned,  was  that  the  whole  State,  the  public,  was 
to  be  benefited  thereby.  This  was  true  ground  ; 
but  individual  benefit  and  private  good  were  also 
blended  therein.  For  example,  the  Western 
Railroad  was  aided  because  it  was  deemed  to  be 
a  benefit  to  the  whole  State.  But,  besides  this 
public  benefit,  every  farmer  and  mechanic  on  the 
line  of  the  road,  received  a  personal  and  private 
benefit  which  was  not  partaken  of  in  any  consider 
able  degree  by  others  of  the  line. 

Now,  to  accomplish  these  public  and  private 
benefits,  the  credit  of  the  State  has  been  loaned, 
and,  as  the  gentleman  representing  Wilbraham, 


58th  day.] 


LOAN   OF   STATE    CREDIT. 


Friday,] 


WILSONS. 


[July  15th. 


truly  remarked,  every  man's  farm  and  stock  has 
been  mortgaged  for  its  redemption.  To  construct 
the  Western  Railroad,  the  farms  in  Shelburne 
have  been  just  as  heavily  mortgaged  as  the  farms 
in  Chester  ;  but,  besides  the  public  benefit  derived 
therefrom,  which  accrues  to  the  inhabitants  of 
both  Shelburne  and  Chester  equally,  there  has 
accrued  to  the  inhabitants  of  Chester  an  enormous 
private  benefit  which  is  not  shared  at  all  by  the 
inhabitants  of  Shelburne.  This  benefit  lies  in 
the  increased  value  of  land,  of  water  power,  and 
other  articles,  growing  out  of  the  increased  facility 
of  reaching  a  market. 

Out  of  this  very  unequal  private  benefit  grow 
ing  out  of  the  public  loan,  arises  a  demand,  I 
will  say  a  claim,  for  reciprocal  accommodation  ; 
a  claim  resting  upon  justice,  though  of  course  not 
to  be  enforced  by  law.  A  claim,  the  justice  of 
which  every  upright  mind  sees,  and  every  honest 
heart  acknowledges.  Then,  I  repeat,  that  if  in 
the  four  quarters  of  the  State,  great  and  important 
private  advantages  have  been  derived  from  the 
loan  of  the  State  credit  over  and  above  the  advan 
tages  derived  equally  to  all  the  citizens  of  the 
State ;  and  if  these  private  advantages  have  been 
attained  by  a  lien  upon  the  private  property  of 
those  living  out  of  the  range  of  these  advantages 
— then  I  say  these  citizens  who  have  obtained  no 
private  advantages  from  such  public  loan  or  credit, 
have  a  claim,  and  I  think  a  strong  and  irresistible 
one,  for  reciprocal  accommodation  and  favor. 

As  this  point  has  not  been  before  alluded  to,  I 
will  dwell  a  moment  upon  it. 

The  people  of  this  State,  dwelling  along  the 
lines  of  various  railroads,  and  especially  upon  the 
line  of  the  Western,  have  derived  great  benefit 
individually  from  the  loan  of  the  State  credit,  in 
which  benefit  the  people  living  in  the  north 
western  part  of  the  State  had  no  interest.  But 
the  people  living  in  the  north-western  part  of  the 
State,  were  as  much  bound,  and  their  prop 
erty  as  much  pledged  to  pay  said  loan,  as  were 
those  living  in  the  benefited  districts.  Now, 
it  seems  to  me,  that  out  of  this  fact  which 
exits,  and  has  existed  for  years,  the  people 
of  the  north-western  part  of  this  State  have  a 
claim,  a  forcible  and  a  valid  claim,  upon  the  people 
of  the  other  parts  of  the  State  for  reciprocal  favor 
— a  claim  which  will  not  be  lost  sight  of,  and 
not  be  the  less  urgent,  because  there  is  no  tribunal 
to  enforce  it.  And  while  such  a  claim  exists,  and 
is  unrealized,  it  is,  as  it  appears  to  me,  a  gross 
piece  of  injustice  to  increase  the  difficulty,  and 
throw  impediments  and  obstacles  in  the  way  of 
obtaining  that  reciprocal  benefit  to  which  they  are 
entitled.  I  cannot  reconcile  it  to  my  sense  of 
justice  and  propriety,  thus  to  shut  down  the  gate 


at  this  time,  and  stop  the  flow,  I  will  not  say  of 
favor,  but  of  equity. 

But,  it  will  be  said  that  the  proposition  now 
before  us  does  not  shut  down  the  gate,  it  only 
increases  the  ordinary  and  common  difficulty  of 
accomplishing  the  object.  This  is  true  in  the  end, 
but  not,  I  think,  in  fact.  I  think  it  shuts  down 
the  gate. 

Sir,  the  gentleman  for  Manchester,  (Mr.  Dana,) 
in  his  forcible  argument,  stated  that  the  questions 
which  would  arise  in  relation  to  the  State  credit, 
would  be  sectional  questions.  This  is  true,  and 
need  not  to  be  put  in  a  prospective  form.  It  is 
now,  here  on  this  floor,  and  has  been  and  will  be 
in  our  legislative  hall,  a  sectional  question.  We 
hear  it  here  in  the  speeches  on  what  should  be  an 
abstract  question.  We  see  it  in  the  votes.  The 
interests  promoted  by  and  connected  with  the 
Western  llailroad,  are  here,  and  have  been  else 
where,  an  adverse  party  to  this  claim  in  equity. 
There  is  no  pretence  that  that  corporation  is  not 
deeply  interested  in  this  question,  and  did  not 
influence  many  votes  upon  it.  Now  this  is  sec 
tional.  That  road  runs,  with  its  adjunct  having 
identical  interests,  through  the  whole  length  of 
the  State.  Its  interests  are  identified  with  the 
interests  of  the  people  dwelling  upon  its  line, 
between  Boston  and  the  New  York  line.  There 
is  a  tremendous  local  and  sectional  interest  al 
ready  blossomed,  and  fast  running  to  seed,  stand 
ing  before  the  public,  and  in  divers  ways  operating 
upon  public  sentiment  adversely  to  the  exercise 
of  the  proposed  power  by  the  legislature. 

Now,  Sir,  we  have  agreed  to  a  basis  of  repre 
sentation  which,  in  future,  will  give  a  House  of 
four  hundred  and  seven  members  ;  a  majority  will 
be  two  hundred  and  four,  and  two-thirds  two 
hundred  and  eighty- one.  It  will  require,  then, 
seventy- seven  more  votes  in  a  full  House  to  carry 
such  a  measure,  if  the  proposition  before  us  be 
carried,  than  it  will  to  pass  ordinary  bills.  Is 
there  here  a  single  individual  who  believes  that  a 
bill  of  the  character  of  the  Hoosac  Tunnel  bill 
could  ever  be  carried  by  such  a  vote,  in  the  face 
of  such  an  enormous  local  and  sectional  opposition 
as  has  already  manifested  itself,  and  is  lively  and 
active  at  this  moment?  And  this,  too,  entirely 
irrespective  of  the  merits  of  the  case.  For  the 
greater  the  merits  of  the  case,  the  stronger  and 
more  vigorous  the  opposition.  If  the  Tunnel 
cannot  be  made,  then  the  interests  on  the  line  of 
the  other  road  have  no  special  reason  for  opposi 
tion  ;  but  the  more  feasible  such  an  enterprise  is 
proved  to  be,  the  more  those  interests  are  endan 
gered,  or  deemed  to  be  endangered. 

I  cannot,  therefore,  think  that  any  person  can 
vote  for  the  proposal  before  us,  who  is  not  willing 


10 


LOAN  OF  STATE    CREDIT. 


[58th  day. 


Friday,^ 


WILKIXS  —  LADD. 


[July  15th. 


to  pass  judgment  upon  the  Tunnel  enterprise,  and 
shut  down  the  gates  of  right  and  equity  upon  the 
people  of  that  section  of  the  State. 

Now,  Sir,  allow  me  to  say  a  word  in  relation 
to  the  effect  which  such  an  article  in  the  Consti 
tution  will  probably  have  upon  its  adoption.  I 
do  not  profess  to  know  very  well  what  the  people 
will  do  and  what  they  will  not  do,  in  given  circum 
stances.  They  have  done  some  things  which  I 
thought  they  could  not  do,  and  they  have  some 
times  failed  to  do  what  I  thought  they  could  do. 
But,  Sir,  we  all  know  that  sectional  feeling  is  not 
all  on  one  side.  When  it  is  indulged  in  in  one 
region,  a  counter  feeling  will  certainly  be  engen 
dered  in  the  other.  If  the  proposed  provision  be 
inserted  in  the  Constitution,  how  will  the  northern 
half  of  this  State,  from  Boston  to  the  New  York 
line,  vote  upon  it  ?  Sir,  it  seems  to  me  that  we 
need  no  prophet  to  tell  us  ;  it  seems  to  me  that 
the  people  in  that  region,  must  be  hungering  and 
thirsting  for  a  new  Constitution,  if  they  are  wil 
ling  to  adopt  one  containing  a  clause  so  hostile 
to  their  interest,  and  inserted  with  almost  the 
avowed  purpose  of  rendering  the  execution  of  a 
favorite  enterprise  forever  impossible. 

Mr.  President,  allusion  has  been  made  here  to 
the  practice  of  other  States.  It  seems  that  a  con 
siderable  number  of  the  other  States  of  the  Union, 
have  adopted  a  clause  in  their  Constitutions, 
prohibiting  their  legislatures  from  granting  the 
credit  of  the  State  to  the  aid  of  individual  or  cor 
porate  enterprises.  Sir,  I  imagine  that  there  is 
some  misapprehension  upon  that  subject.  Most 
of  the  States  which  have  adopted  this  provision — 
at  all  events  very  many  of  them — are  States  which 
have  been  unfortunate  in  their  undertakings,  and 
have  suffered  considerable  loss  in  conseqxience, 
and  incurring  large  debts.  But,  Sir,  I  apprehend 
that  in  most  of  the  cases  in  which  losses  have  been 
sustained,  they  have  been  those  in  which  the 
State  itself  has  undertaken  to  carry  out  the  enter 
prise,  and  not  in  instances  in  which  their  credit 
has  been  loaned  to  companies  for  that  purpose. 
Michigan,  Illinois,  Indiana,  and  Pennsylvania,  to 
some  extent — though  not  to  the  full  extent — and 
all  the  other  States  which  have  suffered,  are  those 
States  which  have  undertaken  to  do  their  own 
work,  and  reap  the  profits.  I  do  not  remember — 
to  be  sure  I  am  not  very  well  posted  up  in  these 
matters,  and  there  may  be  instances  which  have 
not  come  to  my  knowledge — but  I  do  not  believe 
that  a  single  instance  can  be  found  of  any  of  those 
States  having  loaned  their  credit  to  the  amount  of 
a  single  pistareen  to  any  private  company ;  and 
what  losses  they  may  have  incurred,  have  doubt 
less  been  in  consequence  of  having  undertaken 
these  works  themselves ;  and  there  can  be  no 


doubt,  that  they  have  met  with  great  losses.  The 
State  of  New  York  has  adopted  both  of  these 
modes.  She  has  both  loaned  her  credit,  and  car 
ried  on  internal  improvements  on  her  own  account. 
She  has  aided  companies ;  and  one  which  I  have 
now  particularly  in  my  mind,  is  the  New  York 
and  Erie  Railroad.  When  that  road  was  first 
projected,  the  company  raised  a  certain  sum — I 
do  not  remember  how  much — biit  having  a  very 
hard  grade  to  overcome  in  passing  from  the  Hud 
son  River  to  Orange  County,  they  spent  all  their 
money,  and  the  State  loaned  them  several  millions. 
Still,  not  having  enough  to  complete  it,  the  State 
took  the  road  and  sold  it  at  auction,  but  did  not 
realize  anything  worth  while,  and  the  State  itself 
sustained  considerable  loss.  But  now  that  road 
is  completed ;  and  \vhen  four  or  five  millions  of 
dollars  had  been  expended  upon  it,  and  the  princi 
pal  difficulties  overcome,  another  company  came 
in  and  took  up  the  road  and  completed  it.  Nbw, 
Sir,  it  is  quite  probable,  that  the  whole  of  that 
region  would  yet  have  been  without  that  railroad 
accommodation,  had  it  not  been  for  the  expenditure 
of  the  State ;  and  if  you  now  go  into  that  State,  I 
doubt  whether  you  can  find  five  reasonably  intelli 
gent  men  in  the  whole  of  it,  who  do  not  rejoice 
at  this  day  that  the  State  made  this  advance. 

[Here  the  hammer  fell.] 

Mr.  LADD,  of  Cambridge.  I  am  glad  to  find 
at  length  that  the  policy  in  regard  to  granting  the 
aid  of  the  State  credit  in  furthering  and  carrying 
on  the  great  objects  of  improvement  in  our  Com 
monwealth,  has  at  last  received  its  proper  con 
sideration  ;  and  while  I  concur  entirely  in  what 
appear  to  me  to  be  the  very  conclusive  views  of 
the  gentleman  for  Erving,  (Mr.  Griswold,)  on 
this  subject,  as  a  reason  why  we  should  not  now, 
and  at  this  stage  of  our  progess,  forever  close 
all  chance  in  the  future  of  aid  from  the  Com 
monwealth  in  regard  to  projects  of  this  char 
acter,  I  will  take  the  liberty  of  presenting  very 
briefly  my  views  upon  this  question  ;  and  while 
they  may  be  very  general  in  their  character, 
I  will  premise  that  if  they  have  no  other  quality 
to  recommend  them,  they  shall  at  least  have  that 
of  brevity. 

I  am  one  of  those  who,  from  principle,  have 
always  adhered  to  that  policy  of  legislation  which 
is  not  confined  to  the  minimum  amount  of  legis 
lation — not  to  those  simple  and  naturally  general 
laws — but  I  have  always  regarded  it  as  one  of 
the  highest  functions  of  the  Commonwealth,  and 
of  its  legislature,  to  extend  a  beneficent  and  pa 
rental  aid  to  those  projects  which  tend  to  develop 
all  the  resources  of  the  State,  and  for  the  improve 
ment  of  the  possessions  of  all  its  citizens  ;  and  is 
there  any  gentleman  on  this  floor,  or  any  man  in 


58th   day.] 


LOAN   OF    STATE   CREDIT. 


11 


Friday,] 


LADD  —  HATHAWAY. 


[July  loth. 


this  Commonwealth,  that  will  deny  that  that  pol 
icy  which  has  been  pursued  for  twenty  or  twenty- 
five  years  in  encouraging  these  enterprises,  has 
been  a  good  policy  ?  Is  there  any  man  who  will 
deny  that  it  has  been  a  sound  policy  ?  Will  any 
man  deny  that  it  has  brought  untold  riches  to  the 
Commomvealth,  and  that  it  has  contributed,  di 
rectly  or  indirectly,  to  the  wealth  and  prosperity 
of  our  citizens  ?  No  gentleman,  I  think,  will 
deny  it.  Then  the  question  comes,  whether 
at  this  time  the  policy  should  be  changed ; 
whether  we  should  introduce  into  our  organic 
law  in  absolute  prohibition  that  no  legislature 
hereafter  shall  grant  any  such  aid  ?  And  yet  I 
understand  that  to  be  the  effect  of  the  amendment 
as  it  now  stands,  if  it  should  be  adopted.  This 
matter,  then,  it  seems  to  me,  depends  upon  higher 
considerations.  If  we  come  to  that  conclusion, 
we  must  foresee  that  the  time  has  arrived  when 
no  farther  aid  should  be  granted,  and  all  supplies 
of  this  nature  in  future  should  be  forever  stopped. 
Now,  this  is  sufficiently  answered,  by  the  fact 
that  we  have  brought  into  this  discussion  a  great 
enterprise,  in  which  a  large  portion  of  the  Com 
monwealth  is  directly  or  indirectly  interested. 
It  can  only  be  brought  in  here  for  the  purposes 
of  illustration ;  and  does  not  every  gentleman 
know  that  if  this  provision  passes,  requiring  a 
vote  of  two -thirds  of  both  houses  of  the  legisla 
ture  before  any  such  grant  is  made,  it  will  defeat 
the  object  to  which  I  refer,  and  perhaps  every 
object,  however  meritorious  ? 

I  concur  with  the  gentleman  forErving,  that  it 
might,  and  in  all  probability  will,  have  that  effect 
in  the  organization  of  the  legislature  of  the  Com 
monwealth  on  questions  of  that  kind ;  that  there 
will  be  differences  of  opinion — honest  differences  of 
opinion — in  the  first  place,  as  to  its  necessity,  and 
in  the  second  place,  as  to  its  security,  and  in 
the  third  place,  as  to  the  propriety  of  grant 
ing  aid  in  any  particular  instance ;  and  the  re 
sult  will  be  in  every  case,  however  meritorious,  if 
you  require  two-thirds  of  each  House  of  the  legis 
lature  to  concur  in  the  grant,  that  they  never  will 
concur.  I  think,  therefore,  that  gentlemen  ought 
not  to  come  hastily  to  the  conclusion  that  it  may 
never  hereafter  be  desirable  that  such  aid  should 
be  granted.  And  if  that  be  so,  are  gentlemen 
prepared  to  incorporate  a  provision  into  the  Con 
stitution,  the  effect  of  which  will  be  to  declare  that 
it  never  hereafter  shall  be  granted  ?  Such  will 
be  the  effect  of  the  provision  as  it  now  stands. 
Why  require  that  two-thirds  of  the  legislature 
shall  be  required  to  concur  ?  Sir,  it  seems  to  me 
that  such  a  provision  originates  in  this  consider 
ation  :  that  you  are  not  willing  to  trust  the  legis 
lature.  A  distrust  of  future  legislatures,  appears 


to  me  to  be  the  sole  foundation  of  the  argument 
on  which  the  proposition  is  based.  And  why 
should  that  be  so  ?  Why  are  you  unwilling  to 
repose  in  successive  legislatures  a  reasonable  con 
fidence  that  they  will  not  abuse  the  trust  confided 
to  them  ?  With  all  the  checks  and  securities  that 
you  have,  is  there  any  danger  that  they  will  over 
stretch  their  power  ?  Is  there  any  danger  that 
any  proposition  will  be  passed,  unless  it  be 
such  a  one  as  ought  to  be  adopted  ?  Sir,  with 
the  light  of  past  experience,  with  the  facts  which 
we  have  all  around  us,  illustrating  the  policy  of 
the  Commonwealth  on  this  subject,  it  seems  to 
me  that  we  cannot  shut  our  eyes  to  the  impor 
tance  of  leaving  this  matter  entirely  free  to  the 
legislature.  We  do  not,  and  we  cannot  know 
what  important  questions  may  arise.  I  am,  there 
fore,  in  favor  of  a  reconsideration  of  this  subject, 
with  a  view  to  strike  out  that  provision  requiring 
the  concurrence  of  two- thirds  of  each  House.  I 
would  have  the  matter  left  entirely  to  the 
wisdom  and  discretion  of  successive  legislatures 
to  determine.  We  must  repose  confidence 
somewhere ;  and  I  do  not  know  where  we  can 
repose  it  better,  or  more  securely,  than  in  the 
legislature  chosen  by  the  people  to  watch  over 
their  interests. 

Mr.  HATHAWAY,  of  Freetown.  When  this 
subject  was  under  consideration  the  other  day,  I 
had,  I  believe,  about  four  or  five  minutes  time  in 
which  to  express  what  I  desired  to  say.  I  then 
stated  to  the  Convention,  that  at  some  future  time, 
if  I  found  an  opportunity,  I  should  endeavor  to 
present  my  views  in  relation  to  this  matter  of 
loaning  the  State  credit.  As  my  friend  from  Fall 
River,  (Mr.  Hooper,)  remarked,  a  day  or  two  ago, 
I  never  made  a  set  speech  in  my  life,  and  there 
fore  my  remarks  may  be  of  rather  a  desultory 
character ;  but  I  have  my  views  in  respect  to  this 
question,  and  they  are  views  which  I  have  enter 
tained  for  a  long  period  of  time. 

Permit  me  to  say,  before  advancing  farther, 
that  the  gentleman  for  Erving  remarked  that 
this  was  not  a  part  of  the  programme  under  which 
the  Convention  was  called  together.  I  do  not 
know  that  it  was ;  but  I  know  very  well — as  well 
as  that  gentleman  knows — that  this  matter  has  been 
before  the  people,  and  has  been  discussed  for  years, 
and  years,  and  years,  that  have  passed  by ;  and, 
as  my  friend  from  Taunton,  (Mr.  Morton,)  said 
the  other  day,  such  is  the  truth.  I  have  had 
something  to  do  with  this  matter  for  years,  and 
years,  and  years ;  and  I  am  not  yet  convinced  but 
that  the  argument — I  am  not  about  to  say  in 
reference  to  the  particular  matter  which  has  been 
referred  to,  whether  all  the  farms  were  mortgaged 
or  not,  or  whether  our  farmers  would  suffer  from 


12 


LOAN   OF   STATE   CREDIT. 


[58th  day. 


Friday,] 


HATHAWAY. 


[July  15th. 


the  establishment  of  railroads  or  not — but  the 
principle  involved  in  this  provision  I  then  main 
tained,  and  yet  maintain  to  this  day,  as  being  true. 
In  reference  to  this  matter  of  loaning  the  credit 
of  the  State,  or  the  funds  of  the  State,  I  have  to 
say,  that  the  funds  of  the  State  belong  to  the 
State ;  the  credit  of  the  State  belongs  to  the  peo 
ple,  and  to  the  individuals  who  make  up  that 
people.  But,  permit  me  to  say,  Sir,  that  the  in 
dividuals  who  make  up  the  people,  have  an  inter 
est  not  only  in  the  credit  of  the  State,  but  they 
have  an  interest,  also,  in  the  money  that  is  in  the 
treasury  of  the  State.  I  was  remarking  the  other 
day,  when  I  was  up  before,  when  the  proposition 
of  the  gentleman  from  Tauntoii  was  under  discus 
sion,  that  that  proposition  did  not  go  far  enough 
for  me,  but  yet  that  I  should  vote  for  it,  because  I 
thought  it  probably  was  the  best  we  could  get. 
After  it  was  negatived  in  the  Convention,  I 
made  up  my  mind  to  take  the  next  best  that 
I  could  find,  and  that  came  as  near  shutting 
down  the  gates  as  might  be ;  and  hence  I  voted 
for  the  proposition  of  the  gentleman  from  Boston, 
that  is  now  the  subject  of  reconsideration.  If 
any  corporation,  Sir,  in  this  Commonwealth — I 
lay  it  down  as  a  rule,  and  more  especially  rail 
road  corporations,  when  fairly  looked  at  and  con 
sidered — will  probably  yield  six  per  cent.,  and  the 
community  are  satisfied  that  it  will  yield  six  per 
cent.,  there  will  always  be  a  sufficient  amount  of 
private  capital  in  the  Commonwealth  to  take  the 
stock.  It  probably  never  will  be  otherwise  in  all 
time.  Hence,  if  the  Hoosac  Mountain  is  to  be 
bored,  if  there  is  a  tunnel  to  be  made  through  it, 
if  a  railroad  in  that  direction  will  be  a  six  per 
cent,  paying  stock,  there  is  no  danger  but  that 
sharp-eyed  individuals  and  keen-sighted  specu 
lators — the  men  of  money  and  of  means — will  be 
ready  to  take  that  stock ;  aye,  plenty  of  them ; 
and  there  will  be  no  necessity  for  ever  asking  the 
loan  of  the  State  credit. 

Sir,  the  Western  Railroad  was  a  matter  of  ex 
periment  ;  so,  too,  was  the  great  canal  which  was 
opened  from  Buffalo  to  Albany.  Both  of  these 
were  mere  experiments.  Every  one  saw  the  ne 
cessity  of  having  a  great  highway  from  Albany 
to  Buffalo,  in  order  that  the  waters  of  the  Hud 
son  and  the  waters  of  the  lakes  might  be  con 
nected.  Every  one  saw  the  necessity  of  having 
a  highway  between  Boston  and  Albany,  as  the 
products  of  the  West  might  as  well  and  as  cheaply 
find  their  way  to  the  eastern  section  of  the  coun 
try,  as  to  go  down  the  waters  of  the  Hudson  to 
the  city  of  New  York.  But,  because  we  have 
experimented  once  or  twice,  and  may  have  come 
out  well,  is  that  any  reason  why  we  should  be 
continually  experimenting  so  long  as  any  person 


wishes  so  to  experiment  ?  By  no  means.  Shall 
we  bring  our  experiments  into  competition  with 
each  other  ?  I  think  that  that  is  altogether  un 
necessary. 

If  the  Western  Railroad  does  all  that  is  neces 
sary  to  be  done,  and  all  that  was  expected  to  be 
done,  under  that  experiment,  then  why  experi 
ment  farther  ?  Sir,  I  am  not  disposed  here  to  go 
into  statistics,  although  I  have  seen  some  statis 
tics  upon  this  subject.  I  am  not  disposed  to  show 
here,  if  I  could,  that  the  reduction  upon  the  car 
riage  of  freight  is  going  to  be  but  very  small, 
provided  you  build  your  railroad  from  here  to 
Troy.  I  rather  think  that  a  matter  not  to  be  dis 
cussed  here. 

But,  in  reference  to  this  matter  of  experiment, 
what  are  the  facts  ?  The  great  State  of  New  York 
took  the  lead,  as  to  these  great  avenues  of  travel 
which  have  been  opened.  She  opened  her  canal 
from  Albany  to  Buffalo.  Pennsylvania  followed, 
and  she  not  only  opened  her  canal,  but  a  railroad, 
in  order  to  connect  the  two  extremes  of  the  canal 
on  either  side  of  the  mountains  from  Johnstown  on 
the  one  side,  to  Hollidaysburg  on  the  other.  It 
was  an  undertaking  which  required  a  great 
amount  of  capital,  but  being  an  experiment,  not 
an  individual  who  was  a  capitalist,  dared  to  hazard 
his  money  upon  it.  It  became  necessary,  then,  in 
order  to  ascertain  whether  this  experiment  would 
be  profitable  or  not,  that  the  State  should  loan  its 
credit  to  the  enterprise.  It  did  not  exactly  loan 
its  credit  either,  for  that  great  internal  improve 
ment  belonged  to  the  State,  and  not  to  an  indi 
vidual  corporation.  The  State  took  the  stock, 
and  the  State  built  it.  There  was  no  asking  the 
State  to  loan  its  credit  for  the  encouragement  of 
any  association  of  individuals.  The  work  was 
State  property. 

Well,  what  folio  wed  in  process  of  time  ?  The  next 
thing  we  see,  so  far  as  the  State  of  New  York  is 
concerned,  is  a  railroad  laid  along,  almost  upon  the 
banks  of  the  canal,  from  Albany  to  Buffalo.  The 
different  links  in  the  chain  were  built  and  owned 
by  different  corporations,  but  they  are  virtually 
one.  Was  there  any  loaning  of  the  State  credit 
to  this  corporation.  No,  there  was  not.  But  in 
stead  of  this,  individuals  of  capital  vested  their 
money  in  different  portions  of  that  chain,  as  they 
advanced  from  one  stage  to  another.  And  what 
did  the  State  of  New  York  do  ?  She  imposed 
upon  that  road  burdens,  and  because  the  State 
itself  owned  the  canal,  she  would  not  permit  the 
railroad  from  Albany  to  Buffalo  to  carry  a  single 
pound  of  freight  over  their  road,  between  those 
two  points,  without  paying  precisely  the  same 
duty  to  the  State,  which  the  owners  of  property 
transported  upon  the  canal,  paid  to  the  State. 


58th  day.] 


LOAN  OF   STATE   CREDIT. 


13 


Friday,] 


HATHAWAY. 


[July  15th. 


That  was  very  well  for  the  time  being.  In  process 
of  time,  the  project  of  the  New  York  and  Erie 
road  was  started.  I  supposed  the  gentleman  from 
Boston  was  going  through  the  history  of  that  en 
terprise  ;  but  he  did  not  tell  us  the  end  of  the  mat 
ter.  That  road  went  on  for  a  time,  and  they 
asked  the  loan  of  the  State  credit  to  assist  them. 
Mark,  the  first  experiment  in  reference  to  the 
canal  was  paid  out  of  the  public  purse,  and 
the  first  road  built  from  Albany  to  Buffalo, 
Was  an  experiment  paid  for  out  of  individual 
funds.  Then  comes  the  New  York  and  Erie 
road,  the  object  of  which  was  to  open  another 
great  highway  between  the  waters  of  the  lakes 
and  the  waters  of  the  Hudson  River  and  the 
ocean,  for  the  exportation  and  the  importation  of 
goods,  from  this  section  to  that  section,  and  the 
produce  of  these  different  sections  to  New  York. 
They  call  upon  the  great  State  of  New  York  to 
loan  its  credit.  The  loan  was  made,  to  the 
amount,  according  to  my  recollection,  of  three 
millions  of  dollars.  Well,  they  undertook  to 
build  their  road — that  is,  the  corporation,  and  not 
the  State — with  the  loan  of  about  three  millions 
of  dollars  of  the  State  credit  to  assist  them.  They 
constructed  the  road  as  far  as  the  village  of  Elmira, 
and  there  they  stopped,  for  want  of  funds.  The 
stock  was  not  worth  a  dollar  in  the  market.  But 
they  formed  a  connection  with  another  road 
which  came  down  from  the  head  of  Seneca  Lake 
to  Elmira.  By  this  means  they  were  able  to  di 
verge  to  that  lake,  take  a  steamboat,  and  land 
at  Geneva.  Now,  pray  tell  me,  if  they  stopped 
there  in  the  construction  of  their  road,  how  much 
better  off  the  State  of  New  York  would  have 
been  for  this  loan  of  three  millions  of  dollars  r 
What  was  the  consequence  ?  The  State  of  New 
York,  to  induce  that  company  to  carry  through 
their  road  in  a  given  reasonable  time,  said : 
"  Gentlemen,  I  know  you  will  never  proceed  an 
other  inch,  and  the  people  of  the  State  will  lose 
the  money  they  have  loaned  you.  We  know 
your  work  is  to  come  into  competition  for  the 
same  business  done  upon  our  canal  and  by  the 
other  road.  We  cannot  raise  a  single  dollar  from 
the  road  to  pay  us  our  three  millions,  and  if  you 
will  go  on  and  complete  your  road  in  a  given 
time,  we  will  give  you  the  three  millions  of  dol 
lars." 

That  was  the  condition  in  which  that  great  Erie 
road  stood.  They  went  through  with  the  work, 
and  yet,  with  this  gift  of  $3,000,000,  how  much 
is  the  stock  worth  ?  Is  it  worth  the  one  hundred 
dollars  the  share,  the  par  value  ?  By  no  means, 
and  never  will  be ;  and  I  do  not  believe  that  any 
man  in  his  senses  believes  it  ever  will  be  worth 
that.  After  that  contribution  of  three  millions,  I 


believe  the  stock  is  worth  about  eighty  or  ninety 
dollars  on  the  share.  But  that  is  not  the  end  of 
the  matter.  The  road  between  Albany  and  Buf 
falo  comes  to  the  legislature,  and  says  :  "  You  have 
imposed  a  restriction  upon  us  in  regard  to  the 
transportation  of  freight,  and  now  you  have  put 
a  road  in  competition  with  us.  Now,  we  do  not 
ask  of  you  a  gift  of  $3,000,000,  but  we  ask  per 
mission  to  carry  freight  free  of  tolls  at  that  season 
of  the  year  when  your  canal  is  frozen  up.  You 
have  imposed  upon  us  a  duty,  when  you  could 
not  carry  a  pound  of  freight  upon  your  canals. 
We  ask  you  to  remove  that  restriction,  and  put 
us  upon  the  same  footing  with  the  other  road." 

And  what  did  the  State  of  New  York  do  r 
They  took  off  the  duty,  and  that  road  is  now  per 
mitted  to  carry  freight  in  precisely  the  same  man 
ner  as  the  southern  road  docs,  and  although  duty 
is  to  be  paid  upon  goods  transported  upon  the 
canals,  no  duty  is  paid  upon  that  which  is  carried 
upon  the  railroads. 

This  is  the  history  of  the  internal  improvements 
of  the  State  of  New  York.  Now,  who  has  suf 
fered  from  that  policy  ?  Who  but  the  individuals 
that  live  in  the  State  of  New  York  ? 

Sir,  I  should  not  have  said  a  word  in  reference 
to  the  history  of  these  great  matters  in  the  State 
of  New  York,  had  not  the  subject  of  the  Hoosac 
Tunnel  been  introduced  here.  I  am  opposed  to 
the  proposition  of  loaning  the  State  credit,  from 
principle.  If  I  had  been  here  at  the  time  when 
the  credit  of  the  State  was  loaned  to  the  Western 
Railroad,  I  should  have  been  opposed  to  it,  be 
cause  it  was  a  matter  of  experiment ;  raid  I  hold 
that  the  agents  of  the  people  ought  never  to  ex 
periment  with,  the  people's  money.  But  the  loan 
was  granted,  and  I  pray  it  will  turn  out  well  for 
the  State. 

I  believe  the  State  of  New  York  also  loaned  its 
credit  to  another  railroad,  called  the  Hudson  and 
Berkshire  Railroad.  What  is  the  condition  of 
that  road  to-day  r  I  understand  it  is  advertised 
for  sale  for  the  non-payment  of  the  interest  to  the 
State.  It  never  will  be  a  road  paying  six  per 
cent. 

Well,  Sir,  what  is  applicable  to  a  great  com 
munity  is  applicable  to  a  small  community,  and 
what  is  applicable  to  a  small  community  is  appli 
cable  to  a  great  State.  Now,  let  us  see  how  this 
matter  has  worked,  when  applied  to  a  smaller 
body  than  the  State.  The  city  of  Bridgewater,  in 
Connecticut,  under  the  authority  of  the  legisla 
ture,  loaned  their  credit  to  a  railroad  called  the 
Housatonic.  They  did  this  under  the  mania  and 
fever  that  was  then  raging  in  relation  to  railroads. 
Repudiation  was  the  consequence.  When  the 
scrip  winch  was  issued  by  them  became  redeem- 


14 


LOAN  OF   STATE   CREDIT. 


[58th  day. 


Friday,] 


HATHAWAY  —  SCHOULER. 


[July  15th. 


able,  there  was  a  perfect  tumult  in  reference  to 
the  matter ;  arid  yet  I  venture  to  say  that  every 
person  in  Bridgewater,  at  the  time  the  scrip  was 
issued,  was  in  favor  of  it.  Yet  repudiation  took 
place,  and  execution  after  execution  issued  to  en 
force  the  payment.  They  went  to  the  supreme 
court  of  Connecticut,  and  it  was  not  until  the 
law  had  been  confirmed,  over  and  over  again, 
that  they  would  pay. 

In  consequence  of  the  great  amount  of  internal 
improvements  in  which  Pennsylvania  became  in 
terested,  she  almost  came  to  the  door  of  repudia 
tion.  Time  after  time  she  could  not  pay  the 
interest  upon  the  money  she  had  borrowed  in 
Europe. 

How  has  this  matter  been  at  the  West  ?  This 
perfect  avalanche  of  excitement  and  feeling  in  re 
lation  to  railroads,  which  seemed  to  pervade  the 
whole  community  here,  found  its  way  to  the 
West.  And  what  was  the  result  ?  Repudiation 
after  repudiation,  and  disgrace  after  disgrace ;  and 
I  would  by  no  means  bring  the  ancient  Common 
wealth  of  Massachusetts  within  that  vortex  of 
repudiation  which  has  been  exhibited  all  over  the 
"Western  States. 

But  I  would  go  even  farther  than,  to  prohibit 
the  loaning  of  the  State  credit.  I  would  not  only 
say  that  the  legislature  should  not  loan  the  State 
credit,  but  I  would  not  permit  the  legislature  to 
authorize  any  municipal  corporation  to  loan  its 
credit  to,  or  take  stock  in,  any  corporation  what 
ever. 

How  came  this  matter  of  repudiation  to  be  so 
extensive  at  the  West  ?  I  think  I  know  some 
thing  about  it.  The  burnt  child  always  dreads 
the  fire.  I  had  a  slight  visitation  in  reference  to 
that  matter,  and  perhaps  I  am  not  exactly  a  dis 
interested  witness  in  relation  to  it. 

Mr.  WILSON.  I  wish  to  ask  the  gentleman 
if  he  will  have  the  goodness  to  inform  the  Con 
vention  which  of  the  Western  States  have  repu 
diated  their  debts  ? 

Mr.  HATHAWAY.  Why,  Mr.  President,  I 
thought  what  I  alluded  to  was  a  matter  of  pub 
lic  notoriety.  It  will  be  recollected  that  Penn 
sylvania  did  not  pay  her  interest.  I  suppose  the 
gentleman  would  not  call  that  repudiation.  There 
are  some  of  the  Western  States  which,  in  a  like 
manner,  have  declined  to  pay  the  interest  upon 
their  liabilities.  I  call  that  repudiation,  but  I 
presume  the  gentleman  would  not.  The  differ 
ence  between  us  is  a  mere  difference  of  words, 
and  I  am  sure  we  shall  not  quarrel  about  that. 
He  knows  what  I  mean,  when  I  speak  of  repu 
diation.  I  do  not  say  that  the  people  of  these 
States  refuse,  absolutely,  to  pay  their  liabilities, 
but  they  did  decline  to  pay  the  interest  upon 


them,  and  that  I  regard  as  an  element  of  repu 
diation. 

Now,  Sir,  in  reference  to  these  Western  States, 
how  came  they  by  these  State  debts  ?  Just  look 
at  the  history  of  the  matter.  It  was  not  in  con 
sequence  of  the  great  internal  improvements  by 
the  States  themselves.  It  was  not  in  opening 
these  great  public  channels  of  communication, 
but  it  was  because  the  people  of  the  various  sec 
tions  of  those  States  seemed  to  have  an  absolute 
mania  for  these  improvements.  Corporation 
after  corporation  was  authorized  by  the  legisla 
ture,  supposing  that  they  would  be  equally  bene 
ficial  with  those  great  projects  which  the  State 
had  entered  into.  And  what  was  the  conse 
quence  ?  Why  individuals  connected  with  those 
corporations  were  the  sufferers.  I  speak  what  I 
know  in  reference  to  this  matter,  for  I  have  been 
a  sufferer,  to  some  extent,  from  that  mania  in  one 
of  those  corporations.  Under  Providence,  it  was 
my  fortune  to  have  a  little  patrimony,  located 
within  the  limits  of  one  of  them,  and  it  hap 
pened  to  be  real  estate,  and  I  felt  the  effects  of  it. 
Every  town,  every  county  almost,  became  con 
nected  with  these  projects  for  internal  improve 
ments.  And  what  was  the  consequence  ?  Why 
individuals  failed  in  their  bonds.  They  would 
carry  their  roads  through  certain  sections,  and 
then  bring  up.  Then  they  would  go  into  the 
next  county,  perhaps,  and  say :  "If  you  will  take 
half  a  million  of  our  stock,  or  get  leave  of  the 
legislature  to  authorize  you  to  loan  your  credit  to 
that  amount,  one  or  the  other,  you  may  have  the 
railroad  through  your  county.  Otherwise,  we 
must  go  through  the  adjoining  county."  Well, 
Sir,  this  mania  continued  to  prevail  among  the 
people — 

Here  the  hammer  fell,  the  half-hour,  fixed  by 
order  of  the  Convention,  as  the  limit  for  speech 
es,  having  expired. 

Mr.  SCHOULER,  of  Boston.  The  gentleman 
from  Freetown,  (Mr.  Hathaway,)  has  spoken 
about  every  State,  except  the  State  of  Massachu 
setts. 

Mr.  HATHAWAY.  I  was  going  to  speak 
about  that,  when  the  half-hour  cut  me  off. 

Mr.  SCHOULER.  Well,  Sir,  I  do  not  know 
what  the  gentleman  would  have  said,  if  the  half- 
hour  had  not  cut  him  off,  but  I  wish  to  make  a 
remark  in  relation  to  what  he  has  already  said. 
In  the  first  place,  I  understood  him  to  say  that 
he  had  always  been  opposed  to  loaning  the  State 
credit  to  private  corporations,  though  he  had 
never  committed  himself  fully  upon  the  mort 
gage  question.  He  had  never  expressed  his  opin 
ion  definitely,  upon  the  question  of  mortgaging 
the  farms  of  the  people. 


58th  day.] 


LOAN   OF   STATE   CREDIT. 


15 


Friday,] 


SCHOULER. 


[July  15th. 


Mr.  HATHAWAY.  If  the  gentleman  will 
permit  me,  I  will  explain.  What  I  did  say  was, 
that  in  former  times,  there  was  a  question  before 
the  people  in  reference  to  the  matter  of  which 
the  gentleman  speaks,  but  whether  it  was  right 
or  wrong,  I  had  nothing  to  say. 

Mr.  SCHOULER.  Now  I  wish  to  say  a  word 
to  the  reformers  of  this  Convention.  A  great 
deal  has  been  said  about  the  reform  party  in  this 
Convention,  and,  as  I  place  myself  in  that  cate 
gory,  I  wish  to  address  myself  to  the  reform 
members  of  the  Convention. 

A  MEMBER.     As  brothers  ? 

Mr.  SCHOULER.  Yes,  as  brothers.  Now, 
Sir,  we  have  made  some  improvements  in  our 
Constitution.  But  that  Constitution  has  yet  to 
receive  the  sanction  of  the  people,  before  it  be 
comes  the  organic  law  of  the  Commonwealth.  It 
seems  to  me  that  there  is  such  a  disposition  to 
load  it  down  with  all  manner  of  local  questions, 
that  you  will  kill  the  Constitution  before  the 
people.  The  very  fact  of  putting  into  your 
Constitution  this  provision,  which  you  are  con 
sidering,  will,  in  my  judgment,  deprive  it  of  a 
great  many  votes.  In  certain  parts  of  the  State, 
disguise  it  as  you  will,  this  Hoosac  Tunnel  ques 
tion  is  one  which  will  have  an  influence  on  the 
acceptance  of  the  Constitution  we  may  submit, 
if  it  contains  a  provision  incorporated  for  the 
purpose  of  preventing  the  aid  of  the  State  being 
given  for  that  work.  In  the  northern  and  west 
ern  portions  of  the  State,  there  is  a  very  strong 
feeling  in  favor  of  that  Tunnel,  and  if  you  place 
in  your  Constitution  a  restriction  which  shall  pre 
vent  the  majority  of  the  legislature,  and  a  ma 
jority  of  the  people  of  the  State,  from  expressing 
their  opinions  upon  the  subject  of  loaning  the 
credit  of  the  State  to  aid  in  its  construction,  a 
large  class  of  the  people  in  those  sections  of  the 
State,  will  vote  against  your  Constitution  for 
that  reason.  I  want  the  reformers  of  this  Con 
vention  to  consider  that  fact. 

Now,  Sir,  I  want  the  majority  of  the  legislature 
to  settle  this  question,  just  as  they  have  settled  it 
under  the  present  Constitution,  in  years  past. 
However  much  we  may  talk  about  the  improvi 
dence  of  other  States,  there  has  been  no  improvi 
dent  legislation  in  Massachusetts  upon  this  sub 
ject  of  the  credit  of  the  State. 

I  hold  in  my  hand  the  Report  of  the  Auditor, 
from  which  I  find  that  the  whole  amount  of  res 
ponsibility  upo'n  the  part  of  the  State,  to  the  dif 
ferent  railroads  of  the  State,  is  about  $5,000,000, 
and  here  are  the  details  : — 


Western  Railroad— 

Due  April  1,1868, 

"     Oct.    1,  1868, 

"        "       1, 1869, 


£135,000 
337,500 
90,000 


Due  April  1,  1870, 
"     1,  1871, 


180,000 
157,400 

£899,900  is  $3,999,555  56 


Add  for  exchange,  $320,000. 
Eastern  Railroad  — 

Due  July  1,1857,      .      .       .       $100,00000 
"     Sept.  1,  1853  .....          109,000  00 

"     April  1,  1859,       .      .        .          300,000  00 
-- 

Norwich  and  Worcester  Railroad,  due  July  1, 
1857  ....... 

Andover  and  Haverhill  Railroad,  now  Boston 

and  Maine,  due  August  1,  1857,       .  . 

Boston  and  Portland,  now  Boston  and  Maine, 

due  August  1,  1859,       .... 


500,000  00 
400,000  00 
100,000  00 

50,000  00 
$5,049,555  56 

Now,  Sir,  the  State  has  a  clear  mortgage  upon 
every  dollar  of  property  belonging  to  every  one 
of  these  railroads  for  the  money,  or  rather  the 
credit  she  has  loaned  them,  amounting,  in  all 
probability,  to  not  less  than  from  $20,000,000  to 
$25,000,000.  Does  that  look  like  repudiation  on 
account  of  these  improvements  ?  Sir,  there  is  not 
a  man  in  this  Convention  ;  there  has  not  been 
an  attempt  in  this  debate,  to  show  where  the  State 
of  Massachusetts  ever  run  any  risk,  or  that  she  is 
likely  to  lose  a  single  cent,  by  any  act  of  her  legis 
lature  in  loaning  the  State  credit. 

Now,  Sir,  I  am  ready  to  leave  this  question  to 
the  legislature.  If  it  should  appear  that  there 
is  any  portion  of  the  State  which  has  not  enjoyed 
the  benefit  of  any  assistance  upon  the  part  of  the 
State  to  develop  its  resources,  and  the  loan  of 
the  credit  of  the  State  is  necessary  to  carry  out 
any  great  project  which  they  have  in  view  for 
that  purpose,  I  say,  in  God's  name,  let  them 
have  it. 

Sir,  I  say  —  and  I  say  it  without  fear  of  contra 
diction  —  that  if  the  State  of  Massachusetts  had  to 
pay  every  cent  of  scrip  to  which  she  has  put  her 
name,  for  the  encouragement  of  these  internal 
improvements,  it  would  be  money  spent  to  better 
advantage  than  any  ever  spent  since  she  became 
a  State.  It  has  raised  up  the  State  ;  it  has  added 
to  her  population  ;  it  has  added  to  her  taxable  pro 
perty  as  much  as  $200,000,000.  And  if  we  had 
not  lent  the  aid  of  the  State,  or,  at  least,  if  they  had 
not  been  carried  out  —  and  it  is  exceedingly  doubt 
ful  whether  they  would  ever  have  been  carried  out 
without  the  aid  of  the  State  —  we  should  have 
fallen  in  every  respect  far  behind  what  we  are 
now  ;  we  should  have  fallen  farther  behind,  in 
proportion  to  our  former  position,  than  any  State 
in  the  Union. 

I  am  surprised,  that  at  this  late  day,  when  we 
have  the  light  of  experience,  that  gentlemen 
should  talk  about  crippling  the  energies  of  the 
State,  by  placing  a  provision  in  our  Constitution 
which  shall  deprive  the  legislature—  by  depriving 
a  majority  of  the  people  of  the  State,  through  the 
representatives  in  the  legislature  —  of  the  power  of 


16 


LOAN   OF   STATE   CREDIT. 


[58th  day. 


Friday,] 


SCHOULEB. 


[July  15th. 


expressing  their  opinion  upon  this  subject.  I  am 
opposed  to  any  such  provision.  I  hope  the  vote 
of  the  Convention,  by  which  the  provision  now 
before  us  was  adopted,  will  be  reconsidered,  and 
that  the  whole  matter  will  be  left  in  the  power  of 
the  legislature. 

It  will  be  found  very  difficult,  in  practice,  to 
get  two-thirds  of  the  members  of  the  legislature 
to  go  for  any  measure  of  that  kind.  If  such  a 
provision  had  been  incorporated  into  our  present 
Constitution,  in  all  probability,  we  should  never 
have  had  the  Western  Railroad  at  all.  True,  it 
was  an  experiment.  We  could  not  tell  how  it 
would  work.  But,  Sir,  when  it  came  to  be  put 
through,  and  to  develop  the  wealth  and  resources 
of  the  Commonwealth,  we  found  that  we  had 
made  a  good  experiment.  But  now  we  have  the 
light  of  experience.  We  know  what  can  be 
done,  by  what  has  been  done.  And  yet,  gentle 
men  are  afraid  to  trust  the  majority  of  the  legis 
lature,  to  say  whether  they  will  loan  the  credit  of 
the  State,  or  not. 

Sir,  it  seems  to  me  that  it  comes  with  a  rather 
bad  grace  from  the  members  of  the  Convention, 
from  the  city  of  Boston,  and  from  members  who 
come  from  those  portions  of  the  State  which  have 
been  enriched  by  the  credit  of  the  State,  to  come 
here  and  try  to  cramp  the  energies  of  the  Com 
monwealth;  to  try  to  place  a  bridle  upon  our 
necks,  and  to  prevent  us  hereafter  from  ever  assist 
ing  that  portion  of  the  Commonwealth  which  has 
never  received  one  single  dollar  for  the  purpose 
of  developing  its  resources.  I  am  in  favor  of 
treating  every  portion  of  the  Commonwealth  with 
equal  liberality. 

Now,  Sir,  the  gentleman  from  Freetown,  (Mr. 
Hathaway,)  and  every  other  gentleman  who  has 
spoken  here  upon  the  same  side  of  the  question, 
will  find  it  impossible  to  make  out  any  argument 
in  favor  of  the  provision  now  before  us,  from  any 
act  of  the  legislature  of  Massachusetts  upon  the 
subject.  If  the  legislature  had  been  improvident, 
that  might  have  furnished  some  ground  for  an 
argument.  But  it  has  not.  The  gentleman  from 
Freetown  told  us  of  three  millions  given  up  by 
the  State  of  New  York,  which  she  had  loaned  to 
the  Erie  Railroad.  Why,  Sir,  if  that  road  could 
not  have  been  built  without  the  aid  of  that  three 
millions  of  dollars — and  I  take  it  for  granted  that 
it  would  not  have  been  built — I  ask  any  gentle 
man  here  whether  it  was  not  a  good  investment 
upon  the  part  of  the  State  of  New  York  ?  Where 
could  she  have  invested  her  three  millions  to 
better  advantage  ?  And  I  may  say  just  as  much 
for  the  Erie  Canal,  which  has  been  so  great  a 
source  of  wealth  and  population  both  to  the  State 
and  city  of  New  York.  The  whole  West  have 


become  tributary  to  her.  And,  Sir,  we  wish  to 
avail  ourselves  of  some  portion  of  the  wealth  of 
these  Western  States. 

In  regard  to  the  State  of  Illinois,  every  one 
knows  there  was  a  system  of  log-rolling  carried 
on  in  her  legislature,  which  was  the  cause  of  all 
the  trouble.  In  order  to  get  one  project  through 
the  legislature,  members  were  obliged  to  vote  for 
others,  in  which  other  members  were  interested, 
but  which  were  of  no  public  interest  or  impor 
tance  whatever.  That  is  the  way  in  which  these 
Western  States  have  become  so  deeply  involved 
in  debt.  And  I  believe  repudiation  has  taught 
them  a  lesson  in  this  respect.  But,  Sir,  these 
States  are  rapidly  filling  up,  and  the  time  will 
come  when  these  very  improvements,  which,  up 
to  the  present  time  have  not  been  productive, 
will  become  productive,  and  they  will  more  than 
compensate  for  all  the  losses  they  have  occasioned. 
But  here  in  Massachusetts  we  have  involved  our 
selves  in  no  such  difficulties.  Everything  has 
gone  on  well,  and  why  not  allow  the  system  to 
remain  as  it  is  ? 

The  gentleman  talks  about  experimenting  with 
the  credit  of  the  State,  and  experimenting  with  the 
people's  money.  I  will  ask  him  whether  it  is  not, 
at  least,  as  bad  to  experiment  with  the  Constitu 
tion  of  the  State  ?  He  proposes  to  experiment 
with  the  fundamental  law  in  reference  to  this 
subject,  and  I  ask  him  whether  the  credit  of  the 
State  is  any  more  sacred  than  the  fundamental 
law  of  the  State  ? 

Sir,  I  am  willing  to  stand  by  the  past  experience 
of  the  State,  and  I  believe  the  people  are  willing 
to  stand  by  it.  But  I  should  like  to  ask  the  gen 
tleman  from  Freetown,  whether  he  can  tell  me  if 
many  of  these  appropriations  of  other  States  did 
not  pass  by  a  majority  of  two-thirds  ?  I  think 
the  probability  is,  that  at  the  time  when  there 
was  such  a  rush  for  these  internal  improvements, 
many  of  the  appropriations  were  passed  by  a  two- 
thirds  vote  ?  There  are  a  number  of  States  which 
a  few  years  ago  were  repudiating  States,  but  one 
by  one  they  have  got  back  again.  Pennsylvania 
was  one  of  the  repudiating  States,  but  she  has 
entirely  recovered,  and  I  have  no  doubt,  in  a 
great  measure,  in  consequence  of  these  very  in 
ternal  improvements  which  were  the  cause  of  her 
repudiation.  Now  she  is  not  a  repudiating  State. 
I  thought  a  few  minutes  ago  that  Mississippi  was 
the  only  State  in  the  Union  that  actually  repu 
diated,  but  I  think  Illinois  has  once  not  been  able 
to  pay  her  interest,  and  she  will,  therefore,  have 
to  be  placed  in  the  same  category.  But,  Sir,  that 
State  is  filling  up  rapidly,  and  I  doubt  not  the 
time  will  come,  and  within  ten  years  too,  when 
the  State  of  Illinois  will  be  able  to  pay  every  cent 


58th  day.] 


LOAN   OF   STATE    CREDIT. 


17 


Friday,] 


SCHOULER —  BISHOP. 


[July  loth. 


of  principal  and  interest  upon  her  public  debts. 
It  cannot  be  otherwise. 

I  had  no  intention  of  speaking  upon  this  sub 
ject,  but  I  believe  it  to  be  a  question  of  consider 
able  public  importance ;  and  I  believe  if  the 
Constitution  goes  out  to  the  people  with  this 
provision  in  it,  it  falls  dead.  That,  of  itself,  will 
engender  such  an  opposition  as  to  defeat  it.  The 
whole  people  on  the  line  of  the  railroad  for  which 
this  loan  of  the  State  credit  is  now  asked,  will  go 
against  it.  In  the  northern  part  of  Berkshire,  in 
the  whole  of  Franklin,  in  parts  of  Hampshire,  in 
the  city  of  Boston,  and  scattered  here  and  there 
all  over  the  State,  there  is  a  class  of  men  who  are 
determined  that  the  credit  of  the  State  shall  be 
lent  to  that  corporation,  and  if  this  Convention 
undertakes  to  go  out  of  its  way  to  prevent  it,  they 
will  vote  against  the  Constitution. 

Again,  I  ask  the  reform  members  of  this  Con 
vention  if  they  are  ready  to  put  this  lump  of  lead 
round  the  neck  of  your  Constitution,  which  wrill 
sink  it  so  deep  that  you  will  never  be  able  to  find 
it  again  ?  I  trust  not.  I  go  for  the  reconsidera 
tion  of  tliis  vote,  and  for  leaving  the  Constitution 
precisely  where  it  now  stands  in  regard  to  this 
subject.  I  ask  that  the  people  in  their  representa 
tive  capacity  may  decide  the  matter  for  them 
selves,  and  that  this  Convention  shall  not  under 
take  to  do  that  for  them. 

Mr.  BISHOP,  of  Lenox.  Mr.  President: 
On  Saturday  last,  upon  the  motion  of  the  dele 
gate  from  Boston,  (Mr.  Giles,)  this  Convention 
resolved  that  "  the  legislature  shall  not  have  power 
to  grant  the  credit  of  the  State  to  any  individual 
or  corporation,  without  a  two-thirds  vote  of  the 
House  of  Representatives  and  the  Senate  in  its 
favor." 

The  delegate  from  Charlestown,  (Mr.  Thomp 
son,)  has  moved  a  reconsideration  of  the  vote 
adopting  this  resolution.  To  its  general  object 
and  policy,  I  have  no  disposition,  and  am  not 
called  upon  by  the  motion  for  reconsideration,  to 
object.  The  power  of  the  legislature  to  pledge 
the  credit  and  good  faith  of  the  people,  if  not  a 
questionable,  is,  in  my  opinion,  a  very  limited 
one.  I  deny  its  power,  to  aid  by  this  mode, 
enterprises  of  a  merely  private  character.  It  has 
no  authority  to  sign  and  endorse  negotiable  notes, 
or  draw  and  accept  bills  of  exchange,  in  the  name 
of  the  State,  for  the  accommodation  of  individu 
als,  mercantile  or  manufacturing  firms,  or  corpo 
rations,  engaged  in  manufactures,  navigation  or 
commerce,  for  their  benefit  solely,  or  to  make  the 
people  their  copartners  in  business.  From  this 
proposition,  no  well-informed  legal  gentleman 
would,  I  think,  dissent.  If  there  be  danger  of 
the  people's  becoming  involved,  through  the  act 


of  their  legislature,  in  the  hazardous  enterprises 
of  navigation,  manufacturing,  banking,  &c.,  it  is 
wise  to  dispel  it  at  once,  by  some  decisive  consti 
tutional  restriction.  No  danger  of  this  sort, 
however,  is  apprehended.  The  sole  question  is 
this,  shall  the  State  aid  by  its  credit,  those  im 
provements  of  a  public  character,  now  made  and 
to  be  made  by  corporations  for  the  benefit  of  the 
people,  and  which  can  be  authorized  only  by  the 
legislature.  Improvements  of  this  character, 
when  too  vast  for  individual  capitalists,  are,  in 
other  States,  made,  owned,  and  carried  on,  by  the 
people  themselves.  It  is  thus,  with  the  great 
canals  of  New  York  and  Pennsylvania.  They 
are  the  work,  and  under  the  administration,  of 
the  State.  This  State  has  adopted  a  different 
policy,  whether  safe  and  prudent,  wise  or  un 
wise,  is  too  late  now  for  discussion.  The  policy 
is  fixed  and  settled,  and  has  now  gone  too  far, 
perhaps,  to  be  arrested.  "Whether  the  people 
should  not  have  retained  in  their  own  hands 
those  great  and  perilous  powers  which  they  have 
imparted  to  corporations,  and  have  done  on  their 
own  account  and  at  their  proper  charges, 
what  they  have  employed  these  corporate  bodies 
to  do  for  them,  is  a  subject  past  the  period  of 
debate  and  inquiry.  The  instrumentalities  of 
effecting  the  great  and  necessary  public  facilities, 
which  bring  about  the  intercommunication  of 
Massachusetts  with  the  rest  of  the  world,  are 
established.  I  can  say  with  truth,  to  my  much 
respected  friend  from  Taunton,  (Governor  Mor 
ton,)  this  was  no  policy  of  yours  or  mine.  That 
day  may  yet  turn  out  to  be  an  evil  day,  when 
the  legislature  of  this  State  carved  from  the 
sovereignty  of  the  people,  so  much  thereof,  as 
relates  to  railroads,  and  dished  it  out  to  corpora 
tions.  This  system  of  legislation,  if  pursued  in 
relation  to  other  matters,  as  it  has  been  in  relation 
to  railroads,  might,  in  time,  and  at  some  day  not 
very  far  away  in  the  future,  strip  the  people 
entirely  of  that  portion  of  their  sovereign  power 
by  which  they  may  now  plan  and  execute  for 
themselves,  and  fatally  weaken  and  abridge  the 
means  which  they  may  be  required  to  use  here 
after,  by  the  frequently  occurring  and  constantly 
varying  demands  and  exigencies  arising  from  pro 
gressive  changes  and  improvements.  Such  grants, 
fixed  and  rendered  irrevocable  by  the  doctrine  of 
vested  rights,  as  that  doctrine  has  been  expounded 
and  enforced,  may  leave  the  people  mere  specta 
tors  of  the  achievements  of  their  own  delegated 
strength,  and  like  Sampson,  shorn  and  shaven, 
they  may  wake  up  and  find  their  strength  de 
parted,  and  themselves  bound  down  by  Philis 
tines,  which  their  own  charters  have  made. 
The  people  demanded  these  improvements. 


18 


LOAN   OF   STATE    CREDIT. 


[58th  day. 


Friday,] 


BISHOP. 


[July  15th. 


The  world  demanded  them.  In  space,  they  are 
local.  In  usefulness,  however,  as  parts  of  a 
great  system,  they  are  world- wide.  The  people 
have  chosen  to  make  them  by  chartered  compa 
nies,  giving  to  these  companies,  for  their  hazards 
and  investments,  an  equivalent  in  special  benefits 
and  exclusive  privileges.  It  is  solely  upon  the 
ground  of  their  having  undertaken  the  State's 
business,  that  they  are  entitled  to  the  State's  aid 
and  favorable  regard  and  care — upon  the  ground, 
that  having  assumed  the  people's  obligations,  they 
are  entitled  to  their  encouragement  and  support. 
No\v,  Sir,  I  am  opposed  to  the  restriction  of  this 
encouragement  and  aid,  which  the  resolution 
proposes.  I  regard  it  as  thoroughly  prohibitory  ; 
and,  if  not  so,  as  partial,  inequitable,  unjust — 
defeating  the  reasonable  expectations  which  have 
been  raised.  No  system  of  public  improvements 
should  be  adopted  by  the  State,  which  is  not 
general ;  and  in  considering  the  question  before  the 
Convention,  the  relative  claims  and  present  con 
dition  of  the  several  sections  of  the  State,  should 
be  regarded.  If  the  system,  in  order  to  its  com 
pletion,  ought  to  be  farther  extended,  if  certain 
parts  of  the  State  are  not  provided  with  the  rail 
road  facilities  accorded  to  others,  whose  claims 
are  no  better,  some  sound  reason  should  be 
adduced  for  withholding  them.  Impracticable 
schemes  and  embarrassed  finances  would  unques 
tionably  be  good  cause  for  prohibiting  future,  or 
withholding  present  assistance.  If  the  past 
shows  recklessness,  and  improvidence,  or  waste 
fulness,  limitations  should  be  placed  upon  the  exer 
cise  of  legislative  power.  With  the  present  influ 
ence  of  railroad  corporations  over  legislative 
proceedings — an  influence,  not  peculiar,  but  com 
mon  to  them  and  all  men,  and  bodies  of  men  of 
great  means  and  control,  I  regard  the  vote  passed, 
not  as  a  restriction,  not  as  a  limitation,  but  as  a 
full  inhibition.  It  is  proposed  that  the  Senate 
consist  of  forty  members.  Fourteen  only  are 
required  to  stifle  all  action  upon  this  subject.  It 
is  the  interest  of  existing  railroads  to  prevent 
their  multiplication — to  monopolize,  if  I  may  use 
the  word,  and  secure  to  themselves  the  entire 
transportation  of  men  and  merchandise  ;  and  can 
they  not,  with  all  convenient  ease,  without  appar 
ent  activity,  or  semblance  of  trick  or  artifice, 
throw  into  that  body,  of  those  personally  inter 
ested,  enough  to  prevent  competition  by  new 
roads,  and  defeat  every  project,  which,  if  carried 
out,  might  diminish  their  profits  ?  The  answer 
is  obvious.  It  would  place  the  enlargement 
and  multiplication  of  this  branch  of  public  im 
provements,  entirely  under  the  control  of  existing 
corporations,  and  to  them,  in  the  first  instance, 
would  the  people  have  to  apply,  to  extend  these 


great  facilities,  now  made  necessary  to  all  depart 
ments  of  industry.  In  short,  upon  this  great 
subject,  intimately  interwoven  with  the  leading 
interests  and  prosperity  of  the  country,  corpora 
tions  virtually  would  legislate,  and  not  the 
people,  through  their  representatives.  Is  not 
this,  by  indirection,  to  be  sure,  but  substantially 
and  effectually,  a  grant  by  the  people,  through 
their  legislature,  of  a  part  of  their  sovereign 
power  and  right  of  eminent  domain  ?  The  grant 
may  hereafter  be  revoked,  if  it  does  not  get  to  be 
too  strong,  but  while  in  force,  are  not  that  power 
and  that  right  suspended.  I  am  confident,  that 
such  would  be  the  effect  of  the  proposed  restric 
tion — that  while  it  takes  a  measure  of  power  from 
the  legislature,  it  imparts  exactly  the  same  meas 
ure  to  existing  corporations.  Sir,  I  am  not  for 
such  a  limitation  of  legislative  action.  I  am  not 
for  a  prohibition,  which  passes  over  all,  which  is 
prohibited  to  bodies  which  have  had  their  full 
share  of  legislative  succor — which  have  had  all 
they  could  ask — all,  which  is  necessary  to  the 
completion  and  success  of  their  enterprises.  I  am 
for  no  such  constitutional  restriction  upon  the 
government,  as  shall  operate  as  a  grant  of  the 
patronage  and  aid  left  to  it — to  those,  to  whom 
aid  and  patronage  have  been  meted  out  in  gen 
erous  and  abundant  measure.  "  To  him  that 
hath  shall  be  given,"  may  be  sound  theology, 
but  "  from  him,  that  hath  not,  shall  be  taken 
away  even  that  which  he  hath,"  certainly  requires 
to  be  examined,  before  being  adopted,  as  a  rule 
in  the  distribution  of  legislative  favors.  If  the 
chartered  powers  and  immunities,  through  which 
we  have  chosen  to  construct  our  public  works, 
operate  safely  and  beneficially,  make  them  gen 
eral,  as  the  public  good  requires.  If  they  prove 
productive  of  evil,  should  not  that  evil  come  to 
us  diluted  by  diffusion.  I  discuss  this  question 
by  itself,  disconnected  entirely  from  any  of  the 
other  modes  proposed  to  abridge  legislative  author 
ity  over  public  credit.  I  look  at  it,  as  an  abstract 
proposition,  apart  from  any  particular  railroad, 
which  now  is,  or  is  proposed  to  be  made. 

Much  has  been  said  about  the  "Western  Railroad, 
and  the  Hoosac  Tunnel.  They  are  entitled  to  no 
specific  consideration  in  the  debate  upon  the  pro 
posed  limitation.  They  may  be  parts  of  a  whole, 
which  may  have  relation  to  it.  I  certainly  enter 
tain  no  hostility  to  the  first,  and  would  not  favor 
the  execution  of  the  other,  if  it  be  impracticable, 
or  not  called  for  by  the  general  welfare,  and 
whether  it  be  practicable,  or  would  be  of  public 
benefit,  I  certainly  am  not  advised.  These  ques 
tions  require  more  close  and  accurate  investigation 
than  one  not  specially  concerned  is  inclined  to 
give,  or  can  give.  If  those  mountain  barriers  can 


58th  day.] 


LOAN   OF   STATE   CREDIT. 


19 


Friday,] 


BISHOP. 


[July  15th. 


be  perforated,  so  as  to  admit  to  a  passage  through, 
a  locomotive  and  its  train,  without  great  and  dis- 
proportioiial  expenditures,  and  the  voice  of  the 
people  call  for  it,  and  they  can  be  assured  by  the 
severest  inquiry  which  they  may  make,  that  no 
loss  will  be  incurred,  let  the  mountains  be  tun 
nelled.  Pledges,  as  solid  as  the  bonds  of  the  "  solid 
men  of  Boston,"  should  be  required,  if  the  State, 
by  her  credit,  gives  aid.  It  is  right  that  such 
pledges  be  required,  for  although  a  public  work, 
it  is  to  be  executed  mainly  upon  the  judgment  of 
individuals,  and  largely  by  their  capital,  who 
carefully  compare  and  balance  the  privileges 
granted  with  the  risks  assumed,  and  should  stand 
by  them. 

It  is  said  that  the  "Western  Railroad  is  not 
only  an  exhibition  of  the  active,  intelligent  en 
terprise,  but  a  standing  monument  of  the  mu 
nificent  wisdom  of  the  State.  It  has,  indeed, 
thus  far  accomplished  all  the  purposes  of  its  crea 
tion  ;  all  that  it  promised,  it  has  doubly  fulfilled, 
and  more.  Its  security  is  pronounced  ample, 
firm  as  "  terra  firma  "—subject  to  diminution 
only  by  earthquakes  or  volcanoes.  Stripped  of 
it,  the  State  would  be  without  one  of  its  greatest 
sources  of  prosperity,  and,  so  long  as  it  shall  be 
administered  as  it  has  been,  with  reference  to  the 
public  accommodation  and  wants,  and  economi 
cally  and  efficiently  ;  so  long  as  it  shall,  as  it  has 
done,  appoint  for  its  conducting  officers  gentle 
men,  courteous,  kind,  and  attentive,  to  whom  we 
can  commit  our  wives,  our  children,  ourselves, 
assured  of  exposure  to  those  casualties  only,  which 
come  in  spite  of  human  vigilance  and  forecast, 
it  will  retain,  as  it  holds,  the  special  favor  and  re 
gards  of  the  people,  and  their  government.  It  has, 
however,  been  created  for  special  purposes.  Its 
rights  and  its  powers  are  limited  and  defined. 
Other  rights,  it  cannot  claim,  other  powers  it  can 
not  exercise,  without  transcending  and  violating 
its  charter,  and  exposing  it  to  forfeiture.  It  is 
said  that  this  corporation  is  here  in  the  Conven 
tion — that  it  sat  with  the  last  legislature,  during 
its  protracted  session.  It  has  no  business  here. 
It  had  no  business  there.  It  has  no  power  to  make 
constitutions  or  laws,  except  for  "  the  orderly 
conducting  of  its  own  business."  It  has  a  legal 
existence  only — is  a  legal  person,  with  specific 
functions,  created  for  determinate  purposes,  and 
should  it  assume  other  offices,  or  attempt  other 
purposes,  its  claim  to  exist  would  and  should  cease. 
It  is  enough  that  its  stockholders  have  and 
retain  their  several  individual  rights,  and  can  de 
fend  and  protect  their  interest,  as  others  may, 
whether  that  interest  be  in  lands,  chattels,  or 
stocks.  Its  officers,  like  other  men,  are  eligible 
as  delegates  and  legislators,  and  if,  like  others, 


they  are  jealous  and  watchful  of  their  rights, 
the  corporate  body,  of  which  they  are  members, 
would  hardly  be  obnoxious  to  censure.  When 
corporations  shall  appear  voluntarily,  as  such,  in 
either  department  of  the  government,  expending 
their  funds  and  using  their  powers  to  control  its 
proceedings  in  matters  not  within  their  charters, 
and  attempt  to  arrest  public  improvements,  crip 
ple  private  enterprises,  or  get  rid  of  lawful  com 
petition,  the  time  will  have  come,  either  for  their 
entire  disfranchisement,  or  for  severely  stringent 
circumscriptions,  for  the  world  is  old  enough  to 
have  learned,  that  if  there  be  such  a  thing  as  a 
legal  conscience,  it  has  no  sting  to  it.  To  those 
who  see  imminent  perils  in  the  factitious  powers 
created  by  special  legislation — powers  which  set  at 
defiance  individual  competition,  and  are  strong 
and  dangerous  because  they  can  do  so,  this  con 
solation,  at  least,  is  left :  that  thus  far  they  have 
been  employed,  with  few  exceptions,  by  honorable 
men,  who  know  as  well  their  obligations  as  their 
rights,  and  are  willing  to  fulfil  them.  May  a 
wholesome  jealousy  watch  and  guard  them,  till 
men,  single-handed,  with  private  capital,  shall  be 
able  to  cope  with  them,  as  I  trust  in  the  revolu 
tions  of  business  they  may  be,  or  until  a  system 
of  general  laws,  by  their  impartial  operation,  shall 
have  placed  them  upon  common  ground. 

That  the  inhibitory  restriction  proposed,  should 
have  found  an  advocate  among  the  delegates  from 
this  city  is  most  wonderful.     That  every  one  of 
them  should  be  found  prudent,  cautious,  in  favor 
of  a  reasonable,  and  even  a  stringent  limitation, 
is  not  surprising.     They  are  "solid  men,"  so  all 
believe — so  said  the  oracle.     The  industry  and 
prosperity  of  city  and  country  are  compactly  in 
terwoven.     The  interest  of  mart  and  field  are 
almost  identical.      They   should   be   brought,  if 
possible,  into  close  proximity.     The  heart  beats, 
not  for  itself  alone,  but  for  the  extremities,  and 
their  twenty  terminals.      Boston  is  not  Boston, 
for  her  own  sake  only,  but  also  for  every  moun 
tain,  where  the   chopper   builds   his   cabin — for 
every   hoof-trod    hill-side — for   every   corn-clad 
valley.     Her  citizens  should  cooperate  with  those 
of  the  country,  in  all  reasonable  ways,  to  enable 
the  latter  to  come  here,  at  the  least  expense,  and 
in  the  shortest  time.     Fears  are  expressed  of  cen 
tralization.     Centralization  of  government  is,  in 
deed,  to  be  feared,  and  stout  resistance  to  it  should 
be  made.     No  man,  unless  it  be  constitutionally 
delegated,  should  have  more  political  control,  than 
belongs  to  him  individually.     He  is  one  only  of 
many  equal  parts,  a  unit  in  the  whole  number  ; 
and  no  municipality  or  city  should  be  suffered  to 
exercise  any  more  of  legislative  or  administrative 
influence,  than  its  just  popular  dividend.     Busi- 


20 


LOAN  OF   STATE   CREDIT. 


[58th  day. 


Friday,] 


BlSHOP  —  StJMNER. 


[July  15th. 


ness  centres,  however,  have  been,  and  always  will 
be,  so  long  as  streams  unite  and  form  navigable 
rivers,  and  there  are  found  upon  the  shores  of  the 
ocean,  at  wide  intervals  only,  secure  retreats  from 
its  storms.  Boston  is  one  of  these  central  points, 
where  land  meets  sea,  in  safe  and  commodious 
harbor — where  landsmen  meet  seamen,  and  will 
always  meet  them — where  they  interchange  the 
necessities,  conveniencies,  and  luxxiries  of  life, 
and  where,  I  hope,  there  will  always  be  an  inter 
change  of  material  things  not  only,  but  of  the 
sentiments  of  kindness,  respect,  confidence,  and 
hearty  good- will.  Conventionalities  may  obstruct 
the  ease  and  frankness  of  intercourse,  may  gene 
rate  castes  and  classes,  may  canker  the  hearts  of 
the  exclusives  with  pride,  and  tincture  the  spirits 
of  the  excluded  with  envy.  Conventionality  and 
jealousy  are  everywhere.  They  are  incident  to 
humanity,  and  among  the  diversified  forms  in 
which  human  folly  and  human  weakness  show 
themselves.  Those  who  institute  invidious  com 
parisons  between  city  and  country,  claiming  for 
the  one  all  the  wealth  and  munificence,  for  the 
other  all  the  solid  intelligence  and  stern  virtue,  do 
a  positive  evil,  by  postponing  the  day,  when  well- 
bred  intercourse  and  cordial  good  fellowship  will 
convict  each  of  mistake,  and  lead  to  the  mutual 
correction  of  errors.  Away  with  all  factitious 
social  distinctions.  There  is  no  place  for  them 
among  the  serious  actualities  of  life — no  time  for 
them  with  those,  who  by  steam  and  railroad 
would  bring  the  world  into  one  neighborhood — 
into  one  common  feeling  of  mutual  confidence 
and  love.  Leave  such  silly  matters  to  brainless 
men  and  idle  women.  An  avenue  from  every 
section  and  corner  of  the  State,  if  it  be  called  for, 
and  will  pay,  should  be  opened  to  her  great  com 
mercial  capital ;  and  it  should  no  longer  be  com 
plained  of  by  the  dwellers  on  the  western  moun 
tains,  that  it  costs  double  to  reach  their  own  cher 
ished  commercial  capital,  to  what  it  does  to  go  to 
that  of  a  neighboring  State,  at  a  greater  distance 
from  them.  Sir,  what  can  be  done,  with  full 
assurance  of  no  consequent  loss  to  the  State,  in 
the  way  of  reaching  this  city  cheaply  and  quickly, 
should  find  no  obstacles  here  or  anywhere. 

"Why,  Sir,  from  the  western  part  of  Massachu 
setts,  we  come  to  Boston,  thank  Heaven,  much 
more  readily  than  we  did ;  but  it  is  a  fact,  that 
in  order  to  reach  our  own  commercial  capital,  we 
pay  four  hundred  per  cent,  more  than  we  are 
obliged  to  pay  in  order  to  reach  a  great  commer 
cial  capital  of  another  State,  at  a  greater  distance 
from  us.  There  may  be  physical  difficulties  in 
the  way,  which  cannot  be  removed  ;  and  all  that 
we  ask  is  the  removal  of  every  obstacle,  the  filling 
up  of  every  valley  that  can  be  filled,  the  lowering 


of  every  mountain  which  can  be  brought  down, 
that  we  may  reach  our  own  commercial  capital, 
transact  business  with  our  own  citizens,  and  de 
rive  our  full  benefit  from  the  fact  that  we  have  a 
°reat  commercial  city  which  we  love,  whose  in 
terests  we  shall  cultivate,  and  with  which  we 
shall  forever  be  connected. 

Mr.  SUMNER,  for  Marshfield.  Mr.  President : 
I  have  no  desire  to  enter  upon  the  broad  discus 
sion  which  has  been  opened  by  the  question  now 
before  the  Convention.  There  are  considerations, 
of  clear  and  palpable  force,  which  will  determine 
my  vote,  and  which  are  as  simple  as  they  ought 
to  be  decisive.  These,  with  your  permission,  Sir, 
I  will  briefly  indicate. 

It  is  proposed,  by  a  permanent  provision  of  the 
Constitution,  to  tie  the  hands  of  the  legislature, 
so  that  it  cannot  hereafter,  as  in  times  past,  lend 
the  credit  of  the  State  in  aid  of  any  private  corpo 
ration  ;  and  an  amendment  has  been  introduced 
by  my  friend  from  Boston,  on  the  other  side  of 
the  House,  (Mr.  Giles,)  allowing  such  loan ;  but 
only  on  the  difficult  and  almost  impossible  con 
dition  of  a  vote  of  two -thirds  of  the  legislature. 
Both  of  these  provisions — the  original  proposition 
and  the  amendment — though  differing  in  form 
and  degree,  are  identical  in  principle.  They  both 
contemplate  a  restraint  upon  the  existing  powers 
of  the  legislature  in  this  regard. 

Now,  Sir,  waiving  all  question  of  the  propriety 
of  such  restraint  on  grounds  of  abstract  policy,  or 
on  grounds  suggested  by  the  experience  of  other 
States,  I  believe  I  may  assume,  without  fear  of 
contradiction,  that  in  times  past  no  crying  evil 
has  occurred  in  Massachusetts  from  its  absence. 
The  credit  of  the  Commonwealth  has  been  rarely 
lent;  and  when  lent,  it  has  been  on  sufficient 
security,  and  for  the  general  good.  Witness  the 
instances  which  have  been  adduced  in  this  debate. 
We  are  not,  then,  pressed  to  this  measure  by  any 
special  experience  of  evil.  We  have  in  no  respect 
suffered  from  the  want  of  it.  No  such  urgency 
exists.  This  is  something,  and,  of  itself,  in  the 
absence  of  any  commanding  principle,  may  well 
make  us  hesitate  to  depart  from  the  established 
policy  of  the  Commonwealth.  But  there  is  an 
other  consideration,  to  which  reference  has  been 
already  made  by  gentlemen  who  have  preceded 
me,  which  completely  disposes  of  the  whole  ques 
tion. 

Sir,  it  is  notorious  that  an  application  has  been 
recently  made  to  the  legislature — in  conformity 
with  usage  in  similar  cases — for  aid  in  an  impor 
tant,  and,  as  I  believe,  practicable  work  of  Internal 
Improvement,  which,  when  completed,  will  be  a 
glory  to  the  Commonwealth,  and  a  mighty  chan 
nel  of  trade  and  travel.  This  application,  after 


58th  day.] 


LOAN   OF   STATE   CREDIT. 


21 


Friday,; 


SUMNER  —  GILES. 


[July  15th. 


ample  discussion,  found  favor  in  the  House  of 
Representatives,  but  was  rejected,  on  a  very  close 
division,  in  the  Senate — I  think  by  a  single  vote. 
But  the  parties  having  this  grand  enterprise  at 
heart,  avow  their  determination  to  renew  it  at 
another  session.  It  is,  therefore,  at  this  moment, 
in  the  nature  of  a  Pending  Question  of  Internal 
Improvement,  of  which  the  legislature,  under  the 
existing  Constitution,  has  jurisdiction.  But  this 
is  not  all.  At  the  very  time  honorable  members 
were  chosen  to  this  Convention,  it  was  then  a 
Pending  Question  before  the  legislature.  Under 
these  circumstances,  and  in  the  absence  of  any 
besetting  evil,  or  controlling  principle,  it  seems  to 
me  highly  impolitic  and  meddlesome  for  the  Con 
vention  to  undertake,  directly  or  indirectly,  to 
deal  with  it.  Directly,  you  would  not ;  indirectly, 
you  should  not.  On  a  question  thus  peculiarly 
circumstanced — standing  by  itself,  and  unlike  any 
other  now  before  the  Convention — Public  Opin 
ion  should  be  left  to  operate  in  its  customary 
channel,  without  any  impediment  or  breakwater 
from  us. 

Sir,  I  am  against  the  proposition  on  two 
grounds;  first,  because  it  is  not  vindicated  by 
any,  obvious  principle,  or  by  any  ruling  necessity, 
or  even  expediency,  founded  upon  the  experience 
of  our  Commonwealth ;  and,  secondly  and  chiefly, 
because,  notwithstanding  its  generality  of  form,  it 
is  practically  an  offensive  interference  with  a 
Pending  Question  of  Internal  Improvement, 
which  we  were  not  summoned  to  determine. 

Mr  GILES,  of  Boston.  I  ask  the  indulgence 
of  the  Convention  for  a  few  moments,  to  express 
some  of  the  sentiments  which  I  have  in  relation 
to  the  resolution  now  before  the  Convention.  It 
so  happened,  the  other  day,  that  I  found  this 
question  up  and  under  discussion.  The  general 
drift  of  the  motions  before  the  Convention,  was 
to  place  a  limit  upon  the  legislative  power  to  grant 
the  credit  of  the  State.  With  that  intention  I 
concurred,  but  I  did  not  assent  to  the  various  pro 
positions  to  obtain  that  object.  During  the  vote 
upon  one  of  them,  I  framed  the  amendment  which 
is  now  before  the  Convention,  and  with  reference 
to  which,  as  I  understand,  a  motion  has  been 
made,  and  is  now  the  immediate  question  before 
us,  to  reconsider,  and  which  was  offered  by  my 
friend  from  Charlestown,  (Mr.  Thompson).  The 
object  which  1  had  in  view  in  framing  that  reso 
lution,  which  was  done  on  the  spur  of  the  mo 
ment,  was  two -fold  ;  first,  to  make  it  intelligible, 
and  second,  to  make  it  in  a  form  which  would  ad 
mit  of  being  easily  amended.  It  therefore  provides 
that  the  legislature  shall  not  have  power  to  grant 
the  credit  of  the  State,  to  any  private  corporation 
without  two-thirds  of  the  House,  and  two-thirds 


of  the  Senate  agree  to  it ;  and  it  so  stands,  that  if 
any  gentleman  wishes  to  strike  out  the  provision 
requiring  a  two-thirds  vote  of  the  Senate,  and 
insert  one  requiring  a  majority  only,  or  to  strike 
out  the  provision  req-iiring  a  two-thirds  vote  of 
the  House,  and  insert  a  majority,  it  may  be  easily 
done. 

I  wish  now  to  suggest  some  reasons  upon  which 
I  found  the  expediency  of  some  limitation,  and 
make  a  few  remarks  with  reference  to  the  points 
which  have  been  started  this  morning,  in  the 
debate.  Mr.  President,  what  is  the  foundation  of 
this  resolution  ?  Is  it  baseless  as  a  vision  or  a 
dream  in  the  night;  or  has  it  a  foundation  in 
reason  ?  If  so,  what  is  it  ?  I  say  it  does  stand 
on  a  foundation ;  and  that  foundation  is,  first, 
that  the  granting  of  the  State  credit  is  no  part  of 
governmental  action ;  it  is  an  exception,  an  ex 
traordinary  act,  and  it  is  no  part  of  ordinary 
governmental  action  to  grant  the  credit  of  the 
State  to  private  corporations. 

That  being  one  corner-stone  of  the  resolve,  I 
say  that  the  act  of  granting  the  State  credit, 
should  be  guarded  farther  than  the  ordinary  acts 
of  the  legislature,  which  simply  require  a  major 
ity.  The  other  foundation  is,  that  the  history  of 
these  grants  of  the  State  credit  to  individuals  and 
corporations  in  this  country,  including  the  gov 
ernment  of  the  Union,  and  the  government  of 
each  State  in  the  Union,  shows  that  there  is  dan 
ger  of  abuse.  I  am  not  going  into  any  partic 
ulars  ;  I  am  not  going  to  assert  that  any  particular 
instance  is  an  abuse  ;  but  I  do  say  that  it  is  the 
conviction  of  the  public  mind  in  this  country, 
and  not  only  in  this  country,  but  in  other  coun 
tries,  that  there  is  danger  of  abuse  from  this 
power  of  the  legislature. 

Then,  this  being  an  extraordinary  act,  and  one 
which  is  in  danger  of  being  abused,  it  does  call 
for  more  guards  than  ordinary  legislation,  to  wit : 
the  majority  vote. 

The  proposition  the  other  day,  was  to  put  the 
question  to  the  people.  I  opposed  it ;  not  upon 
the  ground  of  any  distrust  of  the  people.  I  said 
then,  and  I  say  now,  that  if  I  thought  there  was 
not  sufficient  intelligence  in  the  people  to  enable 
them  to  pass  upon  any  proposition  which  this 
Convention  should  put  to  them,  I  would  vote  to 
double  the  school  fund  again  and  again  till  there 
was.  But  the  reason  why  I  would  not  put  it  to 
the  people,  was  this.  I  am  in  favor  of  internal 
improvements,  as  well  as  my  friend  for  Erving, 
(Mr.  Griswold)  ;  I  go  for  them,  heart  and  hand. 
I  always  have  and  always  will.  I  wish  these  im 
provements  to  have  the  good  will  of  every  man  in 
the  Commonwealth ;  and  that  is  the  reason  why 
I  would  never  put  one  of  these  great  enterprises 


22 


LOAN  OF   STATE   CREDIT. 


[58th   day. 


Friday,] 


GILES. 


[July  15th. 


to  the  people  in  a  shape  that  would  compel  them 
to  take  sides  for  or  against  it.  You  put  a  propo 
sition  of  this  kind  to  the  people,  and  they  are 
compelled,  by  all  the  machinery  of  caucus  and 
electioneering,  and  party  influences,  to  take  sides 
for  or  against  it.  And  what  would  be  the  result  ? 
Suppose  they  go  for  it,  and  you  get  the  credit  of 
the  State.  Good.  But  suppose  that  half,  or 
nearly  half,  the  people  of  the  Commonwealth  go 
against  it,  and  you  do  not  get  the  credit  of  the 
State.  Bad ;  bad  every  way ;  bad,  because  the 
corporation  has  not  got  the  State  credit  to  aid  the 
enterprise,  and  because  there  will  be  thousands  of 
men  in  the  Commonwealth  ready  to  rejoice  in 
the  failure,  and  say  that  it  was  but  a  fulfilment  of 
their  prophecies,  that  they  always  knew  it  was  a 
bad  enterprise,  and  must  fail.  That  is  the  reason 
why  I  would  never  put  a  part  of  the  people  in  a 
position  which  would  make  them  the  enemies  of 
any  project  for  internal  improvement.  Credit  is 
based  on  good- will.  I  wish  every  one  of  the  im 
provements  in  the  State  to  have  the  general  good 
will,  and  the  particular  good-will,  of  every  man 
in  the  Commonwealth. 

My  friend  says,  leave  it  to  the  legislature.  So 
say  I.  But  not  without  a  limit,  because  the  very 
legislature  to  which  you  leave  it,  is  the  identical 
legislature  which  will  be  deeply  interested  in  the 
question  for  or  against  it,  and  men  are  but  men, 
and  subject  to  influences,  and  I  am  not  one  to 
stand  here  and  condemn  the  fact  that  men  are 
subject  to  influences.  I  agree  with  the  old  philo 
sophic  doctrine,  that  man  is  but  a  bundle  of  in 
fluences.  I  assent  to  the  sentiments  of  Cicero, 
uttered  in  the  chamber  of  the  Senate  of  Rome,  on 
a  remarkable  occasion,  when  he  made  a  remarka 
ble  oration,  and  was  reproached  by  the  dema 
gogues  of  that  city  and  that  day,  who  said  that 
his  knees  trembled  so  that  they  knocked  together 
in  the  presence  of  that  august  body  of  patricians ; 
and  his  reply  was  :  "I  did  tremble ;  and  my 
knees  did  knock  together,  but  not  because  I  feared 
the  face  of  man,  but  because  I  was  a  man  ;  and  I 
thank  the  gods  that  I  am  subject  to  influence,  be 
cause  if  I  am  not  subject  to  influence  by  others, 
how  can  I  influence  others  myself." 

Now,  Sir,  it  is  the  part  of  wisdom  not  to  im 
peach  our  Maker,  and  condemn  his  arrangement 
of  the  human  mind  and  human  system,  but  to 
take  it  as  we  find  it,  and  act  wisely  in  reference  to 
our  organic  laws,  for  their  action  and  development. 
My  friend  said  again,  that  the  experience  of  this 
State  has  been  fortunate ;  that  it  has  not  lost  a 
dollar.  Agreed.  That  it  will  not  lose  a  dollar. 
Grant  it.  That  it  will  make,  has  made,  and  does 
make,  much  money.  True.  But  I  do  not  assent 
to  that  policy.  I  say  it  is  wrong  for  a  State  to 


enter  into  the  business  of  the  people,  and  take  it 
out  of  the  people's  hands.  I  am  for  having  this 
business  done,  but  I  am  for  having  it  done  by  the 
people,  and  if  it  be  successful,  I  would  have  the 
people  put  the  money  into  their  own  pockets,  and 
not  be  obliged  to  go  into  competition  with  cor 
porations  aided  by  the  State.  Therefore,  it  is  no 
argument  in  favor  of  granting  the  State  credit, 
that  the  State  will  thereby  replenish  its  treasury. 
If  that  be  good  policy,  I  would  say  to  the  gen 
tleman  from  Lenox,  why  not  go  into  the  issuing 
and  endorsement  of  bills  of  exchange,  and  go  into 
the  bonding  system,  and  inspect  the  board  of 
fancy  stocks,  day  by  day.  Nobody  wishes  for 
that. 

One  word  more,  Mr.  President,  upon  the  sub 
ject  of  corporation  influence  upon  the  legislature. 
I  have  called  no  corporation  by  name,  and  I  shall 
not  do  so — I  allude  to  no  individual  and  to  no 
corporation  ;  that  makes  no  part  of  my  thoughts, 
or  of  my  argument.  My  friend  from  Lenox  said 
that  no  corporation  is  here  to-day.  I  wish  that 
were  true ;  but  if  no  corporation  is  here  to-day, 
why  do  we  hear  of  any  corporations  ?  Now,  Sir, 
I  am  ready  to  express  the  conviction  which  I 
have  for  several  years  felt ;  but  before  I  do  it,  I 
will  state  what  is  hardly  necessary  for  me  to  state 
to  anybody  who  knows  my  course,  that  I  am  a 
friend  to  corporations — that  I  have  called  them, 
and  I  still  believe  them  to  be,  the  right  arm  of  the 
industry  and  enterprise  of  this  Commonwealth. 
I  could  talk  an  hour  upon  their  beneficent  action, 
and  describe  the  blessings  which  they  have  spread 
through  the  land,  where  they  have  brought  com 
fort  and  luxury,  and  have  stimulated  all  the  best 
appetites  and  tastes  of  our  nature ;  but  I  have  not 
time  for  that.  I  say  they  have  done  what  must 
be  done,  and  what  will  not  be  done  at  all  except 
by  associated  wealth,  in  every  new  country.  But 
there  is  a  period  coming,  and  it  has  begun  in  this 
country,  when  your  corporate  production  cannot 
compete,  and  will  not  compete,  with  individual 
production,  and  enterprise,  and  capital,  because  it 
can  no  more  produce  a  yard  of  cotton  cloth  so 
cheap  as  I  can,  than  the  State  can  do  it  so  cheap 
as  I  can.  No,  Sir  :  it  neither  makes  the  market 
more  than  it  is,  nor  has  its  sensitive  hand  upon 
the  public  pxilse  to  know  when  to  produce,  and 
when  to  stop — when  to  buy,  and  when  to  sell ; 
and  it  has,  in  addition  to  its  ordinary  expenses,  a 
whole  roll  of  corporation  expenses,  salaries,  &c. 
But  in  reference  to  corporation  influence  upon 
the  legislature,  what  is  my  conviction  ?  It  is  this. 
I  speak  from  what  I  do  know ;  I  am  not  going  to 
speak  from  anybody's  knowledge,  but  from  that 
which  produces  my  own  convictions  ;  and  I  say 
here,  to  this  Convention,  and  to  the  people  of  the 


58th  day.] 


LOAN   OF   STATE   CREDIT. 


23 


Friday,] 


GILES. 


[July  15th. 


Commonwealth  of  Massachusetts,  that  your  cor 
poration  wealth  is,  at  this  day,  and  at  this  moment, 
too  strong  for  your  Commonwealth.  Your  cor 
poration  wealth  has  been  increasing,  is  increasing, 
and  in  my  judgment,  ought  to  be  restrained. 
Your  corporation  influence  has  increased,  is  in 
creasing,  and  in  my  judgment,  ought  to  be  re 
strained.  It  is  too  strong  for  the  Commonwealth, 
and  your  corporate  wealth  is  too  strong  for  the 
Commonwealth  ;  and  I  say  that,  in  my  judgment 
— friend  to  corporations  as  I  am,  and  it  may  go 
for  what  it  is  worth — I  say  woe  to  the  corporate 
institutions  of  Massachusetts,  and  the  corporate 
interest  and  the  corporate  influence  of  Massachu 
setts,  when,  by  intermeddling  with  the  legislature 
of  the  people,  or  the  conventions  of  the  people, 
they  shall  touch  and  rouse  the  heart,  and  muscle, 
and  bone,  of  the  masses  of  the  people  to  come  to 
the  rescue  of  the  people's  legislatures  and  the  peo 
ple's  conventions  against  corporations.  "Woe  to 
them,  when  they  bring  that  day  upon  their  heads, 
and  that  day  they  are  bringing. 

One  other  point  I  will  allude  to.  I  must  go  by 
points  or  I  shall  not  get  through.  That  is  this : 
I  have  heard  it  said  by  distinguished  gentlemen 
here  to-day,  and  heretofore,  that  the  State  credit 
is  to  be  claimed,  is  now  claimed,  and  I  know  it 
has  been  claimed  from  other  quarters,  independ 
ent  of  the  specific  merits  of  the  specific  cases, 
merely  because  the  State  has  granted  its  credit  to 
others ;  and  every  road  and  every  enterprise  is  in 
its  nature  local,  and  is  producing  great  advantages 
in  a  particular  locality.  The  claim  comes  up ; 
"  You  have  granted  it  here,  you  have  granted  it 
there,  and  you  ought  to  grant  it  again,  because 
you  have  granted  it  so  and  so  before."  Now,  Sir, 
every  road  is  local ;  every  road  must  lead  some 
where.  I  will  say  what  was  once  said  by  a  dis 
tinguished  man  in  reference  to  a  western  road, 
the  Maysville  Road — no  road  can  lead  everywhere, 
except  the  road  to  ruin.  I  do  not  recognize  the 
solidity  of  this  argument  in  favor  of  the  State 
granting  its  credit,  merely  because  it  has  done  so 
before ;  for  that  would  lead  us  into  the  maelstrom 
of  speculation,  and  if  we  came  out  whole  and 
sound,  we  should  have  another  cause  in  addition 
to  the  innumerable  instances  which  we  now  have, 
of  grateful  acknowledgment  to  that  superintend 
ing  Providence  which  is  wiser  than  we,  and  most 
wise  where  we  are  the  least  so. 

Now,  Sir,  in  regard  to  the  particular  number 
of  two-thirds,  amend  it  as  you  please — make  it 
two-thirds  of  the  House  and  a  majority  of  the 
Senate,  or  the  other  way,  or  suppose  you  adopt 
anything  near  two-thirds,  anything  that  shall 
accomplish  this  result ;  when  a  case  comes  up,  I 
wish  the  attention  of  the  legislature  drawn  right 


to  this  point — is  this  an  extraordinary  exigency  ? 
Is  it  one  that  will  justify  the  State  in  granting 
its  credit  ?  I  want  it  to  serve  at  the  same  time  as 
a  caution  to  them  and  to  the  petitioners,  and  to 
support  your  legislature  and  your  governor ;  for 
I  do  believe  that  every  successive  legislature  and 
governor  that  shall  ever  honor  this  State  and  be 
honored  by  it — and  I  hold  that  the  State  and  its 
officers,  thus  far  in  its  history,  to  have  mutually 
honored  each  other — will  be  thankful  for  some 
thing  of  this  kind  in  your  Constitution.  Any 
basis  of  representation  that  is  likely  to  be  adopted 
will  result  in  this,  that  two-thirds  of  your  House 
may  be  elected  by  about  one-half  of  your  people ; 
and  that  is  an  idea  that  is  worthy  of  consideration. 
This  restraint  will  not,  therefore,  be  like  a  restraint 
upon  the  majority  of  the  people,  so  far  as  this  is 
concerned. 

Now,  with  regard  to  the  effect  which  this  would 
be  likely  to  have  if  ingrafted  into  your  amend 
ments  to  the  Constitution,  when  you  put  it  to  the 
people  for  a  poptilar  vote  upon  its  adoption  or  re 
jection,  that  is  a  thing  that  I  have  not  looked  at ; 
but  it  is  a  consideration  worthy  of  being  looked  at. 
I  would  not  put  anything  in  which  I  thought 
would  be  likely  to  endanger  that  which  I  deem 
important  and  valuable ;  and  I  would  put  no 
thing  in  which  was  not  needed  to  bring  the  Con 
stitution  nearer  to  perfection.  If,  therefore,  you 
think  that  such  a  proposition  would  endanger 
any  of  its  associates,  put  it  separately,  so  that  the 
people  can  say  yea  or  nay  upon  it,  and  nothing 
else ;  and  if  a  majority  of  the  Convention  shall 
deem  that  its  being  in  their  amendments  at  all 
will  endanger  the  rest,  do  with  it  in  your  wisdom 
what  you  please.  I  have  myself  but  one  course, 
and  that  is,  to  consider  every  effect  within  my 
knowledge  of  the  course  of  action  which  I  am 
about  to  take,  and  to  do  as  well  as  I  can,  accord 
ing  to  the  dictates  of  my  judgment  and  my  con 
science,  and  put  unbounded  confidence  in  the 
good  and  judicious  action  of  the  people;  in  other 
words,  I  shall  do  according  to  what  is  termed 
part  of  the  code  of  a  gentleman,  and  that  is,  to 
consider  every  man  a  gentleman  until  he  proves 
himself  to  be  no  gentleman,  and  treat  him  accord 
ingly  ;  and  I  shall  treat  the  people  accordingly. 
I  will  put  to  them,  therefore,  what  I  deem  to  be 
best ;  and  if  they  do  not  agree  to  it,  they  can  reject 
it,  as  we  have  agreed  they  shall.  I  have  no  desire 
to  have  one  improvement  in  the  Constitution  car 
ried  by  connecting  it  indissolubly  with  another, 
when  it  is  of  a  doubtful  character ;  but  I  do  believe 
in  the  expediency  of  some  restriction  upon  this 
granting  of  the  State  credit. 

My  friend  alluded  to  the  idea  that  this  restric 
tion  was  in  the  nature  of  a  cramp ;  yea,  and  a 


24 


LOAN   OF   STATE   CREDIT. 


[58th  day. 


Friday,] 


GILES  —  LORD. 


[July  15th. 


cramp  upon  the  industry  of  the  people.  But  do 
I  go  for  any  such  thing  ?  No,  Mr.  President. 
Did  I  not  say  to  him  the  other  day,  lay  not  the 
icy  hand  of  death  upon  the  enterprise  of  the 
people  of  this  Commonwealth  ?  This  enterprise 
is  instinct  with  trade,  with  life,  and  energy  ;  and 
I  said  then,  as  I  say  now — support,  encourage, 
cherish,  sustain  that  enterprise,  here  and  every 
where.  But  it  is  with  the  enterprise  of  this  com 
munity  as  it  is  with  the  leading  and  dominant 
spirit  that  acts  in  man  and  in  the  nation ;  it  is 
not  to  be  cramped,  but  it  is  to  be  guided,  and  this 
is  the  way  in  which  you  are  to  aid  it.  Let  the 
flood  burst  from  your  mountains,  and  fall  into  a 
course  where  there  are  no  banks;  will  it  not 
overrun  your  plains  and  devastate  your  fields  ? 
But  let  it  go  in  such  channels  as  the  Maker  of  the 
earth  has  formed  for  such  beneficent  streams,  and 
what  is  the  result  ?  It  makes  a  river,  bordered 
with  cities  and  villages  ;  it  is  then  a  blessing  to 
the  country,  for  it  makes  it  populous,  prosperous, 
productive,  and  happy.  I  claim,  therefore,  that  I 
go  with  him  who  goes  the  farthest  in  favor  of 
enterprise  and  credit,  energy  and  industry,  and 
everything  that  we  deem  good  ;  but  I  claim  it  to 
be  wise,  from  past  experience  and  the  nature  of 
the  case,  to  impose  some  restriction  upon  the 
granting  of  the  State  credit. 

I  will  say  to  my  friend  from  Lenox,  who 
doubts  the  constitutionality  of  any  grant,  that  the 
Constitution  says  that  the  legislature  shall  have 
power  to  enact  all  wholesome  and  reasonable 
laws,  and  to  take  private  property  for  public 
uses.  There  is  the  foundation  of  this  policy,  and 
there  let  it  be.  It  has  worked  well,  and  it  will 
work  well;  but  when  you  come  to  grant  the 
State  credit,  which  is  my  credit,  and  your  credit, 
and  his  credit,  and  every  man's  special  and  private 
credit,  as  well  as  the  associated  credit  of  the  whole, 
then  let  it  be  done  wisely.  Let  the  instance  be 
such  as  to  commend  itself  to  more  than  a  bare 
majority,  under  all  the  influences  which  I  do  not 
deprecate,  but  which  I  expect  will  be  brought  to 
bear  upon  the  legislative  body  in  that  particular 
case  ;  and  if  the  case  be  a  good  one,  it  can  com 
mand  more  than  a  bare  majority  of  the  legislature, 
and  it  will  command  the  assent  of  the  people. 
But  if  it  fail,  this  failure  will  not  destroy  its  own 
credit,  as  a  failure  under  a  mere  majority  might. 
If  it  succeeds,  it  will  give  you  not  only  the 
amount  in  millions,  but  it  will  double  that 
amount  in  the  good- will  and  cooperation  of  the 
whole  people  in  your  favor.  That  is  what  you 
need — that  is  what  I  want  you  to  have — that  is 
what  I  design  to  give  you,  and  that  is  the  object 
of  this  resolution,  so  far  as  my  individual  mind 
enters  into  it.  It  is  in  the  power  of  the  Conven 


tion  to  do  with  it  as  seems  just  and  expedient  to 
them,  and  I  shall  be  content. 

Mr.  THOMAS,  of  Weymouth.  Mr.  President, 
this  subject  has  been  amply  discussed  on  both 
sides ;  every  member  of  this  body  has  probably 
made  up  his  mind  upon  the  subject,  and  I  there 
fore  move  the  previous  question. 

The  motion  was  agreed  to. 

The  question  being  then  taken  on  reconsidering 
the  vote  by  which  the  resolution  was  ordered  to 
be  read  a  second  time,  on  a  division  there  were — 
ayes,  189  ;  noes,  87 — so  it  was  agreed  to. 

The  question  then  recurred,  on  ordering  the 
resolve  to  a  second  reading,  as  amended. 

Mr.  FREEMAN,  of  Franklin,  demanded  the 
previous  question. 

Mr.  E  ARLE,  of  Worcester.  I  desire  to  inquire 
of  the  Chair,  whether,  if  the  main  question  were 
not  pending,  it  would  not  be  in  order  to  move  for 
a  reconsideration  of  the  vote  by  which  the  Con 
vention  adopted  the  amendment  which  now 
stands  as  the  resolve. 

The  PRESIDENT.     It  would  be  in  order. 

Mr.  EARLE.  I  suppose  that  many  gentlemen 
voted  for  a  reconsideration  under  the  belief  that 
it  might  be  done. 

Mr.  LORD,  of  Salem.  I  move  to  amend  the 
resolve  by  striking  out  the  words  "  two-thirds," 
and  inserting  the  words  "  a  majority."  The  re 
solve  now  reads : — 

That  the  legislature  shall  not  have  power  to 
grant  the  credit  of  the  State  to  any  individual  or 
corporation  without  a  two-thirds  vote  of  the 
House  of  Representatives  and  the  Senate  in  its 
favor. 

I  understand  the  motion  to  reconsider,  is  made 
with  the  view  of  striking  out  the  words  "  two- 
thirds"  and  inserting  instead  the  words  "a  ma 
jority,"  and  if  I  understand  rightly,  the  President 
ruled  that  amendment  out  of  order.  Since  that 
time,  I  understand  that  the  President  has  reversed 
that  rule,  and  now  rules  that  such  a  motion  is  in 
order.  I  only  desire  to  know  whether  the  Presi 
dent  considers  that  motion  before  the  Convention, 
so  that  if  the  previous  question  be  voted  down, 
the  question  will  recur  on  that  amendment,  or 
whether  the  previous  question  having  been  called 
for  at  a  time  when  the  President  ruled  the  motion 
out  of  order,  that  motion  will  now  stand. 

The  PRESIDENT.  The  Chair  will  state  to 
the  gentleman  from  Salem,  the  position  of  the 
question  as  it  now  stands.  The  resolution  is  as 
follows :  That  the  legislature  shall  not  have 
power  to  grant  the  credit  of  the  State  to  any  in 
dividual  or  corporation,  without  a  two-thirds 
vote  of  the  House  of  Representatives  and  the 


58th  day.]                          LOAN   OF  STATE   CREDIT. 

25 

Friday,]                                                           YEAS  —  NAYS. 

[July  15th. 

Senate  in  its  favor.     To  strike  out  the  words  re 

Rogers,  John 

Turner,  David  P. 

ferred  to  by  the  gentleman  from  Salem,  and  in 
sert  those  proposed  by  the  gentleman  from  Mon- 

Ross,  David,  S. 
Royce,  James  C. 
Sikes,  Chester 

Wallis,  Freeland 
Walker,  Samuel 
Ward,  Andrew  H. 

son,  would  make  a  change  in  that  to  which  the 

Simmons,  Perez 

Waters,  Asa  H. 

Convention  have  already  agreed,  and  it  is  not, 

Simonds,  John  W. 

Weeks,  Cyrus 

therefore,  in  order  at  this  time. 

Sprague,  Melzar 

Wetmore,  Thomas 

Mr.   GRAY,   of   Boston.     I  would  ask   the 

Stevens,  Granville 

Wilbur,  Daniel 

Chair  if  the  demand  for  the  previous  question 
prevails,  and  the  main  question  is  ordered,  wheth 

Stevens,  Joseph  L.,  Jr. 
Stevenson,  J.  Thomas 
Stiles,  Gideon 

Wilbur,  Joseph 
Wilkinson,  Ezra 
Williams,  Henry 

er  that  main  question  will  not  be  the  passing  to 

Taber,  Isaac  C. 

Williams,  J.  B. 

its  next  stage,  of  the  amendment  of  my  col 

Taft,  Arnold 

Wilson,  Wfflard 

league  ? 

Talbot,  Thomas 

Winslow,  Levi  M. 

The  PRESIDENT.     That  will  be  the  main 

Taylor,  Ralph 
Tilton,  Horatio  W. 

Wood,  Nathaniel 
Woods,  Josiah  B. 

question. 

Turner,  David 

Wood,  Otis 

The   call  for  the  previous  question  was  sus 

tained. 

NAYS. 

Mr.  CROWNINSHIELD,  of  Boston,  moved, 
that  when  the  vote  be  taken,  it  be  taken  by  yeas 

Abbott,  Josiah  G. 
Adams,  Benjamin  P. 

Cooledge,  Henry  F. 
Cressy,  Oliver  S. 

and  nays. 

Allen,  Charles 

Critteiicleii,  Simeon 

The  motion  was  agreed  to,  and  the  yeas  and 

Allen,  James  B. 

Cross,  Joseph  W. 

nays  being  taken,  resulted  —  yeas,  112  ;  nays,  199 
—as  loJlows  .^~* 

Allen,  Joel  C. 
Alley,  John  B. 

Cummings,  Joseph 
Cushman,  Henry  W. 

Allis,  Josiah 

Cushman,  Thomas 

Alvord,  D.  W. 

Dana,  Richard  H.,  Jr. 

YEAS. 

Andrews,  Robert 

Davis,  Charles  G. 

Aldrich,  P.  Emory          Hapgood,  Seth 

Aspinwall,  William 

Day,  Gilmaii 

Appleton,  William          Haskell,  George 

Atwood,  David  C. 

Dean,  Silas 

Austin,  George                 Hathaway,  Elnathan  P. 

Ayres,  Samuel 

Denison,  Hiram  S. 

Barrows,  Joseph               Hayward,  George 

Baker,  Hillel 

Duncan,  Samuel 

Beach,  Erasmus  D.         Heard,  Charles 

Ballard,  Alvah 

Durgiii,  John  M. 

Beal,  John                        Hersey,  Henry 

Ball,  George  S. 

Eames,  Philip 

Bliss,  Gad  O.                    Hobart,  Aaron 

Bancroft,  Alpheus 

Easland,  Peter 

Boutwell,  Sewell              Hopkinson,  Thomas 

Barrett,  Marcus 

Edwards,  Elisha 

Bradford,  William  J.  A.  Hurlburt,  Samuel  A. 

Bates,  Moses,  Jr. 

Edwards,  Samuel 

Breed,  Hiram  N.              Jackson,  Samuel 

Bell,  Luther  V. 

Ely,  Joseph  M. 

Briggs,  George  N.            James,  William 

Bennett,  William,  Jr. 

Eustis,  William  T. 

Brown,  Hiram  C.             Jenkins,  John 

Bennett,  Zephaniah 

Far  well,  A.  G. 

Browncll,  Frederick         Knight,  Hiram 

Bigelow,  Edward  B. 

Fay,  Sullivan 

Cady,  Henry                     Knight,  Jeiferson 

Bird,  Francis  W. 

Fellows,  James  K. 

Carter,  Timothy  W.         Lawton,  Job  G.,  Jr. 

Bishop,  Henry  W. 

Fisk,  Lyman 

Case,  Isaac                        Lincoln,  Abishai 

Booth,  William  S. 

Foster,  Aaron 

Chapin,  Chester  W.         Littlefield,  Tristram 

Boutwell,  Gco.  S. 

Foster,  Abram 

Clark,  Henry                    Lowell,  John  A. 

Braman,  Milton  P. 

Fowler,  Samuel  P. 

Cogswell,  Nathaniel        Miller,  Seth,  Jr. 

Brinley,  Francis 

Freeman,  James  M. 

Copeland,  Benjamin  F.  Morey,  George 

Bronson,  Asa 

French,  Charles  A. 

Crane,  George  B.             Morton,  Elbridge  G. 

Brown,  Alpheus  R. 

French,  Rodney 

Crowninshield,  F.  B.       Morton,  Marcus 

Brown,  Artemas 

French,  Samuel 

Davis,  Solomon               Morton,  Marcus,  Jr. 

Brown,  Hammond 

Gale,  Luther 

Deming,  Elijah  S.           Newman,  Charles 

Brownell,  Joseph 

Gates,  Elbridge 

Denton,  Augustus           Nichols,  William 

Bryant,  Patrick 

Gilbert,  Washington 

Doane,  James  C.              Norton,  Alfred 

Bullock,  Rufus 

Giles,  Charles  G. 

Dunham,  Bradish            Oliver,  Henry  K. 

Bumpus,  Cephas  C. 

Gooding,  Leonard 

Earle,  John  M.                 Orcutt,  Nathan 

Burlingame,  Anson 

Graves  John  W. 

Eaton,  Lilley                     Orne,  Benjamin  S. 

Butler,  Benjamin  F. 

Green,  Jabez 

Ely,  Homer                      Parker,  Adolphus  G. 

Caruthers,  William 

Griswold,  Josiah  W. 

Fitch,  Ezekiel  W.            Parker,  Joel 

Chandler,  Amariali 

Griswold,  Whiting 

Fowle,  Samuel                Peabody,  George 

Chapin,  Henry 

Hadley,  Samuel  P. 

Gardner  Henry  J.            Peabody,  Nathaniel 

Childs,  Josiah 

Hall,  Charles  B. 

Gilbert,  Wanton  C.         Pease,  Jeremiah,  Jr. 

Churchill,  J.  McKean 

Hapgood,  Lyman  W. 

Giles,  Joel                        Perkins,  Noah  C. 

Clark,  Ransom 

Harmon,  Pliineas 

Gray,  John  C.                  Rantoul,  Robert 

Clarke,  Alpheus  B. 

Haskins,  William 

Hale,  Artemas                  Rawson,  Silas 

Clarke,  Stillman 

Hawkes,  Stephen  E. 

Hallett,  B.  F.                   Reed,  Sampson 

Cleverly,  William 

Hayden,  Isaac 

Hammond,  A.  B.            Rock  wood,  Joseph  M. 

Cook,  Charles  E. 

Heath,  Ezra  2d, 

26                                     LOAN   OF   STATE   CREDIT,  &c.                      [58th  day. 

Friday,]                                                         NAYS  —  ABSENT.                                                   [July  15th. 

Henry,  Samuel                Perkins,  Jesse 

Curtis,  Wilber                 Loud,  Samuel  P. 

Hewes,  James                  Phelps,  Charles 

Cutler,  Simeon  N.           Marvin,  Theophilus  R. 

Hewes,  William  H.         Phinney,  Silvanus  B. 

Davis,  Ebenezer               Mixter,  Samuel 

HiUard,  George  S.           Plunkett,  William  C. 

Davis,  Isaac                      Monroe,  James  L. 

Hindsdale,  William        Pomroy,  Jeremiah 

Davis,  John                      Morss,  Joseph  B. 

Holder,  Nathaniel            Pool,  James  M. 

Davis,  Robert  T.              Nash,  Hiram 

Hood,  George                   Prince,  F.  O. 

Dawes,  Henry  L.             Nayson,  Jonathan 

Hooper  Foster                  Putnam,  George 

Dehon,  William               Nute,  Andrew  T. 

Howard,  Martin               Read,  James 

DeWitt,  Alexander         Packer,  E.  Wing 

Hoyt,  Henry  K.               Rice,  David 

Dorman,  Moses                Paige,  James  W. 

Hunt,  Charles  E.             Richards,  Luther 

Easton,  James,  2d             Parker,  Samuel  D. 

Hunt,  William                Richardson,  Nathan 

Eaton,  Calvin  D.              Parsons,  Thomas  A. 

Huntington,  George  H.  Richardson,  Samuel  H. 

Fiske,  Emery                    Payson,  Thomas  *E. 

Hurlbut,  Moses  C.           Sanderson,  Amasa 

French,  Charles  H.          Perkins,  Jonathan  C. 

Ide,  Abijnh  M.,  Jr.          Sanderson,  Chester 

Frothingham,  Rich'd,  Jr.  Pierce,  Henry 

Jacobs,  John                     Schouler,  William 

Gardner,  Johnson            Powers,  Peter 

Jenks,  Samuel  H.             Sheldon,  Luther 

Gooch,  Daniel  W.           Preston,  Jonathan 

Kellogg,  Giles  C.             Sherril,  John 

Gould,  Robert                  Putnam,  John  A. 

Kendall,  Isaac                   Sleeper,  John  S. 

Goulding,  Dalton             Richardson,  Daniel 

Kimball,  Joseph               Souther,  John 

Goulding,  Jason               Ring>  Elkanah,  Jr. 

Kingman,  Joseph             Spooner,  Samuel  W. 

Greene,  William  B.         Rockwell,  Julius 

Knight,  Joseph                 Stevens,  William 

Greenleaf,  Simon             Sampson,  George  R. 

Knowlton,  Charles  L.      Sumner,  Charles 

Hale,  Nathan                    Sargent,  John 

Knowltoii,  J.  S.  C.          Thayer,  Willard,  2d 

Heywood,  Levi                 Sherman,  Charles 

Knowlton,  William  H.   Thomas,  John  W. 

Hobart,  Henry                 Smith,  Matthew 

Knox,  Albert                    Thompson,  Charles 

Hobbs,  Edwin                  Stacy,  Eben  H. 

Kuhn,  George,  H.           Tilton,  Abraham 

Houghton,  Samuel          Stetson,  Caleb 

Ladd,  Gardner  P.            Tower,  Ephraim 

Howland,  Abraham  H.  Stevens,  Charles  G. 

Ladd,  John  S.                   Train,  Charles  R. 

Hubbard,  William  J.       Storrow,  Charles  S. 

Lawrence,  Luther            Tyler,  William 

Huntington,  Asahel         Strong,  Alfred  L. 

Leland,  Aldeii                  Underwood,  Orison 

Huntington,  Charles  P.  Stutson,  William 

Lincoln,  Frederic  W.,  Jr.Upham,  Charles  W. 

Hyde,  Benjamin  D.         Sumner,  Increase 

Livermore,  Isaac              Viles,  Joel 

Johnson,  John                  Swain,  Alanson 

Marble,  William  P.         Vinton,  George  A. 

Kellogg,  Martin  R.          Thayer,  Joseph 

Marcy,  Laban                   Walcott,  Samuel  B. 

Keyes,  Edward  L.            Tilcston,  Edmund  P. 

Marvin,  Abijah  P.           Walker,  Amasa 

Kinsman,  Henry  W.       Tyler,  John  S. 

Mason,  Charles                 Warner,  Marshal 

Langdon,  Wilber  C.        Upton,  George  B. 

Meader,  Reuben               Warner,  Samuel,  Jr. 

Little,  Otis                        Wales,  Bradford  L. 

Merritt,  Simeon                Weston,  Gershom  B. 

Loomis,  E.  Justin            Wallace,  Frederick  T. 

Moore,  James  M.              Wheeler,  William  F. 

Lord,  Otis  P.                   Wright,  Ezekiel 

Morton,  William  S.         White,  Benjamin 

Lothrop,  Samuel  K. 

Noyes,  Daniel                  White,  George 

Ober,  Joseph  E.               Whitney,  Daniel  S. 

Absent  and  not  voting,  107. 

Osgood,  Charles               Whitney,  James  S. 

Paine,  Benjamin              Wilder,  Joel 

So  the  resolution  was  not  ordered  to  be  read  a 

Paine,  Henry                    Wilkins,  John  H. 

second  time. 

Park,  John  G.                  Wilson,  Henry 
Parris,  Jonathan              Wilson,  Milo 
Parsons,  Samuel  C.          Winn,  Jonathan  B. 

On  motion,  by  Mr.  WILSON,  of  Natick,  the 
Convention  then  adjourned  until  three  o'clock, 

Partridge,  John                Wood,  Charles  C. 

P.  M. 

Penniman,  John               Wood,  William  H. 

Perkins,  Daniel  A. 

AFTERNOON    SESSION. 

ABSENT. 

Abbott,  Alfred  A.           Brown,  Adolphus  F. 

The  Convention  reassembled  at  three  o'clock. 

Adams,  Shubael  P.          Buck,  Asahel 

Allen,  Parsons                 Bullen,  Amos  H. 

A  Committee  Appointed. 

Banks,  Nathaniel  P.,  Jr.  Chapin,  Daniel  E. 

Bartlett,  Russel                Choate,  Rufus 

The  PRESIDENT  announced  the  following 

Bartlett,  Sidney                Clark,  Salah 

gentlemen  as  constituting  the  Committee,  under 

Bates,  Eliakim  A.            Coggin,  Jacob 

the  order  adopted  by  the  Convention,  relative  to 

Beebe,  James  M.              Cole,  Lansing  J. 
Bigelow,  Jacob                Cole,  Sumner 
Blagden,  George  W.       Conkey,  Ithamar 
Bliss,  Willam  C.              Crockett,  George  W. 

legal  remedy  to  representatives  of  persons  deceased 
by  railroad  accidents  :  Messrs.  Hallett,  for  Wil- 
braham,  Stevenson,  of  Boston,  Haskins,  of  Med- 

Bradbury,  Ebenezer        Crosby,  Leander 

ford,  Richardson,  of  Middletown,  and  Fowler,  of 

Bre-vrster,  Osmyu            Crowell,  Seth 

Danvers. 

58th  day.] 


HARVARD   COLLEGE,   &c. 


27 


Friday,] 


MARTIN  —  KNOWLTON. 


[July  15th. 


Vacancies  Filled. 

The  PRESIDENT  appointed  Mr.  Knowlton, 
of  Worcester,  to  fill  the  vacancy  in  the  Commit 
tee,  on  Reporting  and  Printing  the  Debates  and 
Proceedings  of  the  Convention,  occasioned  by  the 
death  of  the  Hon.  F.  R.  Gourgas. 

Also,  Mr.  Bird,  of  Walpole,  to  fill  the  vacancy 
in  the  Committee,  on  the  Preservation  of  the 
Records. 

Orders  of  the  Day. 

On  motion  of  Mr.  BROWN,  of  Medway,  the 
Convention  proceeded  to  the  consideration  of  the 
Orders  of  the  Day. 

Reconsideration. 

The  first  subject  on  the  Orders  of  the  Day, 
was  the  motion  of  Mr.  Marvin,  of  Winchendon, 
to  reconsider  the  vote  by  which  the  Report  of 
the  Committee  on  the  Qualification  of  Voters, 
was  accepted. 

Mr.  MARVIN,  of  Winchendon.  I  ask  the 
indulgence  of  the  Convention  for  a  few  minutes, 
to  explain  the  design  which  I  had  in  offering  this 
order.  The  order,  as  will  be  seen,  requires  that 
all  persons  who  may  attain  to  the  right  of  voting 
in  the  year  1856,  shall  be  able  to  read  the  Con 
stitution  of  this  Commonwealth,  printed  in  the 
English  language  ;  and,  as  the  object  which  I 
had  in  view  in  offering  it,  has  been  much  mis 
understood,  I  have  desired  the  privilege  of  briefly 
stating  what  that  object  was.  This  is  the  reason 
why  I  made  the  motion  to  reconsider. 

From  conversations  which  I  have  had  with  va 
rious  gentlemen,  I  believe  that  there  is  very  little 
probability  of  this  order  being  passed,  and  I  sup 
pose,  probably,  the  chief  reason  is,  that  it  is  too 
far  in  advance  of  the  times.  I  merely  wish  to 
explain  it. 

The  object,  as  will  be  seen,  is  so  to  provide  in 
the  Constitution,  that  from  and  after  the  year 
1856,  all  persons  admitted  to  vote  for  any  officer 
in  the  State  of  Massachusetts,  shall  be  able  to 
read  the  Constitution  of  the  Commonwealth,  in 
the  English  language ;  because,  I  think  if  they 
can  read  that,  they  can  read  almost  anything  else. 
The  design  is  not,  as  many  gentlemen  suppose,  to 
restrict  the  right  of  suffrage  at  all ;  and  the  order 
was  submitted  to  the  Committee  for  the  Encour 
agement  of  Literature,  because  the  object  of  it 
was  the  promotion  of  education.  It  did  not,  by 
any  means,  look  to  the  restriction  of  the  right  of 
suffrage.  I  will  go  as  far  as  any  gentleman,  in 
extending  that  right ;  but  it  seems  to  me,  in 
adopting  this  order,  we  put  into  operation  a 
strong  motive  to  induce  every  person,  and  es 
pecially  every  man,  to  learn  to  read.  It  would 


not  affect  any  person  who  has  the  right  to  vote 
at  present,  nor  any  one  who  might  become  en 
titled  to  the  right  of  suffrage  previous  to  that 
time.  All  young  men,  who  are  eighteen  years 
of  age,  and  upwards,  would  have  three  years  in 
which  to  learn  to  read ;  and,  as  we  have  the 
means  of  education  provided  for  all  who  choose 
to  avail  themselves  of  it — both  children  and 
adults — there  is  no  reason  why  every  man  in  the 
Commonwealth,  in  the  course  of  three  years, 
should  not  be  able  to  read  the  English  language. 
That  was  the  object  I  had  in  view,  and  it  ap 
peared  to  me  to  be  an  object  highly  worthy  of 
our  attention,  if,  by  any  possibility,  it  could  be 
reached. 

Some  few  years  ago,  it  was  recommended  that 
all  persons  should  be  compelled  to  send  their 
children  to  school.  I  suppose,  however,  that  that 
could  not  be  done.  Indeed,  I  suppose  it  never 
would  be  done — at  least,  I  hope  not,  for  I  dislike 
compulsion  in  this  matter  ;  but  if  a  provision  of 
that  kind  was  made,  there  would  be  an  induce 
ment  held  out  to  every  man  to  learn  to  read. 

I  will  not  dwell  upon  the  subject  longer,  except 
to  say  that  nothing  would  contribute  more  to 
the  honor  of  Massachusetts,  than  that  every  man 
who  was  a  voter  was  able  to  read ;  and  secondly, 
that  having  such  a  provision  in  our  Constitution, 
it  would  make  every  man  who  might  come  to  our 
State  from  other  countries,  truly  American.  I  do 
not  mean  by  this,  that  we  should  do  anything 
to  prevent  foreigners  from  coming  amongst  us  ; 
I  hope  that  every  foreigner  who  comes  into  the 
country  will  be  welcomed  by  us  with  cordiality — 
that  they  will  feel  that  they  are  at  home  here,  and 
that  they  will  learn  our  customs,  and  support  and 
honor  our  institutions. 

Having  made  this  explanation,  and  understand 
ing  that  there  is  no  hope  of  this  order  being 
adopted,  I  will  now  move  to  lay  the  motion  to 
reconsider  on  the  table. 

The  motion  was  accordingly  laid  upon  the  table. 

Harvard  College. 

On  motion  by  Mr.  KNOWLTON,  of  Worces 
ter,  the  Orders  of  the  Day  were  laid  upon  the 
table,  and  the  Convention  resolved  itself  into 

COMMITTEE    OF   THE   WHOLE, 

On  the  Report  of  the  Committee  on  Harvard  Col 
lege,  Mr.  Morton,  of  Taunton,  in  the  chair. 

The  resolution  reported  by  the  Committee,  was 
read,  as  follows : 

Resolved,  That  the  Constitution  ought  to  be 
amended  by  adding  to  chapter  5,  section  1,  the 
following  article,  to  wit : — 

The  legislature  shall  forever  have  full  power 


28 


HARVARD   COLLEGE. 


[58th  day. 


Friday,] 


KNOWLTON. 


[July  15th. 


and  authority,  as  may  be  judged  needful  for  the 
advancement  of  learning,  to  grant  any  farther 
powers  to,  or  alter,  limit,  annul,  or  restrain,  any  of 
the  powers  now  vested  in  the  President  and  Fel 
lows  of  Harvard  College :  provided,  the  obliga 
tion  of  contracts  shall  not  be  impaired  ;  and  shall 
have  the  like  power  and  authority  over  all  cor 
porate  franchises  hereafter  granted  for  the  pur 
poses  of  education  in  this  Commonwealth. 

Mr.  KNOWLTON,  of  Worcester.  Mr.  Chair 
man.  It  would  have  been  more  agreeable  to  me, 
and  more  just  to  the  cause,  if  the  duty  of  sustain 
ing  this  Report  had  been  assigned  to  one  of  larger 
experience  in  deliberative  assemblies.  But  trust 
ing  to  the  forbearance  of  the  Convention,  I  shall 
present  some  of  the  considerations  which  seem  to 
me  to  be  pertinent  to  the  subject.  My  colleagues 
of  the  Committee  will  be  able  to  supply  my 
deficiencies. 

Harvard  College,  Sir,  is  not  alone  a  question  of 
to-day  ;  but  in  many  of  its  phases  it  is  a  question 
of  the  past  and  of  the  future.  It  covers  a  period 
of  more  than  two  centuries  of  our  history ;  start 
ing  from  a  point  almost  back  to  that  in  which  the 
germ  of  our  civilization,  now  so  largely  devel 
oped,  was  perilled  in  a  bleak  winter,  upon  a  des 
olate  coast.  The  college  was,  undoubtedly, 
among  the  ideas  which  the  colonists  brought  with 
them,  for  its  foundation  was  laid  only  sixteen 
years  after  the  landing  at  Plymouth.  Something 
of  history,  as  well  as  of  legal  and  moral  right, 
must  therefore  enter  into  the  discussion  of  this 
resolution. 

The  rights  of  the  Commonwealth  in  the  col 
lege,  and  the  power  of  this  Convention  to  inter 
fere  with  its  organization,  depend  largely  upon 
certain  facts  in  history.  Those  facts  must  arrange 
themselves  around  one  or  two  points  :  first,  who 
was  the  founder  of  the  college ;  and  second,  what 
were  the  rights  of  the  founder,  and  were  they 
ever  transferred  or  surrendered  ? 

These  two  questions  involve  two  theories,  the 
practical  results  of  which  are  wide  asunder. 

If  John  Harvard  was  the  founder  of  the  col 
lege,  by  his  own  will  or  the  will  of  the  govern 
ment,  and  his  rights  as  founder  were  never  trans 
ferred  or  surrendered,  then  the  power  of  this 
Convention  to  touch  the  organization  of  the  col 
lege,  may  perhaps  be  questioned.  But  if,  as  I 
believe,  the  Commonwealth  was  the  founder,  and 
has  never  parted  with  its  rights  as  founder,  then 
the  whole  subject  is  clearly  within  the  power  of 
this  Convention.  We  may  do  what  we  please, 
and  as  we  please,  with  the  college,  provided  we 
do  not  subvert  or  contravene  the  original  pur 
poses  of  its  foundation. 

It  does  not  become  me,  Mr.  Chairman,  in  this 
Convention,  or  elsewhere,  to  assert  what  is  law 


and  what  is  not  law,  upon  a  question  of  so  much 
importance  as  this.  But  I  understand,  Sir,  that 
our  laws  and  the  laws  of  England  are  coincident 
upon  this  subject;  and  that  the  general  principle  is 
that  the  founder  of  the  college — be  he  the  king, 
an  individual,  or  the  state — is  the  one  who  first 
erects  and  endows  it;  and  that  all  subsequent 
donors  stand  to  it  in  the  relation  of  benefactors. 
It  matters  not  how  great  or  how  numerous  may 
be  their  donations ;  they  cannot  dispossess  the 
founder  of  his  rights  as  such.  He  may  transfer 
them  to  another;  but  he  cannot  rightfully  be 
deprived  of  them  ;  and  if  he  does  not  part  with 
them,  they  descend  to  his  heirs  or  successors. 

What,  then,  are  the  rights  of  the  founder  ?  If 
he  places  the  property  in  the  hands  of  trustees,  he 
parts  with  none  of  his  rights,  but  may  recall  the 
trust.  But  if  he  places  it  in  the  charge  of  a 
corporation,  the  right  of  control  is  then  vested  in 
the  corporation ;  and  nothing  remains  to  the 
founder  but  the  right  of  visitation ;  that  is,  a  sort 
of  judicial  authority  over  the  corporation  to  call 
the  corporators  to  account  for  any  perversion  of 
the  funds,  or  any  divergence  of  the  corporation 
from  the  aim  originally  given  it.  This  great 
right  of  visitation  exists  of  necessity.  If  the 
founder  fails  to  provide  for  its  exercise,  then  the 
law  provides  it  for  him.  If  Harvard,  as  some 
assert,  was  the  founder  of  the  college,  and  failed 
to  provide  for  a  visitor,  or  if  the  right  was  parted 
with  or  lost,  then  the  general  court  is  in  full  pos 
session  of  it.  But  if  the  Commonwealth  was  the 
founder,  then  the  State,  having  a  self- perpetuating 
existence,  retains  the  right  forever  unbroken. 

Now,  Mr.  Chairman,  what  are  the  facts  which 
history  teaches  on  this  subject  ? 

At  a  session  of  the  general  court  held  in  Bos 
ton  in  September,  1636,  as  the  record  says,  "  the 
court  voted,  for  the  erecting  of  a  public  school  or 
college,  at  Cambridge,  £400,  to  be  paid  out  of  the 
country  treasury."  It  has  been  found  conven 
ient,  in  later  times,  to  deny  that  this  sum  was 
ever  paid ;  but  the  denial  will  avail  nothing 
against  the  fact  of  the  grant ;  and  besides,  the 
treasurer  of  the  college,  in  a  recent  publication, 
places  this  grant  of  the  general  court  of  1636  at 
the  head  of  the  list  of  donations  to  the  college. 

In  1637,  Nathaniel  Eaton  was  chosen  professor 
of  the  school,  and  was  charged  with  the  manage 
ment  of  the  donations,  or  funds,  or  "  college 
stock,"  as  the  properties  of  the  college  were  desig 
nated  in  those  times. 

In  the  following  year,  1638,  the  Rev.  John 
Harvard,  of  Charlestown,  died,  and  made  by  will 
a  donation  to  the  college  of  £779  in  money,  and 
320  volumes  of  books.  The  general  court,  the 
same  year,  in  gratitude  for  this  princely  benefac- 


58th  day.] 


HARVARD   COLLEGE. 


29 


Friday,] 


KNOWLTON. 


[July  15th. 


tion, — for  such  it  was  in  those  times,  and  in  the 
then  condition  of  the  infant  colony, — ordered  that 
the  name  of  Harvard  should  be  given  to  the 
college.  At  that  time,  there  was  no  corporation 
in  existence.  None  was  then  created.  It  was 
emphatically  the  college  of  the  general  court. 
The  court  had  established  the  rights  of  the  Com 
monwealth  as  founder  by  making  the  first  dona 
tion.  It  appointed  the  first  officers.  It  directed 
where  and  how  the  college  should  be  built.  It 
took  John  Harvard's  donation,  and,  to  perpet 
uate  his  memory,  it  gave  the  college  his  name. 
But  nowhere,  and  at  no  time,  did  it  decree  that 
he  should  be  held  as  the  founder  of  the  college, 
or  that  his  heirs  or  successors  should  have  the 
ordinary  visitatorial  powers  that  attach  to  the 
founders  of  such  institutions.  On  the  contrary, 
four  years  afterwards,  in  1642,  the  general  court 
proceeded  to  establish — not  a  corporation — but  a 
Board  of  Overseers,  with  power  to  manage  the 
funds,  and  make  all  necessary  laws  for  the  gov 
ernment  of  the  college ;  and,  at  the  same  time, 
accountable  in  all  things  to  the  general  court. 

Such  was  the  character  and  condition  of  the 
college  for  the  first  fourteen  years  of  its  exist 
ence — from  1636  to  1650  ;  and  during  those  four 
teen  years  there  was  no  act  of  the  government 
that  declared  Harvard  the  founder  of  the  college, 
or  even  indicated  an  intention  of  the  court  to 
recognize  in  him,  his  heirs  or  successors,  the  well- 
established  rights  of  the  founder  of  such  an  insti 
tution.  It  is  not  to  be  supposed  that  there  was 
any  accidental  omission  to  make  such  recognition ; 
for  the  colonists,  be  it  remembered,  had  but  re 
cently  left  the  mother  country,  where  the  whole 
subject  of  college  law  was  thoroughly  understood, 
and  in  whose  colleges  many  of  them  had  been 
educated. 

Harvard  himself  was  a  remarkable  man.  He 
was  an  educated  clergyman,  comparatively  afflu 
ent,  as.  money  was  then  valued,  and  yet  bestow 
ing  his  wealth  in  the  full  confidence  of  one  gifted 
with  the  power  to  anticipate  the  wants  of  the 
advancing  generations  of  men,  and  to  foresee  the 
coming  glories  of  the  land  on  which  he  had 
scarcely  pressed  his  foot  before  he  went  to  sleep 
in  its  bosom.  Yet  nowhere,  and  at  no  time,  did 
he  express  a  desire  to  be  considered  as  the  founder 
of  the  college,  or  to  reserve  to  his  heirs  or  succes 
sors  the  ordinary  visitatorial  power  incident  to  a 
founder. 

He  came  up  to  the  general  court  with  no  such 
petty  interrogatory  upon  his  lips  as,  "  What  se 
curity  can  you  give  me  for  my  money  ?  "  No, 
Sir;  he  participated  in  the  idea  common  to  the 
colonists,  that  it  was  their  mission  to  establish, 
upon  the  new  continent,  a  new  order  of  civiliza 


tion,  founded  upon  the  Christian  doctrine  of  the 
equality  of  all  men,  in  the  state  as  in  the  church. 
He  recognized,  in  its  full  force,  the  democratic  idea 
of  popular  sovereignty,  and  of  the  capacity  of  the 
people  to  make  a  perpetual  demonstration  of  the 
Christian  rule  that  the  powers  of  government  are 
in  the  people  themselves,  and  not  in  the  institutions 
of  government  which  they  themselves  may  organ 
ize.  Acting  upon  this  idea,  he  placed  his  munificent 
donation  in  the  hands  of  the  general  court,  with 
no  injunction,  but  to  TAKE  IT — USE  IT  ;  in  the  con 
cise  and  explicit  language  of  Puritan  legislation, 
"For  the  advancement  and  education  of  youth  in 
all  manner  of  good  literature,  arts,  and  sciences." 
He  did  not  ask  that  a  self-perpetuating  corpora 
tion  should  be  established,  to  watch  over  his  do 
nation;  but  he  trusted  to  that  strong  sense  of 
right  that  pervades  the  broad  bosom  of  the  peo 
ple,  in  full  assurance  that  his  confidence  would 
never  be  found  misplaced.  He  no  more  dis 
trusted  the  future  than  he  distrusted  the  Ruler  of 
the  universe.  He  believed  that  the  living  ages, 
as  they  should  advance  in  perpetual  succession, 
would  be  just  to  the  ages  gone  by  ;  and,  while  he 
had  faith  in  their  integrity,  he  believed  in.  their 
right  to  adapt  their  institutions  to  their  existing 
condition. 

I  come  now,  Mr.  Chairman,  to  the  considera 
tion  of  the  second  period  in  the  existence  of  the 
college— that  of  its  charter,  in  1650.  The  gen 
eral  court  then  gave  it  form,  substance,  and  exist 
ence,  as  a  corporate  body.  Did  the  general  court 
give  it  the  character  of  a  close  corporation  ?  or 
was  there  an  essential  reservation  in  the  charter  ? 

By  the  charter,  the  corporation  was  to  consist  of 
seven  persons,  with  power  to  receive  and  manage 
the  college  funds ;  to  fill  vacancies  caused  in  their 
body  by  death  or  resignation  ;  to  choose  college 
officers  or  servants;  and,  generally,  to  make  all 
necessary  rules  for  the  government  and  conduct 
of  the  college.  But  there  was  an  important  res 
ervation  in  the  charter.  The  counsel  and  consent 
of  the  board  of  overseers,  as  established  in  1642, 
were  required,  to  give  force  and  effect  to  the  acts 
of  the  corporation.  That  board  is  fully  recog 
nized,  but  was  not  established,  by  the  charter. 
As  its  name  implies,  it  was  not  an  independent 
body,  but  stood  around  the  college  to  oversee  and 
guard  the  rights  of  the  Commonwealth  in  the 
institution.  Neither  body  alone  was  the  govern 
ment  ;  and  conjointly  their  powers  were  not  full 
powers.  The  corporation,  with  the  consent  of 
the  overseers,  had  the  power  to  fill  vacancies  in 
its  body,  but  it  had  not  the  power  to  create  va 
cancies.  It  could,  by  the  terms  of  the  charter, 
choose  its  officers,  and  remove  them  ;  but  it  could 
not,  by  the  charter,  remove  one  of  its  fellows, 


30 


HARVARD   COLLEGE. 


[58th  day. 


Friday,] 


KNOWLTON. 


[July  15th. 


that  power  belonging  to  the  founder  in  the  exer 
cise  of  his  visitatorial  or  judicial  authority  over 
the  college.  The  visitatorial  right,  as  we  have 
seen,  was  never  in  John  Harvard,  or  in  any  of 
his  heirs  or  successors.  It  was  originally  in  the 
general  court,  as  the  founder ;  it  was  not  trans 
ferred  or  surrendered  by  the  court  when  it  grant 
ed  the  charter,  in  1650  ;  it  has  never,  as  I  believe, 
been  transferred  since  that  day;  and  being  in 
the  law-making  branch  of  the  government,  in 
the  outset,  it  lias  continued  so  through  the  suc 
cessive  generations  of  men  that  have  held  in  their 
hands  the  legislative  power  of  the  Commonwealth 
during  the  two  centuries  that  have  passed ;  and 
must,  of  necessity,  continue  there  through  all 
time,  unless  specially  and  explicitly  transferred 
by  the  people,  or  their  authorized  representa 
tives. 

The  charter  of  the  college  was  subsequently 
amended  in  1657  and  in  1672,  but  was  in  no  way 
materially  changed.  Other  changes  were  subse 
quently  made,  and  with  like  effect. 

In  1691,  the  provincial  government  was  estab 
lished  by  William  and  Mary,  in  place  of  the  col 
onial  government ;  and  in  1707,  the  general  court 
confirmed  the  college  in  all  the  rights  it  had  by 
the  charter  of  1650.  That  confirmation  was 
given  in  these  words  : — 

"  And  inasmuch  as  the  first  foundation  and 
establishment  of  that  house,  (Harvard  College,) 
and  the  government  thereof,  had  its  original  from 
an  act  of  the  general  court,  made  and  passed  in  the 
year  1650,  which  has  not  been  repealed  or  nulled, 
the  President  and  Fellows  of  the  said  college  are 
directed,  from  time  to  time,  to  regulate  themselves 
according  to  the  rules  of  the  constitution  by  the 
said  act  prescribed,  and  to  exercise  the  powers 
and  authority  thereby  granted  for  the  government 
of  that  house,  and  the  support  thereof." 

Four  charters  were  sent  to  England,  but  were 
disallowed  by  the  crown,  because  the  general 
court  would  not  surrender  its  control  of  the  col 
lege  to  the  royal  authority.  This  was  after 
the  colonial  charter  had  been  recalled  by  the 
crown. 

By  the  charter  of  1650,  thus  revived  and  con 
firmed  by  the  general  court  in  1707,  the  college 
was  made  not  an  absolute  but  a  qualified  corpo 
ration.  The  president  and  fellows  had  not  then, 
and  have  never  had,  any  vested  rights  which  were 
distinctively  their  own.  All  their  rights  are 
rights  of  trust ;  and  those  rights  were  placed  in 
their  hands  originally  by  the  general  court,  as  the 
founder  of  the  college,  with  the  explicit  provision 
that  they  should  hold  and  manage,  for  specific 
purposes,  the  properties  given  to  the  college  by 
the  founder,  and  by  its  long  and  brilliant  array  of 


benefactors,  in  successive  generations,  from  Harv 
ard  to  Bussey,  and  Lawrence,  and  Phillips. 

I  have  said  that  it  was  not  an  absolute  corpo 
ration.  The  act  of  1642  established  the  board  of 
overseers  as  the  representatives  of  the  general 
court.  In  the  college  charter  granted  in  1650, 
the  power  of  the  corporation  is  qualified  by  an 
explicit  recognition  of  the  board  of  overseers,  in 
these  words : — 

"And  the  said  seven  persons,  or  the  greater 
number  of  them,  procuring  the  presence  of  the 
Overseers  of  the  college,  and  by  their  counsel  and 
consent  shall  have  power,  and  are  hereby  author 
ized,  at  any  time  or  times,  to  elect  a  new  Presi 
dent,  Fellows,  or  Treasurer,  so  often,  and  from 
time  to  time,  as  any  of  the  said  persons  shall  die, 
or  be  removed,"  &c. 

Through  the  whole  original  charter,  and  in  its 
subsequent  modifications — none  of  which  were 
material — the  counsel  and  consent  of  the  over 
seers  were  made  essential  to  render  valid  the  acts 
of  the  corporation,  with  the  single  exception  of 
receiving  and  investing  of  funds,  or  dealing  in 
real  estate  for  the  use  and  benefit  of  the  college. 

The  power  of  the  overseers  was  not  a  mere 
advisory  power.  Their  consent  was  necessary  to 
most  of  the  acts  of  the  corporation.  They  had 
the  power  to  render  null  the  elections  and  ap  • 
pointments  of  the  corporation.  They  and  the 
corporation  had  the  power  to  dismiss  the  officers 
and  servants  of  the  college  ;  but  the  two  boards, 
neither  separately  nor  conjointly,  had  the  power 
to  dismiss  a  member  of  the  corporation.  That  power 
was  in  the  general  court,  as  the  visitor  on  in  its 
foundation  ;  it  was  exercised  by  the  court,  and 
has  never  been  given  up ;  and  cannot  be  given 
up  unless  the  present  generation  or  future  gene 
rations  shall  be  false  to  the  great  trusts  confided 
to  them  by  the  founders  of  the  Common 
wealth. 

Whatever  power  the  Commonwealth  had  over 
the  college  by  the  charter  granted  in  1650,  it  has 
fully  and  completely  at  this  day.  It  is  true  that 
in  the  transitions  of  political  power,  consequent 
upon  the  English  Revolution  of  1688,  the  result 
of  which,  so  far  as  this  Commonwealth  was  con 
cerned,  was  the  substitution  of  the  provincial  for 
the  colonial  government — it  is  true,  that  the  gov 
ernment  was  unable,  at  times,  to  exercise  its  rights, 
through  the  overseers  ;  but  at  no  time  did  it  lose 
those  rights ;  and  to  whatever  extent  it  might  have 
been  stayed  in  the  execution  of  them,  they  were 
fully  revived  and  confirmed  when  the  crown 
tacitly  gave  its  assent  to  the  act  of  the  general 
court,  in  1707,  which  reaffirmed,  in  all  its  original 
force  and  effect,  the  college  charter  of  1650. 

Now,  if  John  Harvard  was  the  founder  of 


58th  day.] 


HARVARD    COLLEGE. 


31 


Friday,] 


KNOWLTON. 


[July  15th. 


the  college,  by  his  own  will,  or  was  made  founder 
by  the  act  of  the  general  court, — as  I  understand 
the  college  at  this  time  maintains,— then  the  gen 
eral  court,  from  that  time,  had  no  visitatorial 
power  in  the  premises ;  and,  of  course,  it  could 
exercise  no  such  power.  But  what  was  the  fact  ? 
By  no  charter,  act,  resolve,  or  decree  of  the  gen 
eral  court,  did  the  court  expressly,  or  impliedly, 
transfer,  surrender,  or  part  with  its  original  visi 
tatorial  or  judicial  power  over  the  college.  In 
compliment  to  its  first  private  benefactor,  it  gave 
the  college  the  name  of  Harvard  ;  and  that  was 
all  it  gave.  On  the  contrary,  the  court  went  on 
in  the  execution  of  its  duty  as  founder  and  visi 
tor  of  the  college,  the  same  as  it  would  have  done 
if  no  such  man  as  Harvard  had  ever  existed,  or 
no  such  fund  had  ever  been  given  to  the  college. 
Contemporaneous  construction  shows  the  char 
acter  of  the  charter. 

The  college  charter,  let  it  be  borne  in  mind, 
was  granted  in  1650.  In  1654 — four  years  only 
after  the  establishment  of  the  corporation — its 
first  president,  the  learned  and  pious  Henry  Dun- 
ster,  resigned  his  place  as  president  of  the  college 
and  of  the  corporation.  To  whom  did  he  resign  ? 
Not  to  the  corporation,  or  the  overseers,  who  had 
the  power  to  iill  the  vacancy,  but  to  the  general 
court,  in  a  letter  addressed,  in  his  own  language  : 
"  To  the  worshippful  and  honored  Richard  Bel- 
lingham,  Esq.,  Governor  of  the  Massachusetts 
Colony,  with  the  rest  of  the  honored  Assistants 
and  Deputies  in  the  General  Court  at  Boston, 
now  assembled." 

In  the  conclusion  of  his  letter,  he  says : — 
"  Therefore  I  here  resign  up  the  place  wherein 
hitherto  I  have  labored  with  all  my  heart,  (bless 
ed  be  the  Lord  who  gave  it,)  SERVING  YOU  AND 
YOURS.  And  henceforth,  (that  you  in  the  interim 
may  be  provided,)  I  shall  be  willing  to  do  the 
best  I  can  for  some  weeks  or  months  to  continue 
the  work,  acting  according  to  the  orders  pre 
scribed  to  us,"  &c. 

Upon  receiving  Dunster 's  resignation,  June 
10th,  1654,  the  general  court  passed  this  order : — 

"  In  answer  to  a  writing  presented  to  this  Court 
by  Mr.  Henry  Dunster,  wherein  among  other 
things  he  is  pleased  to  make  a  resignation  of  his 
place  as  president,  this  Court  doth  order :  That  it 
shall  be  LEFT  to  the  care  and  discretion  of  the  over 
seers  of  the  college  to  make  provision,  in  case  he 
persists  in  his  resolution  more  than  one  month,  and 
inform  the  overseers,  for  some  meet  person  to 
carry  an  end  that  work  for  the  present,  and  also 
to  act  in  whatever  necessity  shall  call  for  until  the 
next  sessions  of  this  court,  when  we  shall  be  bet 
ter  enabled  to  settle  what  will  be  needful  in  all 
respects  with  reference  to  the  college.  And  that 
the  overseers  will  be  pleased  to  make  return  to 
this  court,  at  that  time,  of  what  they  shall  do 


herein.     The  Deputies  have  passed  this,  and  de 
sire  our  honored  Magistrates'  consent  thereto. 

1654.  WILLIAM  TOIUIEY,  Clerk. 

Consented  hereunto  by  the  Magistrates, — 

RICHARD  BELLINGHAM,  Governor." 

In  this  matter,  the  overseers  did  not  act  from 
any  rights  of  their  own,  but  under  powers  ex 
pressly  delegated  to  them  by  the  general  court ; 
and  for  their  exercise  they  were  required  to  make 
a  return  to  the  court.  This  resignation  of  Dun 
ster's  implied  something  more  than  a  voluntary 
retiring  from  the  college.  He  had  fallen  under 
censure  for  some  heretical  notions  on  the  subject 
of  baptism ;  and  therefore  the  overseers,  acting 
for  the  court,  said  to  him,  that  "  unless  he  would 
give  satisfaction,  according  to  the  rules  of  Christ, 
they  must  be  constrained  to  furnish  the  college 
with  another  president."  That,  is  he  must  be 
dismissed  from  the  presidency,  and  another  ap 
pointed  in  his  place. 

In  the  same  year  in  which  Dunster  resigned 
the  presidency  of  the  college  into  the  hands  of  the 
court — four  years  after  the  charter  was  granted 
— the  general  court  exercised,  in  a  remarkable 
manner,  its  visitatorial  power  over  the  college. 
The  records  say  that  the  court,  "  on  perusal  of 
the  return  of  the  committee  appointed  to  consider 
of  the  college  business,  order  that  the  stock  ap 
pertaining  to  the  college  should  be  committed  to 
the  care  and  trust  of  the  overseers  of  said  college." 

By  the  law  of  1642,  the  funds  were  placed  in 
the  hands  of  the  overseers ;  by  the  charter,  they 
were  taken  from  the  overseers  and  confided  to 
the  corporation ;  and  then,  four  years  afterwards, 
as  I  have  shown,  the  corporation  was  dispossessed 
of  the  funds,  which  were  again  placed  in  the 
keeping  of  the  overseers.  A  member  of  the  cor 
poration,  writing  upon  this  transaction,  nearly  a 
century  after  ward,  said  : — 

"  At  first  view  this  may  seem  an  extraordinary 
act  in  the  court,  who,  by  a  solemn  grant  in  the 
charter  of  '50,  had  vested  the  property  of  that 
stock  in  the  said  corporation.  But  there  is  really 
nothing  extraordinary  in  this  act ;  for,  as  visitors 
of  their  own  college,  the  court  had  the  right  at 
all  times,  to  see  that  this  stock  was  well  taken 
care  of."  "  This  was  an  act  that,  in  common 
law,  the  visitors  of  a  college  had  a  right  to  do." 

Twenty  years  afterwards,  in  1674,  the  general 
court  again  exercised  its  visitatorial  right  over  the 
college.  The  president,  the  corporation,  the  over 
seers,  and  the  students,  were  summoned  before 
the  court ;  and,  after  an  examination  into  the  con 
dition  of  the  college,  the  court  voted : — 

"  That  if  the  college  be  found  in  the  same  Ian- 
guishing  condition  at  the  next  session,  the  presi- 


HARVARD   COLLEGE. 


[58th   day. 


Friday,] 


KNOWLTON. 


[July  loth. 


dent  is  concluded  to  be  dismissed  without  farther 
hearing." 

In  1G93,  Increase  Mather  was  president  of  the 
college.  He  was  a  man  of  ability  and  learning, 
but  exceedingly  ambitious  to  figure  in  politics,  as 
well  as  in  religion  and  literature.  He  not  only 
chose  to  retain  his  place  as  pastor  of  the  North 
Church  in  Boston,  but  he  even  left  both  his 
church  and  the  college,  to  go  on  a  political  mis 
sion  to  England.  In  view  of  his  course,  the 
general  court  voted,  that  "the  president  of  Har 
vard  College,  for  the  time  being,  shall  reside  there, 
as  hath  been  the  custom  in  times  past ;"  and  five 
years  afterwards  the  court  found  it  necessary  to 
declare  again,  that  "  the  president  should  reside 
at  Cambridge."  But  president  Mather,  still  dis 
regarding  the  wishes  of  the  government,  the  gen 
eral  court,  in  1701,  dismissed  him  from  the  presi 
dency,  and  placed  the  college  in  the  charge  of  vice- 
president  Willard;  and  in  1707,  Willard  having 
deceased,  John  Leverett  was  chosen  to  fill  the 
place,  and  the  general  court,  accepting  and  ap 
proving  of  the  appointment,  voted  to  pay  him  a 
salary  of  £150  from  the  public  treasury,  "for  his 
encouragement  and  support  during  his  continu 
ance  in  said  office,  he  residing  at  Cambridge,  and 
discharging  the  proper  duties  to  a  president  be 
longing,  and  entirely  devote  himself  to  that  ser 
vice." 

In  1742,  Nathan  Prince,  who  had  been  a  mem 
ber  of  the  corporation  for  fourteen  years,  was 
dismissed  by  a  vote  of  the  Board  of  Overseers. 
He  was  a  vigorous  and  earnest  writer,  and 
although  guilty  of  some  dereliction  in  those  rigor 
ous  times,  he  was  not  disqualified  to  bear  witness 
to  future  times  against  an  act  of  usurpation  on  the 
part  of  the  overseers.  In  his  appeal  to  the  public, 
he  said : — 

"  The  next,  and  the  only  other  dismission  of  a 
member  of  said  corporation,  was  on  February  last, 
1741-2;  without  any  power  from  the  court,  or 
any  act  of  said  corporation  for  the  same,  but  by 
the  sole  and  sovereign  authority  of  the  overseers 
of  the  college  ;  who,  having  no  plain  law  for  it, 
nor  from  times  immemorial  any  instance  of  such 
a  thing  on  their  side,  seemed  now  resolved  to 
make  one,  that  so  they  might  plead  in  future 
times.  Precedents  against  law  are  dangerous 
things  ;  especially  if  they  rise  so  high  as  to  turn 
out  members  of  corporations.  Such  a  thing  done 
in  England  would  cause  an  insurrection ;  and  if 
this  power  does  not  belong  to  the  corporation  and 
overseers  of  said  college  by  law,  the  overseers  of 
said  college,  by  such  an  act,  have  assumed  to 
themselves  the  powers  of  the  general  court,  viz. : 
those  powers,  which  in  President  Dunster's  case 
were  not  the  powers  of  the  overseers,  but  were 
delegated  to  them  from  the  court,  and  so  icere  the 
powers  of  that  court.  Nothing,  therefore,  can  de 


mand  a  more  critical  examination  than  such  pre 
cedents  ;  and  that  at  their  first  beginning,  before 
they  acquire  the  force  of  laws,  and  in  future  times 
will  be  pleaded  as  laic,  against  the  rights  of  the 
general  court  itself" 

The  whole  drift  of  Prince's  appeal,  was  to  the 
effect  that  the  power  of  removing  a  fellow  of  the 
corporation,  was  not  given  by  the  charter  to  the 
college  government,  but,  in  his  own  words,  "  that 
the  court  had  reserved  it  to  themselves ; "  thus 
bearing  his  own  testimony,  in  the  most  emphatic 
manner,  to  the  visitatorial  right  and  power  of  the 
general  court  as  the  founder  of  the  college. 

The  general  court,  in  all  the  times  of  the  colony 
and  province,  showed  its  zeal  in  maintaining  the 
foundation  it  had  established,  by  paying,  for  a 
long  period  of  time,  the  salary  of  the  president  of 
the  college  out  of  the  country  treasury ;  by  nu 
merous  payments  to  professors  in  the  college ;  by 
grants  of  land ;  and  by  donations  of  £1,500  in 
1718,  for  the  erection  of  Massachusetts  HaU  ;  of 
£1,000  in  1726,  for  the  president's  house;  of 
£2,500  in  1762,  for  Hollis  Hall;  and  of  £4,100 
in  1764,  1765,  and  1766,  for  rebuilding  Harvard 
Hall ;  amounting  in  the  aggregate,  down  to  1786, 
as  stated  by  the  treasurer  of  the  college,  to  over 
$91,000.  And  he  says  that  in  those  early  days 
money  had  a  value  six  or  seven  times  greater  than 
its  value  in  later  times. 

But  the  Commonwealth's  bounty  to  the  college 
did  not  stop  with  grants  of  money.  In  1640,  it 
gave  the  college  the  ferry  across  Charles  river. 
How  much  income  it  afforded,  I  have  not  the 
means  of  knowing.  But  in  1785,  after  the  charter 
of  the  Charles  liiver  Bridge  Company,  the  general 
court  provided  for  an  annual  payment  of  £200  a 
year  by  that  company  for  the  benefit  of  the  col 
lege;  and  subsequently,  for  £100  a  year  each, 
from  two  other  bridges  across  the  same  stream. 

In  the  consideration  of  this  subject,  Mr.  Chair 
man,  I  come  now  to  the  third  period  in  the  exist 
ence  of  the  college  ;  and  that  is  under  the  Consti 
tution  of  the  Commonwealth,  as  established  in 
1780,  and  revised  by  the  Convention  of  1820. 

The  college  had  existed  in  name,  though  not  in 
law,  as  a  college,  from  1636  to  the  time  of  its 
charter  in  1650.  It  then  became  both  in  law  and 
in  fact  a  college.  The  board  of  overseers,  as  I 
have  already  said,  was  recognized  by  the  charter, 
and  made  a  component  part  of  the  government. 
An  appendix  to  the  charter  was  given  in  1657. 
Another  modification  was  made  in  1672  ;  and  the 
whole  was  confirmed  by  the  general  court  in 
1707. 

These  were  all  the  laws  that  were  in  force 
touching  the  college,  when  the  Convention  of 
1780  assembled.  Such  was  the  understanding  of 


58th  day.] 


HARVARD    COLLEGE. 


33 


Friday, 


KNOWLTON. 


[July  15th. 


that  body,  and  such  is  the  voice  of  history  upon 
the  subject. 

In  forming  the  Constitution,  the  Convention 
proceeded  to  secure  the  rights  of  the  corporation, 
and  the  rights  of  the  people  as  the  founder,  so 
that  they  should  be  transmitted  unimpaired,  to 
future  times.  The  result  of  its  action  was  the 
fifth  chapter  of  the  Constitution,  which  was  ap 
proved  and  adopted  by  the  people. 

The  chapter  is  divided  into  three  sections.  The 
first  declares : — 

"  That  the  president  and  fellows  of  Harvard 
College,  in  their  corporate  capacity,  their  officers 
and  servants,  shall  have,  hold,  use,  exercise,  and 
enjoy  all  the  powers,  authorities,  rights,  liberties, 
privileges,  immunities,  and  franchises,  which 
they  now  have,  or  are  entitled  to  have,  hold,  use, 
exercise,  and  enjoy ;  and  the  same  are  hereby 
ratified  and  confirmed  unto  them,  and  to  their 
successors,  and  to  their  officers  and  servants 
respectively  forever." 

The  second  section  confirms  to  the  college  all 
the  gifts,  grants,  devises,  legacies,  and  convey 
ances,  made  to  the  college,  to  be  held  and  used  in 
conformity  to  the  will  of  the  donors. 

The  third  section  provides  for  the  perpetuity  of 
the  board  of  overseers,  closing  with  this  proviso  : 

"  Provided,  that  nothing  herein  shall  be  con 
strued  to  prevent  the  legislature  of  this  Common 
wealth  from  making  such  alterations  in  the  gov 
ernment  of  the  said  University  as  shall  be  condu 
cive  to  its  advantage  and  the  interest  of  the 
republic  of  letters,  in  as  full  a  manner  as  might 
have  been  done  by  the  legislature  of  the  late 
province  of  the  Massachusetts  Bay." 

This  proviso  refers  not  to  the  corporation  alone, 
or  the  overseers  alone,  for  neither  of  them  in  their 
separate  capacity  constitutes  the  government  of  the 
college.  The  form  of  expression  is  such  that  it 
must  embrace  both  boards,  or  it  would  be  without 
sense  and  meaning.  Of  course,  under  the  consti 
tution,  the  legislature  of  to-day  has  the  same 
powers  of  legislation  which  were  had  by  the 
general  court  previous  to  1780  ;  and  what  that 
power  was  we  have  seen  in  the  whole  history  of 
legislation  during  the  times  of  the  colony  and  the 
province.  The  court  claimed  and  exercised  its 
rights  of  visitation,  as  founder,  in  as  full  and  per 
fect  a  manner  as  it  would  be  possible  for  it  to  claim 
and  exercise  any  right  pertaining  to  the  functions 
of  government.  To  deny  this,  is  to  deny  the 
whole  history  of  the  Commonwealth.  It  is  to 
deny  that  the  college  was  built,  located,  and 
named  by  the  general  court.  It  is  to  deny  that 
the  court  watched  over  it  by  day  and  guarded  it 
by  night,  and  sustained  it  as  a  parent  sustains  a 

33 


child,  in  all  its  trials  and  perils,  from  its  infancy, 
when  Cambridge  itself  was  but  a  wilderness,  up 
to  its  strong  and  vigorous  manhood.  Without 
this  visitatorial  guardianship  of  the  Commonwealth 
over  the  college,  its  light  would  have  gone  out, 
its  funds  would  have  been  dissipated,  its  charter 
would  have  been  a  dead  letter,  and  the  donations 
of  Harvard,  and  other  generous  benefactors, 
would  have  been  lost  forever ;  and  there  would 
have  been  no  broad  foundation  on  which  to  pile 
up  the  splendid  legacies  of  later  days. 

With  all  deference,  Mr.  Chairman,  to  the 
opinions  of  gentlemen  learned  in  the  law,  I  am 
unable  to  believe  that  this  is  a  case  beyond  the 
reach  of  ordinary  comprehension ;  or  that  it  is 
involved  in  intricacies  and  mysteries  which  com 
mon  sense  cannot  fathom.  The  corporation  itself, 
in  its  memorial  two  years  ago,  told  the  legislature 
that  :— 

"  There  is  no  doubt  that  the  founder  of  a  charity 
has  the  right  in  its  creation  to  prescribe  the  terms 
and  tenure  upon  which  it  shall  be  held,  and  the  stat 
utes  by  which  it  shall  be  governed,  and  to  reserve 
the  power  of  altering  them  from  time  to  time ;  as 
also  general  legislative  and  judicial  axithority  over 
the  trustees,  with  power  of  removal  and  substitu 
tion  ;  provided  that  such  terms,  tenure,  and  reser 
vations,  be  not  repugnant  to  the  general  law.  Nor 
can  it  be  doubted  that,  if  the  grant  be  general  in 
its  terms,  for  the  purposes  of  the  charity,  without 
prescribing  any  terms  upon  which  it  shall  be  held 
and  managed,  such  general  legislative  and  judicial 
po^cer  will  remain  in  the  founder,  to  be  exercised  at 
his  pleasure ;  nor  that,  if  the  whole  tenure  and 
government  are  not  granted  to  the  trustees  or 
other  persons,  the  portion  not  thus  parted  ivith  will 
remain  in  him.  And  any  power  thus  expressly 
or  tacitly  reserved  in  the  founder,  is  called  visita 
torial,  and  may  remain  in  him,  or  be  at  any 
time  granted  to  other  persons ;  and  it  constitutes  a 
valuable  estate  or  property,  recognized  as  such  in 
courts  of  law  and  equity." 

This  opinion  is  signed  by  the  chief  justice  of 
our  supreme  court,  and  by  one  of  the  judges  of 
the  United  States  court,  and  may,  therefore,  be 
taken  as  sound  law  in  the  case.  This  doctrine  is 
not  inconsistent  with  that  of  Mr.  Justice  Holt, 
that  if  the  founder  of  an  institution  fails  to  pro 
vide  a  visitor,  the  law  provides  one  for  him. 

But  if  I  understand  the  memorial,  it  avoids  the 
conclusion,  by  the  assertion  that  Harvard  College 
is  a  close  corporation ;  and  that  its  franchise  is  a 
vested  right  in  the  Fellows,  which  the  legislature 
cannot  touch. 

If  that  be  so— if  John  Harvard  was  the  founder 
of  the  college,  and  the  right  of  visitation  was  in 
him,  his  heirs,  and  successors — then  Harvard  Col 
lege  can  be  brought  into  the  same  category  with 
Dartmouth  College ;  and  the  law  of  the  United 


34 


HARVARD    COLLEGE. 


[58th  day. 


Friday, 


KNOWLTON. 


[July  15th. 


States  court  will  apply  in  the  one  case  as  well  as 
in  the  other.  But  I  find  no  analogy  between 
them. 

Dr.  Wheelock  was  the  founder  of  Dartmouth 
College,  and  retained  for  himself,  his  heirs,  and 
successors,  a  visitatorial  right  over  the  foundation. 
The  legislature  of  New  Hampshire  intervened, 
and  changed  the  organization  of  the  corporation. 
The  trustees  appealed  to  the  United  States  court 
for  redress,  under  that  provision  of  the  United 
States  Constitution  which  declares  that  "  no  State 
shall  pass  any  law  impairing  the  obligation  of 
contracts."  The  court  sustained  the  appeal,  and 
the  legislature  was  defeated.  But  whether  a  con 
tract  was  or  was  not  involved  in  that  case,  is  a 
question  I  leave  to  the  logic  of  the  legal  profes 
sion  ;  as  also  those  other  questions,  whether  the 
same  doctrines  were  upheld  by  that  court,  and  if 
so,  how  far,  in  the  more  recent  case  of  the  War 
ren  Bridge ;  and  also  whether,  as  the  supreme 
court  of  the  United  States  has  been  constituted  of 
late  years,  it  is  probable  that  the  same  doctrines 
would  now  be  laid  down  as  law  which  ruled  in 
fihe  decision  of  the  Dartmouth  case. 

In  the  Convention  of  1820,  Mr.  Webster  ad 
mitted,  in  his  report,  that  the  college  was  founded 
by  the  Commonwealth.  His  opinion  will,  of 
•course,  have  great  weight  with  a  portion,  at  least, 
of  this  Convention.  If  he  was  correct  in  his 
opinion,  then  the  Commonwealth  has  a  perfect 
right  to  modify  the  organization  of  the  college, 
whenever  the  exigencies  of  the  case  may  require 
it.  Should  it  do  so,  upon  the  theory  admitted  by 
Mr.  Webster,  then  there  will  be  no  impairing  of 
the  obligations  of  a  contract  that  would  make  a 
case  that  could  stand  for  a  moment  in  the  United 
States  court.  The  exigencies  of  the  case  must 
rule  the  decision.  The  court  will  admit  the  full 
rights  of  the  Commonwealth  as  visitor  upon  its 
own  foundation ;  unless,  of  which  I  should  en 
tertain  no  serious  apprehension,  it  should  throw 
over  the  case  one  of  those  constructive  interpre 
tations  of  power  in  the  general  government, 
which  tend  to  rob  the  States  of  their  sovereignty, 
concentrate  all  power  in  the  general  government, 
and  subvert  the  liberties  of  the  people. 

If  the  Commonwealth  has  all  the  rights  and 
powers  of  founder  of  the  college,  and  there  exists 
an  exigency,  then  the  corporation  is  in  the  power 
of  the  general  court,  acting  under  such  consti 
tutional  provisions  as  the  people  may  prescribe ; 
and  there  is,  and  can  be,  no  contract  that  can  be 
impaired  by  the  action  of  the  people  through  a 
Convention,  or  the  general  court.  In  good  faith 
to  our  forefathers  who  established  the  college,  and 
watched  over  it  in  its  early  perils,  and  fully  re 
cognized  it  in  the  Constitution — and  especially  in 


good  faith  to  its  early  and  its  later  benefactors,  who 
have  enriched  it  with  a  princely  munificence — 
we  are  under  the  most  sacred  of  obligations  to  see 
that  its  funds  are  not  perverted  from  the  purposes 
to  which  they  were  dedicated.  If  a  perversion  is 
proved — or  a  failure  to  give  them  their  full  force 
and  effect— then  the  exigency  is  made  out ;  as  it 
was  in  the  case  of  Dunster  in  1654,  and  in  the  case 
of  the  summons  to  the  college  to  appear  before  the 
general  court  in  1674.  In  such  a  case,  the  plea 
of  a  contract  cannot  avail  against  the  Common 
wealth. 

But  in  supposed  cases  of  conflict  between  the 
general  government  and  the  government  of  a 
State,  it  is  important  to  bear  in  mind  the  relative 
powers  of  each  to  the  other — the  theory  of  civil 
government  among  us,  and  the  mode  in  which 
power  is  distributed  by  our  institutions. 

The  general  government  is  an  organization  of 
delegated  power.  It  has  no  original  sovereignty. 
It  is  a  creature  of  the  States,  which  created  it 
by  contributions  from  their  own  sovereignty, 
powers  and  rights.  It  can  act  upon  such  powers 
only  as  were  expressly  delegated  to  it  by  the 
States  ;  and  the  powers  which  it  may  exercise  are 
plainly  and  specifically  defined  and  set  forth  in 
its  constitution,  as  well  as  the  powers  which  it  is 
forbidden  to  exercise.  With  the  single  exception 
of  the  powers  thus  delegated,  every  State  is  sover 
eign  of  itself,  up  to  the  full  measure  of  its  reserved 
powers,  rights  and  privileges  ;  and  can  be  held  ac 
countable  in  no  manner  to  the  general  government, 
except  for  an  invasion  of  the  powers  it  expressly 
delegated  to  that  government  when  it  became  a 
party  to  the  compact  between  the  States  of  the 
Union.  When,  therefore,  there  is  no  collision 
between  a  State  and  the  general  government,  and 
no  question  in  dispute  in  the  nature  of  a  contract 
to  be  impaired,  the  Commonwealth  cannot  be 
called  to  account  in  the  courts  of  the  United 
States  for  any  exercise  of  its  reserved  sovereignty 
and  power  in  or  upon  its  own  institutions.  Upon 
these  premises,  it  is  my  full  belief  that  the  gen 
eral  government,  acting  within  the  limits  of  its 
delegated  sovereignty,  and  without  the  line  of  the 
reserved  rights  of  the  States,  has  no  more  right 
to  touch  the  Commonwealth  for  its  action  upon 
Harvard  College,  than  it  has  for  its  action  upon 
the  State  Lunatic  Hospital,  or  the  State  Reform 
School.  Both  of  those  institutions  are  corpora 
tions,  substantially  of  the  same  nature  as  the  cor 
poration  of  Harvard  College  admitted  itself  to  be, 
from  the  period  of  its  organization  down  to  about 
the  commencement  of  the  present  century. 

The  provision  that  "  no  State  shall  pass  any 
law  impairing  the  obligation  of  contracts,"  was 
originally  a  compact  of  amity  between  the  sev- 


58th  day.] 


HARVARD   COLLEGE. 


35 


Friday,] 


KNOWLTON. 


[July  15th. 


eral  States,  to  protect  the  rights  of  the  citizens  of 
one  State  from  destruction  or  invasion  by  the 
government  of  another  State. 

By  the  resolution  upon  your  table,  Mr.  Chair 
man,  it  is  proposed  to  affirm  in  the  Constitution 
the  full  power  of  the  legislature  over  Harvard 
College,  as  a  State  institution  ;  subject,  however, 
to  such  restrictions  as  shall  forever  protect  the 
college  in  all  its  legal  rights.  It  is  a  simple  pro 
position,  and  needs  no  labored  exposition.  It 
gives  to  the  legislature  all  the  power  which  the 
people  have  over  the  college.  It  places  it  in  the 
Constitution  as  an  express  power,  where  it  now 
exists  in  the  nature  of  an  implied  or  inferential 
power ;  the  extent  of  which  has  always  to  be 
determined  by  judicial  interpretation.  The  lan 
guage  of  the  resolution  is  almost  identical  with 
the  charters  of  the  other  two  colleges  in  the 
Commonwealth.  The  charter  of  Williams  Col 
lege  was  granted  in  1793 ;  and  in  it  the  general 
court  expressly  provided,  in  these  words : — 

"That  the  legislature  may  grant  any  farther 
powers  to,  or  alter,  limit,  annul,  or  restrain,  any 
of  the  powers  vested  by  this  act  in  the  said  cor 
poration,  as  shall  be  judged  necessary  to  promote 
the  best  interests  of  the  said  college." 

This  charter  was  given  thirteen  years  after  the 
adoption  of  the  Constitution  of  1780  ;  and,  (as 
suggested  by  a  member  of  the  committee,)  was 
in  all  probability  an  exposition  of  the  view  which 
was  then  entertained  of  the  powers  of  the  gener 
al  court,  affirmed  by  the  Constitution,  as  exist 
ing  under  the  Province  Charter. 

Thirty- two  years  afterwards,  in  182-5,  the  legis 
lature  chartered  Amherst  College,  and  placed  in 
its  act  of  incorporation  a  transcript  of  the  provi 
sion  contained  in  the  charter  of  Williams  College ; 
with  the  farther  provision,  however,  that  the 
legislature  should  forever  elect  a  portion  of  the 
trustees  of  the  college.  And  that  is  now  done. 

One  other  point,  Mr.  Chairman,  remains  to  be 
briefly  considered,  and  that  is  whether  there 
exists  a  necessity  for  the  Commonwealth  to  in 
tervene,  in  the  exercise  of  its  visitatorial  rights 
and  powers,  to  correct  abuses  in  the  organization 
and  operations  of  the  college ;  or  to  give  to  the 
institution  greater  force  and  effect. 

In  the  matter  of  the  funds  of  the  college,  I 
make  no  charges  against  the  corporation.  I  have 
none  to  make.  If  any  are  to  be  made,  they 
must  come  from  some  other  source.  I  know 
nothing  of  its  funds — how  they  have  been  in 
vested  and  applied — except  in  common  with  the 
whole  community.  1  never  entered  the  doors  of 
the  college,  and  know  nothing  of  its  internal 
order  and  life.  Its  own  reports,  and  the  records 


of  the  general  court,  show  that  it  has  been  en 
dowed  with  a  profusion  that  is  almost  prodigal. 
And  what  is  the  result  ?  A  less  number  of 
students  than  is  found  in  some  colleges  more 
recently  established,  and  charges  for  education 
that  are  onerous  to  many  who  avail  themselves 
of  its  benefits. 

These  facts  have  led  to  the  inquiry  whether 
the  college  has,  or  has  not,  failed  to  meet  the 
just  expectations  of  the  people.  Those  expecta 
tions  were  expressed  in  the  charter.  They  were 
— not  that  it  should  be  a  select  school  for  the 
education  of  classes  or  cliques  in  particular  theo 
ries,  principles,  or  tenets,  religious  or  secular — 
but,  in  the  concise  language  of  the  charter,  "  for 
the  advancement  and  education  of  youth  in  all 
manner  of  good  literature,  arts,  and  sciences." 

What,  then,  Mr.  Chairman,  is  the  relation 
which  the  college  now  holds  to  the  Common 
wealth  ? 

Its  corporation  is  now,  and  long  has  been, 
composed  of  men  who  are  understood  to  be  of 
one  sect  in  religion,  and  of  one  party  in  politics. 
That  religious  sect  does  not  embrace  more  th,an 
one-tenth  of  the  people  of  the  Commonwealth. 
I  do  not  charge,  Sir,  that  in  some  of  its  acts  the 
corporation  has  shown  a  culpable  insensibility 
to  public  opinion ;  but  I  do  say,  that  while  the 
college  remains  in  the  hands  of  a  sect  or  a  party, 
it  is  outside,  over  and  beyond,  the  reach  of  the 
sympathies,  the  approval,  the  cooperation  of  the 
mass  of  the  people. 

Its  founders  and  benefactors  never  designed 
that  it  should  be  a  sectarian,  a  narrow,  or  an 
exclusive  institution.  They,  of  course,  had  their 
peculiar  notions  in  theology  and  in  government ; 
but  they  nowhere  incorporated  them  into  the 
constitution  of  the  college,  or  made  provision  that 
they  should  rule  in  its  administration. 

For  one,  Mr.  Chairman,  I  propose  to  make  no 
changes  in  the  original  character  and  purposes  of 
the  college.  All  I  propose,  is  to  bring  back  the 
college  upon  its  first  foundation ;  to  give  greater 
activity  and  effect  to  those  means  of  education 
that  have  been  so  liberally  supplied  by  the  Com 
monwealth,  and  by  the  largesses  of  its  long  line 
of  private  benefactors  ;  and,  by  future  constitu 
tional  legislation,  to  place  the  college  in  full  con 
tact  with  the  beating  pulse  of  the  great  heart  of 
the  Commonwealth,  that  the  generous  sympa 
thies  of  the  whole  people  may  cluster  around  it 
in  the  present  and  in  all  coming  time.  Ours  is 
a  powerful  Commonwealth.  Its  amplitude  of 
means  is  daily  augmenting.  The  platform  of  the 
college  is  a  broad  one.  Without  impairing  the 
efficiency  of  the  institution  that  now  occupies  but 
one  of  its  corners,  the  Commonwealth  can  rear 


36 


HARVARD    COLLEGE. 


[58th  day. 


Friday,; 


KNOWLTOX  —  B  RAM  AX. 


[July  15th. 


upon  it  an  organization  such  as  the  progress  of 
society  may  demand. 

Of  course,  Mr.  Chairman,  I  have  no  sympathy 
with  those  who  cherish  errors  and  abuses  because 
they  are  old ;  and  dread  the  progress  of  truth  be 
cause  its  revelations  are  new ;  who  regard  every 
change  as  innovation ;  and  who  hope  that  the 
future  may  be  as  the  present  is,  or  as  the  past 
has  been.  The  Committee  with  whom  I  have 
had  the  honor  to  act  in  reporting  this  resolution, 
do  not  even  contemplate  a  subversion  of  the  es 
tablished  order  of  the  college,  or  a  change  of  its 
studies  or  discipline.  If  there  are  duties  unper 
formed,  all  will  agree  that  they  should  no  longer 
be  neglected.  If  there  are  drones  in  the  hive, 
they  should  be  set  to  work,  or  driven  out.  But 
these  are  the  appropriate  duties  of  an  energetic 
administration  of  the  college,  that  comprehends 
its  duty,  and  has  the  moral  courage  to  do  it. 

Harvard  College  has  the  means — and  what  it 
has  not  it  can  have — to  place  it  beyond  the  reach 
of  competition  from  all  other  American  Colleges. 
Popularized  as  it  should  be,  and  in  a  land  that 
is  progressing  with  giant  strides,  it  should  have 
its  thousands  of  students  where  it  now  has  its 
hundreds.  It  should  be  a  great  centre  of  good 
influences — the  prolific  fountain,  from  which  "  all 
manner  of  good  literature,  arts,  and  sciences" 
should  flow  out  in  abundant  streams,  to  enlarge, 
to  invigorate,  to  refine,  the  public  mind.  It 
should  be  the  head  of  our  system  of  public  in 
struction  : — not  standing  aside,  in  narrow  exclu- 
siveiiess,  to  furnish  a  few  individuals  for  the 
professions  : — but  educating  men,  of  all  classes, 
for  a  higher  aim  in  all  the  pursuits  and  avoca 
tions  of  life — especially  that  great  body  of  pub 
lic  teachers  who  are  hereafter  to  give  tone  and 
direction  to  the  ideas  and  sentiments  of  the  peo- 
pie. 

"With  these  views,  thus  imperfectly  presented, 
and  with  the  hope  that  my  colleagues  of  the 
Committee  will  supply  my  deficiences,  I  ask  par 
don,  Mr.  Chairman,  for  the  extent  to  which  I 
have  trespassed  upon  your  forbearance. 

Mr.  BRAMAN,  of  Danvers.  Being  a  mem 
ber  of  the  Committee  which  made  this  Report, 
I  ask  the  indulgence  of  the  Convention  for  a  short 
time,  in  order  that  I  may  have  an  opportunity  of 
expressing  my  views.  With  some  of  the  views 
which  have  just  been  expressed  by  the  chairman 
of  that  Committee,  I  entirely  concur ;  but  from 
others  of  them  I  as  entirely  dissent,  although, 
without  doubt,  those  views  are  conscientiously 
and  honestly  entertained. 

I  should  have  preferred  to  have  stricken  out  of 
the  Constitution  all  that  related  to  Harvard  Col 
lege  ;  and  failing  in  that,  as  the  next  best  thing, 


I  would  have  chosen  to  have  retained  the  provi 
sion  as  it  is  in  our  present  Constitution,  without 
alteration  or  addition. 

I  have  some  objection  to  the  present  Report. 
The  principal  objection  I  have  to  it  is,  that  it 
leaves  the  relation  between  the  government  and 
the  college  precisely  where  it  was.  It  neither 
confers  an  additional  power  on  the  legislature,  nor 
does  it  compel  them  to  do  anything  which  they 
had  no  power  to  do,  without  such  a  provision.  I 
do  not  think  it  wise  to  make  any  change  in  the 
Constitution,  without  something  is  to  be  effected 
— without  some  new  power  is  granted  to  the  leg 
islature,  which  it  did  not  possess  before. 

Another  objection  which  I  have  is,  that  it 
rather  invites  the  legislature  to  do  what  I  believe 
it  has  no  power  to  do  ;  and  if  it  should  undertake 
to  exercise  such  power,  it  would  be  in  contraven 
tion  of  the  Constitution  of  the  United  States. 
The  contract  to  which  allusion  has  been  made,  is 
a  contract  which  comes  within  the  meaning  of 
the  article  of  the  Constitution  of  the  United  States, 
which  provides  that  no  State  shall  pass  any  law 
impairing  the  obligations  of  contracts,  and  they 
probably  would  refer  to  the  celebrated  Dartmouth 
College  case  as  an  authority.  In  1769,  the  crown 
of  England  created  a  corporation  consisting  of 
twelve  of  the  corporators  of  Dartmouth  College, 
by  which  the  whole  management  of  that  institu 
tion  was  intrusted.  The  college  continued  to 
flourish  under  this  charter,  fulfilling  the  benevo 
lent  intentions  of  its  founder  and  benefactors,  till 
in  18 16,  the  legislature  of  New  Hampshire — think 
ing,  as  many  do  now,  with  respect  to  the  corpo 
ration  of  Harvard  College,  that  the  institution 
could  be  rendered  more  extensively  useful,  by 
putting  it  immediately  under  the  control  of  the 
State — proceeded  to  provide  that  there  should  be 
two  new  boards  created.  Nine  trustees  were 
added  to  the  original  twelve.  There  was  also  a 
board  of  overseers,  consisting  of  twenty-five, 
having  a  negative  upon  the  acts  of  the  corpora 
tion  ;  and  the  members  of  both  of  these  boards 
are  made  elective  by  the  governor  and  council. 
The  corporation  of  Dartmouth  College  resisted  the 
act.  They  contended  that  it  was  an  invasion  of 
their  chartered  rights,  and  that  it  was  an  indirect 
contravention,  both  of  the  Constitutions  of  New 
Hampshire,  and  of  the  United  States.  They  took  the 
case  into  the  courts  of  New  Hampshire,  and  then, 
after  the  decision  of  the  courts  of  that  State  went 
against  them,  they  appealed  to  the  United  States 
court,  and,  after  an  argument,  conducted  by  some 
of  the  most  eminent  legal  men  of  the  country, 
and  after  an  investigation  by  the  court,  adorned 
by  the  names  of  a  Marshall,  and  a  Story,  the  de 
cision  of  the  New  Hampshire  court  was  overruled, 


58th  day.] 


HARVARD   COLLEGE. 


37 


Friday,] 


BRAMAN  —  BOUTWELL. 


[July  15th. 


and  the  corporation  was  restored  to  its  original 
condition  and  privileges. 

Now,  I  maintain,  that  the  charter  of  Harvard 
College  is  as  strong  as  the  charter  of  Dartmouth 
College,  in  its  main  features  ;  and  having  read 
them  both,  and  carefully  compared  them  together, 
I  put  it  to  any  legal  gentleman,  whether  there  is 
any  such  difference  between  the  corporation  of 
Dartmouth  College,  and  that  of  Harvard  College 
in  1650,  as  does  not  place  them  both  alike  under 
the  Constitution  of  the  United  States. 

Views  have  been  advanced  by  the  chairman  of 
the  Committee,  and  they  are  advanced  also  by 
other  individuals,  going  to  show,  that  the  corpora 
tion  of  Harvard  College  stands  on  a  different 
footing  from  that  of  Dartmouth  College,  and  that 
it  is  not  within  the  protection  of  the  Constitution 
of  the  United  States.  I  am  aware  that  there  are 
some  persons  who  think  that  this  Convention  can 
exercise  a  control  over  this  college,  which  cannot 
be  exercised  by  the  legislature  of  the  Common 
wealth  ;  but,  Sir,  there  is  no  foundation  for  this 
idea.  The  Constitution  of  the  United  States  has 
just  as  much  power  in  a  State,  acting  through  a 
Convention,  as  it  has  acting  through  a  legislature, 
and  if  any  act  should  be  passed  by  this  Conven 
tion,  if  anything  should  be  incorporated  into  that 
instrument  which  is  in  contravention  of  the  United 
States  Constitution,  it  would  be  just  as  quickly 
overruled  as  it  would  if  it  had  been  done  merely 
by  State  authority.  I  know  that  there  are  indi 
viduals  who  say  that  the  corporation  of  Harvard 
College  is  a  State  institution,  and  they  therefore 
maintain  that  it  is  under  the  control  of  the  State. 
Now,  the  phrase  "  State  institution  "  is  a  very 
indefinite  phrase — too  indefinite  to  be  made  the 
foundation  of  an  argument,  without  it  is  more 
precisely  defined.  "What  then  is  meant  by  call 
ing  it  a  State  institution  ?  Does  it  mean  that  the 
State  gave  it  its  charter  of  incorporation?  Some 
acts  of  incorporation  are  contracts,  and  are,  there 
fore,  exempted  from  all  legislative  interference. 
They  are  not  under  the  control  of  the  State,  and 
are  beyond  all  interference  on  the  part  of  the 
government  of  the  State.  It  must  be  determined 
that  the  corporation  is  without  the  control  of  the 
Constitution  of  the  United  States,  before  it  can  be 
assumed  that  it  can  be  interfered  with.  The  ques 
tion,  therefore,  depends  upon  the  nature  and  the 
objects  of  the  corporation  that  is  created.  The 
act  of  incorporation  determines  nothing,  one  way 
or  the  other ;  and  if  the  act  of  incorporation  of 
Harvard  College  of  1650,  was  a  contract  within 
the  meaning  of  the  Constitution  of  the  United 
States,  then,  of  course,  it  is  protected  by  that  in 
strument,  and  is  not  otherwise  under  the  power 
and  control  of  the  State,  than  as  its  members  are 


subject  to  the  laws  which  apply  to  all  other  parts 
of  the  community. 

The  question  then  arises,  whether  a  power  can 
be  deduced  on  the  part  of  the  State  in  relation  to 
this  institution,  in  consequence  of  its  being  a  ben 
efactor  to  the  State. 

It  has,  doubtless,  conferred  many  peculiar 
benefactions  upon  the  government,  but  it  would 
have  been  impossible  for  the  college  to  have  pro 
ceeded,  without  the  assistance  of  the  State.  But, 
was  it  ever  known  that  the  conferring  of  a  gift 
carried  with  it  the  power  of  control  over  the  per 
son  or  body  to  whom  it  was  made  ?  When  was 
such  a  thing  ever  known  ?  If  the  State  has  con 
ferred  a  gift  upon  the  college,  it  carries  with  it  no 
control,  except  so  far  as  the  power  is  deduced  from 
the  assumed  fact  that  the  State  is  the  founder  of  the 
college.  The  learned  chairman  of  the  Committee, 
(Mr.  Kiiowlton,)  maintained  that  the  State  was  the 
founder.  This  assertion  has  been  disputed,  and  I 
think  it  remains  doubtful  to  this  day,  whether  the 
appropriation  which  the  State  made  to  the  college 
was  ever  applied  to  the  uses  for  which  it  was  made, 
before  the  donation  of  John  Harvard  was  applied 
to  set  the  college  in  operation. 

Mr.  BOUTWELL,  for  Berlin.  I  wish  to  ask 
the  gentleman  whether  the  existing  Constitution 
of  the  State  does  not  declare  that  our  ancestors 
founded  Harvard  College  in  1636,  and  whether  at 
the  Convention  of  1779,  the  corporation  and 
board  of  overseers  did  not  both  assent  to  the  in 
sertion  of  that  declaration  into  the  Constitution 
of  the  State. 

Mr.  BRAMAN.  The  words  "our  ancestors," 
may  refer  to  the  State,  or  they  may  not.  But  I  will 
waive  the  point  whether  the  State  founded  the 
college  or  not,  because  the  mere  fact  that  a  person, 
or  state,  or  government,  founded  an  institution, 
does  not  necessarily  imply  that  it  has  the  control 
of  it.  The  doctrine  of  the  common  law  upon  the 
subject,  is  this  :  that  the  founder  retains  the  right 
of  visitation  over  the  institution  as  long  as  he 
chooses  to  do  so,  but  he  has  the  right  to  part  with 
it  at  any  time.  He  retains  the  power  as  long  as 
he  lives,  and  then,  I  believe,  it  descends  to  his 
heirs,  unless  he  otherwise  makes  provision  for  its 
disposal.  But,  I  say,  he  has  the  power  to  devolve 
it  upon  any  other  body,  and  when  he  has  disposed 
of  it,  whether  to  an  individual,  to  a  state,  or  to  a 
board  of  trustees,  the  whole  power  is  gone  from 
the  founder.  Mr.  Wheelock  founded  the  institu 
tion  of  Dartmouth  College,  and,  as  such,  had  the 
right  of  visitation  and  control.  But  he  chose  to 
part  with  the  power  and  privilege,  and  the  mo 
ment  he  did  that,  he  had  no  more  authority  to 
meddle  with  the  institution,  than  the  Emperor  of 
China  has.  And,  I  maintain,  that  the  State  can 


38 


HARVARD   COLLEGE. 


[58th  day. 


Friday,] 


BRAMAN. 


[July  15th. 


just  as  well  part  with  its  power  over  a  corporation 
as  an  individual  can.  Cannot  the  State  sell,  or 
convey  away  property,  by  gift  ?  Cannot  she  also 
dispose  of  her  corporate  franchises  ?  I  believe  this 
doctrine  is  maintained  by  all  the  writers  upon 
common  law.  So  the  fact,  if  admitted,  that  the 
State  founded  Harvard  College,  does  not  give  it 
any  right  of  control  over  the  corporation,  provided 
it  has  parted  with  its  power.  And  I  maintain 
that  it  parted  with  all  its  power  when  it  gave  the 
charter  of  1650.  If  that  act  does  not  convey 
complete  control  to  that  body  over  the  college, 
then  there  are  no  terms  which  can  convey  con 
trol  ;  and  if  it  is  not  a  contract  within  the  mean 
ing  of  the  Constitution  of  the  United  States,  it  is 
not  in  the  power  of  language  to  frame  a  con 
tract. 

But,  it  is  said,  that  the  Constitution  of  1780 
gave  to  the  State  all  the  power  over  the  college 
which  might  have  been  exercised  by  the  provin 
cial  government.  That  Constitution  says  : — 

"  Provided,  that  nothing  herein  shall  be  con 
strued  to  prevent  the  legislature  of  this  Common 
wealth  from  making  such  alterations  in  the  gov 
ernment  of  the  said  university,  as  shall  be  condu 
cive  to  its  advantage,  and  the  interest  of  the 
republic  of  letters,  in  as  full  a  manner  as  might 
have  been  done  by  the  legislature  of  the  late 
province  of  the  Massachusetts  Bay." 

Now,  I  think,  by  a  fair  construction,  that  the 
language  refers  only  to  the  board  of  overseers. 
But,  suppose  it  extends  to  the  corporation  also  ; 
then  the  question  is,  what  was  the  power  which 
the  provincial  government  might  have  exercised 
over  the  college  ?  for  it  is  necessary  to  determine 
the  amount  of  the  one,  in  order  to  ascertain  the 
other. 

I  ask,  first,  what  power  did  the  provincial 
government  exercise  r  It  never  exercised  any. 
From  the  first  moment  that  the  charter  was 
granted,  up  to  its  recstablishment  in  1707,  there 
was  no  act  of  interference  by  the  legislature,  un 
til  the  Revolution  which  severed  this  country 
from  Great  Britain.  The  college  went  on  during 
that  time,  and  acted  according  to  the  powers 
conferred  upon  it  by  the  charter,  and  as  inde 
pendent  of  the  government  as  though  the  gov 
ernment  had  not  existed. 

But  I  ask,  secondly,  was  it  a  power  which  the 
government  attempted  to  exercise,  by  one  or  more 
of  its  departments.  It  was  attempted  to  be  ex 
ercised,  but  the  attempt  failed.  In  1722,  I  be 
lieve,  two  members  of  the  academic  faculty  ap 
plied  for  seats  in  the  corporation.  The  corpora 
tion  rested  their  defence  upon  the  charter,  and 
maintained  that  that  instrument  confined  the 
membership  of  the  corporation  to  residents  of 


the  college.  This  measure  originated  not  merely 
from  a  desire  of  the  petitioners  to  obtain  seats 
upon  the  board,  as  a  desire  to  remove  some  ob 
noxious  members  from  the  corporation.  This 
board  resisted,  and,  at  length,  an  appeal  was  taken 
to  the  general  court,  and  the  legislature  passed 
resolves  favorable  to  the  views  of  the  petitioners. 
They  were  concurred  in  by  the  council,  but  were 
negatived  by  the  governor. 

It  is  maintained,  by  some,  that  this  attempt 
on  the  part  of  the  provincial  government,  shows 
the  views  they  entertained,  respecting  the  lia 
bility  of  the  corporation  to  their  control,  and 
determines  that  the  government  entertained  opin 
ions  in  favor  of  its  powers  over  that  body,  which, 
though  rightly  possessed,  failed  to  be  carried  into 
accomplishment  from  motives  of  expediency. 

But,  let  me  ask,  what  was  the  nature  of  this 
power,  attempted  to  be  exercised  over  Harvard 
College  ?  It  was,  to  all  intents  and  purposes,  a 
judicial  power.  It  undertook  to  fix  the  construc 
tion  of  the  charter.  It  undertook  to  interpret  the 
law,  and  that  law  a  contract,  and  to  depose  some 
individuals  of  their  franchises,  and  to  admit  others 
in  their  places. 

Now,  it  belongs  to  courts  of  law,  and  not  to 
the  legislature,  to  exercise  judicial  powers.  I  am 
aware  that  there  are  cases  where  laws  are  ambig 
uous  and  of  doubtful  construction,  and  a  legisla 
ture  sometimes  passes  other  laws  to  remove  that 
ambiguity  and  doubt ;  but  such  laws  are,  to  all 
intents  and  purposes,  new  laws,  and  not  an  at 
tempt  to  ascertain  the  intention  of  previous  leg 
islatures. 

Now,  if  this  was  a  judicial  exercise  of  power, 
it  does  not  belong  to  our  legislature,  because  the 
Constitution  of  the  Commonwealth  expressly 
makes  a  distinction  between  the  powers  of  the 
legislature  and  the  powers  of  the  judiciary,  and 
says  that  the  one  shall  not  exercise  the  functions 
of  the  other.  Of  course,  therefore,  as  it  was  a 
judicial  act,  it  does  not  belong  to  our  legislature 
or  to  any  other. 

Let  me  also  ask,  whether  it  was  a  power  which 
might  be  rightly  exercised,  according  to  the  views 
of  morality,  for  doubtless  it  refers  to  such  a  pow 
er  as  this,  if  it  refers  to  any  power  at  all.  And 
what  is  this  power  ?  It  has  no  right  to  annul 
the  charter  of  any  corporation,  or  to  impair  it  to 
any  extent  whatsoever. 

"  When,"  declares  Judge  Story,  "  a  private 
eleemosynary  corporation  is  thus  created  by  the 
charter  of  the  crown,  it  is  subject  to  no  other 
control  on  the  part  of  the  crown,  than  what  is 
expressly  or  implicitly  reserved  by  the  charter 
itself.  Unless  a  power  be  reserved  for  this  pur 
pose,  the  crown  cannot,  in  virtue  of  its  preroga- 


58th  day.] 


HARVARD   COLLEGE. 


39 


Friday,] 


BRAMAN  —  KNOWLTON  — HOOPER. 


[July  15th. 


tive,  without  the  consent  of  the  corportion,  alter 
or  amend  the  charter,  or  divest  the  corporation  of 
any  of  its  franchises,  or  add  to,  or  diminish  the 
number  of  trustees,  or  remove  any  of  the  mem 
bers,  or  change,  or  control  the  administration  of 
the  charter,  or  compel  the  corporation  to  receive 
a  new  charter." 

I  helieve  Judge  Story  says,  in  another  place, 
that  the  idea  that  a  state  cannot  interfere  with 
the  charter  of  a  corporation,  is  one  of  the  most 
stubborn  doctrines  of  the  common  law. 

This  was  the  contemporaneous  construction,  in 
1650,  when  the  charter  was  given,  and  again,  in 
1707,  when  the  charter  was  reestablished  :  that  a 
power  which  gave  a  charter  could  not  resume  it, 
and  could  not  impair  any  of  its  first  rights  what 
soever. 

I  am  not  forgetful  of  the  fact  that  the  parlia 
ment  of  England  possesses  an  omnipotent  power ; 
that  it  has  the  power  of  annulling  corporate  rights, 
and  of  violating  contracts.  It  is  so,  because  there 
is  no  authority  to  restrain  the  exercise  of  such 
power,  if  it  chooses  to  exercise  it.  It  might  annul 
the  charters  of  both  Cambridge  and  Oxford  to 
morrow,  if  it  saw  fit  to  do  so.  But  it  will  prob 
ably  not  exercise  such  power,  because  it  would 
create  a  sensation  which  would  endanger  the  sta 
bility  of  the  government. 

But  while  it  is  admitted  that  parliament  pos 
sesses  that  power,  it  is  also  firmly  maintained  that 
it  is  has  no  moral  right  to  exercise  it.  Should  it 
proceed  to  violate  a  charter,  it  would  be  consid 
ered  as  an  exercise  of  tyrannical  power,  and  a 
flagrant  outrage  upon  all  principles  of  morality. 

In  1783,  an  attempt  was  made  by  parliament 
to  alter  the  charter  of  the  East  India  Company. 
But  it  met  with  strenuous  opposition,  and  failed. 
It  was  styled,  in  the  petition  of  the  city  of  Lon 
don,  not  only  a  high  and  dangerous  violation  of 
the  charter  of  the  Company,  but  a  total  subver 
sion  of  all  the  principles  of  the  law  and  consti 
tution  of  the  country.  It  was  called,  by  Lord 
Thurlow,  a  rash,  atrocious  violation  of  private 
property ',  which  cut  every  Englishman  to  the  bone. 
And  this  was  said,  be  it  remembered,  at  a  time 
when  it  was  admitted  that  parliament  had 
omnipotent  power. 

Mr.  KXOWLTON,  of  Worcester.  I  would 
ask  the  gentleman  whether  the  English  law  places 
the  East  India  Company  upon  the  same  basis  as 
that  of  literary  and  charitable  institutions ;  and 
whether  there  does  not  exist  a  distinct  right  as  to 
such  institutions,  which  is  not  recognized  by  the 
law  of  England  in  regard  to  business  corporations  ? 

Mr.  BRAMAN.  I  think  there  is  a  distinction, 
but  it  is  all  in  favor  of  private  corporations. 
They  have  much  less  power  over  such  corpora 


tions,  than  they  have  over  the  East  India  Com 
pany. 

Now,  the  provincial  government  might  possibly 
have  possessed  and  exercised  the  same  power, 
within  its  sphere,  that  parliament  had.  It  will  be 
recollected  that  the  colonial  government  maintain 
ed  that  it  had,  within  its  own  sphere,  powers  as 
transcendent  as  the  parliament  of  England  had 
within  its  sphere.  But  suppose  that  it  had  this 
power,  it  had  no  more  right  to  exercise  it  than 
the  omnipotent  parliament  had. 

It  is  a  power  which  does  not  belong  to  our 
legislature,  and  which  is  against  all  authority,  all 
right,  and  all  justice. 

But  I  have  another  argument  upon  this  sub 
ject.  The  Constitution  of  1780  confirmed  to 
Harvard  College  its  privileges  and  franchises.  It 
is  declared — 

«  That  the  President  and  Fellows  of  Harvard 
College,  in  their  corporate  capacity,  and  their  suc 
cessors  in  that  capacity,  their  officers  and  ser 
vants,  shall  have,  hold,  use,  exercise  and  enjoy, 
all  the  powers,  authorities,  rights,  liberties,  privi 
leges,  immunities  and  franchises,  which  they  now 
have,  or  are  entitled  to  have,  hold,  use,  exercise 
and  enjoy ;  and  the  same  are  hereby  ratified  and 
confirmed  unto  them,  the  said  president  and  fel 
lows  of  Harvard  College,  and  to  their  successors, 
and  to  their  officers  and  servants,  respectively, 
forever." 

It  confirmed  all  their  liberties  and  all  their  fran 
chises.  Now,  what  is  a  franchise  ?  Blackstone 
defines  it  thus  : — 

"It  is  likewise  a  franchise  for  a  number  of 
persons  to  be  incorporated  and  subsist  as  a  body 
politic  ;  with  a  power  to  maintain  perpetual  suc 
cession,  and  do  other  corporate  acts ;  and  each 
individual  member  of  such  corporation  is  also 
said  to  have  a  franchise  or  freedom." 

It  seems,  then,  that  when  the  Constitution  con 
firmed  these  liberties  and  franchises  of  Harvard 
College,  it  confirmed  franchises  which  it  is  not 
in  the  power  of  a  legislative  body  to  take  away. 
And  it  was  intended  as  a  protection  of  the  col 
lege  against  any  such  interference.  Would  it 
have  been  wise  and  consistent  for  them,  after 
having  thrown  this  shield  around  the  college,  to 
have  put  another  paragraph  into  the  Constitution 
which  should  proceed  to  surrender  up  the  corpo 
ration  to  the  mercy  of  the  legislature. 

[Here  the  chairman's  hammer  fell,  the  half 
hour  allotted  to  each  member  to  speak,  having 
expired.] 

Mr.  HOOPER,  of  Fall  River,  moved  that  the 
Committee  rise,  report  progress,  and  ask  leave  to 
sit  again,  with  the  view  to  a  temporary  suspension 


40 


HARVARD    COLLEGE. 


[58th  day. 


Friday,] 


ALLEN  —  BUTLER  — HOOPER  —  RANTOUL  —  BRAMAN. 


[July  loth. 


of  the  operation  of  the  order  adopted  this  morn 
ing,  limiting  speeches  to  half  an  hour. 

The  motion  was,  upon  a  division — ayes,  106  ; 
noes,  86 — agreed  to,  and 

The  Committee  accordingly  rose,  and  the  Pres 
ident  having  resumed  the  chair  of 

THE    CONVENTION, 

The  chairman  of  the  Committee  of  the  Whole 
reported  progress,  and  leave  was  granted  to  the 
Committee  to  sit  again. 

Mr.  ALLEN,  of  Worcester,  moved  a  suspen 
sion  of  the  rule  limiting  speeches  to  half  an  hour, 
for  this  day. 

Mr.  BUTLER,  of  Lowell,  moved  to  amend  the 
motion  of  the  gentleman  from  Worcester,  so  as 
to  suspend  the  operation  of  the  rule  altogether. 

Let  us,  said  Mr.  Butler,  either  have  the  rule 
enforced,  or  let  us  abrogate  it. 

Mr.  HOOPER.  My  object  in  moving  that  the 
Committee  rise,  was,  that  the  rule  might  be  so 
far  suspended,  as  to  give  to  gentlemen  on  each 
side  of  the  question,  an  equal  chance  of  being 
heard. 

The  PRESIDENT.  By  the  rules  of  the  Con 
vention,  the  question  on  suspending  the  operation 
of  the  order,  is  not  debatable. 

Mr.  WESTON,  of  Duxbury,  moved  that  the 
question  on  the  motion  of  the  gentleman  from 
Worcester,  be  taken  by  yeas  and  nays.  The 
motion  did  not  prevail,  and  the  yeas  and  nays 
were  not  ordered. 

Mr.  HOOPER  moved  to  amend  the  motion  of 
the  gentleman  from  Worcester,  so  far  as  to  give 
to  the  gentleman  who  was  last  in  possession  of 
the  floor  in  Committee  of  the  Whole,  the  same 
length  of  time  to  reply,  as  was  allowed  to  the 
chairman  of  the  committee  on  Harvard  College, 
who  preceded  him,  to  address  the  Committee. 

Mr.  ALLEN  accepted  the  amendment,  as  a 
modification  of  his  motion. 

Mr.  BUTLER.     Is  the  motion  debatable  ? 

The  PRESIDENT.     It  is  not  debatable. 

Mr.  BUTLER.  Then  I  move  a  reconsideration 
of  the  vote  by  which  the  order  limiting  the  dura 
tion  of  speeches,  was  adopted. 

The  PRESIDENT.  The  question  is  on  sus 
pending  the  rule  for  a  limited  time. 

Mr.  SCHOULER.  Does  the  Chair  decide, 
that  the  order  adopted  this  morning  is  one  of  the 
rules  of  this  body,  requiring  a  vote  of  two-thirds 
for  its  suspension  ? 

The  PRESIDENT.  It  is  a  standing  order,  and 
will  require  a  vote  of  two-thirds  for  its  suspension. 

Mr.  RANTOUL,  of  Beverly.  It  seems  to  me, 
Sir,  that  this  is  a  very  simple  matter,  that  it  is  but 
a  matter  of  simple  justice,  to  allow  the  gentleman 


representing  the  minority  of  the  Committee,  the 
same  opportunity  to  explain  the  views  of  the 
minority,  that  was  accorded  to  the  gentleman  who 
represents  the  majority  of  the  Committee,  to  ex 
plain  the  views  of  the  majority.  I  hope,  there 
fore,  the  rule  will  be  suspended,  so  far  as  to  allow 
the  gentleman  from  Danvers  an  opportunity  to 
conclude  his  remarks. 

The  PRESIDENT.  The  proposition,  as  modi 
fied,  is  that  the  order  adopted  this  morning  be  so 
far  suspended,  that  the  gentleman  who  last  ad 
dressed  the  Committee  of  the  Whole,  be  permit 
ted  to  conclude  his  remarks. 

The  motion,  as  modified,  was  agreed  to. 

On  motion  of  Mr.  BRIGGS,  of  Pittsfield,  the 
Convention  again  resolved  into 

COMMITTEE    OF    THE   WHOLE, 

Mr.  Sumner,  for  Marshfield,  in  the  chair,  and 
resumed  the  consideration  of  the  Report  of  the 
Committee  on  the  subject  of 

Harvard  College. 

Mr.  BRAMAN.  I  am  very  sorry  to  have  been 
the  occasion  of  so  much  inconvenience  on  the 
part  of  the  Convention  ;  I  began  to  wish  I  had 
continued  to  preserve  the  silence  which  I  had 
hitherto  preserved  in  the  Convention,  for  I  per 
ceive  that  I  am  likely  to  acquire  a  good  deal  more 
notoriety  than  fame. 

When  I  was  cut  off  in  my  remarks  by  the  fall 
ing  of  the  hammer,  I  was  proceeding  to  contro 
vert  the  remark,  that  the  legislature  exercised,  or 
might  exercise,  the  power  of  government  over 
Harvard  College.  Now,  Sir,  they  never  exercised 
any  power  over  that  institution,  and  they  never 
attempted  to  exercise  any  power  over  it,  except 
that  of  a  judicial  character. 

Hamilton,  in  the  Federalist,  says  :  "  The  legis 
lative  department  is  everywhere  extending  the 
sphere  of  its  activity,  and  drawing  all  power  into 
its  impetuous  vortex." 

Now,  Sir,  what  is  the  use  of  applying  any  gov 
erning  power  to  these  institutions,  except  to  re 
strain  abuses  ?  It  was  competent  for  the  legisla 
ture  to  make  any  provision,  almost,  in  relation  to 
that  college,  because  there  was  no  power  to  cir 
cumscribe  its  action.  They  had  no  power  to  set 
the  action  of  a  legislative  body  aside,  if  its  inter 
ferences  with  the  corporation  of  Harvard  College 
had  been  ever  so  numerous.  Yet,  it  would  be 
just  as  unreasonable  to  attempt  to  justify  the  leg 
islature  in  its  acts  of  interference  with  that  cor 
poration,  as  it  would  to  justify  the  English  govern 
ment  in  its  acts  of  oppression  to  its  subjects  at 
home  and  its  subjects  abroad.  It  would  be  just 
as  absurd  in  one  case  as  in  the  other.  How 


58th  day.] 


HARVARD   COLLEGE. 


41 


Friday,] 


BKAMAN  —  KNOWLTON. 


[July  15th. 


many  acts  of  wrong  make  a  right  ?  If  the  first 
interference  with  the  charter  of  Harvard  College 
was  wrong,  then  any  subsequent  act  of  interfer 
ence  was  also  wrong. 

It  may  be  maintained,  that  the  acquiescence  of 
the  corporation  in  the  acts  of  interference  upon 
the  part  of  the  government,  were  a  tacit  admission 
by  that  corporation,  of  the  right  of  the  legislature 
to  interfere.  But  gentlemen  must  remember  that 
Harvard  might  have  acquiesced  because  it  had  no 
power  to  resist.  It  might  have  forborne  opposi 
tion  to  the  interference  of  the  legislature,  because 
its  opposition  would  have  been  unavailing.  It 
must  also  be  borne  in  mind  that  Harvard  College 
was  the  weaker  power,  and  that  it  was  dependent 
upon  the  beneficence  of  the  State  for  its  pecuniary 
means  to  carry  on  its  operations.  It  might  nat 
urally  be  expected,  that,  although  they  would 
regard  the  interference  upon  the  part  of  the  legis 
lature  as  improper,  yet  that  they  would  succumb 
to  an  interference  upon  the  part  of  the  State,  to  a 
greater  or  less  extent,  because  the  two  parties 
were  united  together  in  a  contract — one  strong 
and  the  other  weak, — the  latter  having  no  power 
to  restrain  any  exercise  of  power  upon  the  latter. 
But  to  justify  acts  of  this  sort  would  lead  to  every 
possible  enormity. 

But,  to  proceed.  In  1657,  additional  powers 
were  conferred  upon  these  corporations.  They  were 
authorized  to  do  certain  things  which  they  had 
not  before  been  authorized  to  do.  Among  other 
things,  a  board  of  overseers  was  recognized. 
They  accepted  the  act  very  cheerfully,  although 
they  well  knew  that  they  could  not  have  pre 
vented  its  formation  if  it  had  been  unaccepta 
ble.  I  do  not  know  of  but  one  act  of  resistance 
upon  their  part,  which  was  in  1676,  when  this 
charter  was  attempted  to  be  enforced  upon  them, 
and  they  refused  it. 

Subsequent  to  this  period,  another  act  was 
passed,  empowering  the  president  and  fellows  of 
Harvard  College  to  impose  upon  delinquent  stu 
dents  a  fine,  not  to  exceed  ten  shillings,  and 
stripes,  not  exceeding  ten  in  number.  This  act 
was  considered  as  enlarging  the  privileges  of  the 
corporation  most  essentially,  because  it  suited  the 
stern  and  rigid  temper  of  the  men  of  those  times. 
It  conformed  with  the  habits  of  those  men  who  had 
lived  under  monarchical  institutions.  This  priv 
ilege  was  made  use  of  very  frequently,  and  under 
circumstances  of  very  great  solemnity.  It  would 
even  be  inflicted  in  the  chapel,  after  a  sermon, 
and  then  the  president  would  proceed  to  pray 
that  the  infliction  might  be  sanctified  to  the  of 
fender.  [Laughter.] 

There  was  also  another  interference  which  has 
been  alluded  to,  and  one  which  was  submitted  to, 


certainly  not  because  it  was  considered  a  proper 
interference.  When  the  overseers  of  the  corpo 
ration,  with  the  instructors  and  students,  were 
called  before  the  legislature  to  receive  a  repri 
mand.  Now  this  was  such  an  act  of  interference 
— so  flagrant  in  its  nature — that  I  suppose  no  one 
would  claim  it  as  a  precedent  for  interference  upon 
the  part  of  the  legislature.  I  suppose  no  one 
would  claim  it  as  a  precedent,  even  if  the  act 
had  been  comparatively  reasonable  and  moderate. 
Suppose  that  now,  we  should  summons  the  pres 
ident,  professors,  and  students  of  Harvard  Col 
lege,  to  appear  before  us  for  any  such  purpose. 
We  might  call  the  spirits,  but  would  the  spirits 
come  when  they  were  called?  When  such  a 
summons  shall  be  given  by  our  legislature,  like 
Cowper,  I  should  "  like  to  be  there  to  see." 

Mr.  KNOWLTON,  of  Worcester,  (interpos 
ing).  I  desire  to  ask  the  gentleman  whether, 
when  the  corporation,  officers,  students,  &c.,  of 
Harvard  College  were  summoned  by  the  general 
court  to  appear  before  them,  they  did  not  appear 
— thus  acknowledging  the  right  of  the  general 
court  to  make  the  demand  ? 

Mr.  BRAMAN.  They  appeared,  but  it  was 
not  necessarily  an  act  of  acquiescence.  It  was 
rather  an  act  of  submission.  It  was  a  submission 
to  a  power  which  they  could  not  resist.  They 
submitted  to  a  power  they  could  not  control,  be 
cause  they  did  not  dare  to  do  otherwise.  But, 
Sir,  I  should  like  to  see  such  an  act  enforced 
now.  I  should  like  to  see  the  board  of  over 
seers,  with  its  distinguished  members  of  church 
and  state,  preceded  by  the  president  of  Harvard 
College,  with  his  academical  gown,  closely  follow 
ing  in  his  footsteps  the  venerable  chief  justice  of 
the  Commonwealth,  bearing  in  his  presence  the 
awful  majesty  of  the  law.  Nay,  I  would  follow 
the  professors  and  tutors,  fresh  from  their  literary 
and  scientific  pursuits ;  and,  bringing  up  the  rear, 
the  whole  corps  of  students,  wondering  at  that 
mysterious  and  awful  power,  before  which  they 
with  their  instructors,  were  to  be  brought.  Well, 
Sir,  all  are  marched  in  solemn  procession  into  this 
hall,  to  receive,  perhaps,  the  reprimand  of  the  late 
speaker  of  the  House  of  Representatives,  or  of  the 
president  of  this  Convention.  Sir,  I  should  like 
to  see  how  our  worthy  president  would  compose 
himself  to  his  situation.  I  would  like  to  see  him 
summon  dignity  adequate  to  the  occasion.  I 
would  like  to  see  whether  he  would  proceed  to 
administer  that  reprimand  with  all  the  self-pos 
session  and  grace  with  which  he  performs  the 
ordinary  duties  of  the  Chair. 

But  I  presume,  as  I  have  said,  that  with  regard 
to  the  interference  of  the  legislature  in  this  in 
stance,  no  one  would  quote  it  as  a  precedent. 


42 


HARVARD   COLLEGE. 


[58th  day. 


Friday,] 


BRAMAN. 


[July  15th. 


But  there  was  another  act  of  interference  upon 
the  part  of  the  legislature,  to  which  I  wish  again 
to  allude.  That  was,  the  attempt  to  force  the 
charter  upon  the  corporation,  in  1672.  The  cor 
poration  refused  to  receive  it.  Now,  I  wish  to 
say  that  if  the  interference  by  the  legislature  with 
the  corporation  of  Harvard  College  upon  this  oc 
casion,  was  an  act  of  contemporaneous  construc 
tion  upon  one  side,  the  resistance  of  the  corpora 
tion  to  the  act  of  the  government,  was  a  contem 
poraneous  construction  upon  the  other.  One 
may  very  well  balance  the  other,  and  I  let  them 
pass  for  what  they  are  worth.  I  have  only  to  say, 
that  these  are  the  only  acts  of  interference  under 
the  colonial  government.  One  is  so  flagrant,  that 
no  one  would  think  of  quoting  it  as  a  precedent, 
and  the  other  was  resisted  by  the  corporation. 
That  is  the  whole  amount  of  control  which  the 
colonial  government  exercised  over  the  corpora 
tion  of  Harvard  College. 

Let  me  ask,  what  would  be  gained  by  the 
change  contemplated  by  the  introduction  of  the 
Report  of  the  Committee  on  Harvard  University, 
and  the  legislature  should  proceed  to  elect  mem 
bers  of  the  board  of  the  corporation  of  that  uni 
versity,  instead  of  leaving  them  to  perpetuate 
themselves  by  election,  as  now.  Would  any  more 
able  and  devoted  men  be  secured  to  the  college, 
than  now  compose  that  corporation  ?  The  mem 
bers  that  have  always,  and  do  now,  compose  that 
board,  are  some  of  the  ablest  men  in  the  commu 
nity,  and  their  fitness  to  discharge  the  high  trust 
reposed  in  them,  has  never  been  disputed.  No 
set  of  men  could  be  elected  by  the  legislature,  that 
would  have  more  needed  wisdom  to  discharge  the 
high  obligations  which  are  imposed  upon  them, 
and  their  fidelity  and  devotion  to  the  interests  of 
the  college  also  are  just  as  freely  acknowledged  as 
is  their  ability.  I  believe  there  has  been  no  com 
plaint  in  this  respect.  I  do  not  suppose  that  their 
places  could  be  supplied  by  persons  who  would 
be  more  untiring  in  their  exertions  to  discharge 
the  high  trusts  which  are  reposed  in  them.  Being 
possessed  of  such  a  character  themselves,  the 
board  would  be  more  likely  to  choose  persons  of 
similar  ability  and  devotion,  to  serve  under  them, 
and  thus  we  have  as  good  security  as  the  nature  of 
human  things  and  the  allotment  of  humanity  ad 
mits,  that  there  would  be  perpetuated  such  a  body 
of  men  to  all  future  generations,  as  would  satisfy 
all  the  reasonable  wants  and  expectations  of  the 
community.  I  suppose  if  the  legislature  were  to 
elect  the  corporation,  it  would  be  required  that  it 
should  embody  as  good  a  representation  as  it 
could,  of  the  various  religious  denominations  of 
the  Commonwealth.  These,  it  is  well  known, 
are  very  numerous,  much  more  numerous  than 


could  be  exhibited  in  a  corporation  consisting  of 
seven  members  at  any  one  time.  Let  me  mention 
some  of  them.  There  are  the  Unitarians,  natur 
alists  and  supernaturalists ;  the  Congregatioiialists, 
old  and  new  school,  and  intermediate  schools ;  the 
Baptists,  Calvinistic  and  Free  Will ;  the  Metho 
dists,  Protestant,  Episcopal,  and  Protestant  Non- 
Episcopal  ;  the  Universalists,  the  Restorationists, 
and  the  ultra ;  the  Roman  Catholics,  and  Quakers, 
not  to  mention  numerous  other  sects  existing  in  the 
Commonwealth,  composed  of  the  odds  and  ends 
and  scraps  of  all  other  denominations,  going  under 
the  fanciful  name  and  delectable  appellation  of 
Come- Outers.  [Laughter.]  All  these,  of  course, 
would  claim  some  sort  of  representation  in  the 
corporation  of  Harvard  University,  because,  being 
a  State  institution,  as  contended  for  by  gentlemen 
here,  of  course  they  must  have  their  share  in  the 
representation.  Suppose  all  should  be  arranged 
in  this  respect.  What  should  be  done  in  regard 
to  filling  up  the  departments  of  instruction. 
These  are  so  numerous  that  they  might  exhibit  a 
good  specimen  of  the  great  variety  of  the  religious 
sentiment  of  the  State.  What  shall  be  done  with 
the  Hollis  Professorship  of  Divinity,  at  Harvard  ? 
How  will  you  divide  that  ?  That  is  a  professor 
ship  that  acts  more  powerfully  upon  the  theolog 
ical  opinions  and  character  of  the  students,  than 
all  of  the  other  professorships  put  together.  What 
shall  be  done  with  that  ?  Shall  there  be  a  coali 
tion  formed  in  regard  to  it  ?  Political  coalitions 
of  two  or  more  parties,  for  the  purpose  of  dividing 
political  offices  among  them,  will  answer  very 
well  in  the  State,  but  how  are  you  to  divide  the 
Hollis  Professorship  of  Harvard  University  ? 
What  is  one  fish,  or  one  loaf,  among  so  many  ? 
The  only  practicable  method  would  be  to  select 
the  professors  annually,  semi- annually,  quarterly, 
or  monthly,  and  let  the  students  select  their 
opinions  according  to  the  assortment  which  these 
various  professorships  would  present  them.  I 
suppose,  also,  that  gentlemen  would  require  that 
political  sentiments  should  be  represented  in  the 
department  of  instruction,  as  well  as  the  religious 
sentiments.  Not  long  ago,  a  very  distinguished 
candidate  for  a  professorship  at  Harvard,  was 
rejected  by  the  board  of  overseers,  because  he  had 
advanced  some  obnoxious  opinions  in  regard  to 
the  Hungarian  Revolution.  The  gentleman  from 
Natick,  (Mr.  Wilson,)  said  the  other  day  that  he 
was  not  removed  for  his  obnoxious  political  opin 
ions,  but  for  his  ignorance  and  incompetency.  I 
think,  to  charge  such  a  body  of  men  as  the  corpo 
ration  of  Harvard  University,  with  choosing  an 
ignorant  and  incompetent  man  to  fill  one  of  its 
departments  of  instruction,  is  a  very  strong  asser 
tion  for  the  gentleman  from  Natick  to  make. 


58th  day.] 


HARVARD    COLLEGE. 


43 


Friday," 


BRAMAN  —  WILSON  —  BOTTTWELL. 


[July  15th. 


The  gentleman  said  that  he  was  rejected.  He 
told  us  in  another  form,  rather,  that  he  was 
rejected  because  he  made  a  false  statement  of  the 
truth.  A  fact  is  truth.  Put  it  in  another  form, 
and  it  means  an  untrue  statement  of  truth. 

Mr.  WILSON,  of  Natick.  I  wish  to  explain 
by  saying  that  I  did  not  mean  what  the  gentleman 
says.  I  meant  precisely  and  exactly  what  I  said 
then,  and  now  repeat,  that  Francis  Bowen  was 
rejected  for  the  office  to  which  he  was  nominated, 
for  three  reasons  :  in  the  first  place,  for  his  senti 
ments  and  opinions ;  in  the  second  place,  for  his 
ignorance  of  history ;  and  in  the  third  place,  for 
mis-stating  and  mis-quoting  history ;  the  truth  of 
which,  I  am  ready,  here  or  elsewhere,  to  prove. 

Mr.  BRAMAN,  of  Danvers.  The  expression 
which  the  gentleman  used,  struck  me  so  forcibly 
at  the  time,  that  I  am  pretty  sure  I  recollect  it. 
I  am  quite  sure  that  he  said  he  was  rejected  for 
ignorance  and  incompetency.  He  says  now  that  he 
was  rejected  for  ignorance.  Then,  I  repeat  again, 
that  it  is  a  strong  assertion  for  the  gentleman  from 
Natick  to  make.  Let  me  say  farther,  that  the 
members  comprising  the  corporation  of  Harvard 
University — I  mean  no  disparagement  to  the  gen 
tleman  from  Natick,  for  whom  I  entertain  the 
highest  respect — are  quite  as  competent  as  he  is  to 
judge  whether  a  candidate  for  a  professorship  at 
Harvard  is  an  ignorant  or  incompetent  man. 
Was  there  ever  any  historian,  or  narrator  of  any 
portion  of  history  whatsoever,  who  has  not  been 
detected  in  mistakes  ;  and  I  have  no  doubt  that 
if  Hume  and  Gibbon  were  alive,  and  should  ad 
vance  opinions  obnoxious  to  the  ascendant  party 
in  the  State,  that  they  would  be  rejected  by  the 
board  of  overseers  if  they  were  nominated  by  the 
corporation  of  Harvard,  on  account  of  ignorance 
and  incompetency.  I  have  not  the  least  doubt,  if 
Macauley  should  be  presented  as  a  candidate  for 
a  professorship,  if  it  was  known  that  any  of  his 
opinions  would  not  agree  with  those  of  the  domi 
nant  party,  that  he  would  be  rejected  also  for  his 
ignorance  and  incompetency,  for  the  reason  that 
some  individuals  have  criticized  his  history,  and 
detected  mistakes,  which  they  consider  as  impor 
tant.  All  historians  commit  mistakes,  and  it 
cannot  be  otherwise.  They  belong  to  the  imper 
fections  of  humanity.  But,  however  this  may  be, 
there  is  no  doubt  that  a  coincidence  of  opinion 
with  the  dominant  party  would  be  considered  as 
an  indispensable  qualification  for  a  candidate. 
Men  would  be  chosen  to  fill  departments  of  in 
struction,  on  account  of  their  political  opinions,  in 
preference  to  those  who  are  much  more  compe 
tent  to  fill  the  offices,  because  they  were  of  a  dif 
ferent  persuasion.  The  numerous  offices  of  in 
struction  at  Harvard,  would  present  an  invitation 


to  patronage  too  inviting  to  be  resisted,  and  vio 
lent  partisans  would  be  rewarded  with  places  of 
instruction  in  the  university,  for  whom  there  was 
no  room  in  the  political  department.  Stump 
speakers  would  teach  stump  rhetoric  from  the 
chair  of  oratory.  There  would  be  professors  of 
logic,  whose  speeches  would  be  of  no  other  use 
than  to  make  very  excellent  specimens  of  false 
reasoning.  The  fair  sex,  not  always  having  a  fair 
representation  at  the  university,  knock  at  the 
doors  of  the  Convention  for  admission.  I  mean 
the  male  portion  of  the  sex.  [Laughter.]  They 
have  already  knocked  at  the  doors  of  the  Con 
vention,  and  they  have  knocked  at  the  doors  of 
the  university  also.  I  know  that  the  Convention 
have  treated  the  application  of  the  fair  sex  in 
rather  an  ungallant  manner,  notwithstanding  the 
earnest  advocacy  of  Mr.  Lucy  Stone,  and  Miss 
Wendell  Phillips,  Esq.  I  should  not  wonder  if, 
in  some  future  time,  and  the  progress  of  that  po 
litical  perfection  about  which  we  hear  so  much, 
that  the  women  shall  be  admitted  not  only  to  the 
right  of  voting,  but  also  to  a  share  in  the  public 
offices  of  the  other  sex,  and  along  the  line  of  illus 
trious  names  of  those  who  have  presided  over  the 
university  at  Harvard,  would  be  the  names  of 
Abby,  Ann,  Lucy ;  and  then  when  we  shall  have 
a  bloomer  at  the  head  of  the  university,  it  would 
indeed  be  entitled  to  the  appellation  of  alma  mater, 
in  more  senses  than  one.  [Laughter.]  Let  me 
say,  in  conclusion,  that  I  would  caution  gentle 
men  very  earnestly  against  doing  anything  which 
would  commit,  or  seem  to  commit,  the  State  to  a 
violation  of  public  faith.  The  character  of  Mas 
sachusetts  for  integrity  and  adherence  to  justice, 
has  always  been  high.  She  has  now  repaid  her 
obligations,  and  her  bonds  are  confided  in  now,  as 
the  most  valued  securities  in  the  world.  This 
reputation  for  integrity  ought  to  be  dear  to  all  her 
sons,  who,  while  they  take  pride  in  her  industry 
and  enterprise,  in  her  literary  and  historical  abil 
ity,  hold  dearer  than  all,  her  character  for  upright 
ness.  Let  there  be  no  spot  on  the  fair  garment 
of  her  renown.  Let  there  be  nothing  done,  or 
attempted  to  be  done,  that  shall  give  our  posterity 
cause  for  emotions  of  regret  and  shame ;  and  may 
her  name  go  down  to  future  generations  adorned 
with  every  virtue  which  shall  cause  the  heart  to 
swell ;  and  may  the  Constitution  ever  be  held  in 
grateful  and  honored  remembrance. 

Mr.  BOUTWELL,  for  Berlin.  I  shall  not 
detain  the  Convention  so  long  as  to  prevent  the 
question  being  taken  before  the  usual  hour  for 
adjournment  arrives.  This  question  is  within  a 
small  compass,  and  does  not,  to  any  considerable 
extent,  involve  the  early  history  of  the  university. 
We  propose,  by  this  resolution,  to  declare  that  the 


44 


HARVARD   COLLEGE. 


[58th   day. 


Friday,] 


BOUTWELL  —  BRAMAN. 


[July  15th. 


legislature  shall  have  power  to  do  all  that  may  be 
done  by  the  people,  in  reference  to  Harvard  Uni 
versity,  and  we  claim  that  the  people  may  do 
everything  within  the  limit  of  supreme  and  com 
plete  sovereignty,  except  so  far  as  their  power  is 
controlled  by  the  Constitution  of  the  United 
States.  That  instrument  declares,  that  no  State 
shall  pass  any  "  law  impairing  the  obligation  of 
contracts."  We  propose,  by  this  resolution,  em 
bodied  in  the  Constitution  of  the  State,  to  author 
ize  the  legislature  to  march  boldly  up  to  that  line, 
without,  however,  authorizing  them  to  go  one 
step  farther. 

Now,  then,  the  propriety  of  the  resolution  is 
in  this  :  that  there  is  at  present  some  doubt  on 
the  question  whether  the  Constitution  of  the 
State  authorizes  the  legislature  to  go  thus  far,  or 
not.  Therefore,  if  the  people,  in  their  Constitu 
tion,  have  imposed  any  restriction  upon  the  leg 
islature,  we  intend  hereby  to  remove  it.  We  do 
not  intend  to  harm  the  college  in  any  manner ; 
but  propose  to  place  in  the  legislature  the  author 
ity  which  now  resides  in  the  people.  This  is  a 
plain  proposition.  Therefore,  it  does  not  involve 
the  consideration  of  the  question,  whether  the 
college  has  rights  under  a  contract,  or  not.  I  have 
an  opinion  on  that  point.  It  differs  entirely  from 
the  opinion  expressed  by  the  gentleman  from 
Daiivers,  (Mr.  Braman,)  and  I  think  that  in  a 
word  or  two,  I  can  state  the  elements  on  which 
an  opinion  may  be  formed  by  any  individual.  It 
is  a  plain  principle,  that  that  which  a  person  pro 
duces  or  creates,  is  his  own.  The  State  created 
Harvard  College ;  the  Constitution  declares  that 
it  was  founded  in  1636,  two  years  before  the  be 
quest  of  John  Harvard.  The  record  is,  that  our 
ancestors  created  it ;  the  fact  that  the  general 
court,  in  1636,  appropriated  four  hundred  pounds 
for  a  school  or  college  at  Newton,  afterwards 
Cambridge,  identifies  our  ancestors,  constitution 
ally  speaking.  That  is  the  declaration.  The 
general  court  created  this  institution  and  endowed 
it.  Who  shall  control  it?  The  general  court 
and  their  successors,  the  people  and  government 
of  Massachusetts,  or  the  corporation  of  Harvard 
College  ?  I  take  it  that  what  our  ancestors,  as 
the  government  of  this  State,  created,  we,  the 
governors  of  the  State  to-day,  control  and  use, 
unless  we  have  surrendered  that  control.  I  ask 
gentlemen  to  consider  this  plain  proposition  of 
law  and  of  right.  For  there  is  no  difference, 
whatever  men  may  suppose  who  have  devoted 
themselves  to  the  consideration  of  particular  top 
ics,  there  is  no  difference  between  law,  the  perfec 
tion  of  human  reason,  and  that  attribute  or  rule 
of  right  and  of  justice  which  the  Supreme  Crea 
tor  has  implanted  in  the  breasts  of  all.  What  is 


this  rule  ?  It  is,  that  what  we  have  created  we 
may  use,  and  that  that  which  we  have  created  we 
may  use  forever,  unless  we  have  surrendered  its 
use  into  other  hands. 

Mr.  BRAMAN,  of  Danvers.  The  gentleman 
says,  that  what  a  person  has  created,  it  is  his  to 
control  entirely.  I  would  like  to  ask  him,  if  a 
person  who  has  created  a  thing  has  not  a  right  to 
part  with  it  by  giving  it  away. 

Mr.  BOUTWELL.  I  will  come  to  that  soon. 
Those  who  claim  that  the  right  of  control  has 
been  surrendered,  stand  in  the  place  of  grantees, 
and  it  is  for  them  to  show  explicitly,  definitely, 
and  accurately,  when  that  surrender  was  made. 
I  would  ask  the  gentleman  from  Danvers,  to  point 
to  the  time  when,  and  the  manner  in  which,  that 
surrender  was  made  on  the  part  of  the  Common 
wealth.  Throughout  the  whole  period  of  its 
history,  it  has  never  surrendered  its  right  to  con 
trol  the  college  at  Cambridge.  Trace  the  records 
all  along  through  the  Colony,  the  Province,  the 
State,  covering  a  period  of  more  than  two  hun 
dred  years,  and  you  will  find  nothing  to  show 
that  we  have  surrendered  our  control.  There 
fore,  if  we  have  not  surrendered  it,  it  stands  to 
day.  And  it  is  not  for  us  to  show  the  negative, 
but  for  those  who  contend  that  it  has  been  sur 
rendered,  to  make  that  fact  appear.  They  will 
find  that  a  very  difficult  point. 

I  have  a  word  to  say  to  the  gentleman  in  refer 
ence  to  the  authorities  upon  this  point,  and  espe 
cially  in  regard  to  the  Dartmouth  College  case. 
That  case  I  have  not  read  for  some  time,  yet  I  think 
I  can  state  the  principle  upon  wrhich  the  decision 
of  the  supreme  court  of  the  United  States  rested. 
President  Wheelock  created  an  institution  in 
1769,  afterwards  known  as  Dartmouth  College. 
In  that  case  the  supreme  court  judged,  as  we 
judge  to-day,  that  that  which  an  individual  has 
created,  he  has  a  right  to  control,  and  inasmuch 
as  President  Wheelock  had  invested  that  college 
in  his  successors  forever,  there  was  a  contract ; 
and  the  State  of  New  Hampshire  could  not  come 
in  and  violate  it. 

Now,  we  stand  upon  the  doctrine  of  a  con 
tract  ;  and  inasmuch  as  our  colonial  government 
established  this  institution,  it  is  not  in  the  power 
of  any  body  to  come  in  and  say  we  shall  not 
control  it.  I  do  not  propose  to  take  anything 
from  Harvard  College  which  they  have.  If  the 
doctrine  of  a  contract  gives  them  exclusive  con 
trol  over  that  institution,  they  will  have  it  if  we 
pass  this  resolution  and  the  people  adopt  it.  But 
the  point  of  difficulty  which  we  wish  to  relieve, 
is  this.  There  may  be  some  doubt  as  to  whether 
the  people,  by  their  Constitution,  have  conferred 
the  authority  upon  the  legislature  to  deal  with 


58th  day.] 


HARVARD    COLLEGE. 


45 


Friday,] 


BOTH-WELL  —  BRIGGS. 


[July  15th. 


Harvard  College,  to  the  extent,  and  in  the  man 
ner,  that  the  people  themselves  may  deal  with  it. 
We  purpose  to  remove  all  difficulty  upon  that 
point,  by  giving  to  the  legislature  power  to  do 
what  the  people  of  the  State  have  the  right  to  do, 
and  nothing  more.  That  is  safe,  proper,  wise, 
and  just.  Because,  whatever  may  be  said  of  the 
character  of  Harvard  College, — and  I  am  not  here 
to  denounce  it,  or  make  any  imputation  upon  it, — 
I  know,  well  enough,  that  there  are  men  on  this 
floor  who  have  been  acquainted  with  it,  and  who 
will  not  endorse  the  doctrine  of  the  gentleman 
from  Danvers,  by  any  means,  either  in  public  or 
in  private.  They  will  not  endorse  it,  Sir  ;  and  I 
believe  there  are  those  connected  with  the  college 
to-day,  who  were  as  much  alarmed  two  years  ago, 
at  the  proposition  to  make  the  overseers  elective 
by  the  State,  as  the  gentleman  from  Danvers  is  in 
respect  to  the  corporation,  and  those  same  gen 
tlemen  are  now  satisfied  that  that  was  a  wise  and 
proper  measure.  The  cause  of  education  has 
been  promoted  by  it ;  and  I  look  to  this  institu 
tion,  notwithstanding  the  position  which  I  occupy 
is  somewhat  hostile,  perhaps,  as  the  apex  of  the 
educational  system  of  this  Commonwealth.  And 
in  order  that  it  may  be  free  from  sectarianism,  and 
from  the  control  of  any  party  or  sect,  we  put  it 
on  the  basis  on  which  our  common  schools  rest. 
Nor  will  it  happen  that  all  the  odds  and  ends  of 
civilization  and  society  will  come  in  and  control 
this  college.  Gentlemen  know  well  enough  the 
character  of  Massachusetts  ;  the  people  will  reg 
ulate  this  institution  as  they  regulate  other  insti 
tutions  in  the  State.  Gentlemen  need  not  be 
alarmed.  Sir,  there  will  be  no  coalition  in  ref 
erence  to  the  university  at  Cambridge.  And  if 
there  were,  it  would  not  be  a  very  disastrous  thing, 
by  any  means.  It  might  happen,  that  by  bringing 
together  in  that  institution,  men  of  different 
opinions  in  the  government,  in  the  discipline  and 
education  of  the  young  men,  that  some  broader 
and  better  ideas  of  humanity  might  be  acquired. 
I  am,  therefore,  in  favor  of  the  passage  of  the 
resolution,  not  because  it  interferes  with  any  of  the 
rights  of  the  college, — for  it  does  not, — but  be 
cause  it  gives  to  the  legislature  that  power  which 
we  now  believe  resides  in  the  people;  and  we 
trust  that  it  will  be  exercised  for  the  good  of  the 
Commonwealth,  and  the  advancement  of  learning 
in  the  university. 

Mr.  BRIGGS,  of  Pittsfield.  I  had  the  honor 
to  be  a  member  of  the  Committee  which  reported 
this  resolution,  and,  though  I  was  not  present 
at  the  meeting  when  the  resolution,  was  adopted, 
I  was  at  a  previous  one,  when,  I  believe,  substan 
tially  the  same  proposition  was  agreed  to.  This 
is  a  matter  environed  with  a  good  many  difficul 


ties,  if  we  choose  to  enter  upon  the  ground  where 
those  difficulties  exist.  But,  I  believe,  it  was  the 
opinion  of  the  Committee,  and  I  concur  with  the 
gentleman  who  last  spoke,  that  this  resolution 
would  avoid  difficulties  which  would  open  upon 
us  if  we  advanced  farther,  and  not  do  any  vio 
lence  or  wrong  to  the  corporation  of  the  college, 
and,  at  the  same  time,  assert  all  the  rights  of  the 
people  in  respect  to  it.  Sir,  my  wish  with  re 
spect  to  the  Cambridge  College,  was  this :  that 
just  so  far  as  the  State  was  concerned,  we  should 
cut  her  adrift ;  just  sever,  in  an  amicable  man 
ner,  all  connection  with  her  as  a  State,  and  let 
the  college  stand  as  the  other  colleges  do,  upon 
her  own  foundation,  and  be  left  to  her  own  con 
duct  and  management.  But  it  was  found,  and  I 
think  any  gentleman  who  will  look  the  matter  in 
the  face,  will  find,  that  it  was  somewhat  difficult 
to  do  this  ;  certainly  the  Committee  could  not 
see  their  way  clear  to  do  it.  They,  in  their  la 
bors,  which  were  repeated  and  earnest,  came  to 
the  result  which  you  find  in  the  Report,  and  I 
concur  with  the  gentleman  who  has  just  taken 
his  seat,  that  that  leaves  the  matter  substantially 
where  it  is  now,  though,  perhaps,  under  a  more 
clear  and  distinct  declaration  ;  that  is,  the  resolu 
tion  declares  that  the  legislature  shall  have  the 
power  over  this  institution,  which,  by  the  Con 
stitution  of  the  United  States,  it  may  have.  Sir, 
it  has  that  now,  as  I  apprehend.  But  this  is  a 
clear,  plain,  distinct  declaration  to  that  effect. 
Now,  Sir,  what  that  power  is,  I  do  not  think  we 
should  discuss,  and,  though  the  gentleman  from 
Worcester,  and  the  gentleman  for  Berlin,  have 
stated,  learnedly,  intelligibly  and  ably,  the  sub 
ject,  yet,  let  me  say  that  this  is  not  the  place  to 
discuss  a  great  constitutional  question  of  this 
kind,  and  the  discussion  is  not  needed.  The 
gentleman  for  Berlin  says,  he  is  very  clear  in  his 
opinions  on  this  subject,  as  I  understand,  that  the 
State  has  the  power  and  control  over  this  corpo 
ration.  It  may  be  so,  and  it  may  not  be  so.  It 
may  not  be  amiss  to  say,  that  our  predecessors, 
something  like  a  generation  ago,  had  this  same 
subject  before  them,  and  I  think  they  came  to  a 
pretty  general,  if  not  a  unanimous  conclusion, 
that  they  had  no  such  power  as  this.  They  were 
good  men,  wise  men,  learned  men  in  the  law, 
who  spoke  and  acted  on  that  occasion,  and  they 
left  the  matter  as  we  find  it.  Now,  I  think  we 
shall  do  wisely  in  doing  the  same  thing  ;  and  I 
believe,  if  this  resolution  is  adopted,  it  does  not 
infringe  upon  the  rights  of  the  college ;  and  if, 
hereafter,  a  legislature  shall  attempt  to  exercise 
the  powers  which  the  corporation  think  they 
cannot  exercise,  all  that  will  remain  to  be  done 
will  be,  to  go  into  the  proper  judicial  tribunal, 


46 


HARVARD    COLLEGE. 


[58th  day. 


Friday,] 


PARKER  —  BRIGGS  —  BOUTWELL  —  KNOWLTON. 


[July  15th. 


and  let  them  settle  it.  I  hope  the  resolution  will 
pass  in  the  Committee,  and  that  it  will  pass  in 
the  Convention,  and,  I  think  it  will  meet  with 
the  approbation  and  satisfaction  of  those,  of  all 
denominations  and  politics,  who  sent  us  here. 

Mr.  PARKER,  of  Cambridge.  I  wish  to  ask 
of  the  gentleman  from  Pittsfield,  and  the  gen 
tleman  for  Berlin,  and  the  chairman  of  the 
Committee,  one  or  all  of  them,  whether  they 
understand— and  I  wish  the  one  who  does  under 
stand  that  this  makes  any  difference,  would  make 
the  answer— I  wish  to  ask  them,  whether,  if  this 
resolution  passes,  and  is  incorporated  into  the 
Constitution,  it  will  give  the  legislature  any  more 
power  than  it  will  possess,  if  no  action  is  taken 
upon  the  subject  ? 

Mr.  BRIGGS.  For  one,  I  will  answer  that 
I  do  not  think  it  does.  I  agree  with  the  gen 
tleman  for  Berlin,  perhaps,  in  saying,  that  if 
the  existing  Constitution  does  not  confer  as  full 
power  upon  the  legislature  as  the  Constitution  of 
the  United  States  would,  then  this  resolution  may 
confer  an  additional  power.  My  opinion  is,  that 
it  does  confer  no  power  whatever,  and  that  it 
does  not  substantially,  if  at  all,  change  the  rela 
tion  between  the  State  and  the  college. 

Mr.  PARKER.  I  would  ask  for  the  under 
standing  of  the  gentleman  for  Berlin,  on  this 
question,  if  he  has  no  objection. 

Mr.  BOUTWELL.  I  understand  this  resolu 
tion  to  confer  all  the  power  upon  the  legislature, 
which  the  people  of  the  Commonwealth  have, 
with  regard  to  the  institution  at  Cambridge.  The 
existing  Constitution  may,  or  may  not,  confer  all 
the  power  which  the  people  of  the  Commonwealth 
have.  If  the  gentleman  asks  what  I  understand 
to  be  the  limit  of  that  power,  I  take  it  to  be  this  : 
The  power  of  the  people  of  this  Commonwealth 
is  complete  and  supreme  over  that  institution  at 
Cambridge,  except  so  far  as  it  is  limited  by  that 
provision  of  the  Constitution  of  the  United  States, 
which  says,  that  no  State  shall  make  any  "  law 
impairing  the  obligation  of  contracts."  There 
fore,  if  there  be  any  doubt  about  the  power  con 
ferred  by  the  present  Constitution,  the  legisla 
ture  has  permission  to  march  up  to  the  line  laid 
down  by  the  Constitution  of  the  United  States, 
and  we  remove  that  doubt,  by  giving  them  the 
power. 

Mr.  BRIGGS.  I  understand  that  all  the  power 
which  the  people  have  over  this  subject,  is  the 
power  which  they  have  asserted  in  the  provision 
of  the  Constitution  alluded  to,  reserving  to  them 
selves  and  the  legislature  all  the  power  that  be 
longed  to  the  provincial  legislature  over  the  sub 
ject. 

Mr.  PARKER.    The  purport  of  my  inquiry, 


was,  whether,  in  the  opinion  of  gentlemen,  this 
resolution  made  any  change.  If  the  gentleman 
for  Berlin  has  no  objections,  I  ask,  if  in  his 
opinion,  this  provision  inserted  in  the  Constitu 
tion,  will  confer  a  greater  power  upon  the  legisla 
ture,  than  they  possess  at  present,  and  if  so,  what 
that  power  is  ? 

Mr.  BOUTWELL.  I  suppose  the  gentle 
man  from  Cambridge  asks  me  for  an  interpre 
tation  of  the  Constitution  of  the  State.  I  am 
not  quite  prepared  to  give  that.  I  say,  that  in 
the  minds  of  some  gentlemen,  there  is  a  doubt, 
as  to  whether  the  people  of  the  Commonwealth 
have  conferred  upon  the  legislature  all  the  power 
which  the  people  themselves  have,  and  that  this 
resolution  is  for  the  purpose  of  removing  that 
doubt.  If  the  legislature  has  not  got  the  power 
now  to  march  boldly  up  to  the  line  laid  down  by 
the  Constitution  of  the  United  States,  we  desire 
to  give  that  power,  by  the  act  of  the  people. 

Mr.  PARKER.  I  asked  merely  for  the  per 
sonal  opinion  of  the  gentleman  for  Berlin,  in  re 
lation  to  the  matter,  whether  this  resolution  makes 
any  change.  I  turn  to  the  chairman  of  the  Com 
mittee,  and  ask  him. 

Mr.  KNOWLTON,  of  Worcester.  Not  being 
a  professor  of  law,  I  do  not  know  that  I  am 
qualified  to  answer  that  question. 

Mr.  PARKER.  I  do  not  ask  the  question  as 
a  matter  of  right,  but  I  would  be  glad  to  have  the 
gentleman's  opinion. 

Mr.  KNOWLTON.  I  understand  the  matter 
as  has  been  stated  by  my  friend,  the  delegate  for 
Berlin.  If  there  is  a  power  in  the  hands  of  the 
people  which  is  not  conferred  upon  the  legislature 
by  the  present  Constitution,  over  the  institution 
at  Cambridge,  we  express  the  opinion,  that  the 
legislature  has  that  power,  and  that  they  may 
exercise  it.  It  seems  to  me,  to  exist  in  the  Con 
stitution  now,  rather  as  a  matter  of  inference, 
than  of  express  declaration.  If  it  exists  there  as 
a  matter  of  inference,  then  it  is  to  be  determined 
by  judicial  authority.  But,  by  the  resolution,  we 
propose  to  express  an  open  and  explicit  declara 
tion  in  the  Constitution,  that  the  legislature  has 
that  power,  and  shall  exercise  it. 

Mr.  PARKER.  I  made  the  inquiry  of  gentle 
men  in  favor  of  the  passage  of  this  resolution,  for 
the  purpose  of  ascertaining  the  views  which  they 
individually  have  upon  the  subject,  in  order  that 
I  might  govern  my  action  as  a  member  of  this 
Convention — not  as  a  professor  of  law,  Sir,  but  as 
a  member  of  this  Convention — upon  the  subject 
matter  before  the  Committee  at  this  time.  If  this 
resolution,  as  put  into  the  form  of  a  constitutional 
provision,  is  entirely  inoperative  and  ineffective, 
giving  to  the  legislature  no  more  power  than  the 


58th  day.] 


HARVARD    COLLEGE. 


47 


Friday,] 


FRENCH  —  BOUTWELL  —  LOTHROP  —  BRIGOS  —  KNOWLTON. 


[July  15th. 


legislature  at  present  possesses,  then  all  the  objec 
tion  which  I  could  possibly  have  to  it  would  be  that 
it  is  useless.  The  opinion  that  I  entertain  of  it 
myself,  after  having  examined  it  with  all  the  care 
of  which  I  am  capable,  leads  me  to  just  that 
result,  that  it  is  entirely  inoperative ;  and,  there 
fore,  I  can  raise  no  other  objection  to  it.  But,  if  it 
is  unnecessary  and  useless,  that  is,  to  my  mind,  a 
sufficient  reason  why  we  should  not  adopt  it  as 
an  amendment  to  the  Constitution.  If  I  am  mis 
taken  in  this,  I  desire  to  know  how  far  I  am 
mistaken ;  and  for  this  purpose,  I  wished  to 
ascertain  the  individual  opinions  of  gentlemen  in 
relation  to  the  operation  of  this  provision,  so  as  to 
know,  if  it  is  to  accomplish  something,  what  it  is 
expected  will  be  accomplished  by  it,  and  then  I 
could  tell  better  whether  I  had  any  objection  to 
it  or  not.  If  it  is  to  accomplish  anything,  I  desire 
to  know  what  it  is  to  accomplish — what  power  it 
is  to  give  beyond  that  which  is  already  given. 
Until  I  know  that,  of  course  I  do  not  know 
whether  I  object  to  it  or  not.  "With  the  view 
which  I  have  of  it  at  present,  I  have  no  disposition 
to  detain  the  Committee  with  any  discussion, 
farther  than  to  say  that  my  vote  will  be  given 
against  it,  because  I  deem  it  inoperative  and  use 
less. 

Mr.  FRENCH,  of  New  Bedford.  Mr.  Presi 
dent  :  I  regret,  Sir,  that  any  gentleman  upon  this 
floor,  any  member  of  this  Convention,  should 
undertake  to  hold  up  to  ridicule  the  lady  and 
gentleman  who  had  the  honor  of  appearing  before 
the  Committee  on  the  Qualifications  of  Voters. 
Sir,  they  need  no  defender  in  me  ;  for,  if  that  lady 
and  that  gentleman  were  here,  and  had  an  oppor 
tunity  of  defending  themselves,  I  run  no  risk  in 
saying,'  that  no  member  of  this  Convention  would 
envy  the  position  of  the  delegate  from  Danvers, 
(Mr.  Braman,)  who  so  irreverently  attacked 
them.  Sir,  there  are  gentlemen  whose  position 
enables  them  to  say  what  they  please  in  many 
places,  and  no  reply  can  be  made.  It  is  not  so 
here.  Let  me  say  through  you  to  that  gentle 
man,  that,  although  he  may  slander  them  and 
hold  them  up  to  ridicule,  and  attempt  to  excite 
the  mirth  of  this  body  by  saying  "  Mr.  Lucy 
Stone,"  and  "  Miss  Wendell  Phillips  " — he  may 
do  that,  Sir,  but  he  is  powerless  to  reproach 
them. 

The  question  being  then  taken  on  the  adoption 
of  the  resolution,  on  a  division,  there  were — ayes, 
125  ;  noes,  31— so  it  was  agreed  to. 

Mr.  BOUTWELL  moved,  that  the  Committee 
rise  and  report  to  the  Convention  that  the  resolu 
tion  under  consideration  ought  to  pass. 

The  motion  was  agreed  to.  The  President 
having  resumed  the  chair  of 


THE    CONVENTION, 

The    chairman,  Mr.    Sumiier,    for    Marshfield, 
reported  accordingly. 

The  question  was  then  stated  on  ordering  the 
resolution  to  be  read  a  second  time. 

Mr.  LOTHROP,  of  Boston,  moved  to  amend 
the  resolution,  by  inserting  after  the  words  "  Har 
vard  College"  the  words,  "  the  Board  of  Trustees 
of  Williams,  and  the  Board  of  Trustees  of  Amherst 
College." 

Mr.  BRIGGS.  As  I  said  before,  Sir,  I  was 
not  present  when  this  resolution  was  drawn,  but 
my  impression  is,  that  its  language  conforms  as 
nearly  as  possible  to  the  language  of  the  acts  of 
incorporation  of  those  colleges.  The  gentleman 
from  Worcester  can  state  how  that  is  ;  but  I  un 
derstood  that  it  was  intended  to  place  her  upon 
the  same  ground  as  the  other  colleges,  in  this 
respect,  reserving  any  rights  of  contract. 

Mr.  KNOWLTOX,  of  Worcester.  I  will  read 
the  language  of  the  charters  of  those  colleges,  and 
if  gentlemen  will  turn  to  the  resolution  as  printed 
in  document  No.  72,  they  will  see  that  the  lan 
guage  of  the  resolve  is  almost  identical  with  that 
of  these  charters:  "that  the  legislature  of  this 
Commonwealth  may  grant  any  farther  powers  to, 
or  alter,  limit,  annul  or  restrain,  any  of  the  powers 
vested  by  this  act  in  the  said  corporation,  as  shall 
be  judged  necessary  to  promote  the  best  interests 
of  the  said  college."  The  Convention  will  find 
that,  by  turning  to  the  law  passed  in  the  year 
1793. 

Mr.  LOTHROP.  I  see  no  objection  to  my 
amendment  on  that  account,  but  a  farther  argu 
ment  in  favor  of  it,  from  the  fact  that  the  same 
language  is  used  in  the  incorporation  of  those  two 
institutions.  If,  as  has  been  understood,  and  as 
has  been  stated  here  by  learned  legal  authority, 
and  by  some  of  the  members  of  the  Committee, 
this  resolution  does  not  confer  upon  the  legisla 
ture  any  power  over  Harvard  College  but  what  it 
now  possesses,  and  if  we  are  to  have  anything 
about  one  college  in  the  Constitution,  I  would 
have  all  colleges  put  upon  precisely  the  same 
platform.  I  would  have  the  recognition  of  one  as 
distinct  as  that  of  the  other,  and  the  same  power 
that  is  now  expressed  in  the  acts  of  incorporation 
reiterated  again  in  the  Constitution,  if  it  is  neces 
sary  to  reiterate  it  in  relation  to  Harvard  College. 
If  the  legislature  have  all  the  power  now  which 
is  given  to  them  by  this  resolve,  in  relation  to  the 
president  and  fellows  of  Harvard  College,  it  is 
unnecessary  to  make  the  statement  at  all ;  if  they 
have  not  all  this  power,  then  I  would,  in  the 
recognition  of  that  institution  in  the  Constitution, 
recognize  all  the  others,  and  place  them  all  upon 
the  same  platform.  No  evil  is  done,  certainly, 


48 


HARVARD    COLLEGE. 


[5 8 tli  day. 


Friday,] 


HOPKINSON  —  BOUTWELL  —  GlLES. 


[July  15th. 


by  the  introduction  of  two  other  colleges ;  and  we 
announce  the  great  constitutional  fact  that  all  the 
colleges  stand  upon  the  same  platform  and  bear 
the  same  relation  to  the  State. 

The  PRESIDENT.  The  Chair  will  state  that 
the  amendment  moved  by  the  gentleman  from 
Boston,  refers  to  a  subject  different  from  that 
under  consideration ;  and  therefore,  by  the  rules 
of  the  Convention,  it  is  not  in  order.  The  subject 
under  consideration,  is  in  relation  to  Harvard 
College  ;  and  the  proposed  amendment  relates  to 
other  colleges. 

Mr.  LOTIIROP.  I  submit  to  the  ruling  of 
the  Chair. 

Mr.  HOPKINSON,  of  Boston.  I  propose  to 
amend  the  resolve  by  striking  out  the  words 
"  advancement  of  learning,"  and  inserting  in  lieu 
thereof,  the  words  "  best  interests  of  the  college," 
so  that  it  would  read  as  follows  : — 

The  legislature  shall  forever  have  full  power 
and  authority,  as  may  be  judged  needful  for  the 
best  interests  of  the  college,  to  grant  any  farther 
powers  to,  or  alter,  limit,  annul,  or  restrain,  any 
of  the  powers  now  vested  in  the  president  and 
fellows  of  Harvard  College :  provided^  the  ob 
ligation  of  contracts  shall  not  be  impaired ;  and 
shall  have  the  like  powrer  and  authority  over  all 
corporate  franchises  hereafter  granted  for  the  pur 
poses  of  education  in  this  Commonwealth. 

The  object  of  this  amendment  will  be  appa 
rent.  It  is  to  carry  out  precisely  the  intention 
expressed  by  gentlemen  here  upon  this  floor,  who 
tell  us  that  the  resolve  under  consideration  is  to 
put  Harvard  College  upon  the  same  footing  with 
the  other  colleges ;  and  I  find  that  in  regard  to 
Amherst  College,  the  language  is  precisely  that 
which  I  have  incorporated  into  the  amendment. 
The  extract  from  the  law  which  has  been  read  by 
the  gentleman  from  Worcester,  says,  such  powers 
"  as  shall  be  judged  necessary  to  promote  the  best 
interests  of  the  said  college."  I  have  used  the 
words  "the  college,"  omitting  the  word  "  said." 
I  do  not  propose  to  make  an  argument  upon  this 
point,  but  I  do  propose  to  say,  that  if  the  inten 
tion  is  to  put  them  all  upon  the  same  footing,  and 
if  the  only  reason  why  such  an  amendment  as 
was  proposed  by  my  colleague  who  sits  opposite, 
(Mr.  Lothr op,)  should  not  be  adopted,  is,  that  it  is 
unnecessary,  inasmuch  as  the  language  used  was 
intended  to  be  the  same  as  the  language  of  the 
other  charters,  then  it  is  well  enough  to  conform 
to  that  language.  Now,  Sir,  it  may  be  asked, 
perhaps,  whether  there  is  any  substantial  differ 
ence  ;  but  it  has  been  thought  a  sufficient  answer 
to  that  question,  to  say  that  there  may  be  a  differ 
ence.  For  that  reason,  it  was  deemed  proper  to 
adopt  a  provision  in  the  Constitution  which  it 


seems  is  generally  understood  to  leave  the 
college  precisely  where  it  is,  but  which  some 
gentlemen  think  may  make  some  change,  but 
what  change  they  are  now  unprepared  to  state. 
I  do  conceive  that  there  may  be  difference,  and 
that  difference  consists  in  this  :  the  legislature,  in 
order  to  carry  out  the  Constitution  practically, 
must  act  in  reasonable  conformity  to  the  design 
of  the  power  which  is  granted  in  the  Constitu 
tion  ;  and  there  might  be  legislation  very  diverse 
from  "  the  interests  of  the  college  "  covered  up  by 
some  general  idea  of  promoting  the  "  advance 
ment  of  learning  "  in  a  general  sense ;  legislation 
which  would  not  be  for  the  interests  of  the  col 
lege,  and  so  palpably  so  that  the  court  would  feel 
bound  to  set  it  aside.  It  appears  to  me,  that  if 
the  intention  is  to  put  all  the  colleges  upon  the 
same  platform,  it  is  expedient  and  proper  to  adopt 
this  amendment. 

Mr.  BOUTWELL.  I  suppose  the  proper  in 
terests  of  a  college  are  to  promote  learning,  so 
that  we  propose  to  come  to  the  result  directly,  by 
saying,  that  the  legislature  shall  have  power  to 
make  all  such  rules  as  may  be  necessary  to  promote 
the  interests  of  learning.  It  might  happen, — I 
do  not  think  it  would  happen,  but  it  might  hap 
pen, — that  in  the  judgment  of  some  people,  the 
interests  of  a  particular  college  would  be  some 
what  different  from  the  interests  of  learning  ;  and 
for  that  reason,  I  do  not  want  to  leave  that  ques 
tion  open.  All  that  we  want  of  a  college,  is  to 
promote  the  interests  of  learning,  and,  for  that 
reason,  we  desire  to  say  in  our  Constitution  just 
what  we  mean  ;  so  that  if,  in  the  judgment  of 
anybody,  the  interests  of  a  college  should  happen 
to  differ  from  the  interests  of  learning,  they  could 
not  have  an  opportunity  to  put  that  construction 
upon  the  provision. 

Mr.  GILES.  I  think  that  my  colleague  who 
presented  this  amendment,  upon  a  full  examina 
tion  of  the  subject,  and  reflection,  would  deem 
it  unnecessary.  He  would  be  satisfied  that  the 
same  object  is  already  attained  ;  for,  as  I  under 
stand  it,  the  very  amendments  which  he  now  pro 
poses  to  put  in,  were  left  out  because  they  were 
already  in  the  Constitution,  in  relation  to  Har 
vard  College.  In  the  proviso  of  the  present  Con 
stitution,  which  was  referred  to  your  Committee, 
you  have  provided  that  "  nothing  herein  shall 
be  construed  to  prevent  the  legislature  of  this 
Commonwealth  from  making  such  alterations  in 
the  government  of  the  said  university  as  shall  be 
conducive  to  its  advantage  and  the  interest  of 
the  republic  of  letters."  That  stands  now,  and 
is  to  stand. 

The  Constitution  makes  it  the  special  duty  of 
the  legislature  to  cherish  that  university,  and  in- 


59th  day.] 


HARVARD   COLLEGE,  &c. 


49 


Saturday,] 


GILES  —  HOPKINSON  —  FRENCH  —  CRESSY  —  KNOWLTON. 


[July  16th. 


deed  to  cherish  all  our  institutions  of  learning  of 
every   kind.     In   looking  through  the  previous 
charters  of  Harvard  College,  my  friend  will  find 
the  expression,    "  for  the  advancement  of  learn 
ing,"  a  good  Baconian  phrase,  "  invented,"  if  you 
choose,  by  Bacon,  and  immortalized  by  the  work 
bearing  that  name,  or  upon  that  subject,  which 
has  made  his  fame  as  high,  as  solid,  and  as  im 
movable  as  Mont  Blanc,  or  Mount  Atlas,  or  any 
other  mountain  whose  summit  glistens  in  the  sun 
light  shed  upon  its  everlasting  snows.     It  is  a 
good  phrase,  and  I  would   not  strike  it  out.     It 
directs  the  legislature  directly,  and  at  once,  to  the 
point  mentioned  by  my  friend  for  Berlin,   (Mr. 
Boutwell,)   that   is,    "for  the    advancement    of 
learning."     We  do  not  wish  to  cherish  Harvard 
College,  or  any  other  institution  of  the  kind,  for 
any  other  purpose.     That  is  the  polar  star  of  its 
destiny.  I  believe,  therefore,  that  the  acts  of  future 
legislatures,  as  referring  to  this  institution,  will 
not  only  have   to   be   "for  the  advancement  of 
learning,"  but  for  the  benefit  of  that  university, 
as  far  as  that  university  exists  for  the  benefit  of 
learning  ;  and  I  understand  that  to  be  its  object — 
meaning   by    "  learning,"    of  course,  the  broad, 
catholic  sense  which  was  given  to  it  by  our  fore 
fathers,  which  included  divinity  first,  then  law,  and 
the  classics,  and  mathematics,  and  Hebrew,  and 
all  good  learning,  which  is  summed  up  in  the  fifth 
chapter  of  the  Constitution,  in  language  which  is 
not  exceeded  by  any  sentence  that  ever  was  con 
structed  in  the  English  tongue.     That  paragraph 
alone  has  brought  more  honor  to  Massachusetts, 
where  it  has  been  seen  and  understood,   than  all 
the  blue  books  that  any  legislature,  or  succession 
of  legislatures,  have  made  in  ten  years, — not  to 
disparage  the  legislature,  but  to  exalt  it.     It  is  a 
monument  of  the  wisdom,  and  of  the  purity  of 
language,   and  of    the  eloquence   of  expression, 
used  by  our  forefathers.     I  hope,  therefore,  that 
my  friend  from  Boston  will  not  move  to  strike  out 
this  expression.     I  really  think  that  the  resolu 
tion,  as  it  is,  embraces  the  whole  object,  and  is 
sufficiently  definite  to  guide  the  whole  action  of 
the  legislature.     If  there  were  time,  and  the  oc 
casion  required  it,  and  I  felt  a  disposition  to  use 
my  half  hour,  I   should  like   to  say  something 
upon  it ;  but,  I  see  that  the  resolution  is  likely  to 
be  adopted  as  it  is ;  and  as  that  is  my  desire,  I  will 
not  farther  detain  the  Convention. 

Mr.  HOPKINSON,  of  Boston.  It  was  not 
my  intention,  when  I  offered  this  amendment,  to 
substitute  a  better  phraseology  than  that  which  I 
have  moved  to  strike  out,  because  I  am  equally  as 
partial  to  it  as  the  gentleman  who  has  just  sat 
down.  My  design  was,  to  call  the  attention  of 
gentlemen  to  the  fact,  which  seems  to  be  disputed, 


that  there  was  a  distinction  now  being  made  be 
tween  the  colleges,  in  a  resolution  professedly 
drawn  up  in  order  that  they  might  all  be  treated 
alike,  and  all  placed  upon  the  same  footing.  It 
was  not,  therefore,  for  the  purpose  of  delaying,  or 
defeating  any  action  upon  this  subject,  but  for  he 
purpose  of  pointing  out  distinctly,  what  appears 
to  me,  to  have  the  air  of  an  intention  to  make 
distinction,  and  single  out  this  college  for  dissec 
tion,  leaving  the  others  untouched.  Had  I  pro 
posed  to  strike  out  the  word  "  hereafter,"  in  the 
last  line  but  one,  it  might,  perhaps,  have  effected 
the  same  purpose.  If  it  is  expedient  to  make  any 
provision  applicable  to  one  college,  it  is  expedient 
in  reference  to  all. 

I  do  not  care  to  insist  particularly  upon  this 
amendment,  because  I  do  not  think  that  it  will 
make  very  much  difference.  My  purpose  is  gained, 
if  I  point  out  the  distinction  between  the  lan 
guage  proposed,  as  applicable  to  this  and  the  other 
colleges. 

Having  made  this  explanation,  I  withdraw  the 
amendment. 

Mr.  FRENCH,  of  New  Bedford,  moved  a  sus 
pension  of  the  rules,  in  order  that  the  question 
might  be  taken  on  the  final  passage  of  the  resolu 
tion,  without  passing  the  question  over  to  another 
day. 

Mr.  BREED,  of  Lynn.  I  hope  the  gentleman 
from  New  Bedford  will  withdraw  that  motion  for 
the  present. 

Mr.  FRENCH.  I  will  not  press  it,  if  there  be 
objection. 

Mr.  BREED.  I  move  that  the  Convention 
adjourn. 

The  motion  was  agreed  to,  and  the  Convention, 
at  half  past  six  o'clock,  adjourned. 


SATURDAY,  July  16,  185S. 

The  Convention  met,  pursuant  to  adjournment, 
at  nine  o'clock. 

Prayer  by  the  Chaplain. 

The  Journal  of  yesterday  was  read  and  ap 
proved. 

Hoiir  of  Meeting  on  Monday  next. 

Mr.  CRESSY,  of  Hamilton,  moved,  that  when 
the  Convention  adjourn,  it  adjourn  to  meet  at  ten 
o'clock  on  Monday  next. 

The  motion  was  agreed  to. 

Final  Adjournment  of  the  Convention. 

Mr.  KNOWLTON,  of  Worcester,  presented 
the  following  order,  which  was  adopted : — 


50 


GENERAL   LAWS    FOR   CORPORATIONS,  &c.         [59th  day. 


Saturda}",] 


WILSON  —  WHITNEY  —  DE  WITT  —  HALLETT. 


[July  16th. 


Ordered,  That  be  a  Committee  to  con 

sider  and  report  at  what  time  the  session  of  the 
Convention  may  be  brought  to  a  close. 

The  following  gentlemen  were  appointed  as  a 
Committee  for  this  purpose  :  Messrs.  Knowlton, 
of  Worcester ;  Schouler  and  Giles,  of  Boston ; 
Cushman,  of  Bernardston ;  Wilson,  of  Natick ; 
Burlingame,  for  Northborough ;  and  Eames,  of 
Washington. 

Adjournment  this  Day. 

Mr.  WILSON,  of  Natick,  moved  that  the  order 
to  adjourn  at  one  o'clock,  be  modified  for  this 
day,  so  that  the  time  of  adjournment  be  extended 
to  two  o'clock. 

The  motion  was  agreed  to. 

Orders  of  the  Day. 

On  motion  by  Mr.  WHITNEY,  of  Conway, 
the  Convention  proceeded  to  the  consideration  of 
the  Orders  of  the  Day,  the  first  order  being  the 
resolve  on  the  subject  of 

General  Laics  for  Corporations. 
It  was  read,  as  follows : — 

Resolved,  That  it  is  expedient  to  incorporate 
into  the  Constitution,  a  provision  that  corporations 
may  be  formed  under  general  laws,  in  all  cases 
where  the  object  of  such  corporation  is  attaina 
ble  under  the  same ;  and  where  provision  is  thus 
made  by  general  laws,  no  corporation  shall  be 
formed  by  special  act. 

The  pending  question  being  on  the  following 
substitute,  offered  by  Mr.  Davis,  of  Worcester  : — 

Resolved,  That  it  is  expedient  to  incorporate 
into  the  Constitution,  a  provision  that  corporations 
shall  not  be  created  by  special  act,  when  the  ob 
ject  of  the  incorporation  shall  be  attainable  under 
general  laws. 

Mr.  DEWITT,  of  Oxford.  I  would  inquire 
of  the  Chair,  if  an  amendment  to  this  substitute 
will  be  in  order. 

The  PRESIDENT.     It  will  be  in  order. 

Mr.  DE  WITT.  Then,  Sir,  I  move  to  amend 
the  substitute,  by  inserting  before  the  word  "  cor 
porations  "  the  words  "  manufacturing,  mechani 
cal,  and  banking." 

Mr.  HALLETT,  for  Wilbraham.  The  amend 
ment  proposed  by  the  gentleman  from  Oxford, 
(Mr.  De  Witt,)  is  designed  to  embrace  manufac 
turing,  mechanical,  and  banking  corporations, 
and  thereby,  by  that  limitation,  to  admit  all  other 
incorporations.  I  am  opposed  to  that  amend 
ment.  The  proposition,  as  it  is  reported  by  the 
Committee,  contains  the  general  principle,  that  it 
is  expedient  to  incorporate  into  the  Constitution 


a  provision,  that  corporations  shall  not  be  cre 
ated  by  special  act,  when  the  object  can  be  at 
tained  by  general  laws.  That,  I  regard,  as  a 
fundamental  principle  worthy  of  being  incorpo 
rated  into  the  Constitution  ;  but  if  you  incorpo 
rate  into  the  Constitution  a  provision  that  cer 
tain  trades  or  occupations  shall  not  have  char 
ters,  leaving  it  to  be  inferred  by  implication,  that 
all  others  may,  then  I  think  you  are  making  your 
Constitution  a  mere  specific  act  of  legislation.  I 
think,  therefore,  that  this  amendment  involves  a 
specification  which  ought  not  to  be  adopted,  as  a 
general  principle,  because  it  makes  a  discrimina 
tion.  It  virtually  says  to  the  legislature,  "  you 
may  take  care  of  the  interests  of  certain  classes, 
in  this  respect,  but  in  regard  to  the  interests  of 
other  classes,  you  shall  not  interfere."  I  go  for 
a  general  principle,  to  be  applied  in  all  cases — 
either  that  you  should  leave  to  the  legislature  a 
discretionary  authority,  untrammelled  by  a  limi 
tation  of  this  kind,  or  else  leave  the  matter  in 
the  precise  manner  in  which  it  now  stands,  per 
mitting  every  individual  to  come  and  get  a  char 
ter  of  incorporation,  by  purchasing  a  ticket  in 
this  lottery  of  special  legislation  ;  because  that  it 
is  a  lottery,  every  one  knows  who  has  been  en 
gaged  in  it,  either  on  his  own  account,  or  for  the 
benefit  of  others.  The  provision,  submitted  as  a 
substitute  for  the  resolution  first  reported,  brings 
the  principle  directly  to  our  consideration.  It 
seems  to  me  to  be  one  of  the  best  expressed  pro 
visions  for  a  fundamental  law,  that  I  have  yet 
seen  introduced  in  this  Convention. 

Now,  Mr.  President,  we  have  simply  to  choose 
between  special  legislation  upon  incorporations, 
in  all  cases,  or  general  legislation  in  cases  where 
general  legislation  will  meet  the  case.  The  prop 
osition  to  which  I  allude,  is  the  one  which  is 
offered  as  a  substitute,  and  which  I  perceive  was 
offered  by  the  gentleman  from  Worcester,  (Mr. 
Davis). 

Resolved,  That  it  is  expedient  to  incorporate 
into  the  Constitution,  a  provision  that  corpora 
tions  shall  not  be  created  by  special  act,  when 
the  object  of  the  incorporation  shall  be  attainable 
under  general  laws. 

That  is  a  provision  which  I  desire  to  see  incor 
porated  into  the  Constitution,  and  it  is  the  most 
unexceptionable  provision,  which,  in  my  judg 
ment,  it  is  possible  for  words  to  place  there.  It 
expresses  exactly  what  we  mean,  and  that  is,  if  I 
understand  it,  that  all  subject  matters  of  incor 
poration  which  can  be  embraced  by  provisions  of 
general  legislation,  shall  be  provided  for,  by  gen 
eral  laws,  which  the  legislature  will  be  bound  to 
enact,  by  this  injunction  in  the  Constitution. 


59th  day.] 


GENERAL   LAWS   FOR   CORPORATIONS. 


51 


Saturday,] 


HALLETT. 


[July  16th. 


This  will  take  care  of  all  general  business  con 
cerns,  and,  on  the  other  hand,  whenever  a  great 
question  arises,  which  the  legislature,  in  their 
judgment — subject  to  the  revision  of  the  judiciary 
if  they  violate  this  provision — shall  determine  is 
not  within  the  powers  of  the  general  law,  shall 
require  some  special  guards  or  privileges,  then 
the  legislature  is  at  liberty  to  act,  by  a  law  to 
meet  the  case. 

Now,  I  ask,  if  there  can  be  any  citizen  of  this 
Commonwealth,  who  has  no  other  good  in  view 
except  that  of  the  Commonwealth,  who  will 
stand  upon  any  other  principle  than  that  of  equal 
ity,  as  here  set  forth  in  all  business  concerns  ? 
Can  he  desire  anything  more  than  this  ?  because, 
if  he  believes  in  the  propriety  of  embodying 
fundamental  principles  in  the  Constitution,  he 
has  no  right  to  ask  for  special  privileges  which 
are  not  conferred  by  general  laws ;  and,  in  this 
matter  of  special  incorporations,  it  is  neither 
more  nor  less  than  a  special  privilege  or  advan 
tage,  conferred  upon  the  few  to  whom  it  is  given, 
to  the  exclusion  of  all  the  rest ;  and  to  obtain  it, 
outside  of  a  general  law,  a  great  public  good 
must  be  made  to  appear,  which  the  general  law 
cannot  secure. 

Mr.  President :  I  am  not  going  into  the  general 
question  of  incorporations.  It  is  one  on  which  I 
have  said  and  written  a  great  deal,  in  the  course 
of  my  life ;  but  I  am  not  considering  it  now  as  a 
question  between  parties.  It  eomes  up  here  as  a 
fundamental  principle ;  and  therefore,  I  say,  in 
regard  to  this  matter  of  special  incorporations  and 
privileges  to  enable  one  man  or  class  of  men  to 
carry  on  any  particular  occupation  or  business 
without  giving  to  all  others  the  same  rights, 
that  it  is  special  legislation ;  and,  therefore,  when 
you  come  to  that  point,  you  must  do  one  of  two 
things  :  either  leave  it  to  the  will  of  the  legisla 
ture  to  determine  in  each  case  that  certain  persons 
or  classes  are,  or  are  not,  entitled  to  these  special 
privileges,  and  thereby  violate  the  Bill  of  Rights, 
or  else  you  must  so  open  this  privilege  of  incor 
poration,  that  any  and  every  man  may  avail  him 
self  of  it  under  general  laws,  giving  to  the  public 
a  proper  security,  and  conforming  to  proper  re 
strictions. 

In  regard  to  this  matter  of  special  business  in 
corporations,  many  persons  have  held,  and  still 
hold,  the  doctrine  that  they  ought  never  to  have 
been  granted,  except  under  general  laws.  But  if 
the  people,  for  a  long  series  of  years,  have  failed 
to  check  special  legislation  hitherto,  and  it  has 
run  on  to  such  an  extent  that  benefits  and  favors 
have  been  conferred  upon  a  minority  of  the  com 
munity,  to  the  exclusion  of  a  large  majority,  then 
the  only  way  is  to  go  on  and  extend  it  as  far  as 


you  can ;  and  for  that  reason,  in  regard  to  this 
matter,  I  would  at  once  either  establish  a  consti 
tutional  rule  that  every  man,  or  every  class  of 
men,  petitioning  for  any  trading  charter  of  incor 
poration,  should  have  it,  as  a  matter  of  course ;  or 
else  I  would  establish  a  general  rule  under  which 
every  class  of  men  might  incorporate  themselves, 
conforming  to  the  laws  in  such  case  provided; 
and  there  is  not  a  single  special  provision  which 
is  requisite  for  a  company  or  association,  without 
exclusive  favors,  to  carry  on  any  trade,  occupation, 
or  business,  that  cannot  be  incorporated  into  a 
general  law. 

But,  it  will  be  asked,  "  Have  we  not  a  general 
law  now  in  regard  to  corporations?"  True,  we 
have ;  and  what  is  it  ?  How  does  it  operate  ? 
Why,  Sir,  you  will  not  allow  anybody  to  have 
a  charter  of  incorporation  for  anything,  unless  he 
petitions  the  legislature,  issues  the  required  order 
of  notice,  goes  before  the  committee,  employs  his 
counsel,  has  an  agitation  about  it  whenever  he  is 
coming  in  contact  with  his  neighbors ;  and, 
finally,  either  obtains  his  charter  of  incorporation, 
and  gets  an  advantage  he  is  not  entitled  to  have, 
or  loses  his  time  and  money  if  he  does  not  obtain 
it.  Now,  what  sort  of  a  tribunal  is  the  legisla 
ture,  to  decide  upon  such  matters  in  individual 
cases  ?  Why  should  that  body  be  called  upon  to 
determine  between  the  interests  of  two  competi 
tors  in  trade  in  some  city  or  village ;  one  party, 
perhaps,  starting  the  business  upon  his  own  real 
capital,  and  another  upon  capital  borrowed  from 
his  neighbor,  or  a  bank  which  he  has  got  charter 
ed,  each  contesting  which  shall  have  the  advan 
tage  over  the  other  ?  To  interfere  in  such  a  case, 
is  "special  legislation,"  and  that  is  the  very  special 
legislation  which  is  applied  to  these  business  cor 
porations,  manufacturing,  trading,  mechanical,  and 
banking,  and  others  of  a  like  nature,  the  result  of 
which  is,  that  the  legislature  in  this  Commonwealth 
has  become  a  complete  nuisance.  Yes,  Sir ;  your 
legislature  has  become  a  public  nuisance.  I  speak, 
of  course,  not  of  the  individuals  composing  that 
body ;  for  them,  individually,  I  have  the  highest 
respect;  and  I  would  say  that  it  is  impossible 
that  in  the  Commonwealth  of  Massachusetts  you 
can  gather  together,  as  the  representatives  of  the 
towns  and  cities,  four  hundred  men  of  whom  the 
majority  will  not  be  both  honorable  and  intelli 
gent  ;  but  when  they  get  here,  they  are  operated 
upon  by  influences  of  which  they  are  not  aware 
in  judging  of  what  is  proper  and  what  is  improper, 
fair  or  unfair,  in  these  matters  ;  and  it  would  be 
expecting  too  much  of  human  nature,  to  suppose 
that  they  will  not,  on  some  occasions,  make  mis 
takes,  and  do  great  injustice  to  petitioners,  and 
great  wrong  to  the  public. 


52 


GENERAL   LAWS    FOR   CORPORATIONS.  [59th  day. 


Saturday,] 


HALLETT. 


[July  16th. 


They  must  sometimes  give  the  charter  where 
they  ought  not  to  give  it,  and  withhold  it  where 
it  ought  to  be  granted.  Well,  how  will  you 
avoid  that  result  ?  Instead  of  requiring  that  every 
individual  or  association  shall  come  and  apply 
for  the  privilege  of  corporation,  and  that  no  per 
son  shall  have  it  unless  he  has  the  special  favor  of 
the  legislature,  you  will  say,  by  this  proposed 
amendment,  that  the  legislature  shall  make  a 
general  law,  and  when  it  is  made,  that  those  who 
conform  to  it,  shall  have  the  privileges  and  bene 
fits  of  it.  That  is  all  we  need  say  in  regard  to 
any  business  corporation,  all  that  the  legislature 
need  do,  and  all  that  the  people  want.  This  will 
not  destroy  competition,  nor  check  industry.  The 
interest  of  the  public  consists  in  opening  all  busi 
ness  to  competition,  and  that  interest  only  wants 
to  be  guarded  against  fraud,  and  the  injury  which 
may  arise  from  persons  recklessly,  unguardedly, 
or  with  fraudulent  or  speculatory  intention,  en 
gaging  in  those  various  combinations  of  business 
which  come  to  the  legislature  for  charters.  Can 
anything  be  more  simple  than  to  say  that  general 
laws  shall  govern  them  in  all  cases?  and  then 
make  the  general  law  safe  and  practicable. 

If  you  do  this,  the  legislature,  which  has  well 
been  considered  as  a  nuisance,  because  of  this 
very  kind  of  endless  and  conflicting  special  legis 
lation,  will  cease  to  be  such,  and  you  will  be  able 
to  confine  its  sessions  not  only  to  one  hundred 
days,  but  much  within  the  hundred  days.  Take, 
for  illustration,  the  action  of  the  last  legislature — 
and  I  do  not  mean  to  censure  that  legislature,  be 
cause  I  believe  that  whatever  fault  is  connected 
with  it,  was,  to  some  extent,  the  fault  of  our 
system,  rather  than  the  fault  of  the  individuals 
which  composed  it — I  say,  if  you  look  over  the 
whole  course  of  proceeding  of  that  legislature, 
you  will  find  there  never  was  a  body  that  labored 
harder  than  they  did ;  but  they  were  working 
upon  the  miserable  issues  brought  before  them, 
and  they  were  working  upon  a  false  system, 
namely :  that  the  legislature  is  assembled  every 
year  to  legislate  upon  every  man's  particular  busi 
ness,  instead  of  framing  general  laws,  and  then 
leaving  every  man  to  take  care  of  his  own  affairs. 
Unless  we  strike  down  this  sort  of  special  legis 
lation,  the  legislature,  because  of  the  increasing 
business  and  enterprise  of  the  community,  which 
is  constantly  accumulating,  must  go  on,  not  only 
during  the  one  hundred  days,  but  from  day  to 
day,  and  become  not  only  a  general  court,  but  an 
everlasting  and  unadjourning  court,  the  mere 
makers,  managers,  and  agents  of  special  incorpo 
rations. 

Now,  as  to  the  practical  operation  of  this  prin 
ciple.  Is  this  sort  of  legislation  wholesome  or 


necessary  ?  I  think  there  are  some  business  men 
here,  within  the  sound  of  my  voice,  who  know 
the  practical  operation  of  business  interests  of  this 
sort,  and  who  begin  to  perceive  that  Massa 
chusetts  has  gone  too  far  in  special  legislation. 
Take,  as  an  illustration  of  the  practicability  of 
general  laws,  one  interest,  to  which  the  attention 
of  men  of  science  and  business,  having  large 
commercial  views,  has  been  recently  directed.  I 
mean  the  great  copper  interest  of  the  West,  which 
is  growing  up  in  this  country.  Why,  Sir,  in  a 
very  little  while,  the  copper  of  the  United  States, 
by  reason  of  its  great  superiority  and  productive 
ness,  will  supersede  that  of  all  other  parts  of  the 
world.  In  all  the  great  manufacturing  marts  of 
the  world,  the  copper  of  America  will  become  as 
common,  and  as  much  in  demand,  as  the  best 
staple  cotton  of  the  United  States.  But  all  the 
resources  of  this  material,  which  lie  all  around 
the  northern  lakes,  are  being  developed  under 
one  simple  general  law  of  the  State  of  Michigan, 
which  does  not  occupy  more  than  a  page  or  two 
upon  the  statute  book  ;  and  there  is  now  invest 
ed,  under  that  general  law,  millions  of  capital  and 
industry ;  and  I  undertake  to  say,  invested  with 
as  much  security  and  profit  as  it  could  be  under 
any  special  act  of  incorporation  upon  the  statute 
book  of  Massachusetts ;  and  invested,  too,  with 
as  much  safety  and  security,  not  only  to  the  com 
panies,  but  to  the  public.  One  general  law  has 
done  all  this,  and  nobody  has  complained  of  any 
fraud,  or  any  danger  of  fraud,  from  it,  except  the 
tendencies  of  all  business  to  speculation  ;  and  the 
stocks  of  these  companies  are  just  as  good  in  our 
market,  as  are  the  shares  of  the  Lowell  Railroad, 
or  the  State  Street  banks.  Now,  if  all  this  has 
been  done  by  this  young  State  of  Michigan,  hav 
ing  these  rich  resources  within  her  bosom,  why 
cannot  the  same  thing  be  done  by  the  old,  expe 
rienced,  and  intelligent  State  of  Massachusetts  ? 

I  say,  Mr.  President,  there  cannot  an  argument 
be  fairly  raised  against  the  proposition  that  gene 
ral  laws  should  be  made,  to  enable  persons  to 
associate  together  for  the  purpose  of  performing 
all  business  transactions  which  can  be  performed 
under  general  laws.  What  gentleman  contra 
venes  that  proposition  ?  No  one  can. 

What  do  you  need  to  provide  for  in  these  gen 
eral  laws  ?  You  want  simply  to  give  corporations 
the  power  of  succession,  that  vital  principle  that 
will  never  let  them  die  out ;  you  want  to  alter 
the  mode  of  administration,  in  regard  to  the  real 
estate  which  may  belong  to  them,  so  that  when 
one  member  of  the  corporation  dies,  it  shall  not 
work  the  dissolution  of  the  corporation.  These 
are  fundamentally  the  whole  principles  which  you 
need  to  insert  into  these  general  laws,  with,  of 


59th  day.] 


GENERAL   LAWS    FOR   CORPORATIONS. 


53 


Saturday,] 


HALLETT. 


[July  16th. 


course,  proper  guards  and  securities  to  the  public, 
and  especially  to  labor.  Now,  in  regard  to  this 
last  point  of  absorbing  real  estate  into  these  in 
corporations,  I  want  to  say  a  word,  for  I  am  a 
practical  man,  and  when  propositions  are  pre 
sented  to  me,  they  do  not  strike  my  mind  very 
favorably,  unless  I  see  something  practical  in  them. 
Hence,  when  I  have  heard  in  this  discussion  of 
women's  rights,  very  learned  gentlemen  elabo 
rating  themselves  upon  it,  I  have  wondered  why 
they  could  not  think  of  one  practical  fact,  by 
turning  their  attention  to  which,  they  could  do 
more  good  to  the  women  than  they  can  by  talk 
ing  this  enthusiastic  nonsense  all  their  lives.  I 
refer  to  the  subject  of  woman's  dower.  That 
is  a  practical  subject,  but  this  discussion  as  to 
whether  women  shall  participate  in  politics,  or 
whether  she  shall  have  the  exclusive  monopoly 
of  a  certain  branch  of  medicine,  is  all  without 
point,  use,  or  meaning.  But  when  we  talk  about 
a  woman's  dower,  and  her  right  to  have  it  se 
cured  to  her,  in  all  cases,  we  are  talking  of  some 
thing  which  affects  her  directly. 

"Well,  Sir,  how  stands  this  matter  here  in  Mas 
sachusetts.  There  lies  upon  your  table  a  report 
from  the  Secretary  of  State,  showing  that  four 
hundred  millions  of  the  property  of  Massachusetts 
is  invested  in  corporations  !  Many  of  them  land 
corporations,  which  trade  in  real  estate.  I  be 
lieve  that  the  whole  valuation  of  the  State  is 
only  about  six  hundred  millions  of  dollars.  Four 
hundred  millions  out  of  six  hundred  millions — 
two-thirds  of  the  property  in  the  whole  State — 
are  already  invested  in  incorporations!  Well, 
if  we  have  indeed  come  to  that,  then  let  us 
form  a  corporation  of  the  whole  Commonwealth 
in  a  lump,  and  be  done  with  it.  Let  us  have 
a  joint  stock  corporation  of  Massachusetts,  for 
we  have  almost  come  to  that.  I  did  not  think 
it  Was  as  bad  as  that,  until  I  saw  that  report 
from  the  secretary.  I  did  not  suppose  that  quite 
one-half  of  the  valuation  of  Massachusetts  had 
gone  into  incorporations.  But  it  seems  that 
in  fact  two -thirds  of  the  whole  of  the  property 
of  the  State  is  put  into  mortmain  in  these  corpo 
rations — for  this  is  the  modern  mode  of  locking 
up  property  in  mortmain.  Now,  of  this  four 
hundred  millions  of  dollars,  put  into  this  kind  of 
mortmain,  what  proportion  of  it  is  real  estate  ?  I 
presume  at  least  one -half  of  it  is.  And  what  is  the 
result  upon  the  women  of  the  Commonwealth  ? 
The  men  have  cheated  every  woman  in  this  Com 
monwealth  out  of  her  dower  in  two  hundred  mil 
lions  of  dollars  of  real  estate  !  That  is  the  way 
men  have  plundered  women  by  special  legislation. 
And  that  is  the  subject  to  which  I  should  like  to 
see  the  gentleman  in  the  gallery,  (Mr.  Whitney,  of 


Boylston,)  and  other  gentlemen  who  believe  with 
him,  direct  their  reforms.  Here  is  a  practical  ques 
tion,  affecting  the  rights  of  women  more  deeply 
than  any  other  upon  which  you  can  touch  in  this 
Commonwealth,  for  you  have  got  two  hundred 
millions  of  dollars  of  real  estate  of  the  Common 
wealth  put  into  corporations,  and  wi  at  do  you 
provide  in  relation  to  it  ?  You  say  that  this  two 
hundred  millions  of  dollars  of  real  estate  shall  be 
considered  as  personal  estate,  without  the  women 
having  the  right  to  say  whether  they  will  sign  off 
their  dower  or  not,  and  when  the  husband  who 
owns  in  it,  dies,  it  goes  into  the  hands  of  the 
administrator,  as  personal  estate,  and  is  applied 
first,  to  pay  the  corporate  debts,  and  then  to  pay 
his  individual  debts,  and  the  widow  can  have  no 
right  of  dower  in  it.  There  the  widow  and  the 
orphan  stand  helpless. 

I  say  that  is  legislative  robbery,  and  you  can 
not  defend  it  by  any  principle.  You  have  herein 
violated  that  great  principle  of  law  which  declares 
that  laws  are  made,  and  communities  are  governed, 
by  the  consent  of  the  governed ;  and  you  have 
violated  another  principle  of  common  law,  which 
provides  that  when  a  right  of  property  is  vested  in 
an  individual,  you  cannot  by  any  law,  divest  him 
of  that  right,  without  compensation.  Gentlemen 
get  up  here  and  argue  earnestly  upon  the  ques 
tion  of  a  change  in  respect  to  the  government  of 
Harvard  College,  and  they  cite  the  decision  pro 
tecting  charter  rights,  in  the  case  of  Dartmouth 
College,  but  when  the  question  comes  up  as  to 
the  rights  of  the  women  of  the  land,  when  these 
landed  and  special  corporations  are  granted  to 
steal  their  dower,  who  says  a  word  for  them? 
You  have  gone  on  taking  this  landed  property 
from  women,  and  invested  it  in  corporations,  and 
deprived  them  of  their  right  of  dower  in  it, 
against  the  fundamental  principle  that  you  cannot 
deprive  individuals  of  their  private  rights,  with 
out  an  equivalent. 

Now,  whether  it  is  in  the  power  of  the  legisla 
ture  to  redress  this  state  of  things,  I  do  not  under 
take  to  say.  That  is  a  very  great  and  important 
question.  It  is  much  easier,  as  we  have  already 
heard,  to  descend  into  the  lower  regions,  than  it 
is  to  get  back,  when  once  down  in  the  abyss.  I 
do  not  know  what  we  can  do  as  to  the  past,  but 
I  do  know  what  we  can  do  as  to  the  future. 
Grant  no  more  incorporations,  special  or  general, 
that  shall  deprive  woman  of  her  dower !  We 
are  here  as  the  representatives  of  women,  and 
does  any  man  mean  to  deprive  his  wife  and  chil 
dren,  his  daughters  who  are  growing  up,  and 
who,  in  the  progress  of  life  and  society,  are  liable 
to  become  widows,  of  their  right  of  dower  ?  No, 
Sir,  there  is  not  one  capable  of  saying  or  mean- 


54 


GENERAL  LAWS  FOR  CORPORATIONS. 


[59th  day. 


Saturday,] 


SARGENT. 


[July   16th. 


ing  such  a  thing  as  that,  directly,  and  yet,  the 
people  have  sent  legislatures  here  for  seventy 
years,  that  have  taken  away  from  her  in  that 
period  of  special  legislation,  her  thirds  of  almost 
one- third  of  the  real  estate  of  the  Commonwealth 
of  Massachusetts,  and  thus  violated  that  great 
principle  of  the  common  law  of  England,  that 
under  no  circumstances  shall  a  woman  be  deprived 
of  her  right  of  dower.  That  is,  of  itself,  reason 
enough  for  requiring  general  laws  as  to  corpora 
tions,  and  for  guarding  against  their  operation  in 
depriving  woman  of  her  dower  in  lands  incorpo 
rated,  or  held  in  copartnership  concerns. 

[Here  the  President's  hammer  fell,  under  the 
order  of  the  Convention  limiting  speeches  to  one 
half  hour.] 

Mr.  SARGENT,  of  Cambridge.  I  suppose,  Sir, 
that  in  this  case,  as  in  all  others,  we  are  first  to 
consider  and  ascertain  whether  any  evil  has  arisen 
under  the  present  Constitution,  and,  having  ascer 
tained  that  fact,  if  we  find  such  evil  has  arisen, 
we  are  then  to  determine  what  is  the  proper 
remedy. 

The  gentleman  from  Oxford,  (Mr.  De  Witt,)this 
morning,  if  I  understood  his  argument  rightly, 
stated  that  a  very  large  portion  of  the  taxable 
property  of  the  State,  was  now  in  the  hands  of 
corporate  companies,  and  that,  in  1810,  it  amounted 
to  two-thirds  the  whole  taxable  property  of  the 
State.  This,  I  understand  that  gentleman  to 
assert,  to  be  an  evil.  And  he  says  it  has  grown 
up  at  the  expense  of  the  small  towns.  Sir,  is  that 
position  correct  ?  Is  the  position  that  this  is  an 
evil,  burdensome  upon  the  small  towns,  correct  ? 

First,  has  it  depreciated  the  property,  or  injuri 
ously  affected  the  interests  of  the  inhabitants  of 
the  small  towns  ?  If  it  has  not,  then,  in  that 
point  of  view,  the  small  towns  have  not  suffered. 

Again,  when  you  apportion  a  tax  throughout 
the  Commonwealth,  do  you  find  that  there  is  op 
pression  of  the  small  towns,  growing  out  of  this 
system  ?  Do  they  not,  on  the  other  hand,  find  it 
a  great  relief?  Is  not  their  proportion  of  the 
taxes  greatly  diminished,  by  the  increase  in  the 
property  of  the  Commonwealth,  which  has  accu 
mulated  under  this  system  of  corporations  ?  If  the 
answer  be  yes,  then  I  hold  that  the  argument  of 
the  gentleman  from  Oxford,  altogether  falls  in 
this  respect. 

The  gentleman  for  Wilbraham,  (Mr.  Hallett,) 
adduces,  as  another  evil  growing  out  of  the  present 
system,  that  it  deprives  the  widow  of  her  right  of 
dower.  Now,  is  that  an  evil  which  ought  to  be 
remedied  ?  It  may  be  an  evil,  so  far  as  those  acts 
of  incorporation  cover  real  estate,  and  convert  it 
into  personal  property. 

The  gentleman  proposes  a  general  law,  as  the 


proper  remedy.  Now,  will  a  general  law  remedy 
that  evil  ?  or  will  it  remedy  the  evil  complained 
of  by  the  gentleman  from  Oxford  ?  If,  under 
special  charters  already  granted,  one-half,  or  two- 
thirds  of  the  property  of  the  Commonwealth  is 
already  covered,  and,  in  that  is  included  a  large 
portion  of  real  estate  in  which  the  widow  is  de 
prived  of  her  right  of  dower,  I  ask  you,  if  the 
remedy  proposed,  either  in  the  Report  of  the 
Committee,  or  by  the  amendment  of  the  gentle 
man  from  Oxford,  is  calculated  to  remedy  or 
lessen  that  evil,  and  restore  to  the  widow  her 
right  of  dower.  Will  it  not  have  directly  the 
contrary  effect.  Will  it  not,  by  adopting  a  gen 
eral  law,  open  the  door  through  which  every  acre 
of  land  in  the  Commonwealth  may  be  brought 
under  acts  of  incorporation,  and  thus  deprive 
every  female  in  Massachusetts,  of  her  right  of 
dower.  I  do  not  understand  that  either  the  gen 
tleman  from  Oxford,  (Mr.  De  Witt,)  or  the  gen 
tleman  for  Wilbraham,  (Mr.  Hallett,)  propose  to 
limit  this  right  of  incorporation ;  but,  on  the  other 
hand,  they  propose  to  enlarge  and  extend  it.  If, 
then,  it  is  an  evil,  as  now  limited  under  the  pro 
posed  Constitution,  I  ask  if  that  evil  will  not  be 
increased  just  in  proportion  as  you  enlarge  and 
extend  the  power  ? 

I  believe,  I  have  always  believed,  that  the  in 
terest  of  Massachusetts,  in  all  her  acts  of  incor 
poration,  and,  indeed,  the  very  success  of  those 
corporations  themselves,  has  depended,  in  a  great 
degree,  upon  the  fact,  that  the  legislature  held  a 
wise  controlling  power-  over  every  special  act  they 
granted.  And,  I  believe  that  the  moment  you 
yield  up  that  wise  controlling  power  over  these 
corporations,  you  will  place  the  interest  of  the 
Commonwealth  in  jeopardy,  and  just  so  far  as  you 
place  the  interests  of  the  Commonwealth  itself  in 
jeopardy,  to  that  extent  you  place  the  interests  of 
all  its  citizens  in  jeopardy.  I  hold,  then,  that 
the  remedy  proposed,  instead  of  removing  the  evil 
complained  of,  will  increase  it. 

First,  it  is  alleged  that  too  much  property  is 
already  vested  in,  and  under  the  control  of  cor 
porations  ;  but  this  proposition  will  open  the  door 
for  a  larger  amount  to  be  vested  in  them,  than 
under  the  present  Constitution. 

Second,  it  is  alleged,  that  under  the  present 
provisions  of  the  Constitution  and  laws,  the 
rights  of  the  widow  are  taken  away.  Now,  it 
seems  to  me,  that  by  the  proposition  before  us,  the 
door  is  opened  for  every  acre  of  land  in  Massa 
chusetts,  to  be  brought  under  acts  of  incorpora 
tion.  I  do  not  believe  that  such  a  thing  would 
ever  take  place ;  but  you  will  enlarge  the  amount 
of  property  vested  in  these  corporations  very 
much.  I  therefore  think  the  measure  which  is 


59th   day.] 


GENERAL   LAWS   FOR   CORPORATIONS. 


55 


Saturday,] 


FROTHINGHAM. 


[July  16th. 


here  proposed,  will  not  remedy  the  evil,  but  rather 
increase  it,  and  I  hope  it  will  not  be  adopted  by 
the  Convention. 

Mr.  FROTHINGHAM,  of  Charlestown.  I 
am  in  favor,  Sir,  of  the  resolution  now  before  the 
Convention,  but  not  for  the  precise  reasons  which 
have  been  adduced,  however  much  force  there 
may  be  in  those  reasons,  but  for  others  which 
appear  to  me  to  be  conclusive.  Before  I  proceed, 
however,  I  desire  to  ask  the  President  if  the  whole 
subject  is  under  consideration  ? 

The  PRESIDENT.  The  amendment  of  the 
gentleman  from  Oxford,  (Mr.  De  Witt,)  opens  the 
whole  subject  for  discussion. 

Mr.  FROTHINGHAM.  I  understand,  then, 
that  as  the  matter  is  now  before  the  Convention, 
if  this  proposition  be  adopted  by  the  Convention, 
and  approved  by  the  people,  they  will  then  say  to 
their  agents  in  the  legislature,  that,  in  reference 
to  the  principle  of  granting  acts  of  incorporation, 
it  shall  be  done  under  a  system  of  general  legisla 
tion,  whenever  it  is  practicable,  and  not  by  means 
of  special  charters  given  by  the  legislature,  which 
has  been  the  policy  heretofore  acted  upon  to  such 
a  great  extent  in  Massachusetts.  I  am  in  favor 
of  laying  that  down  as  sound  policy. 

Now,  Sir,  say  what  we  will  in  favor  of  the  ad 
vantages  of  individual  enterprise,  the  corporate 
principle  is  valued  highly  by  business  men.  That 
is  the  practical  fact,  and  there  is  no  denying  it.  It 
is  seen  in  all  the  various  operations  of  business. 
It  is  seen  here  in  this  State,  where  it  has  been 
carried  to  such  great  lengths,  and  it  is  seen  in 
every  other  State.  Wherever  the  progress  of 
things  carries  American  principles  and  American 
enterprise,  there  is  seen  a  tendency  to  adopt  this 
corporate  principle,  this  custom  of  association  and 
organization  of  effort.  And  why  ?  Because,  at 
the  bottom,  in  itself  considered,  it  is  a  democratic 
principle.  It  is  a  simple  way  of  getting  together 
the  means  of  men  of  small  capital,  and  thereby 
combining  and  accomplishing  objects  which  they 
otherwise  could  not  accomplish.  That  is  the 
principle  of  association  in  business  matters.  The 
tendency  is,  to  carry  this  to  a  great  extent.  Pushed 
to  its  extreme  point,  it  is  communism,  socialism, 
or  what  is  generally  understood  by  those  terms. 
But  here,  as  we  have  it  in  Massachusetts,  and  in 
all  the  States  of  this  Union,  it  is  nothing  more 
than  a  principle  by  which  men  with  small  means 
can  combine  and  accomplish  those  objects  which 
they  could  not  otherwise  accomplish,  but  which 
would  have  to  be  left  to  the  heavy  capitalist. 

Now,  Sir,  I  am  in  favor  of  laying  down  this  as 
the  general  policy  of  Massachusetts.  Then,  in 
stead  of  being  used  only  by  those  who  succeed  in 
making  out  a  case,  as  it  is  called,  before  a  com 


mittee  of  the  legislature,  or  before  the  legislature 
itself,  and  in  this  way  of  being  obtained  as  a  priv 
ilege,  that  it  should  be  open  to  all,  as  of  right, 
under  a  system  of  general  laws.  This  will  take 
from  the  practice  its  monopoly  feature,  and  sub 
stitute  for  it  the  just  feature  of  equality ;  giving 
to  all  equal  chances.  What  now  is  distributed  as 
patronage,  as  matter  of  favor,  political  or  other 
wise,  will  then  be  at  the  option  of  all,  as  matter  of 
right. 

Such  a  policy  will  have  to  commend  it  the  con 
sideration  that  it  will  be  in  accordance  with  that 
internal  freedom  of  action  which  has  done  so  much 
for  Massachusetts,  and  for  the  country ;  and  it 
will  also  be  carrying  out  the  legitimate  functions 
of  government.  It  is  not  the  true  province  of  the 
latter  to  meddle  with,  or  control  private  interests, 
to  act  as  their  director  and  guardian,  and  exercise 
a  paternal  care  over  them.  It  has  even  proved 
itself  a  poor  regulator  of  the  pursuits  of  business. 
Interest  is  sharp  enough  to  look  out  for  itself,  and 
all  experience  has  shown,  that  when  government 
travels  out  of  its  province  to  become  the  ruler  in 
stead  of  the  agent  of  the  people,  it  has  mistaken 
its  office. 

Now,  it  has  been  this  individual  freedom  of  ac 
tion,  which  has  contributed  so  much  to  promote 
the  material  prosperity  of  Massachusetts,  and  of 
the  country.  If  there  is  any  one  thing  more  than 
another  which  has  contributed  to  build  us  up  in 
this  State,  it  is  that  large  measure  of  internal  free 
dom  as  to  trade,  as  to  manufactures,  as  to  com 
merce,  and  as  to  all  the  industrial  pursuits  of  life, 
which  the  people  of  Massachusetts  have  exer 
cised  to  a  very  large  extent.  This  remark  will  be 
found  to  be  true,  notwithstanding  the  restrictions 
which,  in  our  early  history,  were  placed  upon 
business.  It  is  said  by  legal  gentlemen  who  have 
looked  into  the  early  laws  of  our  colony,  that  the 
people  here  were  at  least  one  hundred  and  fifty 
years  ahead  of  all  the  world  besides,  in  relation  to 
penal  laws,  and  the  same  thing  is  true  also  in  rela 
tion  to  business  laws.  Now,  I  know  what  may  be 
said  in  answer  to  this.  I  know  it  may  come  up 
in  the  minds  of  many,  as  this  remark  is  made, 
that  there  will  be  found  upon  the  pages  of  our 
statute  books  ridiculous  provisions  of  law  for  regu 
lating  business.  But  the  true  point  is,  not  what 
there  was  in  Massachusetts  alone,  but  what  else 
where  was  customary  at  that  day  ;  what,  for  in 
stance,  there  was  in  the  old  country,  at  the  time 
our  trade  and  commerce  first  begun.  If  the  state 
of  things  over  the  other  side  of  the  Atlantic  at 
that  time,  be  examined,  it  will  be  seen  what  were 
the  rules  and  regulations  and  restrictions  imposed 
by  the  governments  of  the  old  world,  upon  all  the 
trades  and  avocations  of  life.  The  paternal  sys- 


56 


GENERAL  LAWS  FOR  CORPORATIONS. 


[59th  day. 


Saturday,] 


FHOTHINGHAM. 


[July  16th. 


tern  then  and  there,  was  in  full  operation.  It 
will  be  found  that  the  great  end  and  object 
almost,  of  those  governments,  in  their  assumptions, 
were  to  regulate,  restrict,  and  control  the  business 
operations  of  individuals.  It  was  assumed,  with 
respect  to  the  farmer,  the  mechanic,  and  the  la 
borer,  that  they  had  not  sufficient  intelligence  or 
business  faculty  to  take  care  of  themselves,  but 
that  they  needed  to  be  cared  for,  like  so  many 
children,  as  to  all  the  minute  relations  of  life.  It 
was  held,  that  such  care  was  necessary  for  the  com 
mon  good,  for  the  safety  and  even  existence  of 
society.  This  was,  in  brief,  the  doctrine  of  hered 
itary  legislators  and  rulers,  who  claimed  the  di 
vine  right  to  rule  the  rest  of  mankind,  and  to 
extort  monstrous  sums  for  their  services.  And 
they  exercised  this  right  freely.  There  was  not  a 
business  pursuit  in  the  mother  country  at  the 
time  Massachusetts  was  settled,  that  was  not  ab 
surdly  and  wantonly  regulated.  There  was  not 
an  article  that  could  be  used  on  the  table,  or  on 
the  person,  or  on  the  farm,  or  in  the  workshop, 
that  either  was  not  the  subject  of  some  monstrous 
monopoly,  or  some  absurd  restriction,  as  to  manu 
facture  and  sale,  and  all  were  fortified  by  penal 
ties.  And  this  was  carried,  too,  into  regulations 
as  to  laborers'  meat,  and  drink,  and  wages. 

Now,  Mr.  President,  it  was  under  such  a  state 
of  circumstances,  that  the  farmer,  the  mechanic, 
and  the  trader,  commenced  here  in  Massachusetts. 
It  was  when  monopoly  and  restrictions  on  trade 
were  in  their  carnival,  and,  to  judge  the  early 
people  of  this  State  rightly,  this  should  be  borne 
in  mind.  Another  thing  may  be  worthy  of  re 
mark.  When  legal  gentlemen  praise  the  early  penal 
legislation  of  Massachusetts,  and  when  others, 
with  equal  justice,  praise  its  business  legislation, 
let  the  credit  of  the  great  and  undoubted  ad 
vance  it  all  shows,  be  placed  where  it  belongs. 
For  two  or  three  generations,  the  general  court 
was  composed  solely  of  farmers,  mechanics,  tra 
ders,  and  laborers.  Without  intending  to  reflect 
on  the  great  profession  of  the  law,  it  may  be  well 
to  remember,  that  for  many  years  the  people  and 
laws  too,  would  not  allow  a  lawyer  to  be  a 
member  of  the  general  court.  Hence,  it  is  to 
the  common  sense  of  these  classes,  that  we  owe 
the  comparatively  liberal  legislation  under  which 
our  infant  manufactures  thrived. 

Very  early  in  the  history  of  our  government, 
the  general  court,  in  the  face  of  this  old  world 
restriction,  passed  one  short  act,  if  I  remember 
rightly — and  I  think  I  remember  the  whole  of  it 
— saying  exactly  what  it  is  now  asked  should  be 
put  into  our  Constitution.  I  cannot  speak  with 
precision,  as  to  the  exact  words,  for  I  have  no 
brief  or  notes  before  me,  not  expecting  to  speak 


upon  this  subject;  but  it  was  about  1640,  or 
thereabouts,  the  general  court  of  Massachusetts 
passed  an  act,  in  which  it  was  ordered  that  there 
shall  no  monopoly  exist  amongst  us,  except  as 
to  authors  of  inventions,  and  to  them  only  for  a 
short  time.  That  was  the  whole  of  the  act. 
And,  from  that  day  to  this,  there  has  been  a  con 
stant  tendency,  upon  the  part  of  the  business  of 
Massachusetts,  to  relieve  itself  from  those  absurd 
restrictions,  which  were,  from  time  to  time,  im 
posed  upon  it,  and  which  were  derived  from  the 
mother  country. 

Now,  Sir,  I  am  in  favor  of  carrying  out  the 
idea,  that  here,  in  Massachusetts,  there  shall  be 
no  monopoly  amongst  us,  in  relation  to  corporate 
rights.  I  am  in  favor  of  saying,  that,  whatever 
advantages  there  may  be  in  them,  they  shall  not 
be  confined  to  those  who  now  enjoy  them,  but 
that  they  shall  be  enjoyed  by  all  who  choose  to 
take  advantage  of  them— thereby  taking  the 
matter  out  of  the  category  of  privilege,  and  put 
ting  it  upon  the  ground  of  right. 

But,  Sir,  we  have  tried  the  experiment,  to  some 
extent,  here  in  Massachusetts.  I  think  there  are, 
upon  your  statute  books,  general  laws  in  relation 
to  the  incorporation  of  lyceums,  cemeteries,  and 
other  objects  of  association.  I  do  not  know  in 
how  many  cases  the  system  of  general  legisla 
tion  has  been  applied.  Take,  for  instance,  one  of 
the  late  acts  passed  by  the  legislature,  by  which 
any  individual  may  go  to  a  probate  court  and 
have  his  name  changed,  whereas,  it  used  to  be 
necessary  for  every  individual  who  wanted  to 
change  his  name,  to  apply  to  the  legislature  for 
that  purpose. 

Then  there  is  another  general  law  in  relation  to 
closing  the  concerns  of  corporations.  I  do  not 
believe  there  is  but  one  opinion  about  the  wis 
dom,  the  safety,  and  the  soundness  of  that  law. 
It  is  a  short  act,  but  it  provides  that,  when  a  cor 
poration  closes  up  its  proceedings  it  shall  pursue 
a  certain  course,  by  application  to  the  supreme 
court.  That  is  about  the  extent  to  which  this 
system  of  legislation  has  been  carried  in  Massa 
chusetts.  But,  look  at  the  neighboring  State  of 
Connecticut.  Look  at  New  York— look  at  Mich 
igan — look  at  nearly  all  the  Western  States,  and 
it  will  be  found  that  general  laws  have  been  ap 
plied  to  nearly  every  kind  of  business  concerns. 

Now,  if  I  understand  the  objections  to  this 
principle,  they  all  centre  in  about  this  :  that  it  is 
the  duty  of  the  government  to  see  that  unworthy 
individuals  do  not  receive  from  the  legislature 
power  to  cheat  other  individuals.  I  believe  that 
is  the  whole  objection — the  whole  ground  of 
hesitation — upon  the  part  of  those  gentlemen  who 
oppose  the  adoption  of  this  resolution.  They 


59th  day.] 


GENERAL   LAWS   FOR   CORPORATIONS. 


57 


Saturday,] 


FROTHIXGHAM  —  SCHOULER. 


[July  16th. 


say,  that  if  you  allow  any  set  of  individuals,  for 
any  purpose  whatever,  to  form  themselves  into 
corporations  under  general  laws,  that  it  will  open 
the  doors  to  enormous  frauds  and  cheats,  which 
it  is  the  duty  of  the  legislature  to  prevent.  1 
admit  it  is  the  duty  of  the  legislature  to  make 
these  general  laws  so  sound,  so  safe,  and  so  se 
cure,  to  the  property  that  invests  itself  under 
them,  that  this  fraud,  as  much  as  possible,  may  be 
prevented  ;  and  farther  than  that,  it  does  not 
seem  to  me  that  it  is  the  duty  of  the  legislature  to 
go.  When  it  goes  beyond  that,  it  steps  into  that 
round  of  paternal  legislation  which  has  been  the 
curse  of  commerce  for  ages.  I  undertake  to  say, 
that  it  is  not  the  duty  of  the  legislature  to  take 
care  of  the  private  interests  of  men,  but  only  to 
furnish  those  sound,  safe,  and  general  rules,  by 
which  they  may  conduct  their  business.  It  is 
for  this  reason,  therefore,  and  not  for  other  good 
reasons  that  have  been  alleged,  that  I  am  in  favor 
of  extending  this  principle  of  legislation,  and  of 
inserting  in  our  Constitution  a  short  and  simple 
rule  or  instruction  to  our  agent,  the  legislature, 
to  this  effect :  wherever  it  can  be  done,  the  leg 
islature  shall  make  those  general  laws,  and  cease 
granting  special  privileges. 

Mr.  SCHOULER,  of  Boston.  I  have  only  a 
few  words  to  say  in  regard  to  this  matter.  This 
subject  has  been  discussed  in  this  hall,  in  days 
gone  by,  with  great  ability,  but  I  have  never  be 
come  a  convert  to  these  general  corporation  acts. 
I  am  not  quite  so  much  a  corporation  man  as  to 
give  every  set  of  men  who  may  combine  together 
the  right  to  form  themselves  into  a  corporation. 
I  think  it  is  the  duty  of  the  legislature,  to  inves 
tigate  all  applications  for  corporations  ;  and,  if  the 
applicants  make  out  a  case,  to  give  them  their 
charter.  But,  to  pass  a  general  law  whereby  any 
persons  may  combine— Tom,  Dick,  and  Harry — 
and  form  themselves  into  a  corporation,  and  go 
into  any  kind  of  business,  I  think  ought  not  to 
be  tolerated.  The  gentleman  for  Wilbraham, 
(Mr.  Hallett,)  and  the  gentleman  from  Charles- 
town,  (Mr.  Frothingham,)  have  spoken  against 
this  idea  of  encouraging  associated  wealth.  They 
are  in  favor  of  having  everything  done,  that  can 
be  done,  by  individual  corporations,  and  so  am  I. 
It  is  because  I  am  in  favor  of  individuals  doing 
all  the  work  that  can  be  done,  that  I  am  opposed 
to  passing  a  general  corporation  act,  whereby  any 
persons  may  form  themselves  into  corporations. 
We  have  a  certain  kind  of  business  in  this  State, 
that  has  never  been  transacted  by  corporations, 
and  that  is,  the  great  trade  of  manufacturing  shoes. 
The  shoe  and  leather  business  in  this  State,  has 
never  been  transacted  by  corporations,  and  I  trust 
it  never  will  be.  The  great  work  of  building 


ships  has  never  been  in  the  hands  of  corporations, 
and,  if  persons  should  come  up  to  the  legislature 
and  ask  for  an  act  of  incorporation  for  that  pur 
pose,  they  would  not  get  it,  upon  the  principle 
that  this  business,  as  has  been  shown,  can  be  done 
by  private  enterprise  ;  and  whenever  this  can  be 
done,  I  say  there  let  it  remain.  I  ask  the  gen 
tleman  from  Charlestown,  (Mr.  Frothingham,) 
and  also  the  gentleman  for  Wilbraham,  (Mr. 
Hallett,)  supposing  that  men  form  themselves  into 
corporations  under  this  general  corporation  act, 
and  it  is  found  out  afterwards  that  they  do  not 
transact  their  business  properly,  you  cannot  take 
away  from  them  their  charter.  They  are  inde 
pendent  of  the  legislature  and  the  people.  You 
cannot  stop  them,  unless  you  repeal  the  general 
act ;  and  when  you  do  that,  you  punish  the  inno 
cent  with  the  guilty,  because  there  may  be  a 
hundred  other  corporations  incorporated  under 
this  general  corporation  act.  It  may  be  said  that 
we  may  pass  a  special  law  in  regard  to  men.  asso 
ciated  together  under  general  a  law,  if  they  trans 
cend  the  power  of  that  general  law.  But,  sup 
posing  we  do,  what  is  to  hinder  those  men,  the 
next  day,  from  forming  a  corporation  under  this 
general  law.  Last  year,  we  had  an  application 
here  to  the  legislature,  to  form  a  company  by  the 
name  of  the  Worcester  Caloric  Power  Company. 
They  were  to  have  $500,000  capital,  and  it  ap 
peared  in  the  bill,  if  I  recollect  aright,  that  they 
were  to  hold  real  estate  in  the  city  of  Worcester 
to  the  amount  of  $400,000.  It  was  well  known 
that  it  was  nothing  but  a  land  speculation,  got  up 
under  this  title,  intended  to  create  the  impression 
that  it  was  intended  for  mechanical  purposes. 
This  is  what  gentlemen  might  call  mortmain, 
although  this  definition  of  mortmain  is  a  little  dif 
ferent  from  the  original  definition.  But,  when 
that  came  to  be  discussed  before  the  House  of 
Representatives,  they  killed  it  by  a  decisive  vote. 
I  do  not  know  but  what  they  may  have  forced 
themselves,  under  general  laws,  into  the  Worces 
ter  Caloric  Company.  What  you  can  stop  by 
legislative  enactment  and  investigation,  they  can 
obtain  under  general  laws.  The  gentleman  for 
Wilbraham,  (Mr.  Hallett,)  says  the  amount  of 
property  owned  by  corporations,  amounts  to  four 
hundred  millions,  and  yet  he  is  the  advocate  of 
a  system,  by  which  you  can  put  the  whole  me 
chanical,  and  other  business  of  the  Commonwealth, 
into  corporations.  He  talks  about  corporations 
owning  this  great  amount  of  property,  and  yet 
he  advocates  a  law  whereby  they  can  hold  the 
whole  State,  and  the  legislature  cannot  say  no. 
And  they  will  be  independent  of  the  people  and 
the  legislature.  I  am  not  such  a  corporation  man 
as  that. 


58 


GENERAL  LAWS  FOR  CORPORATIONS. 


[59th  day. 


Saturday,] 


HALLETT  —  SCHOULER  —  FB.OTHINGHAM. 


[July  16th. 


Mr.  HALLETT,  for  Wilbraham.  Will  the 
gentleman  allow  me  to  ask  him  one  question.  If 
four  hundred  millions  of  property  have  gone  into 
corporations,  I  should  like  to  ask  him  what  right 
he  has  to  exclude  the  other  two  millions  from 
going  into  corporations  also. 

Mr.  SCHOULER.  If  the  gentleman  comes 
before  the  legislature  and  makes  out  a  good  case  for 
an  act  of  incorporation,  he  will  get  it.  I  was 
reminded,  while  the  gentleman  was  speaking 
about  monopolies,  that  if  there  is  anything  like  a 
a  monopoly,  it  is  the  profession  which  the  gentle 
man  himself  follows.  "Why  does  not  the  gentle 
man  go  for  incorporating  into  the  Constitution  a 
provision  that  every-body  should  be  a  lawyer,  and 
that  he  shall  not  have  to  serve  three  vears,  and 
then  be  examined  before  a  certain  legal  tribunal, 
to  see  if  he  is  fit  to  exercise  the  duties  of  the 
profession. 

Mr.  HALLETT.  If  the  gentleman  will  in 
corporate  a  provision  into  the  Constitution  that 
would  make  lawyers,  I  would  be  very  willing  to 
doit. 

Mr.  SCHOTJLER.  I  believe  that  lawyers  can 
be  made  about  as  easily  as  anything  else. 

Mr.  HALLETT.  I  wish  barely  to  make  one 
statement.  I  wish  to  say,  under  a  law  in  our 
Constitution,  that  that  gentleman,  or  any  citizen 
may  be  admitted  for  an  examination  to  the  bar 
to-morrow,  if  he  possesses  good  moral  character 
and  general  information. 

Mr.  SCHOULER.  Suppose  he  should  not  be 
able  to  pass  an  examination.  What  would  be 
the  case  then  ?  But,  to  pass  from  this,  I  say  that 
that  profession  is  the  only  profession  in  this 
whole  Commonwealth  that  approaches  anything 
like  monopoly ;  and  I  have  noticed  in  the  Revised 
Statutes,  that  they  have  a  lien  law  whereby  they 
can  keep  the  money  of  their  clients,  and  pay 
themselves,  before  they  pay  over  to  their  clients 
the  money  which  they  may  collect  for  them.  I 
say,  if  you  pass  this  general  law,  you  make  all 
the  corporations  in  existence  monopolies,  and 
you  are  shutting  down  the  gate  in  such  a  man 
ner,  that  these  corporations  will  stand  without 
any  rivals  and  without  any  competition.  They 
have  got  their  charters,  there  they  will  remain, 
and  the  Commonwealth  will  grant  no  more.  I 
desire  to  know  if  this  Convention  is  ready  to  as 
sert  and  maintain  such  a  doctrine.  I  desire  to 
know  if  we  are  intending  to  pass  a  law  which 
will  give  to  the  banks  that  have  been  incorpo 
rated  within  the  last  two  years,  and  those  which 
have  had  their  charters  renewed,  the  whole  mo 
nopoly  of  banking  in  the  Commonwealth  for  the 
next  twenty- five  years.  The  gentleman  says  that 
all  the  new  banks  can  come  under  the  general 


banking  law.  The  people  do  not  want  it.  It  is 
well  known,  at  least  financiers  tell  me  so,  that 
the  banks  under  the  general  banking  law  cannot 
compete  with  those  under  special  charters.  Last 
year,  or  the  year  before,  the  legislature  amended 
the  law,  by  saying,  that  those  banks  that  went 
into  operation  under  the  general  law,  should  not 
pay  any  taxes  for  it.  They  offered  this  as  an 
inducement,  but  you  cannot  find  any  company 
in  Massachusetts  that  would  avail  themselves  of 
this  advantage.  So  it  was  in  regard  to  the  gen 
eral  corporation  act  for  manufacturing,  which 
was  passed  two  years  ago.  There  are  a  very  few, 
I  believe,  that  have  availed  themselves  of  these 
privileges ;  merely  enough  to  make  exceptions  to 
the  rule.  As  a  general  thing,  the  people  of  Mas 
sachusetts  are  not  in  favor  of  that  law.  I  judge 
so  from  the  fact  that  persons  have  come  up  to  the 
legislature  to  get  their  charters,  entirely  disre 
garding  the  general  corporation  act.  These  are 
the  general  reasons  why  I  am  opposed  to  placing 
in  our  Constitution  this  provision,  although  other 
States  may  have  passed,  as  we  all  know,  general 
corporation  acts,  still,  I  believe  our  system  is  bet 
ter  than  any  which  has  been  adopted  anywhere 
else ;  and,  I  think  all  the  time  expended  in  legis 
lating  upon  and  investigating  this  matter  of  in 
corporations,  is  time  well  spent.  I  would  warn 
this  Convention  against  incorporating  a  provision 
into  our  Constitution  which  will  give  to  irrespon 
sible  persons  the  power  of  forming  themselves 
into  corporations,  and  in  that  way  getting  rid  of 
individual  responsibility  for  their  debts.  The 
gentleman  from  Charlestown  (Mr.  Frothingham) 
is  an  anti-corporation  man.  I  recollect  that,  in 
1844,  when  we  had  that  long  debate  about  the 
camels,  down  in  Nantucket,  that  the  gentleman 
from  Charlestown  was  very  earnest  in  his  opposi 
tion  to  all  kinds  of  corporations  at  that  time,  and 
particularly  against  those  small  corporations.  He 
has  changed  his  ground  altogether.  He  is  now 
in  favor  of  every-body  forming  themselves  into 
corporations,  and  of  throwing  the  whole  business 
of  the  Commonwealth  into  the  power  of  citizens 
who  form  themselves  into  corporations,  and  of 
placing  them  above  the  people,  and  the  representa 
tives  of  the  people. 

Mr.  FROTHINGHAM.  The  gentleman  very 
truly  says,  that  in  some  year,  before  the  legisla 
ture,  I  had  the  honor  of  making  an  argument 
against  granting  special  acts  of  incorporation.  I 
have  now  very  feebly  made  an  argument  against 
such  special  acts.  I  am  in  favor  of  granting  now 
to  all,  those  privileges  which  so  large  a  body  of 
our  fellow-citizens  have. 

Mr.  SCHOULER.  The  gentleman's  explana 
tion  amounts  to  this,  that  he  was  opposed  to  that 


59th  day.] 


GENERAL   LAWS   FOR   CORPORATIONS. 


59 


Saturday/ 


WALKER  —  SARGENT. 


[July  16th. 


camel  corporation,  because  it  was  a  special  corpo 
ration.  I  understood  his  argument  to  be,  and  I 
believe  it  was  always  so  argued  on  that  side,  that 
corporations  of  that  kind  were  unnecessary,  and 
-I  wish  to  know  whether  the  gentleman  would  be 
in  favor  of  the  camel  corporation,  if  it  was  incor 
porated  under  the  general  law.  What  difference 
is  there  in  principle,  between  a  special  and  general 
act?  If  a  corporation  is  good,  it  is  good  by  a 
special  act.  There  are  certain  kinds  of  corpora 
tions  that  require  a  great  deal  of  capital  and  asso 
ciated  wealth,  in  order  to  carry  on  their  business, 
and  it  is  necessary  that  they  should  have  an  act 
of  incorporation ;  but,  before  that  grant  is  given, 
I  would  have  every  one  of  them  come  up  here 
before  the  representatives  of  the  people,  and  make 
out  a  full  and  clear  case,  before  an  act  of  incor 
poration  should  be  given  them. 

Mr.  WALKER,  of  North  Brookfield.  This 
question  is  one  of  great  interest  in  this  Common 
wealth  ;  it  is  peculiarly  a  Massachusetts  question, 
because  no  other  State  in  the  Union,  and  I  sup 
pose  no  other  country  in  the  world,  has  so  many 
incorporated  industrial  institutions  as  the  State 
of  Massachusetts,  or  so  much  wealth  embarked 
in  enterprises  of  a  corporate  character ;  and,  there 
fore,  the  question  is  one  of  very  great  importance. 
In  most  other  states  and  countries,  corporations 
are  resorted  to  as  a  necessity ;  with  us  they  are 
mostly  used  as  a  matter  of  convenience.  No  one 
will  pretend  that  nine-tenths  of  all  the  projects 
now  carried  on  by  corporations,  could  not  be  car 
ried  on  by  individuals.  I  think  the  gentleman 
from  Boston,  the  other  day,  told  us  that  one  pri 
vate  firm  in  England  owned  more  spindles  than 
there  are  in  the  city  of  Lowell.  Probably  the 
founders  of  that  establishment  were  poor  men  in 
the  beginning,  and  that  they  attracted  to  them 
selves,  by  a  necessary  law,  all  the  capital  they 
needed,  because  they  were  men  of  character  and 
ability.  Such  persons  always  attract  to  them 
selves  all  the  capital  they  require  ;  because  capi 
tal  needs  talent  and  skill,  as  much  as  talent  and 
skill  need  capital.  From  the  statistics  contained 
in  our  document,  No.  37,  the  best  deductions  we 
can  make,  I  think,  will  show  that  something  like 
$250,000,000,  or  $300,000,000  of  capital  in  this 
Commonwealth,  are  locked  up  in  corporations. 
That  is  about  half  of  the  wealth  of  the  State. 

I  suppose  it  is  a  foregone  conclusion,  that  Mas 
sachusetts  is  to  try  this  experiment  to  its  fullest 
extent,  and  that  we  are  to  illustrate  what  the  ad 
vantages  or  disadvantages  of  corporations  may 
be.  Corporations  now,  with  us,  have  the  ascen 
dency.  I  ask  any  man  to  say,  if  he  believes  that 
any  measure  of  legislation  could  be  carried  in  this 
State,  which  was  generally  offensive  to  the  corpo 


rations  of  the  Commonwealth  ?  It  is  very  rarely 
the  case  that  we  do  not  have  a  majority  in  the 
legislature,  who  are  either  presidents,  directors,  or 
stockholders  in  incorporated  companies.  This  is  a 
fact  of  very  grave  importance. 

Mr.  SARGENT,  of  Cambridge.  I  would  like, 
with  permission,  to  ask  the  gentleman  from  North 
Brookfield,  if  the  secret  ballot  law  was  carried  by 
the  influence  of  corporations  in  this  Common 
wealth. 

Mr.  WALKER.  I  have  reason  to  think  that 
the  corporations  did  not  have  a  chance  to  rally 
and  combine  their  forces  on  that  question,  either 
for  or  against  it. 

Now,  if  it  be  a  foregone  conclusion — if  this  cor 
poration  principle  is  to  be  carried  out  to  its  full 
and  legitimate  result,  as  I  fully  believe  it  is  in 
Massachusetts,  then  I  am  decidedly  in  favor  of 
the  resolution  before  us.  I  think  that  is  a  resolu 
tion  which  we  ought  to  pass.  I  will  give  an 
anecdote,  in  illustration  of  the  reason  why  I  am  in 
favor  of  it.  In  1850,  certain  tailors  of  the  city  of 
Boston,  I  think  to  the  number  of  twenty  or 
thirty,  came  before  the  legislature,  and  asked  to 
be  incorporated,  that  they  might  have  an  oppor 
tunity  to  put  their  small  capitals  together,  and 
unite  in  the  manufacture  and  sale  of  clothing. 
They  came  before  the  legislature,  and  it  was 
shown  that  they  were  honest,  industrious,  and 
deserving  men.  I  think  their  united  capital 
amounted  to  only  fifteen  thousand  dollars.  What 
answer  did  they  receive  to  their  application  ? 
They  got  a  negative.  "  You  cannot  be  incor 
porated,"  said  the  legislature.  At  that  very  mo 
ment,  there  was  a  project  before  the  same  body,  to 
increase  the  capital  of  a  corporation,  already 
amounting  to  two  millions,  to  three  millions. 
That  was  granted ;  that  was  worthy  the  attention 
of  the  law-makers  of  Massachusetts.  That  peti 
tion  came  from  great  capitalists.  Laborers  came 
forward  and  asked  to  be  incorporated,  and  it 
could  not  be  done.  They  were  men  of  no  influ 
ence,  comparatively,  and  they  could  not  have  the 
privilege  of  xmiting  their  capital  together,  so  as  to 
increase  the  benefits  of  their  own  industry,  and 
obtain  a  profit  on  the  sale  of  their  own  products. 

Now,  Sir,  for  one,  I  must,  before  voting  on  this 
subject,  say,  that  if  this  policy  is  to  be  pursued,  if 
this  grand  corporation  system  is  to  be  continued, 
I  think  it  should  be  extended  to  all,  so  that  all 
may  participate  in  it  equally,  and  the  privilege  of 
incorporation  should  not  be  a  matter  of  favor,  but 
of  general  right.  I  have  great  doubts  as  to  the 
expediency  of  creating  these  business  corporations, 
either  by  general  or  special  laws.  I  do  not  be 
lieve  in  the  utility  or  rightfulness  of  the  system 
itself ;  I  do  not  believe  in  the  necessity  for  it,  as 


60 


GENERAL  LAWS  FOR  CORPORATIONS. 


[59th  day. 


Saturday,] 


WALKER. 


[July  16th. 


suggested  by  the  gentleman  from  Charlestown, 
(Mr.  Frothingham).  I  think  there  is  no  force  in 
his  argument,  because  we  have  had,  for  many 
years,  an  act  for  general  copartnership,  by  which 
all  persons  of  small  means  may  unite  together, 
and  carry  on  business,  and  that  without  endan 
gering  anything  more  than  the  amount  they  put 
in.  That  law  is  neglected,  because  the  whole  at 
tention  is  turned  towards  corporations.  Yet  the 
law  was  a  good  one.  It  was  amended  in  1851, 
and  made  still  better,  so  that  now  men  may 
unite  in  carrying  on  business,  with  all  the  facil 
ities  they  would  derive  from  incorporations. 
Under  our  present  law,  business  men  have  the 
advantages  which  result  from  the  combination  of 
capital,  and  of  acting  with  others  without  endan 
gering  anything  more  than  they  invest  in  the 
concern.  Besides,  for  the  largest  manufacturing 
operations,  it  is  evident  corporations  are  not 
necessary  ;  for  in  the  neighboring  State  of  Rhode 
Island,  where  manufacturing  industry  has  been 
more  profitable,  in  proportion  to  its  extent,  even 
than  in  Massachusetts,  they  have,  as  a  general 
fact,  no  corporations. 

Sufficient  capital  can  always  be  obtained,  with 
out  the  aid  of  corporate  powers  and  privileges,  for 
all  useful  and  profitable  undertakings. 

I  have  said  that  I  object  to  the  whole  experi 
ment.  I  do  not  believe  that  the  final  result  of  it 
will  be  beneficial.  I  wish  it  understood,  how 
ever,  that  when  I  speak  of  corporations  in  this 
connection,  I  mean  those  of  a  business  character. 
Corporations  for  other  purposes — for  railroads, 
banks,  and  insurance  companies,  public  charities, 
and  the  like — are,  if  not  in  all  cases  a  matter  of 
necessity,  are  at  least  a  great  public  convenience, 
and  do  not  interfere  with  the  general  business 
and  ordinary  pursuits  of  the  people  of  the  Com 
monwealth  ;  but,  for  all  other  purposes,  I  do  ob 
ject  to  them. 

The  first  reason  is,  that  corporations  change 
the  relation  of  man  to  wealth.  When  a  man  has 
his  property  in  his  own  hands,  and  manages  it 
himself,  he  is  responsible  for  the  manner  in  which 
he  does  it.  He  does  not  delegate  his  power  over 
it  to  anybody  else.  But  when  the  management  of 
property  is  put  into  the  hands  of  corporations,  the 
many  delegate  the  power  of  managing  it  to  the 
few ;  and  that  is  an  important  consideration,  when 
we  reflect  that  nearly  half  of  the  wealth  in  this 
State  has  passed  from  the  hands  of  individuals 
into  the  hands  of  incorporated  companies.  It 
aggregates  power,  of  course,  and  necessarily,  all 
the  property  of  the  Commonwealth,  included  in 
these  corporations,  must  be  put  into  the  hands  of 
a  very  few  men,  having  absolute  power  over  it 
for  the  time  being.  Hence,  the  agent  of  a  factory, 


or  a  corporation  of  any  kind,  has  absolute  control 
over  all  persons  connected  with  that  corporation. 
This,  I  hold,  to  be  one  of  the  bad  consequences  of 
incorporated  wealth. 

Another  objection  I  have  to  this  system  is,  that  it 
changes  the  moral  responsibility  of  capital.  When 
a  man  is  managing  his  own  property,  he  is  held 
morally  responsible  for  the  manner  in  which  he 
conducts  his  business,  and  for  the  manner  in 
which  he  treats  the  persons  whom  he  employs. 
If  he  is  unjust,  or  cruel,  he  will  feel  the  rebuke 
of  an  indignant  public  sentiment,  under  which  he 
will  quail.  But  it  is  not  so  in  corporations.  All 
this  moral  responsibility  is  removed.  I  will  illus 
trate  my  meaning  in  this  manner :  Suppose  one 
of  the  employees,  a  young  woman,  in  one  of  the 
factories,  should  feel  that  she  was  injured  or 
wronged,  by  some  of  the  arrangements  of  one  of 
the  mills,  and  she  should  seek  redress.  Suppose 
she  goes  to  the  overseer  of  the  room  and  applies 
to  him.  What  does  he  say  ?  "I  am  not  respon 
sible  ;  you  must  look  to  the  superintendent  of  the 
mill."  And  what  does  the  latter  say ?  "I  am 
not  responsible  for  this ;  you  must  look  to  the 
agent  of  the  factory."  Suppose  she  should  ven 
ture  to  go  to  the  agent.  What  does  he  say  ?  If 
he  deigns  to  say  anything,  he  will  tell  her 
that  "  the  board  of  directors  are  responsible  for 
all  this  matter."  The  board  !  and  so  the  poor 
girl  has,  at  least,  run  her  head  against  "  a  board." 
"  We  act,"  says  the  agent,  "  under  general  rules. 
These  rules  are  established  by  the  board  of  direct 
ors,  and  the  agent  has  no  responsibility  in  the 
case."  Then  what  is  her  redress  ?  If  she  goes 
to  the  directors,  what  answer  does  she  get  ?  Why, 
that  they  "  act  for  the  stockholders,  and  are  bound 
to  consult  their  interests,  and  those  interests  re 
quire  them  to  run  the  factory  thirteen  or  fourteen 
hours  per  day.  They  must  act  for  the  interest  of 
the  corporation."  Suppose,  farther,  that  an  ap 
plication  for  redress  were  made  to  individual 
stockholders,  what  would  be  their  reply.  Very 
certainly  they  would  say :  "  We  have  no  per 
sonal  responsibility  in  the  matter ;  we  submit  the 
entire  management  of  the  factory  to  our  directors 
and  those  they  employ."  This  is  a  fair  illustra 
tion  of  the  matter,  and  it  clearly  shows  that  the 
moral  responsibility  of  wealth  is  destroyed  by 
being  aggregated  into  corporations,  of  which  it  is 
said,  with  terrible  truthfulness,  that  "  they  have 
no  souls." 

In  the  next  place,  corporations  destroy  the 
natural  relation  between  capital  and  labor. 
The  moment  we  incorporate  capital,  and  refuse 
to  incorporate  labor,  that  moment  we  change 
the  relative  position  of  the  two.  And  what 
is  the  consequence?  We  give  capital  greatly 


59th  day.] 


GENERAL   LAWS   FOR   CORPORATIONS. 


61 


Saturday,] 


SCHOULER  —  WALKEB. 


[July  16th. 


the  advantage.  We  never  incorporate  laborers. 
Such  a  thing  is  unheard  of,  and  such  a  thing 
would  not  be  tolerated.  And,  since  we  do  not  do 
that,  it  is  quite  clear  that  we  should  not  incorpo 
rate  capital,  if  we  would  leave  the  two  parties  on 
an  equal  footing.  Capital  and  labor  are,  in  all 
cases,  natural  copartners  in  production,  and  natu 
ral  competitors  for  profits.  The  relation  between 
capital  and  labor  we  cannot  destroy,  but  that 
competition  we  may  interfere  with,  and  we  do  so 
if  we  incorporate  capital  and  do  not  give  an  equal 
advantage  to  labor. 

Again,  by  this  system  we  reduce  the  number 
of  freeholders,  and  that,  I  maintain,  is  a  great  evil. 
When  persons  carry  on  their  own  business,  they 
will  live,  generally,  in  their  own  houses.  When 
they  are  employed  by  corporations,  almost  uni 
versally,  they  are  tenants  at  will.  I  submit,  that 
in  this  Commonwealth,  this  has  become  a  matter  of 
great  importance.  Thousands,  and  tens  of  thou 
sands,  who  are  now  mere  tenants,  would  be  free 
holders,  were  it  not  for  corporations.  For  in 
stance,  take  one  of  our  manufacturing  cities, 
where  the  business  is  carried  on  by  corporations, 
and  what  a  large  proportion  of  all  the  dwellings 
are  owned  by  these  great  companies,  and  what  a 
large  part  of  all  the  inhabitants  hold  their  tene 
ments  at  the  will  of  a  factory  agent.  On  the 
( other  hand,  by  way  of  contrast,  take  the  city  of 
Worcester  ;  it  has  not  a  single  corporation  there 
for  any  industrial  purpose,  and  yet  it  is  the  most 
flourishing  city  in  this  Commonwealth,  altogeth 
er. 

Mr.  SCHOULEK.  I  would  like  to  ask  the 
gentleman  from  North  Brookfield,  if  the  city  of 
Worcester  has  not  been  built  up  by  corporations, 
and  what  it  would  be  to-day,  if  it  had  not  been 
for  railroad  corporations  ? 

Mr.  WALKER.  I  have  not  objected  to  rail 
road  corporations. 

Mr.  SCHOULER.  The  gentleman  spoke  of 
corporations. 

Mr.  WALKER.  But  I  have  not  objected  to 
railroad  companies,  banking,  or  insurance  com 
panies.  The  only  point  of  which  I  am  speaking, 
and  the  only  thing  to  which  I  object  is,  the  estab 
lishment  of  corporations  for  carrying  on  the 
common  industri  al  business  of  the  country.  Now, 
take  the  city  of  Worcester,  and,  as  I  have  said,  it 
is  far  the  most  flourishing  city  in  the  Common 
wealth  ;  and  the  great  cause  of  their  success  and 
prosperity  is,  that  they  have  mechanics  who  do 
business  on  their  own  account,  and  who,  when 
they  acquire  wealth,  buy  a  piece  of  land  and 
build  a  house  upon  it.  They  are  independent 
men,  and  act  as  they  choose,  and  vote  as  they 
please. 


On  the  other  hand,  take  a  city  whose  industry 
is  carried  on  by  corporations,  and  how  different  is 
the  position  and  characteristics  of  its  population. 
I  will  make  no  invidious  comparisons,  for  the 
facts  are  well  known  to  all  intelligent  persons. 

Again,  Sir,  this  system  has  concentrated  our 
manufacturing  business,  to  a  wonderful  extent, 
in  the  cities,  and  I  insist  that  that  is  a  great  evil. 
I  maintain  that,  if  it  had  not  been  for  this  corpo 
ration  system,  our  manufactures  would  not  have 
been  concentrated  to  the  extent  they  have,  in 
cities,  but  would  have  been  scattered  all  over  the 
State,  wherever  there  was  a  waterfall  to  be  put  to 
use ;  and  that  would  have  been  much  better  for 
the  Commonwealth,  than  the  present  state  of 
things.  One  great  object  of  bringing  these  great 
corporations  together  in  a  large  city,  is  this :  In 
the  first  place,  when  one  of  these  cities  is  to  be 
built,  the  land  is  all  bought  up,  and  monopolized. 
One  single  corporation  in  this  Commonwealth, 
purchased  1,400  acres  of  land  to  start  with,  and 
now,  if  that  land  is  sold  at  only  ten  cents  a  foot — 
and  much  of  it  will  be  sold  for  a  dollar  a  foot — it 
will  bring  more  than  six  millions  of  dollars. 
Now,  Sir,  all  the  rise  of  that  land,  instead  of  going 
to  the  benefit  of  the  workmen,  as  it  should,  goes 
to  build  up  the  property  of  the  corporation. 
That,  I  maintain,  is  a  serious  objection,  and  one 
that  does  not  exist  where  manufactories  grow  up 
naturally  under  private  enterprise. 

And,  I  object,  again,  that  this  system  necessarily 
destroys  private  enterprise,  by  monopolizing  the 
money  and  business  of  the  country.  Every-body 
knows,  that  the  moment  there  is  a  great  pressure 
in  the  money  market,  these  corporations  can 
control  a  great  part  of  all  the  capital  of  both  city 
and  country,  and  I  have  been  rejoiced,  when 
passing  through  Pearl  and  State  Streets,  in  this 
city,  in  a  time  of  pressure  in  the  money  market, 
to  find  that  the  business  men  were  beginning  to 
wake  up  to  the  fact  that  they  are  being  crushed 
under  this  tremendous  system  of  monopoly. 

Ordinary  business  men  cannot  command 
money,  when  corporations  can.  For,  in  the  first 
place,  the  men  who  enter  into  these  corporations 
are  men  of  great  capital,  and  have  great  personal 
influence  in  the  money  market ;  and,  in  the  second 
place,  as  they  can  create  the  influence  of  great 
manufacturing  and  banking  corporations,  they 
can  and  do,  readily  absorb  a  great  part  of  all  the 
circulating  medium  of  the  State.  Business  men 
begin  to  understand  all  this,  and  to  see  that  pri 
vate  enterprise  is  greatly  crippled  and  impeded 
by  this  corporation  system.  Public  sentiment, 
among  that  class  of  men,  is  becoming  adverse  to 
it,  and  will  demand,  ere  long,  its  overthrow. 
They  will  not,  and  ought  not,  to  be  willing 


62 


GENERAL  LAWS  FOR  CORPORATIONS. 


[59th   day. 


Saturday,] 


HALE  —  WALKER  —  GRAY. 


[July  16th. 


always  to  compete  with  these  vast  aggregations  of 
wealth. 

Another  objection  is,  that  this  system  involves, 
to  some  extent,  the  evils  of  absenteeism,  of  which 
we  have  heard  so  much  in  other  countries. 
Is  it  not,  to  a  wonderful  extent,  the  case  that 
those  who  own  the  wealth  in  the  manufacturing 
towns,  do  not  live  in  these  towns  ?  Are  there  not 
millions,  and  tens  of  millions — I  do  not  know  but 
that  I  may  say  hundreds  of  millions  of  property — 
owned  in  towns  in  which  the  owners  do  not  live. 
This  is  certainly  the  case  ;  and  what  is  the  conse 
quence  ? 

Mr.  HALE,  of  Bridgewater.  I  wish  to  inquire 
if  there  is  any  injury  resulting  to  these  towns, 
because  persons  who  do  not  live  there,  have  in 
vested  their  money  there  ? 

Mr.  WALKER.  It  operates  greatly  to  the 
injury  of  these  towns,  that  the  profits  of  capital 
are  all  expended  out  of  them,  just  as  it  does  in 
Ireland.  The  great  curse  in  Ireland  is,  that  those 
who  make  their  money  out  of  the  industry  of 
that  country,  spend  it  in  England,  on  the  conti 
nent,  or  wherever  else  they  please  ;  and  conse 
quently  Ireland  does  not  improve  and  prosper,  as  it 
should.  That  is  the  effect  in  these  towns,  they  do 
not  have  their  legitimate  growth  and  develop 
ment  ;  it  is  so  everywhere.  I  do  not  think  this 
is  so  strong  an  objection  as  some  that  may  be 
urged,  but  still  it  is  an  objection,  and  it  is  one  that 
will  be  felt  more,  years  hence,  than  it  is  now.  I 
will  remark,  Sir,  that  the  effects  of  our  corporate 
system  are  not  very  fully  developed,  as  yet — we 
are  only  on  the  threshold — we  have  only  the 
poetry  of  it  now,  but  we  shall  have  the  prose— 
we  shall  have  sad  results  from  this  system  ulti 
mately. 

This  system  of  corporations  is  nothing  more 
nor  less  than  a  moneyed  feudalism ;  it  has  an 
effect  on  our  civilization  analogous  to  that  which 
feudalism  had  in  past  ages.  It  concentrates  vast 
masses  of  wealth,  it  places  immense  power  in  a 
few  hands,  and  gives  to  both  a  permanent  exist 
ence.  Corporations  never  die.  The  individual 
manufacturer  dies,  his  great  property  is  divided. 
If  he  has  been  a  bad  man,  there  is  a  chance  for 
hope  that  somebody  else  of  a  better  character  will 
take  possession  of  his  wealth,  and  that  it  will 
find  investment  in  various  channels  of  enterprise ; 
but  it  is  not  so  with  corporations.  What  is  sealed 
up  there,  is  sealed  up  forever,  like  an  hereditary 
entail. 

But,  Sir,  time  is  precious,  and  I  will  not  extend 
my  remarks.  This  system  will  eventually  work 
out  its  results ;  it  will  eventually  fail — I  have 
no  doubt  about  it.  I  hope  gentlemen  will  not 
feel  any  unnecessary  alarm  on  account  of  my 


prediction,  for  I  do  not  expect  that  it  will  be  ful 
filled  in  the  present  generation.  But  I  am  just 
as  certain  of  it  ultimately,  as  that  I  am  now  stand 
ing  in  this  hall.  The  system  must  eventually 
break  down,  because,  according  to  a  simple  law 
of  political  economy,  individual  enterprise  will 
outstrip  corporations.  It  is  more  economical, 
more  vigilant,  more  shrewd.  We  have,  by  State 
legislation,  built  up  very  successfully  a  great  sys 
tem  of  corporations,  and  national  legislation  has  , 
fostered  their  interests,  but,  the  time  is  coming 
when  these  institutions  will  be  brought  into  a 
full  and  fair  competition  with  unrestricted  com 
mercial  and  manufacturing  industry,  throughout 
the  world,  and  that  competition  these  corporations 
cannot  stand.  They  conduct  their  transactions  in 
such  an  expensive  manner,  that  it  more  than 
counteracts  all  the  advantages  of  their  special 
privileges. 

There  is  a  gentleman  on  this  floor  who  could  bear 
witness  to  the  truth  of  this ;  he  knows  full  well  how 
enormous  are  the  salaries  of  the  various  officers  of 
these  corporations,  and  how  large  a  share  of  all 
the  profits  is  swallowed  up  by  them.  In  one  case, 
he  has  stated  that  the  salaries  of  a  certain  corpo 
ration  in  this  neighborhood,  and  that  in  no  wise 
a  peculiar  one,  are  equal,  in  the  aggregate,  to  one 
cent  per  pound  on  all  the  cotton  spun.  The  salary 
charges  are  immense.  Five  thousand  dollars,  per 
haps,  for  the  president,  a  corresponding  salary  for 
treasurer,  agent,  &c.,  &c.,  down  through  a  long  cat 
alogue  of  officials ;  higher  salaries  than  the  Com 
monwealth  can,  or  does  afford  to  pay.  These  are 
the  reasons  why  corporations  cannot  eventually 
compete  with  private  industry.  Their  expenses 
are  enormous,  and  the  manner  in  which  their 
business  is  conducted,  is  necessarily  wasteful. 

Although  they  are  carried  with  us  to  the  great 
est  possible  perfection,  still,  even  here,  they  are 
cumbrous  and  expensive  in  their  employment  of 
capital,  and  they  will  find  it  out  before  long,  and 
then  the  stockholders  will  sell  out  to  individuals  ; 
there  will  be  no  property  destroyed— there  will 
be  no  violent  revolution — everything  will  gradu 
ally  settle  down  quietly  into  its  legitimate  chan 
nel,  into  the  hands  of  private  individuals.  I  will 
end,  as  I  begun,  by  saying  that  it  seems  to  me 
that  we  had  better  make  a  general  law  that  will 
provide  for  the  case,  as  matters  now  stand  in  this 
Commonwealth. 

Mr.  GRAY,  of  Boston.  I  cannot  see  any 
necessity  or  propriety  in  inserting  either  the 
resolve  in  its  original  shape,  or  as  it  is  proposed 
to  be  amended,  into  the  Constitution.  Yesterday 
— and  I  refer  to  the  decision  by  the  way  of  illus 
tration,  for  I  have  no  disposition  to  reflect  upon 
it,  and  it  would  not  be  in  order  for  me  to  do  so 


59th  day.] 


GENERAL   LAWS   FOR   CORPORATIONS. 


63 


Saturday,] 


GRAY  —  WHITNEY. 


[July  16th. 


— yesterday,  in  judging  whether  the  legislature 
should  be  prohibited  from  loaning  the  credit  of 
the  State,  the  Convention  decided  that  it  was 
certainly  a  very  high  power  to  give  to  the  legisla 
ture,  being  no  less  than  the  control  of  the  whole 
property  of  every  man  in  the  State.  But,  after 
all,  it  should  be  intrusted  to  the  hands  of  the 
agents  or  servants  of  the  people,  and  without  re 
strictions  ;  but  I  will  say,  Sir,  that  I  was  against 
the  restriction  proposed  yesterday,  and  I  wished 
that  the  resolve  could  have  arrived  to  its  third 
reading,  chiefly,  though  not  solely,  with  the  hope 
that  some  amendment  might  be  proposed,  which 
should  forbid  towns  to  exercise  a  like  control ; 
but  that  is  not  exactly  to  the  point  here.  It  is 
unnecessary  for  me  to  say  whether  I  think  that 
the  plan  of  a  general  framework  established  by  a 
general  law,  is  the  best  plan,  or  not  the  best  plan  ; 
it  is  unnecessary  for  me,  either  to  take  issue  with 
my  colleague,  or  to  agree  with  him  as  to  that 
matter,  because,  Sir,  I  go  behind  all  that.  Why, 
Sir,  admitting,  if  you  please,  that  the  plan  of 
granting  special  acts  of  incorporation  is  wrong, 
and  that  we  should  make  a  general  law  by  which 
people  could  come  in  and  make  corporations  for 
themselves,  why  not  leave  it  in  the  hands  of  the 
legislature  ?  The  legislature  have  shown  them 
selves  entitled  to  the  confidence  of  some  gentle 
men  who  have  spoken  before  me,  in  establishing 
that  system ;  and  why  should  we  not  be  willing 
to  let  things  stand  as  they  do  ?  Why  should  we 
tie  up  their  hands  while  the  experiment  is  in 
process  ?  Now,  Sir,  as  to  granting  special  acts 
for  corporations,  we  are  told  that  millions  of 
property  is  in  the  hands  of  corporations,  and  of 
its  effect  upon  the  labor  of  the  community,  and 
the  personal  relations  of  men.  Whatever  results 
from  corporations,  results  from  anything  that  is  a 
corporation,  whether  individuals  make  it  them 
selves,  under  a  general  law,  or  the  general  court 
makes  it  for  them,  by  a  special  act.  I  will  take 
occasion  here,  to  say,  that  I  have  always  acted 
upon  one  rule — and  I  humbly  think  it  is  a  good 
one,  after  much  reflection,  and  some  opportunities 
of  observation — and  that  is,  to  be  very  liberal  in 
granting  charters  of  incorporation,  but  very  care 
ful  in  reserving  control  over  those  charters  ;  and 
that  has  been  the  policy  of  the  legislature  of  late 
years.  The  44th  chapter  of  the  Revised  Statutes 
gave  the  legislature  power  over  all  charters.  I  do 
not  wish  to  disturb  that,  for  my  part;  and  if 
gentlemen  wish  to  stereotype  it  in  the  Constitu 
tion,  I  do  not  think  that  I  should  have  any  objec 
tion — certainly,  none  strikes  me  now.  I  think 
more  especially  should  some  such  provision  be 
made  in  reference  to  municipal  corporations ;  for, 
a  little  while  ago,  the  charter  of  the  city  of  Lynn 


came  very  near  slipping  through,  without  any 
such  effectual  provision,  and  upon  a  different 
footing  from  all  the  other  city  charters  in  the 
Commonwealth. 

I  come  back,  after  all,  to  a  repetition  of  my 
first  reason,  that  the  matter  had  better  be  left  to 
the  general  court.  One  or  two  years  since,  they 
thought  it  would  be  best  to  pass  general  acts. 
The  legislature  have  done  this,  and  they  will  per 
severe  in  it,  unless  the  wants  and  interests  of  the 
people  require  otherwise.  I  am  by  no  means  pre 
pared  to  say,  that  general  acts — everything,  of 
course,  depends  upon  what  their  provisions  are — 
will  be  the  best,  the  most  convenient,  and  the 
most  proper  way  of  proceeding,  in  regard  to  this 
matter.  I  have  full  confidence  in  the  wisdom  of 
the  legislature,  that  they  will  be  quite  as  good 
judges  as  I  am.  As  to  the  general  effect  of  cor 
porations,  all  that  I  have  to  say  is,  that  if  the 
property  of  the  State  is  locked  up  in  their  hands, 
the  legislature  keeps  the  key,  and  I  presume 
always  will  keep  it ;  and  I  have  no  objection  that 
it  should  be  so  ;  but,  I  think  that  we  may  safely 
leave  the  matter  as  it  stands  in  the  Constitution. 
We  should  probably  have  no  greater  evils  than  we 
have  had ;  and,  if  any  new  evils  should  appear 
from  leaving  the  legislature  its  present  license,  I 
think  the  people  will  do  what  is  necessary  to  re 
strict  them.  If  that  should  be  so,  and  if  some 
future  exigency  should  arise  so  as  to  require  their 
action,  I  would  not  tie  up  their  hands  either  way 
upon  the  subject  irrevocably. 

Mr.  WHITNEY,  of  Conway.  I  know,  Sir, 
that  the  Convention  are  impatient  to  take  the 
question.  I  am  fully  aware  that  there  is  running 
through  this  Convention  a  strong  desire  upon  the 
part  of  many  members,  to  limit  our  discussions,  so 
that  we  may  act,  as  soon  as  possible,  upon  the 
questions  which  yet  remain  to  be  acted  upon  by 
this  body ;  but  I  desire  to  say  a  few  words,  and  I 
think  that  I  have  special  claims  in  this  particular 
case  for  a  few  moments  of  your  time,  before  final 
action  is  taken  upon  this  question.  I  had  the 
honor  to  be  upon  the  Committee  who  reported  the 
original  resolution,  out  of  which  the  amendment, 
now  under  discussion,  has  grown,  and  I  regard 
this  subject  as  one  of  the  most  important  subjects 
that  can  come  before  this  Convention.  I  do  not 
agree  with  those  gentlemen  who  say  that  our  sys 
tem  in  Massachusetts,  hitherto,  has  been  a  perfect 
system,  although  it  has  produced  some  very  good 
results.  The  gentleman  from  Boston,  on  my 
right,  (Mr.  Schouler,)  and  the  one  before  me, 
(Mr.  Gray,)  say  that  the  legislature,  in  granting 
special  acts  of  incorporation,  has  been  careful  to 
investigate  the  cases,  and  to  keep  the  control  of 
these  companies.  I  grant  that ;  but  would  it  have 


64 


GENERAL  LAWS  FOR  CORPORATIONS. 


[59th  day. 


Saturday,] 


WHITNEY. 


[July  16th. 


been  otherwise  under  a  general  law  ?  The  gen 
tleman  on  my  right  says,  that  under  a  general  law, 
any  special  breach  of  that  general  act  by  a  partic 
ular  corporation,  would  necessitate  a  repeal  of  the 
general  law.  If  that  gentleman  had  reflected 
with  his  usual  sagacity  and  judgment,  he  has  too 
much  good  sense  not  to  know  better  than  to  have 
made  such  an  allegation  here.  The  gentleman 
knows,  full  well,  that  the  legislature  can  pass  a 
general  remedial  or  penal  law,  applicable  to  cor 
porations  as  well  as  to  individuals.  A  general  law 
can  be  passed,  by  which,  if  companies  violate 
their  charters  in  any  single  particular,  either  by 
working  more  hours  in  a  day  than  your  law  pro 
vides  for,  or  in  any  other  way, — by  any  breach  of 
right,  justice,  or  law, — the  corporation  can  be 
made  indictable,  and  punished,  by  taking  away 
their  charter ;  or,  by  punishment  of  their  directors 
and  stockholders,  they  can  be  made  amenable. 
If  the  gentleman  had  reflected  for  a  moment,  he 
would  have  seen  that  his  objection  was  ground 
less.  I  would  ask  gentlemen  here,  to  bring  this 
matter  home,  and  see  what  we  have  here  in  hand. 
The  gentleman  from  North  Brookfield,  (Mr. 
Walker,)  has  argued  the  general  doctrine  of  cor 
porations.  I  will  agree  with  him  in  the  main  ; 
but  that  is  not  the  question  here,  before  the  Con 
vention.  I  take  it  for  granted,  that  the  advanta 
ges  growing  out  of  associations  under  the  form  of 
corporations,  are  such,  that  the  system  is  to  be 
continued,  to  some  extent,  in  this  Commonwealth, 
under  one  form  and  mode  of  making  laws,  or 
another ;  and  now,  the  question  is,  to  what  extent 
it  shall  be  continued,  and  how  ?  whether  by  a 
system  of  special  acts,  or  by  general  laws  ?  not 
whether  you  will  apply  all  the  principles  of  cor 
porate  action,  by  a  general  law,  to  mechanics,  and 
tavern-keepers  ;  but,  in  what  manner  shall  it  be 
applied,  in  all  cases,  where  its  application  is  prop 
er  ?  Shall  the  legislature  assume  to  deal  out  these 
acts  to  a  few  of  our  citizens,  as  special  favors, 
when  they  belong,  according  to  all  the  principles 
of  your  original  Constitution,  and  according  to 
all  the  principles  of  justice,  to  the  whole  people 
of  the  Commonwealth,  as  a  right  ?  I  undertake 
to  say,  that  gentlemen  have  not  met  the  issue 
here.  It  is  not  what  the  general  law  shall  be  ; 
but,  whether  there  shall  be  a  general  law,  open 
and  accessible  to  every  citizen  of  the  Common 
wealth  alike  ? — whether  it  shall  be,  in  the  lan 
guage  of  the  declaration  of  your  Constitution,  in 
article  ten,  of  the  Bill  of  Rights,  which  says  that, 
"  each  individual  of  the  society  has  a  right  to  be 
protected  by  it  in  the  enjoyment  of  his  life,  liber 
ty,  and  property,  according  to  standing  laws  ?" 
Now,  Sir,  this  is  a  property  question.  The  ques 
tion  is,  whether  all  the  citizens  of  the  Common 


wealth  shall  have  the  same  rights  and  privileges  to 
associate  together  for  the  purpose  of  acquiring 
property  ?  And  I  undertake  to  say  that  you  violate 
the  principles  of  equality,  and  right,  and  justice, 
and  the  declaration  of  the  present  Constitution,  as 
much  in  denying  me  the  right  to  associate  with 
my  fellow,  under  a  general  law  for  the  advan 
tages  of  corporate  action,  as  though  in  a  case  where 
my  life,  or  my  liberty,  was  concerned.  You 
should  not  deny  me  the  same  right  of  trial  which 
you  give  to  other  citizens.  I  claim,  that  whatever 
right  you  grant  to  any  other  man  to  acquire  prop 
erty,  either  by  a  special  charter  or  by  a  general 
law,  you  should  grant  me  a  like  privilege,  and  a 
like  opportunity.  That,  Mr.  President,  is  the 
question  before  us. 

I  took  down  some  of  the  remarks  of  the  gen 
tleman  this  morning,  with  a  view  to  reply  to 
them,  and  if  the  Convention  will  indulge  me  for 
a  moment,  I  will  briefly  refer  to  them.  The  gen 
tleman  from  Boston  who  first  spoke,  says  that  this 
proposition  favors  corporations.  That  may,  or 
may  not  be  so.  It  depends  upon  the  general  law 
that  you  may  make.  If  it  favors  corporations, 
with  proper  and  suitable  restrictions,  I  am  in 
favor  of  it ;  for  I  take  issue  with  gentlemen  who 
say  that  corporations  are  necessarily  monopolies. 
They  are  only  monopolies  inasmuch  as  you  make 
them  exclusive.  They  are  monopolies  under  your 
system  of  special  charters ;  but,  open  them  to 
every  citizen,  and  they  cease  to  be  monopolies. 
A  monopoly  is  to  give  to  a  man  the  control  of  the 
manufacture  of  any  particular  article,  or  to  give 
to  him  exclusively  a  market  for  the  sale  of  any 
particular  thing ;  which  privilege  you  deny  to 
other  men.  In  this  exclusive  privilege  consists 
the  monopoly.  Now,  if  this  leads  to  the  increase 
of  corporations,  properly  constituted  and  guarded, 
and  so  created  that  they  shall  not  interfere  with 
individual  rights,  or  the  rights  of  towns  of  this 
Commonwealth,  then  I  go  for  the  creation  of  such 
corporations.  Every  gentleman  is  aware,  that  in 
the  neighboring  States,  the  people  are  engaged  in 
diversified  and  prospering  manufactures,  built  up 
under  a  self- associating  system  of  general  corpo 
ration  laws,  which  have  greatly  promoted  the 
wealth  of  the  citizens  of  those  States,  individually, 
and  in  contributing  to  their  individual  wealth,  has 
contributed  to  the  aggregate  wealth  of  these  several 
States  ;  while  in  Massashusetts,  we  have  trampled 
down  enterprise,  by  the  delays  and  fluctuations 
of  our  legislation,  sometimes  denying  charters, 
and  sometimes  granting  them  with  great  liberality, 
while  other  States  have  left  their  citizens  free  to 
incorporate  themselves.  Look  at  the  State  of 
Connecticut,  for  example  ;  and,  not  wits  tanding 
our  Lowell,  and  Salem,  and  other  large  manu- 


59th  day.] 


GENERAL   LAWS    FOR   CORPORATIONS. 


65 


Saturday,] 


WHITNEY  —  SCHOULER. 


[July  16th. 


facturing  towns,  the  fact  appears  that  they  manu 
facture  more  on  the  head,  in  regard  to  population, 
than  we  do,  with  all  our  privileged  corporations — 
I  believe  largely  more.  Sir,  they  have  gone  into 
every  kind  of  manufacture,  from  the  very  small 
est  pin,  and  hook  and  eye,  to  the  fabrics  them 
selves  which  these  little  articles  are  used  to  fasten. 
The  State  of  Connecticut  is  dotted  all  over  with 
manufactories,  which  have  grown  up  under  the 
general  law  of  incorporations  in  that  State,  which 
has  never  Avorked  any  evil  to  anybody.  Half  a 
dozen  men  can  make  themselves  into  a  corpora 
tion  there,  and  go  to  work  any  day.  But  how  is 
it  here  ?  If  half  a  dozen  men  want  to  go  to 
work  to-morrow  to  manufacture  pins  and  needles, 
they  have  to  wait  until  next  January,  and  then 
they  have  to  come  to  this  House  and  satisfy  the 
legislature  that  they  have  a  kind  of  claim  to  enter 
into  this  sort  of  business.  Sir,  who  can  truly 
and  reasonably  say,  that  the  legislature,  as  a 
body,  are  better  judges  of  what  individuals  can 
do  for  their  own  profit  and  advantage,  than  the  in 
dividuals  are  themselves  ?  Who  would  take  the 
opinion  of  the  legislature,  in  regard  to  a  piece  of 
paper  which  he  wanted  to  get  discounted  at  a 
bank  ?  Such  a  system  of  law,  Sir,  is  not  founded 
either  on  equity  or  common  sense.  It  is  good 
for  nothing.  I  know  well  enough  how  charters 
are  obtained  here.  We  all  know  that  our  legis 
lative  opinion  and  action  is  variable  on  this  sub 
ject.  Some  legislatures  are  in  favor  of  almost  all 
incorporations,  and  freely  grant  special  charters, 
while  other  legislatures  withhold  acts  of  incorpo 
ration  altogether.  But,  let  me  go  back  a  moment 
to  the  manufacture  of  needles.  If  I  was  in  the 
State  of  Connecticut,  or  New  York,  or  Ohio,  or 
in  two-thirds  of  the  States  of  this  Union,  I  could  go 
to  the  capitalist,  if  I  was  a  mechanic,  and  under 
stood  how  to  make  these  needles,  and  could  asso 
ciate  with  him,  putting  in  my  hundred  dollars, 
and  my  skill,  and  he,  perhaps,  his  thousand  dol 
lars,  and  we  could  start  a  manufacturing  estab 
lishment  to-morrow.  How  is  it  here  ?  Why, 
Sir,  as  I  before  said,  we  must  wait  until  January 
next,  and  then  we  must  come  up  here  by  a  law 
yer,  and  go  before  a  committee  of  the  legislature. 
We  must  first  satisfy  them  that  it  is  a  good  en 
terprise.  We  must  fee  a  lawyer  at  a  nameless 
amount — sometimes  more,  and  sometimes  less — 
to  present  the  case  before  your  committee.  If 
we  happen  to  meet  with  a  man  desiring  a  like 
privilege,  for  the  manufacture  of  some  other 
article,  why  we  may  join  him,  and  drive  a  bar 
gain  together,  with  some  members  of  the  legis 
lature,  the  friends  of  one  measure  joining  the 
friends  of  the  other  to  insure  the  passage  of 
both,  and  possibly  by  the  end  of  next  March,  we 

53 


may  get  our  charter  granted.  But,  Sir,  if  I  was 
a  party  concerned,  and  knew  the  business,  and 
wanted  to  make  money  speedily,  I  could  slip  into 
Connecticut  and  start  a  manufactory,  and  be 
come  well  established,  while  other  parties  were 
hanging  on  here  in  the  endeavor  to  obtain  a 
charter. 

Mr.  SCHOULER.  I  would  ask  the  gentleman 
from  Conway,  if  he  is  not  aware,  that  we  have  a 
general  law  in  the  State  of  Massachusetts,  in  re 
gard  to  corporations. 

Mr.  WHITNEY.  Yes,  Sir,  we  have  a  law, 
and  it  is  a  general  law,  and  the  gentleman  will 
find  that  there  are  nearly  fifty  corporations  organ 
ized  under  that  law ;  and,  if  you  go  into  the 
interior  towns  of  the  Commonwealth,  you  will 
find  that  they  are  doing  a  successful  business  un 
der  that  law.  I  grant  that ;  but  they  come  here, 
and  ask  for  special  charters,  he  says,  notwithstand 
ing,  and  for  what  purpose  ?  Why,  in  order  that 
they  may  dodge  the  wholesome  provisions  of  that 
law.  That  law  requires  that  the  name  of  every 
stockholder  in  a  corporation,  shall  be  entered  in 
the  books  of  the  town  clerk,  where  the  corpora 
tion  exists,  in  order  that  it  may  be  known  whether 
the  corporators  are  solid  men,  or  men  of  straw. 
It  is  also  necessary,  that  when  any  transfer  of 
stock  is  made,  such  transfer  should  be  entered  in 
a  similar  manner,  in  order  that  the  public  may 
not  be  cheated.  And  now,  Sir,  that  law  is  in 
successful  operation,  and  nearly  fifty  small  man 
ufacturing  establishments  are  in  operation  under 
it.  Possibly  some  eight  or  ten  of  them,  have  since 
incorporated  under  special  charters.  A  gentle 
man  from  Springfield,  told  me,  a  day  or  two  ago, 
and  he  is  a  lai'ge  holder  in  corporations,  and  knows 
pretty  well  how  the  thing  works.  He  told  me, 
that  while  he  favored  a  general  law,  on  the  ground 
that  it  was  better  for  all,  and  more  equal  yet,  there 
were  sometimes  peculiar  advantages  in  having  a 
special  charter.  As  an  instance  of  this,  he  men 
tioned,  that  being  desirous  of  forming  a  steam 
boat  company  in  Connecticut,  instead  of  organ 
izing  it  under  the  general  law,  he  happened  to 
find  an  old  special  charter,  and  had  the  company 
organized  under  it,  simply  because  it  was  less 
restrictive,  and  attended  with  less  trouble,  and  the 
charter  was  more  liberal  than  the  general  law. 
Nevertheless,  said  he,  the  general  law  would 
have  answered  all  our  purposes,  and  we  should 
have  organized  under  it,  had  we  not  found  this 
old  special  charter. 

The  main  objection  I  have  to  these  special  char 
ters  is,  that  they  interfere  with  private  enterprise, 
whereas,  a  general  law  places  all  upon  the  same 
level.  There  is  no  fear  of  getting  a  general  law, 
that  will  interfere  with  private  enterprise,  half  as 


66 


GENERAL  LAWS  FOR  CORPORATIONS. 


[59th  day. 


Saturday,] 


WHITNEY. 


[July  16th. 


much  as  your  special  laws  will  do,  because,  in  pass 
ing  a  general  law,  it  is  brought  to  bear  upon  every 
member  of  the  legislature.  A  general  law  affects 
the  whole  community ;  and,  as  it  is  good  or  bad, 
so  each  member  must  answer  to  his  constituents, 
according  to  his  vote.  But,  when  a  member  gives 
his  vote  in  favor  of  a  special  law,  which  is  but 
of  limited  application,  his  constituents  probably 
know  nothing  about  it,  and,  if  they  did,  they 
might  not  care  about  it,  unless  they  were  particu 
larly  interested  'ti-iiaselves.  In  such  case,  a 
vote  costs  a  mem>~r  nothing ;  and,  as  the  gentle 
man  from  Taunt  :>u  said,  the  other  day,  every-body 
knows  that  there  i*  u  predisposition  in  the  human 
heart  to  accommodate  a  neighbor,  when  a  man 
can  do  it  so  easily  and  cheaply  as  by  giving  a  vote 
that  will  not  bring  himself  into  conflict  with 
others.  13  at,  in  case  of  a  general  law,  applicable 
throughout  the  Commonwealth,  and  to  bear  upon 
all  parties  and  all  sections  of  the  Commonwealth 
equally,  it  would  be  matter  of  general  concern 
ment,  and  men  would  bring  their  minds  to  bear 
upon  it,  and  hence  it  would,  in  all  probability, 
be  the  best  law  that  could  be  framed. 

The  gentleman  says,  that  those  parties  desiring 
charters,  should  come  before  the  legislature  and 
make  out  a  case,  before  they  should  obtain  one.  I 
take  issue  with  the  gentleman  there.  There  is  in 
my  town  a  cutlery  establishment,  which  was 
founded  last  year  under  our  general  law,  and  it 
was  formed  by  mechanics  and  artisans  ;  men 
who  were  at  work  for  a  wealthy  individual ;  and 
they  came  up  here  and  petitioned  to  be  incorpo 
rated  in  a  town  on  the  eastern  side  of  the  Con 
necticut  River,  but  they  failed  to  obtain  their 
charter.  Why  did  they  fail  ?  Because,  they  were 
poor  mechanics,  and  could  not  reach  those  higher 
sources  of  influence.  They  did  not  obtain  their 
special  charter ;  but,  since  the  general  law  was 
enacted,  extending  the  right  to  individuals  to 
self-incorporate,  whether  possessed  of  much  or 
little  property,  these  men  came  together  and  put 
in  the  little  money  which  they  had,  and  became 
stockholders  in  that  corporation,  and  are  now 
doing  a  good  business,  manufacturing,  so  far  as  I 
can  learn,  the  best  cutlery  that  is  made  in  the 
State  of  Massachusetts.  Now,  Sir,  I  undertake 
to  say,  that  these  men  should  have  that  right ; 
that  you  should  not  grant  to  the  wealthy  capital 
ist  a  special  privilege  of  corporate  action,  and  deny 
to  the  laborer  the  right  to  associate  with  his  fellow 
laborer,  under  a  general  law. 

Something  has  been  said,  in  the  course  of  tins 
debate,  by  gentlemen  who  spoke  when  the  sub 
ject  was  under  consideration  the  other  day,  about 
the  danger  of  arraying  corporate  wealth  against 
your  amended  Constitution.  I  wish  to  allude  to 


this,  in  passing,  as  I  thought  it  possible  that  it 
might  have  a  little  influence  upon  some  reformers 
in  this  Convention.  For  myself,  I  do  not  believe 
that  that  intimation  is  entitled  to  any  weight 
whatever.  I  do  not  think  that  we  sit  here  legis 
lating  under  the  fear  of  corporate  wealth.  I  do 
not  believe  that  we  will  admit  it  to  ourselves,  for 
a  moment.  And,  if  it  were  true — which  I  trust 
it  is  not — I  believe  that  corporations,  managed  by 
sound  and  judicious  men,  will  prefer  a  sound  and 
safe  general  law  for  the  creation  of  corporations, 
rather  than  a  system  of  special  enactment.  I 
believe  that  corporators  generally  are  in  favor  of 
it.  I  do  not  believe  that  they  will  array  them 
selves  as  a  class,  against  your  principle  of  general 
law ;  but  even  if  they  should  so  array  them 
selves,  who  doubts  where  the  victory  would 
rest  ?  Possibly  these  corporations  may  have 
their  influence  in  this  hall ;  but,  let  them  once 
array  themselves  as  a  class,  against  the  individual 
rights  of  the  citizens  of  Massachusetts,  and  these 
corporations  will  soon  go  to  the  wall.  I  say  that 
there  is  no  fear  here;  corporators  may  be  too 
strong  for  your  legislatures,  they  may  be  strong 
in  this  Convention,  but  they  are  not  yet  stronger 
than  the  masses  of  the  people  ;  and,  farther,  I 
hold  that  this  was  one  of  the  main  reasons  why 
this  Convention  was  called.  We  have  talked 
about  matters  here  that  are  small  in  importance, 
when  compared  with  this  ;  and,  if  you  will  refer 
to  the  document  which  has  been  so  often  referred 
to — I  have  not  examined  it  myself  until  this 
morning,  and  I  regret  that  I  have  not  had  time 
to  examine  it  better,  and  I  must  confess,  also, 
that  I  was  not  aware,  until  now,  that  it  had  taken 
such  decided  ground  upon  this  subject.  I  refer 
to  the  report  of  the  committee  upon  the  subject 
of  this  Convention,  written  by  the  able  gentle 
man  for  Erving,  (Mr.  Griswold).  I  say  if  gen 
tlemen  will  refer  to  this  document,  which  is  the 
report  of  the  joint  special  committee  of  the  Sen 
ate  and  House  of  Representatives,  to  whom  was 
referred  so  much  of  the  governor's  message  as 
related  to  a  revision  of  the  Constitution  of  the 
State,  they  will  find  that  this  was  distinctly  put 
forth  as  one  of  the  issues  before  the  people,  in 
calling  this  Convention.  I  will  ask  your  atten 
tion  for  a  moment,  to  what  is  herein  assigned  as 
one  of  the  reasons  for  bringing  this  Convention 
together : — 

"  The  Committee  submit,  that  the  Constitution 
should  provide  for  general  instead  of  special  laws. 
How  far  this  principle  shall  be  made  to  apply  to 
specific  subjects,  will  remain,  of  course,  for  the 
Convention  to  settle ;  but  we  have  no  hesitation 
in  saying,  that  banks,  railroads,  manufactures, 
and  insurance  companies,  may  be  safely  subjected 


59th  day.] 


GENERAL   LAWS    FOR    CORPORATIONS. 


67 


Saturday,] 


WHITNEY. 


[July  16th. 


to  general  laws  ;  and,  probably,  on  more  thor 
ough  examination,  the  principle  may  be  extended 
much  farther.  But  the  principle,  even  to  this 
extent,  once  settled,  and  incorporated  into  the 
Constitution  of  the  State,  will  effect  an  entire 
change  in  our  legislation.  Our  laws  will  then  be 
more  simple,  plain,  and  better  understood  ;  their 
benefits  will  not  be  confined  to  a  few,  or  to  cer 
tain  classes  ;  but  will  be  equal  in  their  operations, 
diffusing  their  benefits  among  all  alike,  whether 
high  or  low,  rich  or  poor.  A  large  portion  of  the 
time  now  occupied  by  each  session,  in  passing 
and  amending  special  acts,  will  be  saved ;  thus 
furnishing,  as  we  have  already  suggested,  a 
strong  reason  for  limiting  the  sessions  of  the  leg 
islature  to  a  period  much  shorter  than  is  now 
usually  occupied. 

"  This  important  provision  should  be  incorpo 
rated  into  the  Constitution  ;  it  should  become  a 
part  of  the  organic  law  of  the  State,  a  fundamen 
tal  principle  in  the  government,  that  it  may  be 
placed  beyond  the  reach  of  private  and  personal 
interests,  or  party  action,  or  the  fluctuating  opin 
ions  of  successive  legislatures." 

Now,  Sir,  let  me  ask  if  we  can  take  any  issue 
more  distinctly  than  we  took  this  issue  there  ?  Is 
there  any  dodging  there  ?  Is  there  any  equivoca 
tion  there  ?  Did  we  not  put  this  issue  into  the 
canvass,  when  we  appealed  to  the  people  for  a  call 
of  the  Convention  ?  Why,  Sir,  we  put  it  every 
where.  It  was  in  the  Democratic  State  Address, 
and  in  the  Free  Soil  State  Address  ;  and,  to-day, 
it  is  the  most  popular  question  in  the  Common 
wealth,  in  reference  to  all  that  we  have  talked 
about  in  regard  to  this  Constitution  ?  Men  of  no 
party  have  ever  raised  their  voices,  in  a  tangible 
shape,  against  the  great  principle  that  all  your 
laws  creating  corporations  shall  be  equal  laws. 
No,  Sir ;  they  do  not  meet  the  principle  ;  they 
dodge  it ;  they  go  round  it,  and  come  up  here, 
year  after  year,  and  evade  it,  until  nearly  one- 
half  of  the  capital  of  the  State  is  incorporated 
capital.  Now,  Sir,  in  all  conscience,  let  the  in 
dustry  of  the  men  of  small  means  be  incorporated 
also.  Let  them  have  like  privileges.  I  do  not  go 
for  levelling  all  down  to  one  level,  but  I  go  for 
raising  all  up  to  one  principle — for  placing  all 
upon  the  same  platform.  "  Right  "  is  what  I  go 
for.  I  do  believe  that  there  are  advantages  occa 
sionally  to  be  gained  by  incorporations.  I  do  not 
believe  that  the  time  will  ever  come — as  some 
suppose — when  this  corporation  system  will  give 
way  entirely.  Corporations  may  sometimes  come 
into  conflict  with  individual  capital  and  enter 
prise,  but,  if  they  are  formed  under  a  general 
law,  then  the  same  law  is  open  to  all,  and  the 
poor  man,  with  his  small  means,  can  combine 
with  others,  just  as  the  men  can  do  who  are 
worth  their  millions.  A  general  law,  I  hold  to  be 
democratic,  in  every  sense  of  the  word. 


The  gentleman  from  Natick,  (Mr.  Wilson,)  told 
us  the  other  day,  that  he  had  known  gentlemen 
come  here,  year  after  year,  and  make  their  thou 
sand  dollars  during  the  session  of  the  legislature, 
in  lobbying  through  acts  granting  special  privi 
leges.  And  the  gentleman  from  Boston,  (Mr. 
Giles,) — whose  depth  of  thought,  and  of  research 
into  the  great  principles  upon  which  our  consti 
tutional  law  is  founded,  is,  to  my  mind,  equal  to 
that  of  any  Democrat,  or  Free  Soiler,  or  man  of 
any  other  party  in  the  Convention — told  us,  yes 
terday,  that  there  was  danger  that  corporate  wealth 
would  become  too  strong  for  the  Commonwealth. 
I  agree  to  all  that.  But  how  is  it  to  become  so  ? 
Simply,  by  confining  your  corporations  to  a  few 
men,  and  thereby  give  them  special  advantages  to 
accumulate  and  swallow  up  the  wealth  of  the 
Commonwealth,  at  the  same  time  that  you  deny 
to  the  poor  man  the  right  of  self- association  for 
similar  objects.  Now,  a  poor  man  can  hardly 
undertake  to  get  a  charter  through  the  legislature. 
There  was  a  small  company  of  mechanics  in  my 
town,  who  wanted  an  act  of  association,  to  manu 
facture  joiners'  tools.  They  presented  their  mat 
ter  to  the  legislature,  and  sent  an  able  man  before 
the  committee,  who  made  out  a  case,  as  the  gen 
tleman  from  Boston,  (Mr.  Schouler,)  would  say. 
The  legislative  committee  reported  in  favor  of  it. 
The  bill  was  a  long  time  discussed  in  the  House 
of  Representatives,  but  it  finally  failed  of  being 
passed,  by  one  or  two  votes.  The  second  year 
they  applied  again,  and,  after  an  expenditure  of 
almost  six  hundred  dollars,  the  act  was  passed,  by 
the  casting  vote  of  the  president,  and  it  became  a 
law.  Now,  why  did  these  poor  men  fail,  in  the 
first  instance  ?  They  could  not  reach  the  sources 
of  influence  in  the  legislature ;  they  could  not  go 
to  A,  to  B,  and  to  C,  and  say,  this  is  an  institu 
tion  which  will  favor  your  particular  views,  and 
therefore  ought  to  be  chartered.  If  they  could 
have  done  that,  there  would  have  been  no  trouble. 
But  they  came  before  the  legislature  with  industry 
and  small  means,  and  endeavored  to  make  out  a 
case  for  a  charter.  But  such  appliances  had  but 
little  influence  the  first  year,  and  they  failed, 
though  the  second  year,  by  unremitted  exertions, 
they  succeeded.  Well,  they  obtained  the  charter, 
and  went  to  work.  They  were  prospered,  until 
overtaken  by  a  calamity  of  which  they  had  no 
control.  A  fire  burnt  them  out  clean,  and,  un 
fortunately,  they  were  but  slightly  insured. 

Now,  what  was  the  advantage  of  your  general 
law,  in  this  case  ?  They  had  not  themselves  means 
to  rebuild,  but  there  was  a  general  law  which 
allowed  these  men  to  seek  capital  wherever  they 
could  find  it,  Conway  being  a  small  town,  the 
capital  could  not  be  obtained  there.  They  went 


68 


GENERAL  LAWS  FOR  CORPORATIONS. 


[59th  day. 


Saturday,] 


WHITNEY. 


[July  16th. 


over  to  Greenfield,  and  showed  to  the  capitalists 
of  that  place  the  state  of  their  business,  the 
amount  of  work  they  had  performed,  and  the 
profits  they  had  made,  and  the  result  was,  that 
those  capitalists  immediately  put  into  the  concern 
$20,000.  The  establishment  was  put  into  opera 
tion  there,  and  they  are  now  doing  a  flourishing 
business.  What  would  have  been  the  result,  had 
there  been  no  general  law  ?  They  would  have 
scattered,  or  have  gone  off  into  Connecticut,  and 
commenced  their  works  there,  and  Massachusetts 
would  have  lost  the  benefit  of  their  skill  and 
knowledge  in  that  particular  branch  of  business ; 
and  would  have  lost  the  advantages  arising  from 
the  industry  and  capital  employed  in  it. 

Now,  in  this  instance,  we  see  an  advantage 
which  should  be  retained  under  a  general  law, 
and  who  is  there  that  wants  to  continue  the 
present  system,  of  passing  acts  of  incorporations  ? 
The  gentleman  from  Boston  says  we  are  liberal 
in  granting  charters.  We  are  sometimes.  We 
granted  a  great  number  in  1852,  amounting, 
according  to  some  gentlemen,  to  $14,000,000. 

In  the  general  law,  we  had  restricted  the  forma 
tion  of  companies  having  a  capital  of  over  $200,- 
000.  At  the  time  of  the  passage  of  that  law,  the 
legislature  was  conservative — and  the  gentleman 
from  Natick,  (Mr.  Wilson,)  was  one  of  them — 
and,  doubting  whether  a  law  that  did  not  limit  the 
amount  of  capital  in  each  case,  could  be  carried 
through  the  legislature,  the  law  was  limited  as  it 
should  not  have  been ;  but,  remembering  the 
principles  laid  down  by  our  fathers,  that  all  laws 
should  be  equal,  they  paid  we  will  begin  to  return 
to  an  equality  in  law — from  which,  by  special 
acts  we  have  departed— by  allowing  small  corpo 
rations  to  be  formed  first,  and  we  will  limit  the 
capital  to  two  hundred  thousand  dollars.  Well, 
it  was  probably  wisdom  so  to  direct  that  measure 
at  that  time,  for  it  would  have  failed  in  the  legis 
lature  in  any  other  shape. 

Now,  I  desire  to  put  the  question  to  gentlemen 
in  this  House,  whether,  as  individual  men,  form 
ing  the  organic  law  of  the  Commonwealth  of 
Massachusetts ;  whether,  as  honest  and  fair  minded 
men,  you  want  to  continue  in  Massachusetts  a 
system  by  which  individuals  can  make  their 
thousand  dollars  a  year  by  lobbying  through 
special  charters  ?  Whether  you  wish  to  turn  your 
legislative  halls  into  a  body  of  men  who  can  and 
may  be  influenced  to  favor  the  rights  of  the  few, 
at  the  expense  of  the  rest  ?  Where  is  the  man 
who  wants  to  continue  this  system  ?  I  do  not 
know  one. 

I  gathered  an  idea  or  two  from  the  gentleman 
from  Taunton,  (Mr.  Morton,)  the  other  day, 
though  he  was  speaking  upon  another  subject, 


which  cover  the  entire  question.  The  gentleman 
said,  "  adopt  principles  of  right  and  justice,  and 
they  never  will  mislead  an  individual,  or  a  party, 
of  the  Commonwealth.  You  never  can  have 
liberty,  unless  it  is  based  upon  principles  of 
equality,  and  the  most  sacred  exercise  of  the 
principle  of  equality,  is  in  the  enactment  of  laws 
which  shall  bear  upon,  and  privilege  alike,  all 
citizens." 

Now,  gentlemen  know  what  a  privilege  is.  It 
is  a  peculiar  advantage  enjoyed  by  one  man,  and 
not  enjoyed  by  all  men ;  and  if  you  grant  a  special 
charter,  giving  to  a  few  individuals  special  rights 
and  advantages,  you  are  granting  special  privi 
leges  ;  and,  so  far  as  they  are  special,  they  are 
wrong  and  unjust,  and  ought  to  be  unconstitu 
tional.  I  say  it  is  a  matter  of  right,  which  has 
come  down  to  us  as  an  inheritance  from  our 
fathers,  that  every  citizen  in  the  Commonwealth 
has  a  right  to  equal  advantages  and  privileges, 
and  you  have  not  the  right,  according  to  the  prin 
ciples  upon  which  you  based  your  Constitution, 
to  trespass  upon  individual  rights,  or  to  make  one 
man  rich  by  giving  him  special  privileges,  and 
deny  riches  to  another  man,  by  a  refusal  of  the 
same  privileges. 

Now,  the  gentleman  from  Cambridge,  (Mr. 
Sargent,)  this  morning,  in  saying  something  upon 
this  subject,  asked  if  we  have  not  done  well  here 
tofore  r  I  think  we  have  done  well  in  this  Com 
monwealth,  and  as  a  Commonwealth,  in  spite  of 
the  disadvantages  growing  out  of  the  system  of 
special  legislation.  But  our  prosperity  has  not 
been  owing  to  that  system,  but  has  come  in  spite 
of  it.  We  are  indebted  for  it  to  other  things — to 
our  common  schools,  our  industry,  our  capacity 
of  acquiring  wealth,  our  manufacturing,  our  in 
genuity,  our  Yankee  enterprise,  and  things  like 
these.  The  gentleman  from  Cambridge  will  not 
say  our  prosperity  is  owing  to  the  granting  of 
special  charters.  He  is  too  practical  a  man  for 
that.  I  contend  that  we  should  have  had  more 
wealth  and  enterprise,  more  diversity  of  manufac 
tures,  more  advantages  every  way,  if  we  had 
adopted  a  system  of  general  laws  years  ago. 

This  is  no  experiment  in  other  States.  The 
State  of  New  York,  great  in  all  that  pertains  to 
business  enterprise — unsurpassed,  and  unparallel 
ed  in  her  business  achievements — is  worthy  of 
being  referred  to  and  copied.  She  may  truly  be 
called  the  Empire  State,  and  we  may  well  look  to 
her  for  example.  She  began  in  this  matter  of 
passing  general  laws,  as  far  back  as  1838,  and,  in 
that  year,  passed  a  general  law  in  relation  to  the 
matter  of  banking,  the  most  difficult  department  of 
all.  She  continued  to  increase  her  number  of  gene 
ral  laws,  one  after  another,  down  to  1846,  when  her 


59th  day.] 


GENERAL   LAWS    FOR   CORPORATIONS. 


69 


Saturday,] 


WHITNEY. 


[July  16th. 


new  Constitution  was  formed.  In  that  Constitu 
tion  a  provision  was  inserted,  that  no  special  char 
ter  should  be  granted.  And  this  provision  was 
not  rashly  adopted.  She  had  had  such  a  system 
partially  in  operation  for  twelve  years,  and  even 
longer, — but  I  only  go  back  to  the  time  of  the 
passage  of  the  general  banking  law, — and  the  peo 
ple  of  that  State  considered  the  matter  of  so  much 
importance,  that  they  incorporated  it  into  their 
Constitution. 

So  the  people  of  the  great  agricultural  State  of 
Ohio,  after  suffering  many  years  from  special 
legislation,  and  special  grants,  got  together,  and 
called  a  Convention  mainly  in  reference  to  that 
matter.  I  was  in  Ohio  at  the  time,  and  the  prin 
cipal  question  in  the  canvass,  was  that  in  reference 
to  altering  the  Constitution  with  regard  to  the 
creation  of  corporations,  and  of  the  right  of  the 
legislature  to  pass  special  laws  for  them.  The 
people  carried  the  principle  that  corporations 
should  be  created  under  general  laws,  and  they 
adopted  the  Constitution,  embodying  that  provis 
ion,  by  a  large  majority. 

I  am  yet  to  hear  of,  or  find  a  man  in  any  State 
in  this  Union,  where  general  laws  have  been  es 
tablished,  who  finds  fault  with  such  laws,  unless 
it  be  that  man  who  is  wanting  special  privileges 
under  special  law,  for  himself.  That  general  law 
of  Massachusetts  passed  in  this  State,  which  has 
been  called  a  "  corporation-ridden  State  " — though 
I  do  not  believe  it  true — that  law  has  never  been 
attacked.  Her  legislature  has  passed  from,  the 
hands  of  one  party  to  the  other,  but  they  dare 
not  touch  it.  The  principle  is  so  in  accordance 
with  the  principle  of  right  and  justice,  which  re 
sides  in  the  breast  of  every  one  of  our  citizens, 
that  no  man  has  dared  to  rise  and  attack  it,  or 
move  to  repeal  it. 

And,  in  reference  to  the  banking  law,  which  has 
been  referred  to,  they  have  not  repealed  that  law. 
Why  have  they  not  done  it  ?  Gentlemen  say  the 
law  is  not  used.  I  say  it  will  be  used.  And  I 
say  that  the  law  in  relation  to  banking  would 
have  been  used,  ere  this,  extensively,  had  it  not 
been  for  the  idea  running  through  the  minds  of 
many,  who  wanted  special  privileges,  that  by 
waiting,  they  would  be  able  to  obtain  from  the 
legislature  a  special  charter,  with  those  special  priv 
ileges.  As  it  is  now,  a  bank  is  soon  to  be  put  into 
operation,  by  some  shrewd  financiers  of  the  city  of 
Boston,  under  that  law.  A  man  who  was  for 
merly  a  member  of  the  legislature  from  the  city 
of  Boston,  and  who  went  for  general  manufac 
turing  and  banking  laws, — as  upright  and  intel 
ligent  a  legislator,  in  all  that  pertains  to  manufac 
turing  and  banking,  as  the  city  of  Boston  ever  sent 
to  the  House  of  Representatives — now  connected 


with  the  Merchants'  Bank  of  Boston,  said  to  me, 
a  day  or  two  since,  that  they  were  about  to  or 
ganize  their  immense  capital  under  that  law. 

Connecticut  passed  a  general  banking  law,  a 
year  ago,  and  six  or  eight  flourishing  banks  have 
been  incorporated  under  it ;  and  they  consider  the 
system  a  good  one.  It  allows  men  to  loan  money, 
who  have  it  to  loan,  and  men  who  have  not  got 
it,  should  not  be  allowed  to  bank  upon  the  mere 
credit  which  they  can  obtain  from  their  promises 
to  pay.  No  mere  bank  charter  should  ever  be 
considered  a  basis  for  bank  issues,  however  care 
fully  and  fully  a  case  might  have  been  made  out 
before  your  legislature. 

I  say  the  principle  should  be  applied  to  bank 
ing.  If  you  retain  your  present  system  of 
banking,  open  the  business  to  all,  and  let  all  be 
bankers  who  choose  to  be,  and  then  the  thing 
will  regulate  itself.  Serve  us  all  alike.  That  is 
what  I  contend  for.  I  do  not  mean  to  say  in  what 
particular  form  you  should  have  your  banking 
laws,  but  whatever  it  is,  you  should  have  it  under 
general  laws.  I  prefer  the  system  of  a  deposit, 
pledged  for  the  redemption  of  issues,  for  the  safety 
of  the  bill  holders.  I  do  not,  however,  attack  any 
system  of  banking;  but,  I  only  wish  the  law, 
whatever  it  is,  to  be  general. 

I  say,  too,  that  this  is  no  experiment  in  this 
State.  We  have  general  laws,  and  they  have  been 
framed  to  meet  some  of  the  evils  experienced  un 
der  the  system  of  special  laws.  It  would  require 
the  legislature  to  sit  the  year  out  and  the  year  in, 
if  they  were  required  to  pass  special  laws  for  every 
religious  society,  or  lyceum,  and  the  like,  that  is 
formed  in  the  Commonwealth.  But  we  have 
general  laws  for  the  incorporation  of  religious  so 
cieties,  libraries,  wharf  companies,  joint  stock 
companies,  banking  companies,  and  for  many 
other  things.  Now,  who  has  ever  found  any 
fault  with  these  general  laws  ?  We  have  general 
laws  upon  these  things,  and  why  not  have  them 
upon  all  others,  and  allow  to  individuals  the  right 
of  self-association,  and  stop  this  system  of  special 
legislation. 

The  gentleman  from  Boston  said,  that  we  yes 
terday  said  that  it  was  safe  to  leave  to  the  legisla 
ture  a  thing  of  as  much  moment  as  this  is.  I 
take  issue  with  the  gentleman.  Enactment  of  a 
law  by  the  legislature,  for  loaning  the  State  credit, 
would  be,  in  its  nature,  a  general  law,  bearing 
equally  upon  all  the  citizens  of  Massachusetts ; 
equally  upon  the  constituents  of  every  member 
of  the  legislature.  It  would,  possibly,  be  a  general 
law  intended  for  the  benefit  of  a  special  corpora 
tion.  But  the  grant  of  a  loan  is  a  general  law, 
and  is  within  the  principle  which  I  advocate. 
Well,  Sir,  is  not  the  experience  of  other  States — 


70 


GENERAL  LAWS  FOR  CORPORATIONS. 


[59th  day. 


Saturday,1 


WHITNEY. 


[July  16th. 


is  not  our  own  concurrent  experience — sufficient  to 
satisfy  us  of  the  importance  of  this  principle  ?  Is  it 
not  enough  to  satisfy  us  that  it  ought  to  be  incor 
porated  into  our  Constitution  ?  As  I  have  before 
said,  we  may  well  learn  wisdom  from  the  experi 
ence  of  other  States,  especially  when  we  have 
so  fully  proved  a  system,  as  we  have  in  relation  to 
this  matter.  We  have  to  oppose  the  competition 
of  the  great  State  of  New  York,  our  great  com 
mercial  rival.  New  York  allows  all  her  citizens 
freely  to  enter  into  corporations  under  general 
rules  and  regulations.  And  why  should  we  not 
unyoke  our  own  citizens  ?  Why  should  we  not 
take  off  the  trammels  from  their  necks,  and  give 
them  a  fair  opportunity  to  compete  with  those  of 
New  York  ?  Why  should  they  not  have  every 
advantage  which  general  and  wise  laws  can  give 
them  ?  I  tell  gentlemen  that,  hut  for  these  tram 
mels,  our  manufactures  would  have  been  much 
farther  advanced  than  now.  We  should  have 
been  much  farther  advanced  in  many  things. 
Let  us,  then,  incorporate  this  provision  into  our 
Constitution,  as  a  principle  of  right  and  justice, 
where  it  never  can  be  shaken  and  evaded.  But 
upon  this  point,  I  have  said  enough. 

In  the  next  place,  I  think  this  resolve  should 
be  incorporated  into  the  Constitution,  for  the  rea 
son  given  by  the  gentleman  for  Wilbraham,  (Mr. 
Hallett,)  that  it  will  save  the  time  of  the  legisla 
ture.  All  the  legislatures  of  the  State  of  Massa 
chusetts,  for  many  years  past,  have  spent  more 
than  half,  many  of  them  more  than  two-thirds 
their  time,  in  granting  special  charters  to  cor 
porations,  which  might  all  have  been  saved  by  a 
general  statute  that  would  have  occupied  but  a 
single  page  upon  your  statute  book. 

Here  I  will  take  occasion  to  say,  that  there  is 
no  ground  for  apprehension  upon  the  part  of  the 
members  of  the  Convention  that  should  deter  us, 
or  make  us  hesitate  to  adopt  this  resolve,  on  ac 
count  of  any  supposed  interference  with  the 
right  of  eminent  domain,  which  has  been  re 
ferred  to  in  the  course  of  this  debate.  I  appeal 
to  the  judgment  of  the  legal  gentlemen  of  the 
Convention,  to  whose  judgment  I  would  certainly 
defer  in  these  matters,  whether  you  cannot  as 
well  provide  by  general  law  that  the  right  of  em 
inent  domain  shall  be  secured  to  the  citizens,  as 
by  special  law.  You  can  provide,  as  they  have 
done  in  Ohio — although  I  think  the  restrictions 
are  unnecessarily  severe — that  the  property  of  a 
man  shall  not  be  taken  for  a  railroad,  until  he 
has  been  settled  with,  and  until  it  is  paid  for.  In 
New  York,  the  railroad  companies  are  authorized 
to  settle  with  the  individuals  for  their  land,  if 
possible ;  but  in  case  an  individual  cannot  be 
traded  Avith,  they  have  the  right  to  appeal  to  the 


legislature.  But  I  understand  that  since  this  law 
has  been  in  operation  in  New  York,  no  appeal 
has  been  made  to  the  legislature,  for  the  right  of 
way  through  the  lands  of  any  individual.  The 
railroad  companies  have  always  managed  to  com 
promise  with  them  in  some  way.  So  that  you 
not  only  can  protect  your  citizens  -in  the  right  of 
eminent  domain,  by  general  laws  as  well  as  by 
special,  but  you  can  do  it  all  the  better ;  for,  in 
drawing  up  a  general  law,  you  will  be  more  care 
ful  so  to  frame  it  as  not  to  infringe  upon  the  right 
of  any  individual,  half  as  much  as  you  will  be 
likely  to  by  special  law  ;  and  this  furnishes  an  ad 
ditional  argument  for  putting  this  provision  into 
our  Constitution. 

I  have  said  that  such  a  provision  will  promote 
the  business  interests  of  the  community  generally ; 
but  I  will  not  take  up  the  time  of  the  Conven 
tion  in  dwelling  longer  upon  this  point,  for  I  do 
not  desire  to  weary  the  patience  of  the  Convention. 

I  pass  on,  then,  to  my  next  argument  in  favor 
of  this  provision,  which  is,  that  it  will  give  us 
uniform  laws  in  reference  to  corporations.  Now, 
if  any  gentleman  will  take  the  pains  to  examine 
our  statute  books  with  reference  to  this  matter, 
he  will  find  a  great  diversity  in  these  special  laws. 
You  will  find  that  privileges  are  granted  to  one 
corporation  which  are  denied  to  another ;  and 
you  will  find  that,  when  compared  with  each 
other,  they  are  very  unequal  and  unjust.  In 
looking  over  these  laws,  the  other  day,  I  noticed 
that  one  corporation  in  the  county  of  Worcester 
was  granted  the  right  to  sell  liquor,  while  another 
was  restricted  from  selling  it  about  the  premises. 
Now,  I  do  not  believe  you  could  get  such  disa 
greements  in  point  of  privilege,  granted  or  incor 
porated  into  any  general  law.  No  legislature 
would  think  of  framing  such  a  law.  But,  what 
ever  might  be  the  privileges  granted,  all  would 
be  entitled  to  the  same.  But  some  favored  cor 
poration  will  start  such  dissimilar  charters,  under 
special  legislation.  They  will  go  before  the  leg 
islature  with  all  the  appliances  which  they  well 
know  how  to  use,  and,  in  some  manner,  before 
they  give  up,  they  will  manage  to  get  what  they 
want.  But  this  system  of  general  laws  will  give 
us  uniform  regulations  and  privileges,  for  all  cor 
porations  to  be  created  in  future.  They  will 
afford  a  reference  which  all  persons  can,  at  any 
time,  examine,  to  ascertain  the  liability  of  stock 
holders,  or  for  any  purpose.  They  will  be  in  the 
hands  of  the  laborer  and  the  creditor,  in  one  sin 
gle  act,  which  he  can  examine  at  any  time,  and 
through  which  he  can  ascertain  whether  the  pro 
prietors  are  liable  for  the  last  six  months  of  his 
service.  He  may  find  out  the  entire  provisions 
of  law,  relative  to  the  corporation  by  which  he  is 


59th  day.] 


GENERAL   LAWS    FOR   CORPORATIONS. 


71 


Saturday,] 


WHITNEY. 


[July  16th. 


employed,  as  he  cannot  find  out  now.  Under 
the  existing  laws,  he  may  go  from  one  corporation 
to  another,  through  the  hundred  towns  in  which 
they  are  located,  and  he  will  find  different  pro 
visions  of  law  applying  to  each  of  the  different 
companies. 

But,  Sir,  these  laws  are  unequal,  not  only  as 
regards  manufacturing  companies,  but  also  as 
regards  insurance  companies.  I  belong  to  an  in 
surance  company  which  petitioned  the  last  legis 
lature  to  be  allowed  to  raise  a  guarantee  capi 
tal,  to  guarantee  the  policies  issued  by  that 
company.  It  was  only  such  a  privilege  as  had 
been  given  to  other  companies.  Precisely  the 
same  as  had  been  granted  to  an  insurance  com 
pany  in  Worcester,  precisely  the  same  as  had 
been  granted  to  another  in  Springfield,  but  it  was 
denied  to  our  company,  and  for  what  reason? 
We  are,  to-day,  raising  policies  of  insurance 
without  guarantee,  for  that  right  has  not  been 
given  us.  All  we  asked  was,  that  the  association 
might  raise  $100,000,  by  the  payment  of  stock  on 
the  part  of  individuals,  and  that  we  might  be 
allowed  to  guarantee  policies  upon  the  strength 
of  this  capital,  and  we  were  denied  this  right.  It 
could  not  be  granted  to  us  by  the  legislature,  and 
why  ?  Because,  possibly — I  do  not  say  this  was 
the  reason — sundry  influential  men  happened  to 
be  placed  upon  the  committee  having  the  subject 
in  charge,  who  were  connected  with  other  insu 
rance  companies,  and  by  various  appliances  upon 
the  part  of  the  agents  of  other  companies  which 
have  this  privilege,  that  committee  was  induced 
to  report  against  our  petition.  I  say  possibly 
these  were  the  reasons — perhaps  others  existed, 
if  so,  I  do  not  know  what  they  were,  as  we  did 
not  come  before  the  committee  at  all,  supposing 
that  the  request,  being  the  same  as  had  been 
granted  to  other  companies,  and,  being  so  reason 
able  in  its  nature,  would  be  acceded  to  without  a 
question  being  raised ;  and  I  was  never  more 
surprised  in  my  life,  than  when  the  committee 
reported  that  it  was  inexpedient  to  grant  the 
prayer  of  the  petition,  or,  to  use  their  form,  that 
the  petitioners  have  leave  to  withdraw.  Now,  Sir, 
I  want  to  know  by  what  right  or  justice,  you 
give  to  a  company  in  Worcester,  and  to  another 
in  Springfield,  the  authority  to  raise  a  guarantee 
capital  for  their  insurance  policies,  and  deny  that 
privilege  to  me  ?  What  have  I  done  here  in  the 
good  old  Commonwealth  of  Massachusetts,  to 
forfeit  my  rights  of  citizenship,  and  to  entitle  me 
to  less  advantages  in  the  acquirement  of  property, 
than  are  accorded  to  others  ?  I  know  of  no  act 
of  mine  that  ought  thus  to  disfranchise  me,  nor 
do  I  know  of  any  act  of  yours  that  should  entitle 
you  to  privileges  above  me. 


Now,  Sir,  I  have  no  manner  of  doubt  that  the 
incorporation  of  this  provision  into  the  Constitu 
tion,  will  do  away  forever  this  system  of  injus 
tice  and  inequality,  and  that  every  honest  man 
in  Massachusetts  will  thereafter  enjoy  equal  priv 
ileges  with  every  other  man  in  the  Common 
wealth.  I  do  not  believe  that  when  you  come  to 
have  a  system  of  general  laws,  you  will  find  any 
man  to  rise  up  and  advocate  the  retistablishment 
of  our  existing  system  of  special  laws.  Never, 
never. 

It  will  have  the  effect,  as  I  before  remarked,  to 
shorten  the  length  of  the  sessions  of  the  legisla 
ture  nearly  one- half,  and  it  will  destroy  the  prin 
ciple  of  monopoly.  That  is  the  chief  feature  of 
which  complaint  is  made,  and  it  is  one  of  the 
principal  objections,  to  my  mind,  to  the  continu 
ance  of  the  present  system.  Privileges  are  given 
to  certain  associations,  against  the  rights  of  the 
whole.  They  are  granted  to  a  few,  and  denied 
to  the  rest.  Therein  consists  the  idea  of  monop 
oly,  and  nowhere  else. 

Now,  Sir,  I  wish  to  say  a  single  word  farther 
upon  this  point,  and  I  will  close.  A  fear  is  en 
tertained,  in  the  minds  of  some  gentlemen,  that, 
by  the  adoption  of  this  provision  into  your  amend 
ed  Constitution,  you  will,  to  a  certain  extent,  ren 
der  it  unpopular  among  the  people,  when  they 
come  to  vote  upon  its  adoption.  Now,  I  verily 
believe,  that  you  can  incorporate  no  one  provision 
into  your  Constitution,  that  will  so  much  aid  you 
in  securing  the  adoption  of  the  whole,  as  this 
simple  declaration,  that  hereafter  special  legisla 
tion  shall  cease.  Why,  Sir,  it  has  been  a  cardi 
nal  doctrine  of  one  party  in  the  Commonwealth, 
ever  since  the  days  of  our  boyhood.  Ever  since 
I  knew  anything  about  politics,  this  has  been  a 
prominent  object  sought  to  be  attained  by  one  of 
the  parties  of  the  Commonwealth.  The  gentle 
man  from  Taunton,  (Mr.  Morton,)  in  his  mes 
sage  in  1839,  ably  recommended  that  we  should 
abolish  this  system  of  special  legislation.  Early 
in  our  history  as  a  government,  such  a  thing  as 
special  privileges  was  advocated  by  no  one.  It 
has  grown  upon  us  by  degrees,  and  I  think  it  is 
time  that  it  should  be  stopped.  But  we  never 
can  stop  it  unless  we  do  it  in  the  Constitu 
tion. 

Your  recent  history,  to  which  the  gentleman 
from  Boston  (Mr.  Schouler)  has  alluded,  proves 
that  whenever  the  legislature  has  enacted  a  general 
law,  it  has  worked  well.  Let  us,  then,  take  off 
restrictions  from  general  enterprise,  and  cease  to 
be  partial  in  our  laws,  by  adopting  this  restric 
tion.  Let  us  so  amend  our  organic  law,  that 
there  shall  be  no  more  special  legislation ;  here 
after,  whatever  enactments  you  make,  let  them 


72 


GENERAL  LAWS  FOR  CORPORATIONS. 


[59th   day. 


Saturday,] 


SCHOULER  —  BIRD  —  WHITNEY  —  FROTHINGHAM  —  FRENCH. 


[July  16th. 


belong  to  every  man  alike,  then  they  cannot  be 
complained  of. 

[Here  the  hammer  fell,  the  hour  to  which  the 
speaker,  as  chairman  of  the  Committee,  was  enti 
tled,  by  the  order  of  the  Convention,  having 
expired.] 

Mr.  DENTON,  of  Chelsea.  I  think  this  sub 
ject  has  been  amply  and  fairly  discussed,  upon 
both  sides.  I  think  it  has  been  discussed  with 
great  ability,  and  I  therefore  feel  it  my  duty  to 
move  the  previous  question. 

Mr.  SCHOULER,  of  Boston.  I  hope  the  pre 
vious  question  will  not  be  sustained  at  the  pres 
ent  time.  If  the  question  has  been  discussed,  it 
has  been  all  on  one  side.  We  have  had  a  speech 
from  the  gentleman  for  Wilbraham,  (Mr.  Hal- 
lett,)  half  an  hour  in  length.  The  gentleman 
from  North  Brookfield,  (Mr.  Walker,)  spoke  half 
an  hour.  We  have  had  a  speech  from  the  gen 
tleman  from  Charlestown,  (Mr.  Frothingham,) 
and  an  hour's  speech  from  the  gentleman  from 
Conway,  (Mr.  Whitney,)  in  favor  of  the  adoption 
of  this  proposition,  while  scarcely  anything  has 
been  said  upon  the  other  side.  I  should  like  ten 
minutes  to  set  myself  right  upon  this  question. 
It  seems  to  me,  that  the  question  is  by  no  means 
exhausted.  There  are  many  points  which  have 
not  been  touched  upon  at  all.  The  gentleman 
from  Cambridge,  (Mr.  Sargent,)  my  colleague 
from  Boston,  and  myself,  have  not  spoken  three 
quarters  of  an  hour  altogether  ;  while  the  gentle 
men  upon  the  other  side  have  spoken  two  hours 
and  a  half.  The  gentleman  from  Conway,  (Mr. 
Whitney,)  directed  nearly  his  entire  speech  against 
the  few  remarks  which  I  had  the  honor  to  make, 
and  I  desire  ten  minutes  to  say  something  in  re- 

piy- 

Mr.  BIRD,  of  Walpole.  I  only  want  to  say 
that  I  hope  the  motion  for  the  previous  question 
will  not  be  withdrawn,  and  that  it  will  be  sus 
tained  by  the  Convention.  The  gentleman  from 
Boston,  (Mr.  Schouler,)  has  had  the  floor  once, 
upon  this  subject. 

Mr.  SCHOULER.  I  am  aware  that  I  have 
had  the  floor  once,  but  only  for  a  very  few  min 
utes,  and  the  gentleman  from  Conway,  (Mr.  Whit 
ney,)  has  directed  his  whole  argument  against  the 
ground  which  I  took.  In  the  usual  course  of 
debate,  the  chairman  of  a  Committee  opens  the 
debate  upon  the  subject  over  which  he  has  had 
charge,  but,  in  this  instance,  he  has  closed  the  de 
bate. 

Mr.  WHITNEY,  of  Conway.  I  would  sug 
gest  to  the  gentleman  from  Chelsea,  (Mr.  Denton,) 
who  moved  the  previous  question,  that  he  with 
draw  his  motion.  I  desire  to  treat  the  gentleman 
from  Boston  with  courtesy.  I  did  not  finish  the 


remarks  I  had  intended  to  make  before  the  ham 
mer  fell,  and  I  always  want  the  privilege  of  the 
last  word,  when  I  can  have  it,  but  I  nevertheless 
desire  that  the  gentleman  from  Boston  should 
have  an  opportunity  to  reply,  if  he  desires  it ;  and 
I  therefore  suggest  to  the  gentleman  from  Chelsea 
that  he  withdraw  his  motion  for  the  previous 
question,  and  move  that  the  question  be  taken  at 
twenty  minutes  past  12  o'clock.  That  will  give 
the  gentleman  from  Boston  ten  minutes  to  reply. 

Mr.  FROTHINGHAM,  of  Charlestown.  I 
rose  to  make  a  suggestion  somewhat  similar  to 
that  of  the  gentleman  from  Conway,  (Mr.  Whit 
ney).  I  have  myself  occupied  not  more  than  fif 
teen  minutes  in  this  discussion,  and  I  should  like 
an  opportunity  of  saying  something  in  reference 
to  what  has  been  said  by  the  gentleman  from 
Boston.  I  dare  say  there  are  many  others  who 
would  also  like  to  say  something.  I  know,  how 
ever,  that  the  time  of  the  Convention  is  precious, 
and,  for  one,  I  would  be  willing  to  forego  the  plea 
sure  of  answering  the  gentleman  from  Boston.  I 
would,  nevertheless,  suggest  to  the  gentleman 
from  Chelsea,  that  the  time  for  taking  the  ques 
tion  be  fixed  at  half  past  12  o'clock.  This  is  a 
very  important  subject,  and  one  which  has  occu 
pied  but  very  little  of  the  time  of  the  Convention. 
It  seems  to  me  but  just,  that  the  gentleman  from 
Boston,  (Mr.  Schouler,)  should  be  allowed  time 
to  answer  the  gentleman  from  Conway,  and  I 
think  that  to  allow  a  little  farther  time  for  the 
discussion  of  the  subject,  would  not  be  objection 
able.  I  will,  therefore,  venture  to  suggest  that  the 
time  for  taking  the  question  be  fixed  at  half  past 
12  o'clock. 

Mr.  WHITNEY,  of  Boylston.  I  have  been 
waiting  for  some  time  for  an  opportunity  to  say 
a  word  upon  this  subject,  but  I  see  there  are 
many  others  who  are  also  waiting  to  say  a 
word,  if  the  previous  question  is  withdrawn.  If 
our  friends  are  willing  to  waive  their  rights,  I  am 
willing  to  waive  mine,  and  let  the  question  be 
taken  now.  I  hope  the  previous  question  will 
not  be  withdrawn. 

Mr.  FRENCH,  of  Berkley.  I  hope  the  gen 
tleman  from  Chelsea  will  withdraw  his  call  for 
the  prevous  question.  I  have  not  said  a  word 
upon  this  subject,  and  the  Convention  very  well 
know  that  I  shall  detain  them  but  a  short  time 
in  what  I  have  to  say.  If  I  could  have  obtained 
the  floor  at  a  proper  time,  I  wanted  to  say  a  word  in 
reply  to  the  gentleman  on  my  left,  (Mr.  Schouler). 
But  what  I  wanted  to  say  at  the  time,  I  have  now 
nearly  forgotten,  [a  laugh,]  and  I  shall  therefore 
be  content  with  still  less  time  than  I  should  then 
have  occupied.  If  the  Convention  will  give  me 
five  minutes,  it  will  be  all  I  ask. 


59th  day.] 


GENERAL   LAWS  FOR   CORPORATIONS. 


73 


Saturday,] 


FRENCH  —  DENTON  —  YEAS. 


[July  16th. 


Mr.  President :  I  shall  be  sorry  to  get  into  deep 
-water,  but  if  I  do,  it  will  not  be  the  first  time  I 
have  been  off  my  soundings. 

Mr.  BATES,  of  Plymouth.  I  rise  to  a  ques 
tion  of  order.  I  believe  the  gentleman  is  discuss 
ing  the  question,  and  replying  to  the  member  from 
Boston,  (Mr.  Schouler). 

Mr.  FRENCH.  I  have  not  come  to  him  yet. 
[Laughter.] 

The  PRESIDENT.  The  Chair  does  not  un 
derstand  that  the  gentleman  from  Berkley  is  re 
plying  to  the  gentleman  from  Boston. 

Mr.  FRENCH.  This  is  a  question  in  relation 
to  corporations,  or  whether  we  are  to  have  a  gen 
eral  or  special  law  as  to  corporations.  What  ob 
ject  do  associations  of  persons  have  in  view  in 
being  incorporated.  They  have  some  object  or 
other 

The  PRESIDENT.  It  is  not  in  order  for  the 
gentleman  to  discuss  the  merits  of  the  question. 

Mr.  BIGELO  W,  of  Grafton.  I  hope  the  pre 
vious  question  will  be  sustained. 

Mr.  DENTON,  of  Chelsea.  I  wish  the  gen 
tleman  from  Boston,  (Mr.  Schouler,)  to  under 
stand  that  it  was  not  my  intention  to  cut  him  off 
from  replying  to  the  gentleman  from  Conway, 
(Mr.  Whitney).  I  listened  to  his  speech  with  a 
great  deal  of  pleasure,  and  I  think  he  went  over 
the  whole  ground,  and  I  really  think  that  he 
would  not  have  anything  more  to  say,  except  in 
reply  to  the  gentleman  from  Conway,  which 
would  lead  to  still  farther  discussion,  and  there 
fore  I  insist  upon  the  previous  question. 

The  PRESIDENT.  The  Chair  desires  to  re 
mark,  in  relation  to  the  suggestion  of  the  gentle 
man  from  Boston,  (Mr.  Schouler,)  that,  with  the 
exception  of  the  mover  of  the  amendment,  the 
floor  has  been  given  alternately  to  the  friends  and 
opponents  of  the  resolves. 

The  previous  question  was  seconded  and  the 
main  question  ordered. 

The  PRESIDENT.  The  question  first  in 
order  is,  upon  the  amendment  moved  by  the  gen 
tleman  from  Oxford,  (Mr.  De  Witt). 

Mr.  DE  WITT.     I  withdraw  the  amendment. 

The  PRESIDENT.  The  question  now  re 
curs  upon  the  motion  made  by  the  gentleman 
from  Worcester,  (Mr.  Davis,)  to  strike  out  all 
after  the  word  "  resolved,"  and  insert  the  follow 
ing,  as  a  substitute  : — 

Resolved,  That  it  is  expedient  to  incorporate 
into  the  Constitution  a  provision,  that  corporations 
shall  not  be  created  by  special  act  when  the  object 
of  the  incorporation  shall  be  attainable  under 
general  laws. 

The  question  was  then  taken  upon  Mr.  Davis's 
amendment,  and  it  was  agreed  to. 


The  PRESIDENT.  The  question  now  recurs 
upon  ordering  the  resolve  to  a  second  reading,  as 
amended. 

Mr.  STETSON,  of  Braintree,  demanded  the 
yeas  and  nays  upon  that  question. 

They  were  ordered. 

The  yeas  and  nays  were  then  taken,  and  there 
were — yeas,  188  ;  nays,  52 — as  follows  : — 


Adams,  Shubael  P. 
Aldrich,  P.  Emory 
Allen,  James  B. 
Alley,  John  B. 
Alvord,  D.  W. 
Andrews,  Robert 
Austin,  George 
Baker,  Hillel 
Ballard,  Alvah 
Barrett,  Marcus 
Bates,  Moses,  Jr. 
Bigelow,  Edward  B. 
Bird,  Francis  W. 
Bishop,  Henry  W. 
Booth,  William  S. 
Boutwell,  Geo.  S. 
Boutwell,  Sewell 
Bradford,  William  J.  A, 
Breed,  Hiram  N. 
Bronson,  Asa 
Brown,  Artemas 
Brown,  Hiram  C. 
Browiiell,  Joseph 
Bryant,  Patrick 
Buck,  Asahel 
Burlingame,  Anson 
Cady,  Henry 
Caruthers,  William 
Case,  Isaac 
Chandler,  Amariah 
Chap  in,  Daniel  E. 
Childs,  Josiah 
Churchill,  J.  McKean 
Clark,  Ransom 
Clarke,  Alpheus  B. 
Clarke,  Stillman 
Cleverly,  William 
Cole,  Sumner 
Crane,  George  B. 
Cressy,  Oliver  S. 
Crittenden,  Simeon 
Cushman,  Henry  W. 
Cushman,  Thomas 
Cutler,  Simeon  N. 
Davis,  Ebenezer 
Dean,  Silas 
Denison,  Hiram  S. 
Deiiton,  Augustus 
DeWitt,  Alexander 
Duncan,  Samuel 
Dunham,  Bradish 
Durgiii,  John  M. 
Eames,  Philip 
Earle,  John  M. 
Easland,  Peter 
Edwards,  Elisha 


Edwards,  Samuel 
Fay,  Sullivan 
Fisk,  Lymaii 
Fitch,  Ezekiel  W. 
Foster,  Abram 
Fowle,  Samuel 
Freeman,  James  M. 
French,  Charles  A. 
French,  Samuel 
Frothingham,  Rich'd,  Jr. 
Gale,  Luther 
Gardner,  Johnson 
Gates,  Elbridge 
Giles,  Charles  G. 
Giles,  Joel 
Gooch,  Daniel  W. 
Gooding,  Leonard 
Green,  Jabez 
Griswold,  Josiah  W. 
Griswold,  Whiting 
Hadley,  Samuel  P. 
Hallett,  B.  F. 
Harmon,  Phineas 
Haskius,  William 
Hathaway,  Elnathan  P. 
Hawkes,  Stephen  E. 
Hay  den,  Isaac 
Heath,  Ezra  2d, 
Hewes,  James 
Hewes,  William  H. 
Hobart,  Aaron 
Hobart,  Henry 
Hobbs,  Edwin 
Hood,  George 
Hooper  Foster 
Howard,  Martin 
Hoyt,  Henry  K. 
Hunt,  Charles  E. 
Hurlbut,  Moses  C. 
Jacobs,  John 
Johnson,  John 
Kingman,  Joseph 
Knight,  Hiram 
Knight,  Jefferson 
Knowlton,  J.  S.  C. 
Knowlton,  William  H. 
Knox,  Albert 
Kuhn,  George,  H. 
Ladd,  Gardner  P. 
Lawrence,  Luther 
Lelaiid,  Alden 
Lincoln,  Abishai 
Littlefield,  Tristram 
Marble,  William  P. 
Merritt,  Simeon. 
Mixter,  Samuel 


74 

GENERAL   LAWS   FOR   CORPORATIONS.             [59th  day. 

Saturday,] 

NAYS  —  ABSENT. 

[July  16th. 

Morton,  Elbridge  G. 

Simmons,  Perez                                                         ABSENT. 

Morton,  Marcus 
Morton,  William  S. 
Nay  son,  Jonathan 
Newman,  Charles 
Nichols,  William 
Norton,  Alfred 
Ober,  Joseph  E. 
Orne,  Benjamin  S. 
Osgood,  Charles 
Paine,  Benjamin 
Paine,  Henry 
Parris,  Jonathan 
Parsons,  Samuel  C. 
Partridge,  John 
Peabody,  Nathaniel 
Pease,  Jeremiah,  Jr. 
Penniman,  John 
Perkins,  Daniel  A. 
Perkins,  Jesse 
Perkins,  Noah  C. 
Phelps,  Charles 
Pomroy,  Jeremiah 
Pool,  James  M. 
Putnam,  John  A. 
Rantoul,  Robert 
Rawson,  Silas 

Simonds,  John  W. 
Smith,  Matthew 
Souther,  John 
Sprague,  Melzar 
Spooner,  Samuel  W. 
Stacy,  Eben  II. 
Stetson,  Caleb 
Stevens,  Joseph  L.,  Jr. 
Stiles,  Gideon 
Talbot,  Thomas 
Thayer,  Willard,  2d 
Thomas,  John  W. 
Thompson,  Charles 
Tilton,  Horatio  W. 
Turner,  David 
Turner,  David  P. 
Tyler,  William 
Viles,  Joel 
Wallis,  Freeland 
Walker,  Amasa 
Ward,  Andrew  H. 
Warner,  Marshal 
Waters,  Asa  H. 
Weston,  Gershom  B. 
White,  Benjamin 
White   George 

Abbott,  Alfred  A. 
Abbott,  Josiah  G. 
Adams,  Benjamin  P. 
Allen,  Charles 
Allen,  Joel  C. 
Allen,  Parsons 
Allis,  Josiah 
Ayres,  Samuel 
Ball,  George  S. 
Bancroft,  Alpheus 
Banks,  Nathaniel  P.,  Jr. 
Bartlett,  Russel 
Bartlett,  Sidney 
Bates,  Eliakim  A. 
Beach,  Erasmus  D. 
Beal,  John 
Bell,  Luther  V. 
Bennett,  Zephaniah 
Blagden,  George  W. 
Bliss,  Gad  O. 
Bliss,  Willam  C. 
Briggs,  George  N. 
Brown,  Adolphus  F. 
Brown,  Alpheus  R. 
Brown,  Hammond 

Foster,  Aaron 
Fowler,  Samuel  P. 
French,  Charles  H. 
French,  Rodney 
Gilbert,  Washington 
Gouldiiig,  Dalton 
Goulding,  Jason 
Graves  John  W. 
Gray,  John  C. 
Greene,  William  B. 
Greenleaf,  Simon 
Hall,  Charles  B. 
Hammond,  A.  B. 
Hapgood,  Lyman  W. 
Hapgood,  Seth 
Haskell,  George 
Hayward,  George 
Henry,  Samuel 
Heywood,  Levi 
Hillard,  George  S. 
Holder,  Nathaniel 
Hopkinson,  Thomas 
Houghton,  Samuel 
Howland,  Abraham  H. 
Huntington,  Asahel 

Rice,  David 
Richards,  Luther 
Richardson,  Daniel 
Richardson,  Nathan 
Rockwood,  Joseph  M 
Rogers,  John 
Ross,  David,  S. 

Whitney,  Daniel  S. 
Whitney,  James  S. 
Wilbur,  Daniel 
Wilbur,  Joseph 
.     Wilson,  Henry 
Wilson,  Willard 
Wirin,  Jonathan  B. 

Brownell,  Frederick 
Bullen,  Amos  H. 
Bullock,  Rufus 
Butler,  Benjamin  F. 
Carter,  Timothy  W. 
Chapin,  Chester  W. 
Choate,  Rufus 

Huntington,  Charles  P. 
Huntington,  George  H. 
Hyde,  Benjamin  D. 
Ide,  Abijah  M.,  Jr. 
James,  William 
Kellogg,  Martin  R. 
Keyes,  Edward  L. 

Royce,  James  C. 
Sanderson,  Chester 
Sherril,  John 
Sikes,  Chester 

Winslow,  Levi  M. 
Wood,  Charles  C. 
Wood,  Otis 
Wood,  William  H. 

Clark,  Henry- 
Clark,  Salah 
Coggin,  Jacob 
Cole,  Lansing  J. 

Kimball,  Joseph 
Kinsman,  Henry  W. 
Knight,  Joseph 
Knowlton,  Charles  L. 

Conkey,  Ithamar 

Ladd,  John  S. 

Cook,  Charles  E. 

Langdon,  Wilber  C. 

NATS. 

Cooledge,  Henry  F. 

Lawton,  Job  G.,  Jr. 

Crockett,  George  W. 

Little,  Otis 

Appleton,  William 

Hurlburt,  Samuel  A. 

Crosby,  Leander 

Loomis,  E.  Justin 

Aspinwall,  William 

Jackson,  Samuel 

Cross,  Joseph  W. 

Lord,  Otis  P. 

Atwood,  David  C. 

Jenkins,  John 

Crowell,  Seth 

Lothrop,  Samuel  K. 

Barrows,  Joseph 
Beebe,  James  M. 

Jenks,  Samuel  H. 
Kellogg,  Giles  C. 

Cummings,  Joseph 
Curtis,  Wilber 

Lowell,  John  A. 
Marcy,  Labaii 

Bennett,  William,  Jr. 

Kendall,  Isaac 

Dana,  Richard  H.,  Jr. 

Marvin,  Abijah  P. 

Bigelow,  Jacob 

Lincoln,  Frederic  W.,  Jr. 

Davis,  Charles  G. 

Marvin,  Theophilus  R. 

Bradbury,  Ebenezer 

Livermore,  Isaac 

Davis,  Isaac 

Mason,  Charles 

Braman,  Milton  P. 

Loud,  Samuel  P. 

Davis,  John 

Meader,  Reuben 

Brewster,  Osmyn 

Miller,  Seth,  Jr. 

Davis,  Robert  T. 

Monroe,  James  L. 

Brinley,  Francis 

Orcutt,  Nathan 

Davis,  Solomon 

Moore,  James  M. 

Bumpus,  Cephas  C. 

Paige,  James  W. 

Dawes,  Henry  L. 

Morey,  George 

Chapin,  Henry 

Park,  John  G. 

Day,  Gilman 

Morss,  Joseph  B. 

Cogswell,  Nathaniel 

Read,  James 

Dehon,  William 

Morton,  Marcus,  Jr. 

Copeland,  Benjamin  F.  Reed,  Sampson 

Deming,  Elijah  S. 

Nash,  Hiram 

Crowninshield,  F.  B. 

Sargent,  John 

Doane,  James  C. 

Noyes,  Darnel 

Gardner  Henry  J. 

Schouler,  William 

Dorman,  Moses 

Nute,  Andrew  T. 

Gilbert,  Wanton  C. 

Tileston,  Edmund  P. 

Easton,  James,  2d 

Oliver,  Henry  K. 

Gould,  Robert 

Tower,  Ephraim 

Eaton,  Calvin  D. 

Packer,  E.  Wing 

Hale,  Artemas 

Tyler,  John  S. 

Eaton,  Lilley 

Parker,  Adolphus  G. 

Hale,  Nathan 

Upham,  Charles  W. 

Ely,  Joseph  M. 

Parker,  Joel 

Heard,  Charles 

Walcott,  Samuel  B. 

Ely,  Homer 

Parker,  Samuel  D. 

Hersey,  Henry 

Walker,  Samuel 

Eustis,  William  T. 

Parsons,  Thomas  A. 

Hindsdale,  William 

Weeks,  Cyrus 

Farwell,  A.  G. 

Payson,  Thomas  E. 

Hubbard,  William  J. 

Wheeler,  William  F. 

Fellows,  James  K. 

Peabody,  George 

Hunt,  William 

Wilson,  Milo 

Fiske,  Emery 

Perkins,  Jonathan  C. 

59th  day.] 


HARVARD   COLLEGE. 


75 


Saturday,] 


BOUTWELL  —  STETSON  —  HUBBARD. 


[July  16th. 


Phinney,  Silvanus  B. 
Pierce,  Henry 
Plunkett,  William  C. 
Powers,  Peter 
Preston,  Jonathan 
Prince,  F.  O. 
Putnam,  George 
Richardson,  Samuel  H. 
Ring,  Elkanah,  Jr. 
Rockwell,  Julius 
Sampson,  George  R. 
Sanderson,  Amasa 
Sheldon,  Luther 
Sherman,  Charles 
Sleeper,  John  S. 
Stevens,  Charles  G. 
Stevens,  Granville 
Stevens,  William 
Stevenson,  J.  Thomas 
Storrow,  Charles  S. 
Strong,  Alfred  L. 
Stutson,  William 
Sumner,  Charles 


Sumner,  Increase 
Swain,  Alanson 
Taber,  Isaac  C. 
Taft,  Arnold 
Taylor,  Ralph 
Thayer,  Joseph 
Tilton,  Abraham 
Train,  Charles  R. 
Underwood,  Orison 
Upton,  George  B. 
Vinton,  George  A. 
Wales,  Bradford  L. 
Wallace,  Frederick  T. 
Warner,  Samuel,  Jr. 
Wetmore,  Thomas 
Wilder,  Joel 
Wilkins,  John  II. 
Wilkinson,  Ezra 
Williams,  Henry 
Williams,  J.  B. 
Wood,  Nathaniel 
Woods,  Josiah  B. 
Wright,  Ezekiel 


Absent  and  not  voting,  178. 

So  the  resolve  was  ordered  to  a  second  reading. 

University  at  Cambridge. 
The  PRESIDENT.  The  next  matter  in  order, 
is  No.  2  of  the  calendar,  being  the  resolve  to 
amend  section  2,  chapter  5,  of  the  Constitution,  by 
striking  out  the  words  "  University  at  Cam 
bridge."  The  resolve  has  been  read  twice,  and 
the  question  now  is  upon  the  final  passage.  The 
resolve  is  as  follows  : — 

Resolved,  That  it  is  expedient  to  amend  the 
second  section  of  the  fifth  chapter  of  the  Consti 
tution,  by  striking  out  therefrom  the  words 
"  University  at  Cambridge." 

Mr.  BOUT  WELL,  for  Berlin.  I  am  opposed 
to  the  passage  of  this  resolution.  If  gentlemen 
will  turn  to  page  ninety-seventh  of  the  rules  and 
orders  of  the  Convention,  they  will  find  in  sec 
tion  2d,  chapter  5th,  of  the  Constitxition,  the  fol 
lowing  : — 

"  It  shall  be  the  duty  of  legislatures  and  mag 
istrates,  in  all  future  periods  of  this  Common 
wealth,  to  cherish  the  interests  of  literature 
and  the  sciences,  and  all  seminaries  of  them  ; 
especially  the  University  at  Cambridge,  public 
schools  and  grammar  schools,  in  the  towns,"  &c. 

If  gentlemen  will  observe  the  peculiar  phrase 
ology  of  this  provision  of  the  Constitution,  they 
will  see  that  it  has  divided  institutions  of  learning 
into  three  classes :  the  university  at  Cambridge, 
public  schools,  and  grammar  schools.  The  prop 
osition  reported  to  us  by  the  Committee  is,  that 
the  words  "  University  at  Cambridge  "  be  strick 
en  out,  so  that  the  paragraph  shall  read :  "It 
shall  be  the  duty  of  legislatures  and  magistrates, 


in  all  future  periods  of  this  Commonwealth,  to 
cherish  the  interests  of  literature  and  the  sci 
ences,  and  all  seminaries  of  them,  especially  the 
public  schools  and  grammar  schools  in  the 
towns,"  &c.  The  effect  of  this  proposition  is,  to 
place  the  university  at  Cambridge  where,  as  we 
believe,  it  ought  not  to  stand,  with  those  institu 
tions  of  the  State  that  rest  upon  private  founda 
tion,  and  are  not  supported  by  general  taxation. 
I  believe  the  friends  of  the  university,  at  Cam 
bridge  desire  to  have  that  institution  stand  just 
exactly  where,  by  the  Constitution,  it  has  been 
placed,  with  the  public  and  grammar  schools, 
preserving  to  it  its  original  character  as  a  public 
institution.  Therefore,  I  am  in  favor  of  having 
the  Constitution,  in  this  respect,  remain  just  as  it 
is,  and  am  opposed  to  the  resolve,  for  the  reason 
that  it  takes  the  university  at  Cambridge  out  of 
the  class  of  public  institutions,  and  makes  it  a 
private  institution. 

Mr.  STETSON,  of  Braintree.  I  should  like 
to  ask  the  gentleman  for  Berlin,  why  the  univer 
sity  at  Cambridge  should  be  especially  distin 
guished  from  the  other  institutions,  in  this  respect. 

Mr.  BOUTWELL.  The  reason  for  this  is,  that 
the  university  at  Cambridge  was  established  by 
act  of  the  legislature,  and  endowed  with  the 
property  of  the  people  of  all  the  Commonwealth, 
while  neither  of  the  other  colleges  has  been  so 
endowed.  That  is  a  very  good  reason  why  the 
university  at  Cambridge  should  stand  with  the 
grammar  and  public  schools  of  the  State,  as  an 
institution  of  the  State,  resting  upon  the  foun 
dation  laid  by  the  State.  The  other  institutions 
are  private  institutions,  while  this  is  a  public  one. 

Mr.  HUBBARD,  of  Boston.  From  the  dis 
cussion  which  took  place  yesterday,  I  suppose  it 
is  a  mooted  question,  whether  the  university  at 
Cambridge  is  to  be  regarded  as  a  public  institu 
tion,  over  which  the  State  has  entire  control,  or 
whether  it  is  a  private  institution,  which  the  legis 
lature  cannot  touch.  It  seems  to  me,  it  is  assum 
ing  the  question  at  issue,  to  assert  that  it  is  a 
public  institution,  standing  upon  the  same  foun 
dation  with  our  public  schools,  supported  at  the 
public  expense.  It  is  said,  that  the  provision  in 
relation  to  this  institution  was  originally  so  in 
serted,  when  the  Constitution  was  framed  in 
1780,  but  I  suppose  the  reason  for  that  was,  be 
cause  there  was  no  other  college  or  university  in 
the  State.  It  seems  to  me,  that  a  similar  provis 
ion  for  all  the  other  colleges  of  the  State,  should 
be  inserted  with  as  much  reason  as  this.  If  they 
all  come  under  the  provision  in  the  antecedent 
clause,  then  the  university  at  Cambridge  will 
occupy  the  same  position  as  the  other  colleges, 
and  will  have  no  right  to  claim  preeminence  over 


76 


HARVARD    COLLEGE. 


[59th  day. 


Saturday,] 


GARDNER  —  WILSON  —  BIRD. 


[July  16th. 


them  in  this  respect.  I  hope  the  resolve,  as 
reported  by  the  Committee,  will  be  adopted. 

Mr.  GARDNER,  of  Boston.  This  resolve  has 
been  reported  to  the  Convention  by  the  unanimous 
voice  of  the  Committee  who  had  the  subject  in 
charge,  and  we  are  bound  to  suppose  that  they 
have  given  it  sufficient  attention  to  understand 
the  bearings  of  the  case.  We  must  come  to  the 
conclusion  that  they  were  unanimous,  because 
there  is  no  Minority  Report,  or  any  other  Report, 
but  the  one  emanating  from  their  chairman, 
recommending  that  the  Convention  should  make 
this  change.  I  supposed  the  object  of  this  Con 
vention  was,  to  create  a  Constitution  for  the 
people  of  the  State  which  should  be  adapted  to  all 
parts  of  the  State,  and  uniform  in  its  application 
to  all  the  individuals  and  institutions  of  the  State. 
This  exception  of  Harvard  University,  as  con 
tended  for  by  gentlemen  here,  acts  in  one  of  two 
ways,  either  as  an  obstruction  to  the  interests  of 
the  university,  and  upon  that  ground  I  should 
oppose  it,  and  I  trust  that  the  Convention  will 
oppose  it  also,  or  else  it  acts  as  a  benefit,  as  a 
special  privilege  to  that  university,  and  upon  that 
ground  I  should  oppose  it.  This  institution  is 
individually  signalized  in  the  original  Constitu 
tion,  simply,  as  I  understand  it,  for  the  reason  just 
given  by  my  colleague,  (Mr.  Hubbard,) — and  I 
have  given  the  subject  some  little  attention — that 
when  the  Constitution  was  first  established,  this 
was  the  only  institution  of  the  kind  in  the  Com 
monwealth.  We  are  called  upon  now,  either  to 
place  this  institution  upon  a  footing  with  all  the 
other  institutions  of  the  Commonwealth,  or  else 
give  it  special  privileges.  I  am  in  favor  of  sus 
taining  the  Report  of  the  Committee,  and  am  in 
favor  of  adopting  this  resolve,  irrespective  of  the 
action  of  the  Committee,  because  I  believe  it  is 
right,  just,  and  democratic. 

Mr.  WILSON,  of  Natick.  The  chairman  of 
the  Committee,  to  whom  reference  has  been  made, 
and  who  is  now  absent,  moved,  the  other  day,  to 
lay  this  matter  over.  Upon  that  occasion  I  un 
derstood  him  to  say,  that  he  made  the  motion  to 
see  what  the  Convention  would  do  with  the  reso 
lution  acted  upon  yesterday.  The  gentleman 
from  Boston  says  that  the  Committee  made  an 
unanimous  Report,  and  that  we  are  bound  to  sup 
pose  they  had  good  reasons  for  making  that  Re 
port.  All  we  are  bound  to  know  about  Com 
mittees,  is  this :  that  they  report,  and  our  duty  is 
to  examine  their  reports,  and  act  according  to  our 
own  views  in  regard  to  them.  Of  course,  I  would 
treat  the  report  of  any  Committee  of  this  Conven 
tion  with  great  deference  and  respect,  but  we  are 
not,  by  any  means,  compelled  to  follow  the  advice 
of  those  Committees.  I  agree  with  the  delegate 


for  Berlin,  (Mr.  Bout  well,)  that  we  ought  not  to 
pass  this  resolution.  Harvard  College  was 
founded  by  the  Commonwealth  of  Massachusetts, 
in  the  year  1636.  The  Constitution  so  declares 
it,  and,  by  its  provisions,  we  actually  pledge  our 
selves  in  the  legislature  to  foster  and  cherish  that 
institution.  I  regard  it  as  standing  altogether 
different  from  Amherst  and  Williams  College. 
All  the  State  did  in  relation  to  those  institutions 
was  to  incorporate  them,  and  it  did  not  found 
them,  as  it  founded  Harvard  College.  I  wish  to 
maintain  this  in  the  Constitution  as  it  is,  as  the 
university  of  Massachusetts,  and  I  wish  it  to 
maintain  that  position,  now  and  hereafter.  I  trust 
that  in  the  future,  that  right  will  be  fully  and 
clearly  established  and  vindicated,  and  therefore 
I  hope  the  resolution  now  before  us  will  not  be 
adopted,  and  that  we  shall  leave  that  portion  of 
the  Constitution  precisely  as  it  stands  to-day. 

Mr.  BIRD,  of  Walpole.  The  gentlemen  from 
Boston,  have  said  that  this  matter  in  relation  to 
Harvard  College  was  put  into  the  Constitution  of 
1780,  because  there  was  no  other  college  in  the 
State  at  that  time.  But,  I  may  inquire,  how  it 
happens  that  it  was  kept  in  the  Constitution  of 
1820  ?  I  say  there  was  good  reason  for  it.  It 
was  not  retained  by  accident ;  and,  admitting  that 
it  may  have  have  been  introduced  in  the  Consti 
tution  of  1780  for  that  reason,  which,  as  a  matter 
of  fact,  I  do  not  admit,  yet  it  was  retained  in  the 
Constitution  of  1820,  and  for  the  reason  that  the 
relation  between  the  Commonwealth  and  Harvard 
College  is  entirely  different  from  the  relation  be 
tween  it  and  any  other  institution  in  the  State.  It 
is  not  only  the  relation  which  exists  between  a 
founder  and  the  institution  which  is  founded ; 
but  beyond  that,  there  is  a  peculiar  relation,  grow 
ing  out  of  the  fact,  that  the  Commonwealth  has 
had  the  entire  control  of  the  college  from  1780  to 
1810,  without  any  exception. 

From  1636  to  1810,  the  Commonwealth  of 
Massachusetts  had  as  much  control  of  Harvard 
College  as  of  anything  which  it  undertook  to  man 
age,  and  the  right  of  the  Commonwealth  to  this 
control,  was  never  questioned  up  to  1810.  There 
were  collisions  frequently  between  the  board  of 
overseers  and  the  corporation  ;  but,  without  going 
into  the  history  of  the  matter  fully,  I  am  pre 
pared  to  stand  upon  that  statement,  that  up  to 
1810,  the  corporation  of  Harvard  College  never 
questioned  the  right  of  the  Commonwealth  to  an 
absolute  and  entire  control  of  the  institution,  in 
every  particular.  That  fact,  as  a  matter  of  contem 
poraneous  history,  is  perfectly  conclusive,  and  it 
establishes  a  right  of  the  legislature  to  control  that 
college,  which  nobody  claims  that  the  legislature 
has  over  any  other  institution,  or  it  establishes  a 


59th  day.] 


NEW   TOWNS,   &c. 


77 


Saturday,] 


BIRD  —  GILES  —  WILSON  —  HOOPER. 


[July  16th. 


relation  between  that  institution"  and  the  Com 
monwealth,  which  exists  between  no  other  insti 
tution  and  the  State.  The  very  existence  of  this 
special  relation  under  the  Constitution,  implies 
that  the  Commonwealth  has  a  right  to  control  it, 
and  we  do  not  mean,  by  striking  out  that  clause, 
to  admit  that  the  relation  between  Harvard  Col 
lege  and  the  Commonwealth,  is  the  same  as  that 
between  any  other  institution  and  the  Common 
wealth.  I  have  no  doubt,  that  when  gentlemen 
see  the  bearing  of  this  matter,  it  will  be  retained. 

In  relation  to  the  Report  of  the  Committee,  I 
suppose  it  is  not  improper  for  me  to  say,  that  the 
chairman  of  the  Committee  that  made  this  Re 
port,  (Mr.  Briggs,)  was,  at  the  time  that  he  made 
it — for,  being  on  the  Committee  on  Harvard  Col 
lege,  he  expressed  that  opinion  to  that  Committee 
— in  favor,  as  a  matter  of  personal  preference,  of 
dissolving  the  connection  between  the  Common 
wealth  and  Harvard  College.  But,  gentlemen 
will  remember  that  he  yesterday  assented  to  the 
resolution  adopted  by  the  Convention  in  relation 
to  Harvard  College,  thus  abandoning  the  ground 
he  had  previously  taken,  that  as  a  matter  of  pol 
icy,  it  was  better  to  abandon  all  connection  with 
the  college.  The  striking  out  of  this  phrase,  is  a 
part  of  the  policy  of  severing  the  connection. 
The  chairman  of  the  Committee  may  have  been 
in  favor  of  that  policy,  but  we  all  understood  him 
yesterday,  to  have  changed  his  opinion  upon  that 
matter  ;  and,  therefore,  we  are  at  liberty  now  to 
assume  that  he  would  be  opposed  to  striking  out 
this  clause.  I  trust  the  motion  will  not  prevail. 

Mr.  GILES,  of  Boston.  The  gentleman  from 
Walpole,  who  has  just  taken  his  seat,  has  alluded 
to  a  subject  which  I  suppose  he  has  correctly 
stated.  The  chairman  of  the  Committee  to  which 
this  subject  was  referred,  was  also  a  member  of 
a  Committee  to  which  the  first  section  was  re 
ferred.  I  cannot  speak  for  that  Committee,  nor 
do  I  know  whether  any  member  of  that  Commit 
tee  is  present;  but  my  impression  is,  that  this 
Report  was  made  in  the  expectation  that  the 
Committee  to  which  the  other  subject  was  re 
ferred,  would  strike  out  everything  relating  to 
Harvard  College,  and  the  Report  of  the  Com 
mittee  to  which  the  first  section  was  referred 
being  adopted,  this  resolution  was  expected  to 
fall,  as  a  matter  of  course.  I  may  be  mistaken, 
but  whether  it  be  so  or  not,  I  think  it  is  better  to 
let  this  stand,  without  going  to  the  mooted  ques 
tion,  whether  this  be  a  public  institution  in  the 
sense  of  the  common  law,  thereby  giving  the 
State  power  over  it.  I  think  there  is  another 
reason  for  retaining  it,  which  is  this  :  that  this 
beautiful  section,  which  I  so  greatly  admire,  after 
making  it  the  duty  of  the  legislature  to  cherish 


"  all  seminaries  of  them,"  to  wit,  of  science  and 
literature,  then  specifies  such  seminaries  as  the 
State  then  had,  and  such  as  she  always  means  to 
have,  and  always  ought  to  have,  to  wit :  a  uni 
versity,  and  "  public  schools,  and  grammar  schools 
in  the  towns." 

That  system  of  common  school  education,  be 
ginning  now,  I  believe,  with  the  primary  school 
for  almost  infants,  in  fact,  as  well  as  in  law,  and 
terminating  in  your  university,  is  that  which  it 
was  designed  that  the  legislature  should  cherish. 
I  wish  it  to  stand,  for  that  reason,  that  it  may  al 
ways  be  known  that  we  have  a  university,  and 
public  schools  and  grammar  schools  in  towns,  as 
making  up  a  part  of  the  seminaries  of  learning 
which  we  are  to  cherish  in  all  time  to  come,  trac 
ing  back  their  origin  to  that  short  and  pithy 
clause  which  has  been  the  admiration  of  the 
whole  world,  and  deservedly  so.  I  am,  therefore, 
in  favor  of  retaining  that  section  as  it  stands. 

The  question  was  then  taken  on  the  final  pas 
sage  of  the  resolve,  and  there  were,  on  a  division, 
ayes,  19  ;  noes,  108. 

So  the  resolution  was  rejected. 

On  motion  by  Mr.  WILSON,  of  Natick,  the 
Orders  of  the  Day  were  laid  011  the  table. 

Iiicorporation  of  New  Toions. 

Mr.  WILSON.  I  now  move  that  the  Com 
mittee  of  the  Whole  be  discharged  from  the  far 
ther  consideration  of  the  resolution  in  relation  to 
the  incorporation  of  new  towns. 

The  motion  was  agreed  to. 

Mr.  WILSON.  I  now  move  that  the  rules  of 
the  Convention  be  suspended,  in  order  that  that 
resolution  may  be  considered  at  the  present  time. 

The  motion  was  agreed  to,  and  the  Convention 
proceeded  to  its  consideration. 

The  resolution  is  as  follows  : — 

Resolved,  That  the  Constitution  be  so  amend 
ed,  that  hereafter  no  town  shall  be  incorporated 
with  less  than  fifteen  hundred  inhabitants. 

Mr.  HOOPER,  of  Fall  River.  I  would  in 
quire  if  we  have  not  already  passed  upon  that 
question,  when  we  acted  upon  the  resolves  relat 
ing  to  the  House  of  Representatives  ? 

Mr.  WILSON.  I  do  not  so  understand  it.  It 
may  be  necessary  that  the  legislature  should  in 
corporate  a  town  with  less  than  fifteen  hundred 
inhabitants,  although  that  town  may  not  be  enti 
tled  to  a  representation  in  the  House  of  Repre 
sentatives.  It  has  been  necessary,  heretofore,  and 
although  we  have  provided  that  a  new  town  with 
less  than  fifteen  hundred  inhabitants  shall  not  be 
represented,  yet,  if  a  town  wishes  to  be  incorpo 
rated  without  the  right  of  representation,  and  it 


78 


NEW  TOWNS. 


[59th  day. 


Saturday,] 


GARDNER  —  BIGELOW  —  HOOPER  —  RANTOUL  —  FROTHINQHAM. 


[July  16th. 


is  for  their  interest  to  be  incorporated,  I  see  no 
objection  to  it.  I  therefore  move,  that  the  farther 
consideration  of  the  resolution  be  indefinitely 
postponed. 

Mr.  GARDNER,  of  Seekonk.  I  have  only  a 
single  word  to  say,  with  regard  to  this  question. 
I  am  very  desirous  that  the  resolution  should  pass, 
in  some  form,  and,  if  it  were  admissable,  I  should 
like  to  move  an  amendment  that  no  town  should 
be  incorporated  hereafter,  with  less  than  one 
thousand  inhabitants.  If  the  provision  stands  as 
it  is,  with  regard  to  representation,  and  110  town 
can  be  incorporated  with  less  than  fifteen  hun 
dred  inhabitants,  it  may  deprive  some  towns  of 
privileges  which  they  ought  to  possess.  I  hope 
the  motion  of  the  gentleman  from  Natick  will 
not  prevail,  and  that  there  will  be  an  opportunity 
offered  to  amend  the  resolution,  and  that  it  may 
then  be  passed.  I  think  it  will  deprive  certain 
towns  in  the  Commonwealth  of  privileges  which 
they  ought  to  possess,  and  which  I  can  conceive 
no  reason  why  they  should  not  enjoy.  The  gen 
tleman  from  Natick  lives  in  a  very  flourishing 
town,  which  is  growing  up  and  becoming  wealthy ; 
and,  I  suppose,  he  does  not  care  so  much  for  the 
interests  of  the  smaller  towns  adjoining,  which 
wish  to  be  incorporated  ;  at  least,  he  is  not  solic 
itous  that  they  should  be  incorporated,  and  have 
the  right  of  representation  on  the  floor  of  the 
House  of  Representatives.  I  know  that  when 
the  basis  of  representation  was  fixed,  it  was  pro 
vided  that  fifteen  hundred  inhabitants  should  be 
required,  to  entitle  a  new  town  to  a  representa 
tive,  and  I  am  opposed  to  that  also.  I  wish,  if 
the  gentleman  from  Natick  has  no  objection — and 
I  can  see  no  reason  why  he  should  have  any — he 
would  withdraw  his  motion,  that  this  resolution 
may  be  modified. 

Mr.  BIGELOW,  of  Grafton.  I  do  not  see 
why,  if  this  motion  to  postpone  the  resolution  in 
definitely  prevails,  we  are  not  left  in  a  position 
that  we  may  incorporate  a  town  with  any  number 
of  inhabitants  we  please.  "Why  do  we  need  to 
put  this  provision  in  the  Constitution  ?  Why 
shall  we  say  that  any  town  with  six  hundred  in 
habitants,  shall  rot  be  incorporated,  if  they  please  ? 
It  seems  to  me  it  is  very  proper  to  postpone  this 
subject  indefinitely. 

Mr.  HOOPER,  of  Fall  River.  I  see  that  this 
resolution  is  somewhat  different  from  the  one  in 
relation  to  the  basis  of  representation,  but  it  does 
not  seem  to  me  to  embrace  all  that  it  ought  to. 
That  provides  that  no  town  shall  be  incorporated, 
with  the  right  of  representation,  with  less  than 
fifteen  hundred  inhabitants ;  but  there  is  no  decla 
ration  that  the  town  shall  not  be  divided  in  a 
manner  so  as  to  leave  less  than  fifteen  hundred 


in  the  old  town.  So  that  I  do  not  see,  but  that 
with  this  provision,  a  town  might  be  divided  so 
as  to  leave  only  one  thousand,  and  create  a  new 
town  with  iit'teen  hundred,  which  would  be 
evading  the  object  of  the  provision  on  the  basis 
of  representation.  I  would  suggest  to  the  gen 
tleman  from  Natick,  that  he  withdraw  his  motion, 
and  allow  the  resolution  to  be  amended  so  as  to 
read :  that  no  town  shall  be  incorporated  when,  by 
the  division  of  a  town,  there  are  less  than  fifteen 
hundred  inhabitants  left  in  the  town  from  which 
the  new  town  shall  be  taken. 

Mr.  RANTOUL,  of  Beverly.  It  appears  to 
me  that  this  subject  had  best  be  left  with  the 
legislature.  I  think  we  should  not  impose  any 
restrictions.  Circumstances  may  occur,  when  it 
may  be  necessary  to  incorporate  a  town  with  a 
less  number,  and  it  may  be  exceedingly  desirable 
to  persons  that  the  town  shall  be  incorporated,  and 
it  may  be  for  their  convenience,  and  for  the  pub 
lic  interest,  that  it  should  be  done.  It  seems  to  me 
there  can  be  no  necessity  or  advantage  in  impos 
ing  such  a  restriction  upon  the  legislature  that 
they  cannot  make  such  laws  as  are  desirable  from 
time  to  time. 

Mr.  FROTHINGHAM,  of  Charlestown.  I 
agree  with  the  gentleman  from  Beverly,  who  has 
just  spoken.  I  hope  the  resolution  will  be  post 
poned.  It  seems  to  me,  it  is  entirely  inexpedient 
and  wrong  in  principle.  If  there  has  been  any 
policy  wliich  has  distinguished  Massachusetts,  and 
made  us  what  we  are,  it  has  been  the  policy  of 
incorporating  towns.  I  should  like  to  know  if  a 
community,  living  on  contiguous  territory,  wishes 
to  enjoy  town  privileges,  and  comes  up  to  the 
legislature, — be  it  five  hundred,  or  fifteen  hun 
dred  inhabitants, — and  asks  the  benefits  of  a  town 
incorporation,  what  argument  can  be  adduced  to 
show  that  they  should  not  enjoy  those  privileges. 
The  question  in  relation  to  town  representation, 
is  another  thing  entirely,  and  ought  not  to  be 
connected  with  it ;  that  is,  the  principle  of  local 
self-government  is  one  thing,  and  the  principle  of 
representation,  is  another,  and  the  latter  is  always 
provided  for.  But,  as  to  the  question  of  the  pol 
icy  and  the  propriety  of  incorporating  towns, 
there  can  be  naturally  but  one  answer  given  to  it, 
and  but  one  true  view  of  it,  and  that  is,  to  incor 
porate  them,  whenever  good  and  sufficient  rea 
sons  can  be  shown  for  doing  it. 

The  more  towns  we  have,  and  the  more  power 
is  subdivided  in  Massachusetts,  or  anywhere 
else,  the  sounder  will  be  our  republicanism. 
That  is  my  view  of  this  matter. 

It  has  been  the  policy  of  Massachusetts,  from 
the  earliest  times,  to  multiply  towns ;  and  it  has 
been  the  object  also,  of  those  who  have  endea- 


59th   day.] 


NEW   TOWNS. 


79 


Saturday," 


FHOTHINGHAM. 


[July  16th. 


vored  to  restrict  Massachusetts,  to  restrict  the 
incorporation  of  towns.  Long  before  the  Revo 
lution,  there  was  an  order  sent  over  here  from 
the  British  administration,  prohibiting  our  gov 
ernors  from  assenting  to  the  incorporation  of 
towns ;  and  we  took  the  ground  here,  that  it  was 
a  natural  right  which  the  people  had,  to  enjoy 
self-government,  and  so,  when  they  could  not 
get  at  the  name  of  towns,  they  incorporated  them 
selves  under  the  name  of  precincts,  parishes,  or 
something  else,  in  order  to  get  as  much  of  the 
value  of  this  self-government  as  possible. 

As  long  as  I  am  up,  I  will  take  occasion  to 
make  a  few  remarks  respecting  one  other  point, 
in  relation  to  the  origin  of  our  towns.  I  have 
heard  it  stated  by  the  venerable  gentleman  before 
me,  (Mr.  Morton,) — and  some  others  have  said 
the  same  thing, — that  our  towns  came  from  the 
custom  of  making  forts,  and  perhaps  out  of  some 
other  institutions,  such  as  the  church.  Indeed, 
this  is  a  very  common  opinion.  I  am  not 
going  into  a  long  speech  about  this  matter,  but 
merely  to  state  a  fact  or  two,  or  a  view  that  has 
grown  up  out  of  facts  in  relation  to  this  subject. 
Let  any  one  go  back  and  trace  out  how  it  was 
that  Boston,  and  Lynn,  and  Salem,  and  all  the 
earlier  towns,  came  to  be  incorporated,  came  to 
be  towns,  not  how  they  came  by  their  territory, 
but  more  precisely  how  they  came  to  have  their 
form  of  town  government.  Did  they  obtain  this 
right  from  the  first  charter  ?  did  they  come  by  it 
from  a  law  of  the  British  Parliament  ?  Did  they 
copy  the  example  of  England,  in  relation  to 
towns,  and  follow  on  in  an  old  custom,  as  to 
electing  town  officers  ?  No  !  not  at  all !  They 
had  no  warrant  for  what  they  did,  neither  in  the 
charter,  the  statute,  nor  usage.  "When  Sir  Ed 
mund  Andros  came  over  here,  and  saw  the  beau 
tiful  operation  of  the  towns,  their  democratic 
feature,  their  republicanism,  their  great  popular 
privileges,  he  was  jealous  of  the  spread  of  Com 
monwealth  notions,  and  saw  that  these  towns 
were  nurturing  a  principle  anything  but  in  har 
mony  with  the  British  Constitution.  But  there 
was  no  British  law  to  justify  this  system, — noth 
ing  to  justify  a  town,  in  the  New  England  sense 
of  the  term, — and  when  selectmen,  in  resisting  his 
arbitrary  laws,  pleaded  town  action,  he  snapped 
his  fingers  at  them,  and  told  them  there  was  no 
such  thing  as  a  town  in  all  New  England.  And 
Sir  Edmund  Andros  was  right.  He  took  his 
idea  of  towns  from  Old  England ;  and  there  was 
no  comparison  at  all,  as  to  government,  between 
the  towns  of  New  England  and  the  towns  of  Old 
England.  That  is,  the  governments  of  the  towns 
of  Old  England  were  close  corporations,  self- 
elected  councils,  little  oligarchies,  without  a  single 


valuable  popular  right.  There  was  no  such  thing 
as  this  in  New  England.  How  came  we  by  our 
town  government  ?  This  is  a  short  story  of  the 
matter  :  When  our  people  came  over  here,  they 
acted,  at  first,  in  town  meeting,  all  together  ;  they 
were  so  many  little  democracies.  But  they  soon 
found  that  this  mode  of  determining  town  affairs 
was  too  inconvenient ;  it  took  up  too  much  time ; 
and  what  did  they  do  next  ?  Their  object  was  to 
remedy  an  evil,  and  to  provide  for  a  necessary 
want.  I  can  point  gentlemen  to  the  original  con 
stitution  of  a  board  of  selectmen.  The  inhab 
itants  of  the  towns  came  together,  before  there 
was  any  law  of  the  general  court  in  regard  to  the 
matter — years  before — and  signed  an  instrument, 
to  the  effect  that,  inasmuch  as  the  trouble  of  these 
frequent  town  meetings  was  so  very  great,  they 
would  agree  to  be  bound  by  what  seven  of  their 
number  should  do,  as  though  it  were  done  by 
them.  Then  followed  the  election  of  those  offi 
cers,  and  other  officers  ;  and  this  was  done  in 
Charlestown,  and  it  was  done  in  other  towns, 
before  there  was  any  law  to  regulate  elections. 
Such  was  the  origin  of  the  towns,  and  of  town 
government.  The  people  brought  with  them  the 
great  idea  of  popular  sovereignty,  and  all  through 
it  was  a  struggle  to  apply  this  to  their  condition. 
They  applied  it  to  a  town  or  local  form  of  gov 
ernment,  assuming  the  right  to  do  it,  before  there 
was  any  law  or  practice  to  authorize  or  to  justify 
it.  In  a  few  years  the  general  court  reorganiz 
ed  the  towns,  and  made  laws  to  regulate  their 
proceedings,  and  so  it  has  gone  on  from  that 
time  to  this,  to  the  immense  advantage  of  the 
country. 

Now,  I  am  in  favor  of  allowing  this  great  idea 
to  be  established,  viz.  :  That  the  people  have  a 
right  to  be  incorporated  into  new  towns  when  the 
growth  of  the  community  and  the  increase  of  pop 
ulation  and  change  of  interests  in  certain  localities 
leads  individuals  to  apply  for  town  privileges.  I 
see  nothing  in  the  whole  system  but  benefits  to 
the  communities  concerned,  from  allowing  them 
to  divide,  and  granting  to  them  the  right  and  priv 
ilege  of  self-government.  I  have  been  here  upon 
this  floor  when  large  towns  and  old  towns  have 
been  divided,  when  the  progress  of  business  and 
population  have  created  in  certain  localities  large 
interests, — commercial  or  manufacturing  interests, 
it  may  be, — distinct  from  the  ancient  agricultural 
interests,  where  such  new  communities  claimed 
the  right  to  manage  their  own  local  concerns  in 
their  own  way ;  or  it  has  been  the  other  way, 
that  is  :  the  agricultural  interest  has  claimed  that 
it  ought  not  to  be  taxed  to  support  the  commer 
cial  interest,  as  in  the  case  of  Somerville  and 
Charlestown.  Now,  what  argument  can  be 


80 


NEW   TOWNS,  &c. 


[60th  day. 


Monday,] 


LELAND  —  HOOPER  —  GARDNER  —  BROWN  —  SARGENT. 


[July  18th. 


brought  against  such  claims  ?  There  is  no  argu 
ment  ;  nor  is  there  evil  in  creating  towns  for  such 
reasons  ;  and  I  am  in  favor  of  keeping  this  where 
it  is — that  is,  of  leaving  the  whole  matter  with 
the  legislature. 

Mr.  LELAND,  of  Holliston.  I  think  this 
matter  ought  not  to  be  indefinitely  postponed  at 
this  time ;  for  I  think,  with  the  gentleman  from 
Fall  River,  that  there  is  a  necessity  for  amending 
this  resolve.  Suppose  it  should  pass  in  its  pres 
ent  form,  and  hereafter  a  town  with  twenty- five 
hundred  inhabitants  should  wish  to  be  divided  so 
as  to  get  additional  representation.  We  do  not 
know  what  may  happen,  and  it  is  wise  to  provide 
for  it.  Well,  Sir,  fifteen  hundred  of  the  inhabit 
ants  can  be  set  off  and  incorporated  into  a  new 
town,  and  the  thousand  who  are  left  will  also  be 
entitled  to  their  town  rights.  I  think  this  is 
something  which  we  ought  to  provide  for,  and, 
therefore,  I  hope  that  the  resolution  will  be  amend 
ed  accordingly. 

Mr.  HOOPER,  of  Fall  River.  I  move  to 
amend  this  resolve  by  striking  out  all  after  the 
word  "  incorporated,"  and  inserting  the  words 
"  by  a  division  of  a  town,  leaving  less  than  fif 
teen  hundred  inhabitants  in  the  town  from  which 
the  new  town  shall  be  taken,"  so  that  the  resolve, 
as  amended,  will  read  as  follows  : — 

Resolved,  That  the  Constitution  be  so  amended 
that  hereafter  no  town  shall  be  incorporated,  by 
a  division  of  a  town,  leaving  less  than  fifteen 
hundred  inhabitants  in  the  town  from  which  the 
new  town  shall  be  taken. 

I  fully  agree  with  the  remarks  of  the  gentleman, 
and  see  no  necessity  for  putting  any  barrier  in  the 
way  of  an  unlimited  incorporation  of  towns,  that 
is  not  necessary  to  guard  it  in  relation  to  represen 
tation  ;  it  has  already  been  guarded  in  one  respect, 
and  it  seems  to  me  to  be  necessary  that  it  should 
also  be  guarded  in  the  other. 

Mr.  GARDNER,  of  Boston.  Mr.  President: 
It  is  the  first  time  that  I  have  made  the  motion 
which  I  now  make,  in  this  Convention,  and  it 
will  probably  be  the  last ;  but,  Sir,  I  am  not  in 
favor  of  sitting  here  and  doing  business  in  the 
absence  of  a  legal  quorum  of  this  body.  I  am  of 
the  opinion  that  there  is  not  a  quorum  now  pres 
ent,  and  I  therefore  make  the  motion  that  the 
Convention  do  now  adjourn. 

Mr.  SCHOULER.  For  the  purpose  of  deter 
mining  whether  there  is  a  quorum  or  not,  I  ask 
for  a  division. 

The  question  being  taken,  on  a  division,  there 
were — ayes,  38  ;  noes,  59 — no  quorum  voting. 

Mr.  WILSON,  of  Natick,  moved  that  the  Con 
vention  adjourn. 


The  motion  was  agreed  to ;  and  accordingly,  at 
twenty  minutes  before  two  o'clock,  the  Conven 
tion  adjourned. 


MONDAY,  July  18,  1853. 

The  Convention  assembled  pursuant  to  ad 
journment,  and  was  called  to  order  by  the  Presi 
dent,  at  nine  o'clock. 

Prayer  by  the  Chaplain. 

The  Journal  of  yesterday  was  read. 

Limitation  of  Speeches. 

Mr.  BROWN,  of  Medway,  submitted  an  order 
that  hereafter  all  speeches,  except  those  of  the 
chairmen  of  Committees,  be  limited  to  fifteen 
minutes  each. 

The  order  was  laid  over  for  consideration  to 
morrow. 

Orders  of  the  Day. 

On  motion  of  Mr.  WILSON,  of  Natick,  the 
Convention  proceeded  to  the  consideration  of  the 
Orders  of  the  Day,  the  first  subject  being  the 
resolve  on  the  subject  of  the 

Incorporation  of  New  Towns, 
Which  is  as  follows  : — 

Resolved,  That  the  Constitution  be  so  amended 
that  hereafter,  no  town  shall  be  incorporated  with 
less  than  fifteen  hundred  inhabitants. 

To  this  resolve  an  amendment  had  been  moved 
by  the  gentleman  from  Fall  River,  (Mr.  Hooper,) 
and  Mr.  Wilson,  of  Natick,  had  moved  its  indefi 
nite  postponement. 

Mr.  SARGENT,  of  Cambridge.  I  am  opposed 
to  the  amendment,  and  in  favor  of  the  motion  of 
the  gentleman  from  Natick.  I  believe  we  are 
attempting  to  establish  a  false  principle  in  the 
Constitution.  I  do  not  believe  that  the  question 
of  the  incorporation  of  new  towns  can  be  settled 
upon  mere  numbers  ;  it  must  be  settled  upon  the 
circumstances  which  surround  each  particular 
case.  There  may  be  a  case  where  it  would  be  of 
the  utmost  importance  that  a  new  town  should 
be  incorporated,  where  there  were  not  more  than 
five  or  six  hundred  inhabitants ;  and  in  other 
cases  it  might  neither  be  proper  or  just  to  incor 
porate  a  town,  although  there  were  more  than 
fifteen  hundred.  I  presume  that  the  object  of 
this  amendment  is  to  remedy  an  evil  which  it  is 
feared  may  grow  out  of  our  basis  of  represent 
ation.  If  that  be  the  case,  to  my  mind  it  affords 
no  argument  in  favor  of  adopting  another  wrong 
principle,  because  two  wrongs  can  never  make  a 


60 tli  day.] 


NEW   TOWNS. 


81 


Monday,] 


SARGENT  —  EARLE  —  HOYT. 


[July   18th. 


right.  The  amendment  is  proposed  for  the  pur 
pose  of  preventing  the  legislature  from  so  dividing 
a  town  that  the  original  town  shall  be  deprived 
of  its  annual  representation.  Now,  Sir,  this 
matter  of  dividing  towns,  or  creating  new  towns, 
is  a  mere  matter  of  profit  and  loss.  The  legis 
lature  have  always  required,  and  I  believe, 
always  will  require,  that  the  petitioners  for  a  new 
town  should  make  out  a  clear  and  undeniable 
case,  that  the  benefits  to  be  derived  from  the 
incorporation  of  that  town  were  greater  than  the 
evils  to  be  inflicted ;  and  whenever  such  a  case 
is  made  out,  irrespective  of  numbers,  then  I  hold 
that  the  power  should  be  vested  in  the  legislature 
to  grant  the  prayer  of  the  petitioners.  Suppose 
that  a  petition  comes  before  the  legislature  for  a 
division  of  a  town  in  this  Commonwealth  in  such 
a  manner  that  the  original  town  will  have  less 
than  one  thousand  inhabitants,  and  will  thereby 
be  deprived  of  a  portion  of  its  representation. 
That  is  an  element,  and  it  is  one  of  great  weight 
for  the  legislature  to  consider.  It  is  one  of  the 
elements  of  law,  and  unless  they  can  show  that 
benefits  are  to  be  derived  which  will  more  than 
counterbalance  the  evils,  the  legislature  will  never 
so  dissever  a  town.  I  hold,  therefore,  that  the 
adoption  of  this  resolution,  either  as  it  was  origi 
nally  reported,  or  as  it  is  proposed  to  be  amended, 
would  be  ingrafting  a  false  principle  in  the  Con 
stitution  ;  it  would  be  fettering  the  legislature 
upon  an  important  subject,  and  one  which,  it  is 
altogether  safer  to  leave  in  their  hands,  so  that 
each  case  may  be  decided  upon  its  real  merits, 
instead  of  being  decided  upon  mere  numbers. 
I  hope,  therefore,  that  the  amendment  will  be 
rejected,  and  that  the  motion  of  the  gentleman 
from  Natick  will  prevail. 

Mr.  EARLE,  of  Worcester.  I  am  opposed  to 
the  amendment,  which  is  offered,  because,  it  ap 
pears  to  me,  that  it  creates  just  as  great  an  evil  as 
it  attempts  to  remedy.  It  proposes  to  strike  out 
the  provision  by  which  no  new  town  shall  be  in 
corporated  with  less  than  fifteen  hundred  inhabi 
tants,  and  to  provide  that  no  old  town  shall  be  left, 
by  the  incorporation  of  a  new  one,  with  less  than 
fifteen  hundred  inhabitants.  It  permits,  in  fact, 
that  a  new  town  may  be  incorporated  with  only 
five  hundred  inhabitants  ;  but  it  says,  that  by  so 
doing,  you  shall  not  leave  an  old  town  with  less 
than  fifteen  hundred.  Now,  Sir,  I  am  opposed 
to  any  provision  of  this  kind.  I  think  that  these 
town  corporations  are  intended  for  the  benefit 
of  the  inhabitants.  They  have  little  to  do  with 
territorial  arrangements,  except  so  far  as  they  tend 
to  the  convenience  of  the  inhabitants  for  their 
municipal  concerns  ;  and  wherever  the  conven 
ience  of  the  people  requires  a  municipal  corpora- 

63 


tion  of  this  kind,  although  there  may  not  be  more 
than  a  thousand  or  twelve  hundred,  I  see  no  rea 
son  why  they  should  not  have  it.  I  am,  there 
fore,  opposed  to  having  any  provision  inserted 
into  the  Constitution  in  relation  to  this  matter. 
I  think  that  the  provision,  which  has  already 
been  agreed  to,  that  no  town  shall  be  incorporated, 
with  a  right  to  representation,  as  such,  which  had 
less  than  fifteen  hundred  inhabitants,  is  all  that 
we  need  to  do,  and  all  the  restriction  that  we 
need  to  impose.  If  a  population  of  a  thousand, 
or  twelve  hundred,  suppose  they  will  be  better 
accommodated  by  a  town  corporation,  without 
the  right  to  representation,  except  as  connected 
with  the  town  from  which  they  are  to  be  set  off, 
and  choose  to  take  an  act  of  incorporation  under 
such  circumstances,  I  see  no  reason  why  they 
should  not  have  it.  They  would  then  be  placed 
in  the  situation  of  corporations  formerly  made, 
where  districts  were  established,  having  all  the 
rights  of  towns  except  that  of  representation.  I 
see  no  reason  why  that  right  should  not  be  still 
given,  and  therefore  I  am  opposed  both  to  the 
amendment  and  to  the  original  proposition,  and  I 
hope  that  neither  of  them  will  pass. 

Mr.  HOYT,  of  Deerfield.  I  must  confess  that 
the  form  of  the  proposition,  as  proposed  to  be 
amended,  does  not  meet  my  view  ;  but  yet  I  do 
think  that  it  is  important  that  some  provision, 
should  be  inserted  into  the  Constitution,  to  regu 
late  the  creation  of  new  towns.  As  was  remarked 
by  the  gentleman  from  Cambridge,  (Mr.  Sargent,) 
this  subject  is  intimately  connected  with  the  sys 
tem  of  representation  which  this  Convention  have 
adopted  ;  but,  if  I  understood  him,  he  seemed  to 
assume  that  that  system  was  wrong,  and  that  w© 
could  not  make  a  provision  to  secure  a  thing  which 
was  wrong,  that  would  not  itself  be  wrong.  But 
to  those  who  consider  that  the  system  of  repre 
sentation  is  right,  of  course,  his  reasoning  would 
not  apply.  I  think  that  this  is  a  matter  which 
should  not  be  left  entirely  to  the  control  and  di 
rection  of  the  legislature ;  but,  that  the  towns 
themselves  should  have  a  voice  in  this  matter ;  and 
I  should  like  a  provision  that  new  towns  should  not 
be  incorporated  without  the  consent  of  a  majority 
of  the  voters  of  the  town  from  which  the  territory 
was  to  be  created.  As  towns  are  incorporated  for 
the  convenience  of  the  inhabitants,  I  regard  those 
inhabitants  as  the  best  judges  of  the  importance, 
or  the  necessity,  or  propriety,  in  every  case,  of 
making  a  new  town,  or  of  making  a  very  material 
change  in  the  limits  of  a  town,  especially  if  the 
system  of  representation  which  has  been  adopted 
by  this  Convention,  should  be  ratified  by  the 
people. 

Mr.  EARLE.     There  is  one  objection,  which 


82 


NEW  TOWNS. 


[60th  day. 


Monday," 


EARLE  —  CHURCHILL  —  HALLETT. 


[July  18th. 


has  suggested  itself  to  my  mind,  against  having 
any  provision  of  this  kind,  and  that  is  this :  There 
are  cases — very  strong  cases  sometimes — which  re 
quire  the  incorporation  of  new  towns  where  there 
may  not  be  this  number  of  inhabitants  ;  and  there 
will  be  a  very  great  tendency,  if  a  provision  of 
this  kind  is  ingrafted  into  the  Constitution,  to  in 
clude  inhabitants  who  would  not  choose  to  go  to 
the  new  towns,  to  enlarge  the  limits,  and  thereby 
inflict  an  injury  upon  those  who  are  thus  taken 
in.  It  appears  to  me  that  we  gain  nothing  by 
this  proposition.  I  do  not  see  any  advantage  in 
it.  I  regard  the  legislature  as  the  proper  judge, 
whether  there  is  a  good  cause  or  not,  for  the  in 
corporation  of  a  town,  because  they  will  have  all 
the  facts  before  them  ;  they  can  better  judge 
whether  a  town  ought  to  be  incorporated,  with 
twelve  or  thirteen  hundred  inhabitants,  than  we, 
sitting  here  without  any  facts  before  us,  possibly 
can  do.  I  think,  therefore,  that  if  we  leave  the 
Constitution  as  it  is,  we  shall  do  the  best  thing 
that  we  can  do. 

Mr.  CHURCHILL,  of  Milton.  I  am  certainly 
in  favor  of  some  restriction  of  this  sort,  and  shall 
vote  for  the  amendment  proposed  by  the  gentle 
man  for  Wilbraham,  (Mr.  Hallett).  I  think  it 
is  essentially  necessary  that  a  restriction  should 
be  placed  upon  the  creation  of  additional  towns, 
for  this  reason :  It  strikes  me,  that  one  of  the 
evils  which  may  grow  out  of  the  basis  of  repre 
sentation  for  the  lower  House,  which  we  shall 
probably  adopt,  is  a  large  increase  in  the  size  of 
that  body.  That  evil,  every  gentleman  must  see, 
is  liable  to  be  increased  by  the  cutting  up  of  large 
towns  into  one,  two,  or  three  additional  towns, 
having  between  one  and  four  thousand  inhab 
itants,  which  are  now  entitled  to  send  one  rep 
resentative  to  the  legislature.  In  that  way,  your 
House  of  Representatives  may  be,  by  political 
parties,  and  influenced  by  political  motives,  in 
creased,  year  after  year,  to  a  size  which  every  one 
will  regret  to  see.  For  that  reason,  I  shall  vote 
for  some  restriction. 

Mr.  HALLETT,  for  Wilbraham.  I  wish  to 
suggest,  for  the  consideration  of  the  Convention, 
whether  the  gentleman's  amendment  ought  not 
to  go  farther,  so  as  to  prevent  the  possibility  of 
one  town  dividing  itself  into  two  or  three  towns, 
and  thus  multiply  its  representation  ?  It  is  pro 
posed,  in  the  basis  of  representation,  that  no  new 
town  shall  be  created,  with  a  right  of  representa 
tion,  having  a  population  of  less  than  fifteen 
hundred  inhabitants.  Now,  if  this  provision 
should  pass,  or  if  there  be  no  limitation  in  that 
respect,  will  not  this  state  of  cases  arise  all  over 
the  Commonwealth?  For  example:  Here  is  a 
town  with  two  thousand  five  hundred  inhabitants, 


which  is  now  entitled  to  send  one  representative, 
and,  remaining  a  town,  intact  and  undivided,  by 
no  process  under  the  basis  of  representation 
could  it  be  entitled  to  more  than  one  representa 
tive,  until  it  had  nearly  doubled  its  population. 
Yet,  that  town  of  twenty-five  hundred  inhabi 
tants,  by  taking  off  fifteen  hundred,  may  make  a 
new  town,  and,  in  such  case,  the  new  town  at 
once  acquires  the  right  of  representation ;  be 
cause,  according  to  the  proposed  Constitution,  the 
new  town,  with  fifteen  hundred  inhabitants,  will 
be  entitled  to  a  representative,  while  you  cannot 
possibly  take  away  the  representation  from  the 
old  town,  with  one  thousand  inhabitants ;  and 
thus,  by  this  division,  such  town  with  twenty-five 
hundred  inhabitants,  will  obtain  two  representa 
tives.  Now  carry  this  rule  to  a  town  having 
forty -five  hundred  inhabitants,  and,  by  taking 
out  twice  fifteen  hundred  inhabitants  you  will 
enable  the  town,  so  divided,  to  send  three  repre 
sentatives  instead  of  two. 

It  seems  to  me  that  by  such  a  course  you  place 
the  House  of  Representatives  somewhat  in  the 
position  the  British  Constitution  places  the  in 
crease  of  the  House  of  Lords,  by  which  the  crown, 
whenever  it  is  desirable  to  carry  any  measure  in 
the  House  of  Lords,  and  the  lords  being  refractory 
and  opposed  to  it,  may  create  a  sufficient  number 
of  additional  peers,  so  as  to  obtain  a  majority. 
Even  the  threat  to  make  new  peers,  carried  the 
Reform  Bill.  And,  Sir,  may  not  any  party  in 
this  House  that  desires  to  carry  a  particular  meas 
ure  at  a  future  election,  manufacture  new  towns 
out  of  old  ones,  and  go  on  in  this  way  and  send 
forty  or  fifty  additional  representatives  ?  I  want 
therefore  to  guard  against  this,  by  a  provision 
that  new  towns  shall  not  add  to  the  representation 
of  the  old  towns,  or  one  similar  to  that  existing  in 
the  Constitution  of  the  United  States,  which  pro 
vides  that  no  new  State  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State,  nor 
any  State  be  formed  by  the  jurisdiction  of  two  or 
more  States,  or  parts  of  States,  without  the  consent 
of  the  legislatures  of  the  States  concerned.  I 
want  a  provision  of  some  kind  here,  so  far  as  to 
say  that  no  new  town  shall  be  created  within  the 
limits  of  an  existing  town  so  as  to  increase  the 
representation  of  the  old  and  new  towns,  put 
together— so  that  if  the  legislature  makes  a  new 
town  with  fifteen  hundred  inhabitants,  out  of  an 
old  town,  leaving  one  thousand,  they  shall  not  do 
it  so  as  to  multiply  its  particular  representation 
within  that  territory ;  because  I  regard  the  basis 
we  propose,  and  which  always  has  prevailed, 
(and  that  is  the  only  principle  upon  which  I  can 
stand,)  as  a  representation  of  communities,  in  the 
town  or  towns,  and  in  that  capacity  as  all  copart- 


60th  day.] 


NEW  TOWNS. 


83 


Monday,] 


HALLETT  —  GRAY  —  WILSON  —  KINSMAN. 


[July  18th. 


ners  entering  into  an  arrangement  in  regard  to 
their  representation  in  this  House ;  and  I  do  not 
want  any  new  partner  to  come  in  until  I  know 
on  what  terms,  and  with  what  capital  he  is  to  be 
admitted.  Although  there  may  be  cases  in  which 
it  will  be  necessary  to  incorporate  new  towns  for 
convenience,  with  fifteen  hundred  inhabitants  or 
under  that  number,  I  am  convinced  that  there 
ought  to  be  a  provision  incorporated  into  the 
Constitution,  determining  that  these  towns,  thus 
divided,  cannot  multiply  their  representation, 
because,  as  we  have  seen,  it  would  be  the  easiest 
thing  in  the  world  for  any  town,  with  over  2,500 
inhabitants,  to  divide  itself  into  two  towns,  and 
have  more  representatives  than  its  just  proportion, 
and  which  could  not  be  done  by  the  smaller  towns 
or  larger  cities.  The  city  of  Boston,  perhaps, 
could  not  do  it  very  conveniently — but,  upon  the 
same  principle,  she  might  divide  her  twelve  wards 
into  one  hundred  towns,  of  fifteen  hundred  in 
habitants  each,  and  thus  multiply  her  representa 
tion  indefinitely.  I  wish  to  guard  against  any 
such  objection  to  the  proposed  basis. 

Mr.  GRAY,  of  Boston.  I  do  not  think  that 
we  can  adopt  this  restriction  without  injustice  to 
the  people  of  the  Commonwealth.  The  gentle 
man  for  Wilbraham,  (Mr.  Hallett,)  will  not  sus 
pect  me  of  being  very  much  in  favor  of  a  large 
House  of  Representatives,  or  of  thinking  that  the 
House  the  Convention  has  already  provided  for, 
is  not  large  enough ;  but  I  do  think  that  to  insert 
a  provision  preventing  towns  from  being  formed 
for  fear  of  having  too  large  a  House,  is  inflicting 
upon  them  an  evil  which  ought  to  be  guarded 
against  in  some  other  way — that  is  by  some  pro 
vision  as  to  representation.  I  do  not  hold — and 
I  suppose  that  no  gentleman  holds — that  the  sole 
purpose  of  the  creation  of  towns  is,  that  they  may 
be  represented  as  towns  in  the  legislature.  I  had 
supposed  that  the  greater  part  of  the  benefits 
which  result  from  town  government,  result,  so  to 
speak,  from  what  may  be  called  their  operation 
downwards  from  the  people  of  the  town,  and  not 
from  their  operation  upwards  in  this  House  of  the 
legislature.  In  this,  I  believe,  is  the  greater  part 
of  the  benefits  which  accrue  to  the  towns  from 
their  particular  organization  as  such.  It  is  enough, 
I  think,  to  say  that  many  benefits  result  from  the 
operations  of  these  town  governments  in  their 
internal  structure,  and  I  agree  with  the  gentleman 
from  Worcester,  that  we  may  deprive  them  of 
great  advantages,  and  inflict  upon  them  many 
positive  evils  by  a  provision  of  this  kind.  I  think 
the  whole  matter  can  be  safely  left  where  it  has 
always  been — in  the  hands  of  the  legislature. 

Mr.  HALLETT.  Is  it  in  order  to  offer  an 
amendment  to  the  amendment  ? 


Mr.  PRESIDENT.     It  is  in  order. 
Mr.  HALLETT.     Then  I  move  to  amend  the 
amendment  by  adding  to  it  the  following  : — 

"  But  the  incorporation  of  any  new  town  shall 
not  thereby  increase  the  whole  number  of  repre 
sentatives." 

Mr.  EARLE.     I  wish  to  hear  the  amendment 
read  as  it  is  proposed  to  be  amended. 
It  was  accordingly  read,  as  follows  : — 

Resolved,  That  the  Constitution  be  so  amended, 
that  no  town  hereafter  shall  be  incorporated  with 
less  than  fifteen  hundred  inhabitants,  but  the 
incorporation  of  any  new  town  shall  not  thereby 
increase  the  whole  number  of  representatives. 

Mr.  WILSON,  of  Shelburne.  It  seems  to  me 
that  such  a  provision  as  that  involved  in  the 
amendment  of  the  gentleman  for  Wilbraham, 
(Mr.  Hallett,)  will  amount  almost  to  an  entire 
prohibition  in  regard  to  the  formation  of  any  new 
towns.  As  I  understand  the  matter,  it  would, 
in  some  instances,  operate  very  hardly.  Let  me 
suppose  a  case.  Suppose,  for  instance,  that  just 
upon  the  border  of  any  town  having  fifteen  hun 
dred  inhabitants,  some  manufacturing  establish 
ment  shall  be  originated,  forming  a  nucleus  for  a 
new  population.  Suppose,  farther,  that  the  man 
ufacture  flourishes,  and  the  people  gather  togeth 
er  in  that  vicinity  in  sufficient  numbers  to  war 
rant  them — taking  a  very  small  portion  from  the 
old  town — in  applying  for  a  town  organization, 
their  convenience  and  prosperity  being  thereby 
greatly  promoted.  Will  anybody  say  that  it 
shall  be  refused  ?  On  what  grounds  ?  It  may 
be  all  very  right  and  proper,  but  I  must  confess 
that  I  do  not  see  it  so.  To  say  that  there  shall 
be  no  new  corporation  granted  unless  the  popu 
lation  of  the  town  from  which  the  new  one  is  to 
be  taken  amounts  to  fifteen  hundred,  I  think  is 
unreasonable,  and  that  no  such  provision  should 
be  adopted.  I  think  it  would  be  unsatisfactory 
to  the  people.  There  are  large  sections  of  the 
country  and  various  interests  which  are  anxious  to 
have  new  towns  ;  and,  with  such  a  provision  as 
this  in  your  Constitution,  I  think  they  will  be 
very  likely  to  vote  against  it,  when  the  question 
of  adoption  or  rejection  comes  to  be  tried. 

Mr.  KINSMAN,  of  Newburyport.  The  prop 
osition  of  the  gentleman  for  Wilbraham,  is  one 
which  I  cannot  but  regard  as  unequal  and  unjust, 
and  it  will  be  found,  that  if  we  once  commence 
this  course  of  injustice,  it  will  follow  throughout. 
It  appears  to  me  that  nothing  can  be  more  unjust 
than  the  proposition  now  before  the  Convention. 
I  have,  in  my  mind's  eye,  a  town  about  ten 
miles  in  length  and  three  in  breadth,  a  portion  of 


84 


NEW  TOWNS. 


[60th  day. 


Monday,] 


EARLE  —  HOYT  —  FROTHINGHAM  —  SCHOULER. 


[July  18th. 


which  is  largely  engaged  in  manufacturing,  and 
there  is  very  little  doubt  that  it  is  soon  destined 
to  be  a  city.  Now  such  being  the  case — this 
establishment  being  in  the  centre  of  the  town — 
neither  extremity  will  have  population  sufficient 
to  make  a  town  of  fifteen  hundred  inhabitants, 
and  consequently,  after  the  city  is  set  off,  neither 
of  them  will  have  a  town  organization.  What 
then  is  to  become  of  these  extremities?  The 
farming  part  of  that  town  do  not  want  to  pay 
for  gas,  and  other  matters  appertaining  to  a  city ; 
they  do  not  want  to  pay  for  that  class  of  schools 
from  which  they  receive  no  benefit.  These  appear 
to  me  to  be  reasons  why  the  matter  had  better  be 
left  to  the  legislature  to  arrange,  as  circumstances 
from  time  to  time  may  require.  I  shall,  there 
fore,  vote  against  the  amendment. 

Mr.  EARLE,  of  Worcester.  It  will  be  recol 
lected  that  we  have  already  adopted  a  provision, 
that  towns  shall  not  be  incorporated  with  less 
than  fifteen  hundred  inhabitants  with  the  right 
of  representation,  and  that  is  also  naturally  a 
provision  against  the  incorporation  of  any  town 
which  shall  leave  another  town  with  less  than 
fifteen  hundred  inhabitants.  It  appears  to  me 
that  that  is  going  quite  as  far  as  we  ought  to  go 
in  regard  to  the  restriction.  The  case  which  has 
been  stated  by  the  gentleman  from  Newburyport, 
is  much  in  point,  showing  that  cases  of  great 
hardship  may  arise,  by  any  provision  of  a  kind 
like  that  which  it  is  now  proposed  to  insert. 
From  my  own  observation,  I  know  that  there 
would  be  many  similar  cases. 

The  question  was  then  taken  on  the  amend 
ment  to  the  amendment,  and  it  was  rejected. 

The  question  next  recurring  on  the  amendment 
offered  to  the  Report  of  the  Committee,  by  the 
gentleman  from  Fall  River,  it  was  decided  in  the 
negative,  and  the  amendment  was  rejected. 

The  PRESIDENT.  The  question  HOAV  recurs 
on  the  motion  of  the  gentleman  from  Natick, 
(Mr.  Wilson,)  that  the  farther  consideration  of 
this  subject  be  indefinitely  postponed. 

Mr.  HOYT,  of  Deerfield.  Before  the  question 
is  taken  on  that  motion,  I  wish  to  offer  an  amend 
ment.  It  is  as  follows  : — 

Strike  out  all  after  the  word  "  incorporated," 
and  insert  "  without  the  consent  of  the  town  or 
towns,  from  which  the  territory  shall  be  taken." 

So  as  to  make  the  proposition  read  as  follows : 

Resolved,  That  the  Constitution  be  so  amended, 
that  hereafter  no  town  shall  be  incorporated  with 
out  the  consent  of  the  town  or  towns,  from  which 
the  territory  shall  be  taken. 

Mr.  FROTHINGHAM,  of  Charlestown.  I  do 
not  know  that  it  is  necessary  to  say  a  word  about 


the  amendment.  I  am  strongly  opposed  to  the 
principle  that  no  new  towns  shall  be  incorporated 
unless  the  old  ones  consent  to  it.  Why,  Mr.  Pres 
ident,  the  strongest  reasons  for  the  incorporation 
of  new  towns,  are  often  the  very  reasons  which  the 
old  towns  allege  against  it.  The  reason  is,  that  the 
new  town  has  grown  up  with  an  interest  about  it 
which  is  distinct  and  separate  from  the  interest  of 
the  old  town,  and,  in  view  of  those  interests,  it 
comes  to  the  legislature,  and  asks  as  a  right,  that 
this  new  collection  of  people  shall  enjoy  town 
privileges — that  is  to  say,  that  they  shall  not  be 
taxed  for  things  which  they  do  not  use.  You 
can  find  a  great  many  instances,  in  the  history  of 
even  a  few  years  past,  of  this  kind.  Take  the 
instance  of  the  town  of  Charlestown  and  Somer- 
ville,  in  which  we  of  Charlestown  were  much 
opposed  to  being  divided,  and  nevertheless  there 
was  in  Charlestown  a  commercial  interest,  and  in 
Somerville  an  agricultural  interest,  and  it  was 
not  right,  upon  any  principle  of  justice,  that  the 
people  of  Charlestown  should  tax  the  agricultural 
interest  of  Somerville  for  those  things  which  the 
commercial  interest  wished  to  enjoy,  but  which 
the  agricultural  interest  stood  in  no  need  of.  But 
I  will  not  enlarge  upon  this  point.  It  must  strike 
every  one  that  the  principle  is  radically  unjust, 
and  I  hope  the  amendment  will  not  prevail. 

Mr.  SCHOULER,  of  Boston.  I  move  to  amend 
the  amendment  by  striking  out  the  words  "  town 
or  towns,"  and  insert  the  word  "  legislature." 

The  PRESIDENT  stated,  that  if  the  amend 
ment  was  adopted,  the  resolve  would  stand  as  fol 
lows  : — 

Resolved,  That  the  Constitution  be  so  amended 
that  hereafter  no  town  shall  be  incorporated  with 
out  the  consent  of  the  legislature,  from  which  the 
territory  shall  be  taken."  [Laughter.] 

Mr.  ADAMS,  of  Lowell,  moved  the  previous 
question. 

Mr.  SCHOULER  withdrew  his  amendment. 

Mr.  HOYT,  of  Deerfield.  I  am  not  in  the 
habit  of  troubling  the  Convention,  and  I  ask  their 
indulgence  a  single  moment. 

Mr.  ADAMS.  I  withdraw  my  call  for  the 
previous  question. 

Mr.  HOYT,  of  Deerfield.  In  reply  to  the 
remarks  of  the  gentleman  from  Charlestown,  (Mr. 
Frothingham,)  I  would  say  that  I  have  no  doubt 
there  may  be  cases  of  injustice  under  this  provis 
ion, — instances  in  which  the  old  town  will  ob 
ject  to  setting  off  the  new  town,  in  cases  where  it 
is  perfectly  proper  that  the  new  town  should  be 
set  off.  All  agree  that  the  multiplication  of  new 
towns  is  an  evil ;  and  that  it  may  affect  the  sys 
tem  of  representation  which  this  Convention  has 


60th   day.] 


NEW   TOWNS. 


85 


Monday,] 


HOYT —  UPTON  —  BRA.DBUBY. 


[July  18th. 


adopted,  any  one  may  see  with  half  an  eye.  But 
neither  will  the  legislature,  if  it  is  left  to  them, 
always  do  justice  in  every  case.  The  real  evil  is 
the  multiplication  of  small  towns,  and  there  must 
be  some  limit  upon  it.  I  do  not  believe  that  the 
inhabitants  of  the  towns  themselves  will  always 
judge  rightly  arid  justly  ;  but  if  it  is  true,  as  has 
been  said  and  reiterated,  again  and  again,  in  this 
Convention,  that  the  people  will  decide  more 
correctly  and  justly,  in  regard  to  matters  concern 
ing  themselves,  than  any  other  body  can,  then 
the  people,  who  are  more  directly  interested  in 
this  particular  question,  will  be  likely  to  decide 
justly  upon  questions  of  this  nature.  I  do  not 
believe,  if  there  should  arise  a  case  of  this  na 
ture,  which  should  operate  with  great  injustice 
upon  a  particular  body,  that  the  people  will  sanc 
tion  it.  I  do  not  believe  that  the  people  will  be 
actuated  by  such  motives  as  will  lead  them  to 
the  commission  of  such  injustice.  I  hope  the 
Convention  will  adopt  the  amendment — no,  I  do 
not  hope  that,  for  1  think  the  sense  of  the  Con 
vention  is  not  in  favor  of  it — but  I  wish  they 
would  adopt  it. 

Mr.  UPTON,  of  Boston.  I  propose  to  make 
but  one  single  remark  upon  this  proposition.  I 
think  that  the  suggestion  of  the  gentleman  for 
Wilbraham  is  worthy  of  consideration,  and  enti 
tled  to  weight  before  this  Convention.  There  are 
eighty- five  towns  in  the  Commonwealth  now 
entitled  to  one  representative,  and  if  the  Conven 
tion  propose  to  leave  the  basis  of  representation 
as  it  is  now,  and  to  make  no  modification  in  the 
Constitution,  restricting  the  incorporation  of 
towns,  at  the  very  next  session  of  the  legis 
lature,  after  the  next  census  shall  have  been 
taken  in  1855,  you  will  have  eighty-five  more 
representatives  from  those  towns  than  you  now 
have.  A  state  of  things  which  will  allow  this, 
ought  not  to  exist ;  but  it  is  not  for  me,  as  one  of 
the  minority  of  this  Convention,  to  point  out  how 
the  evil  should  be  remedied.  Yet  I  suggest  that 
after  your  basis  is  changed,  under  the  census  of 
1855,  these  eighty-five  towns  may  be  divided, 
and  there  will  come  up  here,  from  these  towns, 
eighty-five  representatives  more  than  they  are 
now  entitled  to  send.  I  state  this  in  order  to 
bring  the  attention  of  the  Convention  to  the 
consideration  of  its  effect. 

The  question  was  then  taken  upon  the  amend 
ment  offered  by  the  gentleman  from  Deerfield, 
(Mr.  Hoyt,)  and  it  was  decided  in  the  negative. 

So  the  amendment  was  rejected. 

The  question  then  recurred  upon  the  motion 
of  the  gentleman  from  Natick,  (Mr.  Wilson,) 
that  the  consideration  of  the  subject  be  indefinite 
ly  postponed. 


Mr.  BRADBURY,  of  Newton.  I  understand, 
then,  if  this  subject  is  indefinitely  postponed,  it 
will  be  in  the  power  of  the  legislature  to  increase 
the  number  of  the  towns  in  the  Common 
wealth  at  pleasure,  and  that  every  town,  ac 
cording  to  the  present  basis  of  representation,  that 
shall  hereafter  be  created,  having  one  thousand 
inhabitants,  will  have  the  right  of  constant  repre 
sentation. 

Mr.  EARLE.  I  would  remark  that  we  have 
already  restricted  that  right  to  towns  having  fif 
teen  hundred  inhabitants. 

Mr.  BRADBURY,  of  Newton.  Then  every 
town  which  shall  be  created,  and  having  fifteen 
hundred  inhabitants,  will  be  entitled  to  constant 
repr  esen  tation. 

If  I  understand  the  basis  which  the  House  has 
established,  in  1860,  every  town,  whatever  may  be 
its  present  rights,  which  shall  not  contain  fifty - 
five  hundred  inhabitants,  will  have  but  one 
representative ;  and  in  1870,  every  town  in  the 
Commonwealth  not  possessing  eighty- three  hun 
dred  inhabitants,  will  have  but  one  representative. 
As  I  understand  it,  the  town  of  Nantucket  is 
now  entitled  to  three  representatives,  and  by  the 
ratio  of  increase  in  the  basis,  which  we  have 
adopted,  she  will  have  but  two  representatives  in 
1860,  and  but  one  in  1870.  There  are  towns  in 
the  Commonwealth  that  will  have  about  16,000 
inhabitants  in  1870.  Such  is  the  town  which  you 
represent,  Mr.  President,  and  the  adjoining  town 
which  I  have  the  honor  to  represent,  and  they 
will  be  entitled  then  to  two  representatives, 
whereas  they  now  have  two  representatives  upon 
four  thousand  of  population. 

That  being  the  basis  established  by  a  majority 
of  this  House,  it  affects  very  materially  the  ques 
tion  before  this  Convention,  at  the  present  time  ; 
and  to  postpone,  indefinitely,  action  upon  it,  is 
equivalent  to  a  rejection  of  it,  and  will  leave  it  in 
the  power  of  the  legislature  to  increase  this  diffi 
culty,  and  to  increase  the  disproportion  which 
now  exists. 

Another  thing,  it  most  manifestly  increases  the 
political  motives  which  have  ever  existed  for  the 
creation  of  new  towns.  There  is  a  political  mo 
tive,  every-body  knows, — and  parties  here  have 
been  charged  with  being  governed  by  such  con 
siderations, — for  the  increase  of  the  number  of 
towns,  and  so  far  as  political  considerations  have  had 
any  weight  heretofore,  they  have  been  increased 
by  the  decision  of  this  Convention,  most  manifestly. 

I  think  the  consideration  of  the  question  ought 
not  to  be  idefinitely  postponed,  but  that  some 
action  should  be  had  in  reference  to  it.  An  in 
definite  postponement  is  equivalent  to  a  rejection 
of  all  action. 


86 


ELECTIONS   BY   PLURALITY,  &c. 


[60 th  day. 


Monday,] 


LIVERMORE  —  HALLETT  —  BUTLER. 


[July  18th. 


The  question  was  then  taken  upon  the  motion 
submitted  by  the  gentleman  from  Natick,  (Mr. 
Wilson,)  and  it  was  decided  in  the  affirmative — 
ayes,  133  ;  noes,  46. 

So  the  subject  was  indefinitely  postponed. 

Payment  of  Officers  of  the  Convention. 

Mr.  LIVERMORE,  of  Cambridge,  from  the 
Committee  on  the  Pay  Roll,  submitted  the  fol 
lowing  Report : — 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  18,  1853. 
The  Committee  on  the  Pay  Roll,  who  were 
instructed  by  an  order,  adopted  on  the  27th  of 
June  last,  to  report  "  a  resolve  for  the  payment 
of  the  chaplain  and  other  officers  of  the  Conven 
tion,"    have  duly  considered   the  subject,   and 
report  the  accompanying  resolve. 
For  the  Committee, 

ISAAC  LIVERMORE,  Chairman. 

Resolved,  That  there  be  paid  out  of  the  treasury 
of  the  Commonwealth,  to  the  several  persons  whose 
names  are  borne  on  the  accompanying  list,  for 
each  and  every  day's  service,  as  follows :  to  the 
two  secretaries,  ten  dollars  each ;  to  the  chaplain, 
three  dollars ;  to  the  messenger,  five  dollars;  to  the 
two  assistant  messengers,  three  dollars  each  ;  to 
the  door-keeper  and  three  assistant  door-keepers, 
three  dollars  each ;  to  the  postmaster  three  dol 
lars  ;  to  the  four  pages,  two  dollars  each :  and 
the  governor,  by  and  with  the  advice  and  consent 
of  the  council,  is  hereby  requested  to  draw  his 
warrant  on  the  treasurer  for  the  same,  on  an  order 
of  this  Convention. 

List  of  officers  embraced  in  the  above  resolve : 

William  S.  Robinson,  James  T.  Robinson,  Sec 
retaries  ;  Warren  Burton,  Chaplain;  Benjamin 
Stevens,  Messenger;  Issachar  Fuller,  Tilson 
Fuller,  Assistant  Messengers;  Alexis  Poole, 
Door-Keeper ;  David  Murphy,  William  M.  Wise, 
John  A.  Sargent,  Ass istant  Door- Keeper s ;  Wil 
liam  Say  ward,  Postmaster;  Joseph  P.  Dexter, 
Jr.,  Charles  A.  Murphy,  James  N.  Tolman,  Jr., 
Thaddeus  Page,  Pages. 

Negligence  of  Railroad  Corporations. 
Mr.   HALLETT,   for  Wilbraham,  from    the 
Committee  appointed  to  consider  the    subject, 
made  the  following  Report : — 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  18,  1853. 
The  Committee  to  whom  was  referred  the  order 
relating  to  remedies  to  the  representatives  of  per 
sons  killed  by  the  negligence  or  misconduct  of 
railroad  corporations,  have  considered  the  same, 


and  report,  that  there  should  be  added  to  the 
eleventh  article  of  the  Bill  of  Rights,  the  follow 
ing  clause : — 

Where  death  is  caused  through  negligence  or 
misconduct,  by  means  of  railroads,  steamboats,  or 
public  conveyances  for  hire,  the  same  remedies 
shall  be  open'in  a  suit  at  law,  as  for  like  injuries 
to  the  person  resulting  in  disability  and  not  in 
death. 

B.  F.  HALLETT,  Chairman. 

The  Report  was  referred  to  the  Committee  of 
the  Whole,  and  ordered  to  be  printed. 

The   Late  Member  for  Concord. 

On  motion  by^  Mr.  BUTLER,  of  Lowell,  it 
was 

Ordered,  That  the  Committee  on  the  Pay  Roll, 
make  up  the  per  diem  of  the  late  delegate  from 
Concord,  including  the  entire  session. 

Judiciary. 

The  next  subject  on  the  Orders  of  the  Day, 
being  the  resolves  in  relation  to  the  Judiciary, 
on  motion  by  Mr.  BUTLER,  of  Lowell,  said 
resolves  were  laid  upon  the  table  for  the  present, 
for  the  purpose  of  going  into  Committee  of  the 
Whole,  on  the  subject  of  Elections  by  Plurality. 

On  motion  by  Mr.  BUTLER,  the  Convention 
resolved  itself  into 

COMMITTEE    OF    THE   WHOLE, 

Mr.  Hillard,  of  Boston,  in  the  chair,  and  pro 
ceeded  to  consider  the  resolves  on  the  subject  of 

Elections  by  Plurality  and  Majority. 
They  were  read,  as  follows  : — 

1.  Resolved,  That  it  is  expedient  to  provide  in 
the  Constitution  that  a  majority  of  all  the  votes 
given  shall  be  necessary  to  the  election  of  a  gov 
ernor,  lieutenant-governor,  secretary,  treasurer, 
auditor,  and  attorney- general,  of  the  Common 
wealth,  until  otherwise  provided  by  law  ;  but  no 
such  law  providing  that  the  governor,  lieutenant- 
governor,  secretary,  treasurer,  auditor,  attorney- 
general,  and  representatives  to  the  general  court, 
or  either  of  them,  shall  be  elected  by  plurality, 
instead  of  a  majority  of  votes  given  in,  shall  take 
effect  until  one  year  after  its  passage  ;  and,  if  at 
any  time  after  the  enactment  of  any  such  law, 
and  the  same  shall  have  taken  effect,  such  law 
shall  be  repealed,  such  repeal  shall  not  become  a 
law  until  one  year  after  the  passage  of  the  repeal 
ing  act ;  and  in  default  of  any  such  law,  if  at  any 
election  of  either  of  the  above-named  officers, 
except  the  representatives  to  the  general  court,  no 
person  shall  have  a  majority  of  the  votes  given, 
the  House  of  Representatives  shall,  by  a  majority 
of  viva  voce  votes,  elect  two  out  of  three  persons 
who  had  the  highest,  if  so  many  shall  have  been 


60th  day.] 


ELECTIONS   BY   PLURALITY. 


87 


Monday,] 


BUTLER  —  WHEELER  —  STEVENSON. 


[July  18th. 


voted  for,  and  return  the  persons  so  elected  to  the 
Senate,  from  which  the  Senate  shall,  by  viva  voce 
vote,  elect  one  who  shall  be  governor. 

4.  Resolved,  That  in  the  election  of  all  city 
or  town  officers,  such  rule  of  election  shall  govern 
as  the  legislature  may  by  law  prescribe. 

Mr.  BUTLER,  of  Lowell.  I  wish  to  make  a 
farther  amendment  to  the  first  resolve,  which 
amendment,  I  take  it,  will  pass  without  comment, 
and  then  I  will  explain  the  views  of  the  Com 
mittee,  in  reporting  the  resolves  they  have.  It 
will  be  observed,  that  in  copying  the  resolves,  an 
error  has  crept  in.  The  resolve  provides  now, 
that  in  case  of  the  election  of  governor,  lieuten 
ant-governor,  secretary,  treasurer,  auditor,  and 
attorney- general  of  the  Commonwealth,  there 
shall  be  no  election  for  want  of  a  majority  vote, 
then  the  House  of  Representatives  shall  send  up 
to  the  Senate,  two  out  of  the  three  persons  who 
have  the  highest  number  of  votes,  if  so  many 
shall  have  been  voted  for,  and  then  the  Senate, 
shall,  by  viva  voce  vote,  elect  one  who  shall  be 
governor ;  and  there  it  stops.  To  make  the  resolve 
perfect,  I  propose  to  add  to  the  end  of  the  resolve 
the  words,  "  or  other  officers  to  be  thus  elected." 

Mr.  WHEELER,  of  Lincoln.  I  should  like  to 
inquire  of  somebody,  who  knows  better  than  I 
do,  whether  this  Convention  has  not  passed  a 
resolution,  that  in  case  of  a  failure  of  an  election 
of  governor,  he  shall  be  chosen  by  the  Senate  and 
House  of  Representatives  assembled  in  one  House. 
If  so,  I  cannot  conceive  of  any  necessity  of  this 
provision. 

Mr.  BUTLER,  of  Lowell.  I  would  suggest, 
Mr.  Chairman,  that  if  the  gentleman  will  allow 
this  amendment  to  pass,  the  whole  matter  will  be 
then  open  to  discussion.  My  amendment  is 
simply  designed  to  perfect  the  resolve,  and  make 
it  such  as  it  was  intended  to  be.  It  corrects  ver 
bal  errors  and  grammatical  inaccuracies  which 
have  crept  in. 

The  question  was  taken  upon  Mr.  Butler's 
amendment,  and  it  was  agreed  to. 

Mr.  BUTLER.  I  propose  another  amend 
ment,  which  is  to  change  the  word  "which," 
where  it  last  occurs  in  the  first  resolve,  into  the 
word  "  whom."  The  error  is  a  grammatical  one. 

The  amendment  was  adopted. 

Mr.  BUTLER.  The  Committee  which  re 
ported  these  resolves,  have  stated  briefly,  in  the 
report  accompanying  the  resolves,  the  reasons 
which  induced  them  to  come  to  the  conclusion  to 
which  they  arrived.  They  believed  that  all  those 
officers  who  are  elected  by  general  ticket,  and  who 
represent  the  whole  people  of  the  Commonwealth, 
either  in  the  executive  or  other  department  of 
the  Commonwealth,  should  be  elected  by  a  ma 


jority  of  the  people— if  it  were  possible  to  get 
such  a  vote.  If  it  is  not  possible,  that  then  a 
course  as  near  that  as  can  be,  should  be  adopted, 
to  wit:  that  the  House  should  select,  from  a 
very  limited  number,  which  in  practice,  must  be 
those  who  have  very  nearly  an  equal  number  of 
votes,  two  out  of  three  of  those,  and  send  their 
names  to  the  Senate.  The  Convention  having 
put  the  Senate  upon  the  basis  of  population,  the 
Senate  shall  then,  by  a  viva  voce  vote,  select  one 
of  those  persons  to  be  governor,  &c.  They  will 
then,  in  fact  be  elected  by  the  representatives  of 
the  whole  people,  under  a  full  sense  of  their 
responsibility. 

[The  copy  for  the  remainder  of  Mr.  Butler's 
speech  was  handed  to  the  author  for  revision,  and 
was  not  returned  in  season  to  be  inserted  in  its 
proper  place.] 

Mr.  WHEELER,  of  Lincoln.  Some  minutes 
ago,  I  called  the  attention  of  the  Convention  to 
the  fact  that  they  had  already  passed  a  resolve 
directing  that  the  governor  should  be  elected  by 
joint  ballot  of  the  Senate  and  House  of  Repre 
sentatives.  I  find  in  your  official  report  that  on 
May  9th,  the  following  resolution  was  adopted  : 

Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution  as  to  provide  that  in  case  of  a  failure 
in  the  election  of  governor  by  the  people,  he  shall 
be  elected  by  the  Senate  and  House  of  Repre 
sentatives,  by  joint  ballot. 

Now,  I  am  not  able  to  see  the  propriety  or 
expediency  of  adopting  this  resolve,  providing 
that  the  governor  shall  be  elected  in  the  manner 
laid  down  in  the  first  resolution  reported  by  the 
Committee,  when  the  Convention  have  already 
settled  the  question,  so  far  as  the  governor  is 
concerned,  by  a  previous  resolution. 

My  only  object  was  to  call  the  attention  of  the 
Convention  to  the  fact.  If  gentlemen  will  take 
pains  to  look  at  the  official  report,  they  will  find 
that  this  resolution  passed  on  the  9th  of  May. 

Mr.  STEVENSON,  of  Boston.  It  is  true,  as 
has  been  stated  by  the  chairman  of  the  select 
Committee,  (Mr.  Butler,)  that  the  question, 
whether  the  plurality  or  the  majority  rule  shall 
determine  the  result  in  our  elections,  has  already 
occupied  a  great  deal  of  the  time  of  this  Conven 
tion,  and  has  been  somewhat  elaborately  dis 
cussed  ;  and  it  may  be  presumption  in  me  to 
suppose  that  any  suggestions  which  I  could  make, 
would  be  the  source  of  any  additional  light  upon 
it.  Still,  having  been,  by  the  indulgence  of  the 
President,  a  member  of  the  Committee  to  which 
this  matter  was  referred,  after  that  discussion ; 
having  participated  in  the  deliberations  of  that 
Committee,  and  not  being  able  to  give  my  assent 


88 


ELECTIONS    BY   PLURALITY. 


[60th  day. 


Monday,] 


STEVENSOX. 


[July  18th. 


to  the  conclusions  to  which  they  have  come,  I 
feel  it  my  duty  to  ask  the  indulgence  of  the 
Committee,  while  I  briefly  state  the  reasons  for 
my  dissent. 

It  certainly,  Mr.  Chairman,  would  be  unneces 
sary,  in  an  assembly  like  this,  convened  for  the 
purposes  for  which  we  are  convened,  to  ask  gen 
tlemen  not  to  allow  their  opinions  to  be  warped, 
or  their  votes  to  be  affected  here,  in  any  manner, 
by  the  light  of  the  last  election  returns,  or  by  the 
glimmer  of  what  they  may  anticipate  as  the  next. 
Still,  it  is  not  to  be  denied  by  any  one,  that,  from 
the  very  fact  that  the  subject  which  we  are 
treating  of,  viz. :  that  of  the  election  of  the  officers 
of  the  government,  is  one  upon  which  party  or 
ganizations  are  but  too  apt  to  expend  their  efforts. 
There  is  danger  that  we  may  find  ourselves  ask 
ing  ourselves — although  we  might  blush  to  ask 
another  the  question — what  effect  this  or  that  rule 
would  have  upon  the  party  with  which  we  are 
associated?  That  is  a  danger  against  which 
every  fair  and  high-minded  gentleman  is  bound  to 
arm  himself.  It  is  a  danger,  which,  if  not  heeded, 
will  mislead  us  in  the  very  pursuit  which  it 
prompts ;  for  parties  are  evanescent,  while  the 
rule,  which  we  shall  establish,  is  intended  to  be 
permanent. 

If  we  will  appreciate  that  danger,  and  arm  our 
selves  against  it,  avoid  it,  or  crush  it,  the  Conven 
tion  will  not  assent  to  the  Report  of  this  Commit 
tee  as  it  stands.  I  supposed  the  purpose  was  to 
recommit  this  matter,  after  discussion,  to  see  if 
some  middle  ground  could  not  be  found  in  refer 
ence  to  a  matter,  about  which  there  was  so  much 
difference  of  opinion  ;  although  I  cannot  under 
stand  how  it  can  be  made  to  appear  that,  if  the 
plurality  rule  be  in  derogation  of  the  principles 
of  democracy,  when  applied  to  one  office,  it  can 
be  shown  to  be  consistent  with  the  principles  of 
democracy  when  applied  to  another  office.  Still, 
the  Committee  have  undertaken  to  meet  that  dif 
ficulty,  and  have  recommended  a  complex  system 
of  different  rules  for  different  offices  ;  and  the  ques 
tion  with  us  is,  is  it  wise  to  establish  different 
rules  for  different  cases.  The  other  question  that 
comes  after  that,  if  it  should  be  answered  in  the 
affirmative,  is,  have  the  Committee  made  a  proper 
application  of  these  different  rules  to  the  different 
cases  in  this  Report.  It  is  proposed  here,  that  a 
majority  shall  be  insisted  upon  in  the  cases  of  all 
officers  who  are  to  be  voted  for  by  the  whole 
people  ;  in  the  case  of  county  officers,  and  officers 
voted  for  in  districts,  that  they  shall  be  elected  by 
plurality,  and  in  the  case  of  representatives,  and 
town  or  city  officers,  that  a  majority  shall  be 
required  on  the  first  ballot,  and  that  a  plurality 
shall  be  sufficient  on  the  second  ballot.  The  first 


question  that  is  to  be  answered  by  our  vote  in  re 
gard  to  this  Report,  is,  is  it  wise  to  make  a  complex 
system  ?  is  there  any  reason  why  the  rule  should 
not  be  the  same  in  the  one  case,  as  in  the  other  ? 
And  if  we  come  to  the  conclusion  that  there  are 
reasons  for  making  this  difference,  still,  the  chair 
man  of  the  Committee  is  bound  to  answer  the 
other  question,  whether  he  has  made  a  proper 
application  of  the  rule  in  this  Report.  I  should 
give  a  negative  answer  to  both  of  these  proposi 
tions.  In  regard  to  the  question,  whether  it  is 
wise  to  establish  a  complex  system  here  in  Mas 
sachusetts,  I  would  beg  gentlemen  to  remember 
that  the  whole  argument  which  was  advanced 
here  in  Committee  when  the  subject  was  before 
us  upon  a  previous  occasion,  against  the  establish 
ment  of  the  plurality  system,  was,  that  it  was  in 
derogation  of  the  principles  of  democracy,  and  in 
violation  of  the  principle  that  the  majority  should 
rule.  Changes  were  rung  upon  that  proposition, 
until  it  appeared  as  if  it  would  drown  every  sug 
gestion  of  convenience  and  expediency.  The 
convenience  of  the  people  must  not  be  consulted 
by  this  body,  for  the  reason  that  that  principle 
must  not  be  invaded.  I  would  ask  the  chairman 
of  the  Committee ;  I  would  ask  all  the  other 
members  of  the  majority  of  the  Committee,  and 
all  those  who  are  influenced  by  the  arguments 
which  they  present,  whether,  when  they  are  con 
stituting  a  legislature  to  consist  of  three  branches, 
each  having  a  negative  upon  the  other  two,  it  is 
not  just  as  wrong  to  violate  the  asserted  principle 
in  regard  to  one  of  them,  as  it  would  be  in  regard 
to  another  of  them,  or  to  all  of  them  ?  If  it  be  a 
principle,  what  has  become  of  it  ?  Where  has  it 
gone  ?  It  is  not  here  in  this  Report.  How  is  it, 
that  the  principles  of  democracy  are  violated, 
when  one  of  these  three  branches  is  filled  by  the 
votes  of  a  plurality  of  the  electors,  and  not  vio 
lated  when  the  other  two  branches  of  the  same 
department  of  the  government  are  filled  by  pre 
cisely  the  same  means  ?  How  is  it,  that  the  as 
serted  principle  is  not  violated  when  the  senators 
and  representatives,  who  must  enact  or  repeal,  as 
the  case  may  be,  each  law,  before  the  governor 
will  have  the  power  to  assent  to  or  to  veto  it,  are 
elected  by  a  plurality,  but  is  violated,  when  the 
branch  possessing  only  a  partial  negative  upon 
the  other  two,  is  elected  in  the  same  way  ? 

I  appeal  to  gentlemen,  to  know,  upon  the 
argument  which  has  been  presented  here,  over 
and  over  again,  and  the  only  argument  which, 
has  been  urged  against  the  establishment  of 
the  plurality  system  here  in  Massachusetts, 
whether  this  Report  is  not  based,  either  upon  an 
utter  repudiation  of  that  argument,  or  else  upon 
a  willingness  to  sacrifice  the  asserted  principle  to 


60th  day.] 


ELECTIONS   BY   PLURALITY. 


89 


Monday,] 


STEVENSON  —  BUTLER. 


[July  18th. 


what  is  deemed  to  be  the  present  condition  of 
parties.  Anti- democratic  to  elect  a  governor  by 
a  plurality  of  the  votes  of  the  people  ?  Why  not, 
then,  anti- democratic  to  elect  senators  and  rep 
resentatives  in  the  same  way  !  Anti- republican 
to  elect  a  secretary  or  treasurer  of  your  Common 
wealth  by  a  plurality  of  votes  cast  ?  Why  not, 
then,  anti-republican  to  elect  your  selectmen, 
overseers  of  the  poor,  mayor  and  aldermen,  in  the 
same  way  !  I  cannot  understand  this. 

Mr.  BUTLER,  of  Lowell.  I  desire  to  call  the 
gentleman's  attention  to  the  fact,  that  we  elect 
both  the  secretary,  treasurer,  and  chairman  of  the 
board  of  selectmen,  by  a  majority. 

Mr.  STEVENSON.  That  is  just  exactly  what 
I  said.  I  say  that  the  gentleman  puts  forward 
the  proposition  that  it  is  contrary  to  the  princi 
ples  of  republicanism  and  democracy,  that  the 
treasurer  and  secretary  of  the  Commonwealth 
should  be  elected  by  a  plurality  of  the  people, 
and  therefore  insists  upon  requiring  a  majority ; 
and  yet,  in  the  same  paper,  emanating  from  the 
same  source,  he  proposes  that  your  senators  and 
representatives,  your  town  officers,  your  city  offi 
cers,  your  selectmen,  mayor  and  aldermen,  shall 
be  elected  by  a  vote  of  the  plurality.  I  desire  to 
know  whether  the  time  has  arrived  when  it  is 
unnecessary  that  senators,  representatives,  and 
town  officers  shall  have  their  elections  determined 
upon  the  principles  of  democracy  or  of  republi 
canism,  so  long,  only,  as  the  governor  of  the  Com 
monwealth  has  his  election  either  determined 
upon  those  principles,  or  by  an  appeal  to  another 
tribunal,  and  that  tribunal  another  branch  of  the 
government.  I  believe  there  are  real  and  serious 
objections,  which  will  present  themselves  to  gen 
tlemen  here,  against  adopting  this  complex  sys 
tem,  other  than  the  fact,  that  it  is  in  violation  of 
the  principle  which  has  been  asserted  here,  in  regard 
to  all  the  other  officers,  excepting  state  officers. 
We  have  not  a  case  here,  where  we  can  make  a 
partial  experiment  by  applying  the  rule  to  some 
officers,  with  the  intention  of  making  it  general, 
if  we  find  it  works  well  and  gives  satisfaction  to 
the  people.  If  we  were  a  legislature,  with  an 
nual  sessions,  that  would  be  a  course  which  we 
might  adopt,  and  perhaps  it  would  be  a  wise  one. 
I  hope  that  we  shall  not  adopt  a  complex  system 
here,  but,  that  we  shall  establish  the  same  rule 
for  all  the  officers  whose  election  we  deem  to  be 
important.  If  it  is  to  be  determined  otherwise, 
and  we  are  bent  upon  an  arrangement  by  which 
some  officers  are  to  have  their  elections  deter 
mined  by  one  rule,  and  other  officers  by  another, 
I  ask  the  chairman  of  the  Committee  to  answer 
the  question,  whether  he  has  made  a  proper  ap 
plication  of  these  different  rules  ?  Granting,  then, 


that  you  may  make  a  difference  in  different  cases, 
is  it  wise,  still  to  insist  upon  a  majority  in  rela 
tion  to  those  officers  who  are  to  be  voted  for  by 
the  whole  people,  and  to  consent  to  the  plurality, 
in  cases  where  the  constituency  is  smaller  ?  What 
are  the  considerations  which  ought  to  determine 
the  offices  concerning  which  you  should  insist 
upon  one  or  the  other  rule?  Shall  it  depend 
upon  the  number  of  persons  who  constitute  the 
constituency  ?  Shall  it  depend  upon  the  impor 
tance  of  the  office  to  be  filled  ?  Shall  it  depend 
upon  the  degree  of  inconvenience  and  expense 
attending  repeated  trials  ?  Shall  it  depend  upon 
the  opportunities  which  the  electors  may  be  sup 
posed  to  have,  of  knowing  each  others'  views, 
and  so  of  reconciling  differences  of  opinion  as  to 
candidates  ?  Or  are  they  to  be  determined  upon 
by  lot,  and  the  result  to  be  called  a  compromise  ? 
I  submit,  if  any  one  of  these  considerations  ought 
to  weigh,  that  they  have  been  utterly  disregarded 
by  the  Committee  to  whom  this  matter  was  re 
ferred,  and  from  whom  this  Report  comes.  If 
these  considerations  ought  to  have  any  influence, 
and  if  you  are  determined  to  insist  on  a  majority 
in  some  cases,  and  to  be  satisfied  with  a  plurality 
in  other  cases,  I  submit,  that  it  is  the  duty  of  this 
Committee  to  shift  this  Report,  end  for  end,  and 
to  make  your  governor,  and  the  other  officers,  for 
whom  the  whole  people  are  to  vote,  eligible  by 
a  plurality,  and  to  insist  still,  upon  a  majority  in 
your  local  elections  and  smaller  constituencies. 
If  we  are  going  to  make  a  difference,  let  us  be 
able  to  give  a  reason  for  it  which  cannot  be 
traced  by  any  lines  to  party  considerations.  If 
we  desire  to  make  a  difference,  let  us  be  able  to 
give  such  reasons  as  the  Convention  ought  to 
give  when  it  makes  propositions  concerning  the 
Constitution.  Of  all  the  officers  who  should  be 
elected  by  a  plurality,  those  who  are  to  be  voted 
for  by  the  whole  people,  on  a  general  ticket,  are 
the  ones.  There  is  a  palpable  distinction,  which 
might  have  been  drawn  in  that  direction ;  and 
he  who  should  have  drawn  it,  might  have  been 
moved  by  some  regard  for  the  will  of  the  people. 
That  distinction  might  have  been  justified,  on  the 
ground  that  it  admitted  the  plurality  in  those 
cases  in  which  repeated  trials  could  not  be  had  ; 
and  insisted  upon  a  majority  in  those  cases  in 
which  repeated  trials  could  be  had  ;  thus  leaving 
the  result,  in  both  cases,  in  the  power  of  the  peo 
ple.  This  is  a  desirable  object ;  and,  therefore,  I 
say,  change  this  Report,  end  for  end.  It  is  ex 
actly  wrong,  now.  The  right  and  left  boots  are 
put  each  upon  the  wrong  foot.  Do  not  gentle 
men  see,  that  while  they  are  crying  out  that  they 
desire  to  give  the  election  of  officers  to  the  peo 
ple,  they  are  consenting  to  a  scheme  here  which 


90 


ELECTIONS   BY   PLURALITY. 


[60th  day. 


Monday,] 


STEVENSON. 


[July  18th. 


will  take  these  elections  out  of  their  hands,  and 
give  them  to  the  legislature  ?  In  every  con 
ceivable  case  where  it  will,  in  practice,  make  any 
difference  whether  the  Constitution  shall  pro 
vide  a  majority  rule  or  a  plurality  rule,  do  not 
gentlemen  see,  that  the  majority  rule  is  nothing 
but  a  requirement  of  that  which  cannot  be  in 
sisted  on  ? 

Take  your  governor,  for  instance.  The  large 
ness  of  the  constituency— the  greater  incon 
venience  and  expense  of  repeated  trials  to  the 
people— the  necessity  that  the  office  should  be 
filled— the  lesser  opportunities,  which  the  elec 
tors  have,  of  comparing  opinions,  and  recon 
ciling  differences  of  opinion  as  to  candidates, 
all  point  to  the  same  conclusion;  and  yet  the 
proposition  of  the  Committee  is  to  leave  these  offi 
cers  to  be  elected  by  a  majority  only,  after  they 
have  abandoned  the  whole  principle  upon  which 
they  oppose  plurality.  These  evils  are  so  obvious 
in  regard  to  general  elections  by  the  people,  as 
the  matter  now  stands,  that  in  cases  of  general 
elections,  where  the  whole  people  are  to  vote,  no 
body  proposes  repeated  trials ;  and  so,  holding  on 
to  a  majority  rule,  we  are  driven  to  a  greater  evil 
than  them  all,  and  that  is,  to  an  appeal  from  the 
people  to  a  single  branch  of  the  government ;  and 
that  is  called  democracy  !  I  do  not  desire  to  ap 
peal  from  the  people  to  a  branch  of  the  govern 
ment,  and  he  is  a  queer  democrat  who  does.  I 
do  not  desire  to  run  the  risk  of  seeing,  at  a  future 
day,  high  offices  of  the  government  offset,  one 
against  another,  and  traded  for.  I  do  not  desire 
to  see  the  judgment  of  the  governor  of  this  Com 
monwealth  hampered,  when  any  bill  is  presented 
to  him,  by  the  fact,  that  it  has  received  the  assent 
and  favor  of  those  to  whom  he  is  indebted  for  his 
place.  I  do  not  desire  to  see  the  appointing 
power  obtained,  perhaps,  by  previous  promises  as 
to  the  exercise  of  it  in  individual  cases.  I  do  de 
sire  to  see  the  highest  officer  of  your  government 
holding  his  commission  from  the  people,  in  the 
best  form  in  which  it  can  be  given,  and  not  from 
any  other  branch  of  the  government.  The  more 
independent  you  shall  make  such  officers  of  your 
government,  the  better  will  the  government  be 
administered.  I  do  not  understand  how  it  is, 
that  gentlemen  who  think  it  would  be  anti- 
republican  and  anti-  democratic  to  permit  the  gov 
ernor  to  be  elected  by  a  plurality  of  the  votes  cast, 
are  quite  willing  to  transfer  all  power  from  the 
people  to  a  body,  a  majority  of  which  shall  have 
been  elected  by  a  minority  of  the  people,  and  to 
confer  upon  them  the  power  to  elect  as  governor 
that  individual,  who,  perhaps,  received  less  than 
a  plurality  of  the  votes  at  the  last  election.  I 
think  it  was  the  gentleman  from  North  Brook- 


field,  (Mr.  Walker,)  whom  I  do  not  now  see  in 
his  seat,  who  said,  that  the  only  question  involved 
was,  "  Where  shall  the  sovereignty  reside  ? "  Be 
it  so.  Those  who  ask  you  to  establish  a  system 
of  elections  by  plurality,  propose  that  it  shall 
reside  in  the  people,  and  in  the  people  alone; 
while  those  who  insist  upon  a  majority,  and  make 
no  provision  for  repeated  trials,  propose  that  it 
shall  reside  in  the  people  conditionally,  up  to  a 
certain  point,  and  then  that  it  shall  be  transferred 
from  the  people  to  the  legislature.  That,  I  un 
derstand,  to  be  the  difference  between  the  two  in 
regard  to  the  question,  where  the  sovereignty  is 
to  reside.  I  may  be  excused  for  referring  to  the 
remarks  of  the  gentleman  from  North  Brookfield, 
in  his  absence,  because  his  is  the  only  argument, 
which  I  was  fortunate  enough  to  hear  on  that 
side  of  the  question.  That  gentleman  told  us 
that  the  establishment  of  the  plurality  system 
here,  in  the  election  of  officers  under  a  general 
ticket,  would  "  debar  the  people  from  the  right  of 
deciding  by  a  maj  ority . ' '  That  single  proposition, 
stated  and  considered,  will  expose  the  fallacy 
which  runs  through,  and  is  the  only  life-blood  of 
the  whole  of  this  argument.  Debar  the  people 
from  the  right  of  deciding  by  a  majority.  Try  it, 
and  establish  your  plurality  system;  and  does 
not  the  right  remain  then,  just  as  much  as  it  ex 
ists  now  ?  Let  the  majority  vote  for  any  candi 
date  whom  they  desire  to  elect,  and  will  he  not 
be  elected,  although  you  may  have  ten  thousand 
plurality  systems  ?  How  can  the  gentleman  argue 
that  you  debar  the  people  from  a  right,  when  you 
leave  in  their  hands,  intact,  the  power  to  exercise 
that  right,  in  every  conceivable  case.  Gentlemen 
have  all  along  spoken  as  if  the  proposition  were 
to  give  to  the  minority  power  over  an  existing 
majority.  Gentlemen  have  argued  this  ques 
tion  just  as  if  the  proposition  were  that  the 
lesser  number  of  votes  should  prevail  over 
the  greater  number  of  votes.  And  there  is 
the  whole  difficulty  in  this  matter.  Now,  using 
the  words  plurality,  majority,  and  minority,  in 
the  sense  in  which  they  are  generally  received,  a 
minority  and  a  majority  can  exist  in  the  same 
body  at  the  same  time ;  and  the  majority  ought 
to  govern,  and  the  majority  will  govern.  But  a 
majority  and  a  plurality  cannot  be  at  the  same 
time.  If  a  majority  exist,  it  is  an  enhanced  plu 
rality  ;  and  therefore,  whenever,  under  the  pro 
posed  change,  a  plurality  shall  prevail,  it  will  be 
because  no  majority  exists. 

And  therefore,  whenever  you  shall  establish 
this  rule,  and  it  shall  prevail  at  an  election,  there 
will  be  no  invasion  of  the  principle  that  the  ma 
jority  should  rule.  Shall  not  a  majority  rule  ? 
Yes,  Sir.  But  the  difficulty  is,  that  gentlemen, 


60th  day.] 


ELECTIONS   BY   PLURALITY. 


91 


Monday,] 


STEVENSON. 


[July  18th. 


when  they  are  discussing  this,  and  when  they 
say  that  we  propose  to  give  to  a  plurality  the 
power  over  a  majority,  are  comparing  things, 
both  of  which  cannot  exist,  at  the  same  time,  in 
the  same  body.  One  is  an  enhancement  of  the 
other,  and  they  cannot  both  be  there  at  the  same 
time,  to  be  put  in  opposition,  one  to  the  other. 
Shall  not  the  majority  rule  ?  Yes,  certainly, 
when  a  majority  exists.  But  the  great  American 
principle  I  take  to  be  this,  when  properly  stat 
ed  :  the  majority  shall  have  the  power  to  rule. 
And,  Sir,  the  establishment  of  the  plurality  sys 
tem  does  no  violence  to  that  principle ;  for  it 
leaves  the  power  to  rule  still  with  the  majority, 
as  certainly  as  it  is  there  now. 

The  gentlemen  who  insist  upon  a  majority  at 
an  election,  ought  to  remember  that  they  have 
no  power  of  compelling  the  existence  of  a  ma 
jority.  They  seem  to  forget  that  political  rights 
are  individual  concerns ;  that  political  powers  are 
individual  rights,  the  whole  value  of  which  de 
pends  upon  their  effect  upon  the  individual  him 
self ;  the  security  of  his  person,  the  promotion  of 
his  happiness^  the  protection  of  his  property — these 
are  the  purposes  of  government  itself.  The  great 
difficulty  comes  from  the  inconsistency  between 
individual  freedom  in  the  exercise  of  the  elective 
franchise,  and  the  existence  of  power  anywhere  to 
compel  a  majority  ;  the  existence  of  power  any 
where  to  compel  more  than  half  of  those  who  vote 
for  candidates,  to  vote  for  one  candidate.  Now, 
Sir,  a  duty  is  to  be  performed,  an  office  is  to  be 
filled,  an  officer  is  to  be  elected ;  you  hold  on  to 
the  majority  rule  with  no  provision  for  repeated 
trials,  on  the  part  of  the  people  ;  and  as  long  as 
you  leave  uninvaded  the  individual's  right  of 
exercising  the  elective  franchise,  you  have  no 
power  to  compel  the  existence  of  a  majority,  and 
therefore  you  have  got  to  do  one  of  two  things  : 
You  must  either  consent  that  the  duty  shall  remain 
unperformed,  and  the  office  shall  not  be  filled,  or 
you  must  provide  some  other  mode  of  electing  an 
officer  in  this  Commonwealth  than  by  the  votes  of 
the  people.  Some  other  mode,  if  you  insist  upon 
a  majority  to  elect  an  officer,  than  by  the  votes  of 
the  people,  you  must  provide.  And  the  question, 
— and  the  whole  question  is,  in  that  contingency, 
a  majority  failing  to  exist— which  mode  is  the 
preferable  one,  an  appeal  from  the  people  to  the 
legislature,  or  to  leave  the  power  still  in  the  hands 
of  the  people,  to  be  exerted  by  means  of  the  plu 
rality  of  the  votes  which  shall  be  cast  at  one 
time  ?  and  that  is  the  whole  of  it.  The  question 
here  is  not  whether  you  prefer  that  your  gov 
ernor  should  be  chosen  by  a  plurality  or  by 
a  majority ;  but  whether,  a  majority  not  ex 
isting,  you  prefer  that  he  should  be  elected  by 


a  plurality  of  the  people,  or  by  the  legislature  ? 
I  prefer  the  former,  because  it  will  make  it  abso 
lutely  certain  that  the  election  of  governor  and 
all  general  officers  of  the  State,  shall  be  as  nearly 
in  accordance  with  the  public  will,  as  the  condi 
tion  of  things  will  permit,  consistently  with  the 
right  in  each  individual  to  cast  his  vote  as  he 
himself  may  see  fit,  independently  of  the  govern 
ment,  or  of  any  party.  Whereas,  if  you  adopt 
the  Report  of  the  Committee  as  it  stands,  cases 
will  arise,  as  cases  already  have  arisen,  where, 
through  the  instrumentality  of  mere  party  ar 
rangements,  he  who  received  the  lesser  number  of 
votes  from  the  people,  is  put  into  the  executive 
chair  to  the  exclusion  of  him  who  received  the 
greater  number  of  the  votes  of  the  people. 

The  basis  of  representation  which  has  been 
almost  agreed  upon  by  this  Convention,  fur 
nishes  a  new  reason  why  it  is  our  duty  to  give  to 
the  people  of  Massachusetts  an  opportunity  of 
saying  whether  or  not  they  will  insist  upon  hold 
ing  in  their  own  hands,  without  giving  it  up  to 
a  legislature,  the  election  of  him  who  shall  fill 
the  executive  chair.  The  main,  and  the  real 
objection  to  that  basis,  which  we  have  agreed 
upon,  is  the  inequality  of  influence  over  the  legis 
lation  of  the  State,  which  is  to  reside  in  different 
citizens  in  different  parts  of  this  Commonwealth. 
That  inequality  is  acknowledged.  But  we  are 
told  that  we  must  submit  to  it,  because  town 
lines  must  not  be  disregarded  in  Massachusetts. 
Such  a  reason  as  that  cannot  be  given  why  the 
same  inequality  of  the  power,  held  by  different 
men  in  different  parts  of  Massachusetts,  should 
exist  in  relation  to  him  who  shall  fill  the  execu 
tive  chair.  But,  if  you  adopt  this  Report  of  the 
Committee,  you  carry  that  same  injustice  into 
the  council-chamber,  without  the  same  palliation, 
in  all  cases,  where  your  constitutional  provision 
will  operate  at  all.  You  give  to  an  assembly, 
established  upon  an  unequal  basis,  the  power  of 
choosing  the  governor,  whose  concurrence  with 
them  (and  it  ought  to  be  an  independent  concur 
rence)  is  essential  to  their  own  exercise  of  power. 

You  make  the  same  unequal  division  of  politi 
cal  power,  in  regard  to  the  executive,  without  a 
reason  for  it,  which  you  make  in  regard  to  the 
House  of  Representatives,  with  a  reason  for  it, 
which  reason  alone  affords  any  justification  of  it. 
But,  it  is  said  that  in  regard  to  governor,  we  must 
preserve  the  principle  that  the  majority  shall  rule. 
Look  at  it,  and  see  what  kind  of  a  preservation 
of  that  principle  is  proposed  here  by  the  Com 
mittee.  You  are  to  appeal  from  the  people  to  a 
tribunal,  the  majority  of  the  members  of  which, 
are  the  representatives  of  an  acknowledged  mi 
nority  of  the  people.  Farther  than  this,  your 


92 


ELECTIONS  BY  PLURALITY. 


[60th  day. 


Monday,] 


STEVENSON. 


[July   18th. 


provision  compels  that  tribunal  to  make  its  selec 
tion  from  persons  who  have  just  failed  to  secure 
to  themselves  a  majority  of  the  votes  of  the 
people  ;  and  this  is  called  preserving  the  majority 
principle ! 

The  first  resolve  embodies  the  Committee's 
mode  of  electing  governor,  and  other  officers  in 
accordance  with  this  majority  principle,  as  it 
is  called.  See  how.  The  people  vote  once. 
There  are  three  candidates — one  has  half  of  the 
votes,  one  a  third  of  the  votes,  and  one  a  sixth  of 
the  votes.  One  of  the  three  must  be  governor ; 
but,  inasmuch  as  the  majority  principle  must  be 
preserved,  he,  whom  half  of  the  people  desire, 
must  be  no  nearer  to  the  chair  than  he  whom  one- 
sixth  of  the  people  desire ;  there  the  people's 
power  ends.  In  its  exercise,  one- sixth  of  the 
votes  have  had  exactly  the  same  force  and  effect 
as  one-half  of  the  votes.  Then  the  selection  of 
two  out  of  the  three  is  given  to  the  representa 
tives  of  one-third  of  the  people,  themselves 
elected  by  a  plurality  of  their  own  constituents  ; 
and  then,  as  a  finishing  touch  in  the  process  of 
preserving  the  principle  that  the  majority  of  the 
people  should  elect  the  governor  of  the  Common 
wealth,  the  Senate,  a  body,  of  which  no  one 
member  may  have  been  chosen  by  a  majority,  is 
to  determine  the  election.  And  so,  with  no 
single  agency  to  which  a  majority  has  given  its 
assent,  the  governor  is  to  be  elected  in  accordance 
with  the  rule,  that  the  majority  alone  shall  have  the 
power  to  decide  who  he  shall  be  !  Lucus  a  non  lu- 
cendo !  It  is  nothing  more  nor  less  than  this :  It  is 
putting  it  into  the  power  of  the  House  of  Repre 
sentatives  to  substitute,  not  a  plurality  rule  for  a 
majority  rule,  but  a  minority  rule  for  a  plurality 
rule,  and  that  is  the  whole  of  it.  The  whole  pow 
er  conferred  upon  the  House  of  Representatives, 
their  choice  being  limited  to  three  persons,  is  this, 
and  nothing  more  than  this  :  to  determine  that  he 
who  shall  have  received  the  highest  number  of 
the  votes  of  the  people,  shall  not  be  governor, 
but  that  he  who  shall  have  a  lesser  number  of 
those  votes  shall  be  governor. 

I  know  it  is  said,  that  those  who  favor  the  plu 
rality  rule  in  elections,  and  opposed  the  basis 
which  has  been  agreed  upon,  on  the  ground  that 
it  put  power  into  the  hands  of  a  minority  of  the 
people,  expose  themselves  to  a  charge  of  incon 
sistency.  But  it  is  not  so.  There  are  clear  dis 
tinctions  between  the  two ;  as  palpable  as  those 
between  midnight  and  noonday.  In  the  two 
things  to  be  acted  on,  viz. :  the  election  of  officers, 
or  the  constitution  of  the  body  which  shall  enact 
the  laws,  the  citizen  occupies  very  different  po 
sitions  ;  answers,  by  his  vote,  very  different  ques 
tions  ;  exercises,  by  that  vote,  very  different  pow 


ers.  In  the  first,  the  election  of  officers,  he  votes 
for  whom  he  chooses — the  Constitution  knows  no 
candidates — the  question  which  is  propounded  to 
him,  and  which  he  answers  by  his  vote,  is  not, 
"  shall  or  shall  not  A  B  fill  the  office  ? "  but  the 
question  is,  "who  shall  fill  the  office?"  The 
power,  which  he  exercises,  is  not  necessarily  ex 
erted,  either  in  aid  of,  or  in  direct  opposition  to, 
the  power  exercised  at  the  same  time  by  each 
other  voter ;  but  it  may  operate  as  a  mere  dis 
turbing  force,  absolutely  impeding,  and  perhaps 
disarming  the  power  of  all  others.  So  that  a 
factious  spirit,  indulged  in  by  a  few,  tends  to 
preventing  the  many  from  being  represented  in 
the  government  under  which  they  live.  I,  for 
one,  desire  to  take  out  of  the  hands  of  the  few, 
this  power  over  the  many.  But,  in  the  enact 
ment  of  laws,  the  questions  propounded,  and 
which  are  to  be  answered  by  votes,  admit  of  no 
response,  excepting  an  absolutely  affirmative,  or 
an  absolutely  negative,  one.  Shall  this  law  be 
enacted — yes  or  no  ?  Shall  this  law  be  repealed 
— yes  or  no  ?  So  that  the  power  which  each  ex 
ercises  by  his  vote,  must,  (unlike  votes  at  an 
election,)  necessarily  be  exerted,  either  in  the 
same  direction  with,  or  in  direct  opposition  to, 
the  power  exerted  at  the  same  time  by  each  other 
vote,  and  cannot  be  made  to  operate  as  a  mere 
disturbing  force. 

I  am  willing  that,  at  each  election,  a  plurality 
should  elect  the  officer  ;  I  am  unwilling  to  con 
fer  upon  a  minority  of  the  people,  the  power  of 
making  the  laws,  in  opposition  to  the  will  of  a 
majority  of  the  people ;  and  some  gentlemen 
think  that  to  be  an  inconsistency.  To  reach  that 
conclusion,  they  must  leap  a  chasm  broader  than 
logic  can  build  a  bridge  for.  When  you  provide 
that  a  plurality  may  elect,  do  you  thereby  provide 
that  a  majority  shall  not  elect  ?  Will  not  a  ma 
jority  elect,  wherever  a  majority  shall  see  fit  to 
elect?  Do  you  confer  upon  the  minority  the 
power  to  govern  the  majority  ?  Do  you  take 
power  from  the  majority  of  your  people,  and  con 
fer  it  upon  a  minority  of  your  people  ?  Far  from 
it  and  otherwise.  You  leave  the  power  with  the 
majority,  as  certainly  as  it  is  there  now,  and  you 
take  from  the  minority  the  power  of  preventing 
elections. 

Now,  Sir,  how  is  it  with  the  basis  for  the 
House  of  Representatives?  Ask  yourself  the 
same  questions  concerning  the  two,  and  see  if 
you  will  not  be  constrained  to  give  exactly  oppo 
site  answers.  Do  you  provide  that  the  majority 
shall  not  have  the  power  to  govern?  By  the 
basis,  yes.  By  the  plurality,  no. 

Do  you  confer  upon  different  citizens,  different 
degrees  of  political  power  ?  By  the  basis,  yes. 


60th  day.] 


ELECTIONS    BY   PLURALITY. 


93 


Monday, 


STEVENSON  —  DAVIS. 


[July  18th. 


By  the  plurality,  no.  Do  you  give  to  each  man's 
vote  an  equal  weight,  in  the  ballot-box  ?  By  the 
plurality,  yes.  By  the  basis,  no. 

I  cannot  think  that  he  who  votes  for  one  prop 
osition,  and  against  another  proposition  to  which 
such  adverse  answers  can  be  truly  given  to  the 
same  questions,  need  feel  much  embarrassed  by 
any  whispers  of  inconsistency.  In  the  one  you 
take  power  from  the  majority,  and  confer  it  upon 
the  minority  ;  therefore  I  oppose  it.  In  the  other 
you  do  no  'such  thing,  and  so  I  assent  to  it. 

What  is  the  exact  measure  of  power  which 
each  citizen  ought  to  possess,  either  in  an  election, 
or  in  deciding  what  the  laws  shall  be,  under  which 
he  is  to  live  ?  Exactly  that  which  each  other  cit 
izen  possesses.  No  more  and  no  less.  He  who 
asks  for  more,  is  no  democrat,  though  he  may 
have  worn  the  word  threadbare  by  the  use  of  it 
with  his  tongue.  He  who  will  consent  to  less, 
is  not  fit  for  a  republican,  however  much  he  may 
congratulate  himself  that  he  lives  under  no  other 
form  of  government.  Each  citizen's  proper  meas 
ure  of  power  is  exactly  that  which  each  other 
citizen  possesses.  What  is  the  instrumentality 
through  which  that  power  is  to  be  exercised? 
The  vote.  The  individual's  power  by  the  indi 
vidual's  vote.  And,  in  determining  the  mode  in 
which  that  power  shall  be  exerted,  if  we  deter 
mine  that  each  vote  cast  shall  carry  with  it  the 
same  force,  which  each  other  vote  carries  with  it, 
we  shall  determine  justly.  If  otherwise,  we 
shall  determine  unjustly.  Let  us  listen  to  the 
clear  voice  of  justice ;  that  most  god-like  capa 
bility  of  man  ;  that  central  light  of  the  moral 
universe ;  that  sun,  which  all  the  other  virtues 
revolve  around,  and  are  illumined  by — whose 
central  force  is  necessary  to  keep  each  other  vir 
tue  from  wandering  into  the  orbit  of  its  kindred 
vice. 

No  system  can  be  just  which  will  not  square 
with  this  rule,  equal  power  in  each  vote.  Now, 
when  you  change  to  a  plurality,  do  you  invade 
this  rule  ?  Does  it  not  leave  each  individual's 
power  exactly  equal  to  each  other  individual's 
power  ?  Each  vote,  the  silent  expression  of  the 
will  of  him  who  casts  it,  tends  with  exactly  equal 
force  to  the  accomplishment  of  his  wishes ;  car 
ries  with  it  exactly  the  same  weight,  not  varying 
by  the  pressure  of  a  single  particle  of  impalpable 
dust ;  while  in  the  other  case,  the  basis  of  repre 
sentation  is  an  absolute  negation  of  the  same  rule. 
It  fails  to  recognize  the  existence  of  individual 
power,  looking  only  to  the  power  of  associations ; 
constructing  foundations  so  varying,  that  the  few, 
standing  on  one,  may  defy  the  many,  standing 
on  another  ;  putting  into  different  mens'  hands 
different  instrumentalities ;  calling  each  a  vote, 


but  endowing  different  votes  with  different  de 
grees  of  power.  That  is  injustice.  Because 
whatever  of  excess  it  confers  upon  one  citizen,  it 
takes  from  another,  and  men  in  Massachusetts 
cease  to  be  equal. 

[The  time  allowed  by  the  rule  adopted  by  the 
Convention,  having  expired,  Mr.  Stevenson  did 
not  finish  his  argument.  1 

Mr.  DAVIS,  of  Plymouth.  I  rise  to  make  an 
inquiry  whether  the  resolves,  as  reported  by  the 
Committee,  are  all  under  consideration,  or  whether 
only  the  first  is  now  before  the  Committee  ? 

The  CHAIRMAN.  The  Chair  understands 
that  they  are  all  under  consideration,  so  far  as  to 
allow  of  general  debate  upon  them. 

Mr.  DAVIS.  If  it  is  in  order,  I  will  move  to 
amend  the  third  resolution  by  striking  out  all 
after  the  word  "  election,"  in  the  third  line. 

The  CHAIRMAN.  The  resolve  Avill  then  read 
as  follows : — 

Resolved,  That  in  the  election  of  representatives 
to  the  general  court,  a  majority  of  all  the  votes 
given  in,  shall  be  necessary  to  an  election. 

Mr.  DAVIS.  I  do  not  propose  to  argue,  at  any 
length,  the  amendment  I  have  proposed,  or  to  give 
the  reasons  why  I  advocate  it ;  but  it  seems  to 
me,  that  in  one  remark,  at  least,  of  the  gentle 
man  from  Boston,  (Mr.  Stevenson,)  I  can  agree 
with  him,  and  that  is  with  regard  to  the  town 
elections.  I  differ  from  him  in  believing  that  we 
should,  as  far  as  possible,  retain  the  doctrine,  and, 
as  I  maintain  it,  the  principle  of  the  majority  sys 
tem.  If  I  have  understood  correctly  the  position 
of  many  gentlemen  on  this  floor,  who  are  in  favor 
of  town  representation,  I  understood  them  to  base 
their  arguments  in  favor  of  town  representation, 
to  a  very  great  extent,  and  almost  solely,  upon  the 
ground  that  it  was  necessary  in  order  to  preserve 
these  small  democracies  and  municipalities  intact. 
It  was  said  that  they  were  the  only  pure  democ 
racies  in  the  world.  I  have  only  to  say,  that  I, 
for  one,  am  in  favor  of  keeping  these  democracies 
pure  in  the  small  towns  ;  and  I  therefore  propose 
this  amendment.  It  seems  to  me,  that  if  we  are 
to  retain  the  majority  system  anywhere,  we 
should  do  it  in  these  small  towns,  these  "  pure 
democracies,"  as  they  are  termed,  and  then  we 
shall,  to  that  extent,  preserve,  and  teach,  the 
principles  upon  which  a  popular  government  is 
founded. 

There  is  another  reason  why  we  should  not 
make  the  election  of  a  representative  to  the  gen 
eral  court  final,  upon  a  second  trial,  and  why  we 
should  preserve  the  majority  system,  so  far  as 
that  election  is  concerned  ;  and  that  is,  that  in  the 
smaller  towns  the  people  are  better  able,  from 


94 


ELECTIONS   BY   PLURALITY. 


[60th  day. 


Monday,] 


DAVIS  —  EDWARDS. 


[July  18th. 


their  knowledge  of  their  neighbors,  and  of  the 
candidate  who  is  selected,  to  agree  upon  some  one, 
after  one  or  two  trials  have  been  had.  There  does 
not,  in  this  case,  seem  to  be  the  necessity  for  the 
plurality  rule,  which  may  exist  in  other  cases ; 
and  the  Committee,  in  giving  the  reasons  for  their 
Report,  expressly  declare,  that  there  is  not  the 
same  necessity  for  preserving  the  plurality  system, 
in  the  election  of  a  representative,  that  there  is  in 
the  election  of  officers  from  a  more  extended  ter 
ritory.  Since  this  Report  was  made  by  the 
Committee,  the  Convention  have  decided  upon  a 
system  of  town  representation ;  and,  therefore, 
there  is  not  that  same  necessity  for  adopting  the 
plurality  system,  with  regard  to  the  election  of 
representatives,  that  their  might  have  been  if  the 
district  system  had  been  adopted.  If  the  mem 
bers  of  the  Committee  will  turn  to  the  second 
page  of  the  Report  of  the  Committee  who  offered 
this  series  of  resolutions,  they  will  find,  that 
when  the  Committee  speak  of  the  election  of  rep 
resentatives  in  towns,  by  plurality,  they  are 
obliged  to  resort  to  an  entirely  different  reason 
from  that  which  they  give  in  the  case  of  the 
election  of  other  officers.  They  say : — 

"  To  prevent  a  too  frequent  recurrence  of  elec 
tions,  and  the  necessity  of  trials  on  subsequent 
days,  when  bodies  as  large  as  counties  and  dis 
tricts  fail  to  elect,  for  all  county  and  district 
officers,  a  plurality  rule  is  provided.  From  a 
desire  that  the  government  may  be  in  fact,  what 
it  is  in  theory,  a  government  of  a  majority,  and  to 
give  an  opportunity  for  the  exercise  of  the  « sober 
second  thought,'  by  the  electors,  that  rule  is  pro 
posed  upon  the  first  ballot,  in  the  election  of  rep- 
resentatives  to  the  general  court." 

And  here  they  bring  in  a  new  reason  : — 

"Still,  that  differences  of  political  or  other 
opinions  may  not  operate,  either  to  hinder  a  full 
representation,  or  to  protract  town  meetings  to 
such  extent  as  to  subject  them  to  extraneous 
influences,  a  plurality  is  permitted  to  elect  on  the 
second  ballot." 

Gentlemen  will  find,  that  when  an  election  of 
an  officer  who  is  to  represent  a  large  extent  of 
territory  is  proposed,  the  reason  for  resorting  to  a 
plurality  is,  that  it  is  not  easy  to  meet  for  a  second 
election  ;  and  then,  when  they  come  to  the  elec 
tion  of  those  who  are  to  represent  a  smaller  terri 
tory,  they  give  another  reason ;  and  I  suggest, 
that  I  think  that  the  other  reason  is  not  entitled 
to  very  much  weight,  for  a  majority  may  always 
elect,  upon  a  second  trial,  if  they  deiire  to  prevent 
a  failure  of  representation. 

Mr.  EDWARDS,  of  Southampton.  Having 
been  placed  on  the  first  Committee  to  which  this 
subject  was  originally  referred,  I  have  given  it 


some  attention.  I  do  not  mean  to  speak  long  on 
the  subject,  for  I  would  not  make  a  long  speech 
if  I  could.  But  as  I  felt  this  to  be  a  somewhat 
important  subject,  when  the  proposition  for  call 
ing  a  Convention  was  first  agitated,  and  having 
turned  my  attention  to  it,  I  wish  to  say,  that  for 
many  years  I  have  been  in  favor  of  the  plurality 
system  in  all  our  elections.  I  was  in  favor  of  it 
in  the  Committee  of  which  the  gentleman  from 
Fall  River,  (Mr.  Hooper,)  is  chairman,  and  eleven 
out  of  thirteen  members  of  that  Committee  ap 
peared  to  be  decidedly  in  favor  of  the  plurality 
system.  I  have  seen  in  the  elections  in  our  towns 
and  counties,  great  evils  resulting  from  the  ma 
jority  principle.  It  has  caused  our  town  meet 
ings  to  be  subjects  of  ridicule,  so  frequently  have 
they  been  called. 

It  seems  that  a  large  proportion  of  this  Conven 
tion  are  not  ready  to  adopt  the  plurality  system 
in  its  fullest  extent ;  and  therefore,  in  this  age  of 
compromises,  a  compromise  has  been  presented, 
and,  in  the  language  of  the  gentleman  from  Bos 
ton,  upon  another  subject,  I  am  ready  and  wil 
ling  to  take  the  best  project  presented,  if  it  is  not 
fully  up  to  my  views.  Why  did  we,  in  past 
years,  adopt  the  plurality  system  in  the  second 
trial  for  an  election  of  members  of  congress  ? 
Because  the  people  did  not  appear  to  be  ready  to 
adopt  it  upon  the  first  trial.  We  have,  hereto 
fore,  in  many  districts,  been  called  upon  from 
three  to  nineteen  times  to  elect  members  of  con 
gress.  The  people  of  Massachusetts  are  slow  to 
adopt  any  innovation ;  and  that  may  be  a  credit 
to  them ;  we  do  not  like  to  give  up  our  town 
representation  ;  we  do  not  like  to  come  at  once 
to  the  adoption  of  the  .plurality  system  in  elec 
tions.  We  are  attached  to  these  principles,  which 
have  been  long  established  and  acted  upon.  I 
am  entirely  opposed  to  the  amendment  which  is 
proposed.  I  wish  to  elect  our  representatives  on 
the  first  day  that  we  meet.  It  is,  in  many  towns, 
extremely  difficult  to  elect  at  all,  and  an  unequal 
representation  has  consequently  been  the  order  of 
the  day  in  Massachusetts. 

I  should  regret,  extremely,  to  be  unable  to 
elect  a  representative  on  the  second  ballot,  as  is 
proposed  by  the  Committee  ;  if  the  majority  prin 
ciple  is  to  be  the  guide  in  the  first  ballot,  the  plu 
rality  system  should  be  in  the  second.  For  my 
own  part,  I  am  ready  to  take  it  upon  the  first 
ballot ;  but  as  it  seems  that  we  must  compromise 
the  matter,  I  am  willing  to  vote  for  the  propo 
sition  of  the  Committee.  Those  who  are  conver 
sant  with  the  management  of  town  affairs,  and 
the  election  of  town  officers,  &c.,  know  that  three 
or  four  days  is  often  required  for  the  election  of  a 
board  of  selectmen ;  this  has  been  the  case  in 


60th  day.] 


ELECTIONS    BY   PLURALITY. 


95 


Monday,] 


EDWARDS  —  FROTHINGHAM  —  SCHOULER. 


[July  18th. 


many  of  the  small  towns,  and  they  have  been 
wishing,  for  a  long  time,  that  the  plurality  prin 
ciple  could  be  introduced  into  these  elections.  I 
do  not  regard  this  matter  as  affecting  party. 
When  I  came  here,  it  was  not  with  the  idea  of 
doing  anything  for  the  benefit  of  any  particular 
party,  and  to  acquire  any  party  advantage  what 
ever  ;  and,  to  my  surprise,  I  found  myself  sur 
rounded  by  friends  of  the  plurality  principle, 
whom  I  did  not  expect  to  find  on  that  side.  For 
years  past,  in  the  legislature,  I  have  sustained  the 
plurality  principle  by  my  vote  ;  and  I  now  found 
myself  surrounded  by  new  friends.  I  do  not 
stop  to  inquire  what  is  to  be  the  effect  of  this  on 
party ;  I  do  not  look  to  the  present  good  of  Mas 
sachusetts  merely.  I  have  arrived  at  that  age 
when  I  desire  the  permanent  good  of  the  Com 
monwealth,  and  not  the  present  success  of  any 
party.  I  desire  that  those  who  are  to  follow  me, 
should  have  as  good  a  Constitution  as  we  can  pos 
sibly  provide  for  them.  I  do  not  expect  or  de 
sire  anything  for  myself,  but  I  want  to  present  to 
the  people  as  perfect  a  system  as  we  can,  upon 
this,  as  well  as  all  other  subjects  that  come  before 
us.  For  these  reasons,  I  shall  vote  against  the 
amendment  to  the  third  resolution,  and  hope  that 
it  will  not  be  adopted. 

Mr.  FROTHINGHAM,  of  Charlestown.  I 
hope  that  the  amendment  of  the  gentleman  oppo 
site  will  not  prevail,  for  I  desire  that  we  should, 
at  least,  retain  the  plurality  principle  for  our  rep 
resentatives.  For  one,  Sir,  I  shall  go  for  it,  and 
for  as  much  of  it  as  I  can  get ;  and  for  the  reason 
that  has  been  urged  so  often,  and  so  elaborately, 
and  so  well,  upon  this  floor.  I  concur  almost  en 
tirely  in  what  has  been  said  by  the  gentleman 
who  last  spoke ;  and  I  will  say,  that  the  particular 
reason  why  I  wish  the  amendment  not  to  prevail 
is,  that  the  evil  of  the  majority  principle,  or  the 
inconvenience  of  it — for  I  will  not  say  that  it  is  a 
bad  principle  in  theory — has  been  most  sensibly 
felt  in  the  city  which  I  have,  in  part,  the  honor 
to  represent  here.  For  the  last  ten  years,  we  have 
hardly  been  able  to  get  our  representation  upon 
the  floor  of  the  legislature.  I  think  there  has 
been  but  once,  in  the  whole  round  of  ten  years, 
when  we  have  had  a  full  delegation.  That  is  the 
way  in  which  the  majority  principle  has  worked 
in  Charlestown ;  and  this  being  the  case,  I  appeal 
to  the  gentleman  who  offered  the  last  amendment, 
whether  it  is  not  reasonable  to  expect  that  the 
people  of  that  city,  are  strongly  in  favor  of  the 
plurality  principle,  in  order  to  secure  what  all 
parties  want,  and  what  they  all  ought  to  strive 
for — a  representation  of  that  city  upon  the  floor 
of  the  legislature.  Sir,  it  is  this  evil  of  non- 
representation  which  lies  at  the  bottom  of  the 


whole  matter ;  it  goes  deeper  than  all  party  con 
siderations.  When  you  take  a  representative 
away  from  the  legislature,  you  deprive  the  people 
whom  he  represents  of  their  legitimate  voice  ;  and 
a  system  which  works  so  as  to  deprive  a  city  or  a 
town,  for  so  large  a  portion  of  their  time,  of  their 
full  voice  in  the  legislature,  is  not  the  best  system 
that  we  can  obtain.  I  believe  that  when  you  go 
over  the  history  of  our  legislature  for  the  last  ten, 
fifteen,  or  twenty  years,  you  will  find  that 
this  evil  of  non-representation  has  prevailed, 
to  a  greater  or  less  extent,  over  the  whole  of 
the  Commonwealth.  Therefore,  in  advocating 
the  plurality  principle  for  the  city  of  Charles- 
town,  I  advocate  it  for  every  town,  and  for  every 
city  in  the  Commonwealth.  While  I  am  up,  and 
not  wishing  to  go  into  a  speech  upon  this  matter, 
I  will  venture  to  make  a  suggestion  which  occurs 
to  me  in  relation  to  the  wording  of  the  resolu 
tion,  and  ask  the  chairman  of  the  Committee 
whether  it  would  not  be  well  to  alter  the  phrase 
ology,  so  that  the  towns,  if  they  chose  it,  could 
elect  their  representatives  on  the  first  ballot,  by  the 
plurality  principle,  instead  of  waiting  until  the 
second.  Of  course,  as  relates  to  the  cities,  it  will 
make  no  difference ;  but  this  suggestion  is  made 
in  accordance  with  the  idea  of  a  friend  near  me, 
that  it  may  be  more  convenient  for  the  towns,  and 
more  desirable,  to  have  the  resolution  worded  in 
that  way.  I  do  not,  myself,  propose  any  amend 
ment  to  carry  out  that  object ;  but  I  will  con 
clude  by  expressing  my  hope  that  the  amendment 
which  was  offered  by  the  gentleman  from  Ply 
mouth,  will  not  prevail. 

Mr.  SCHOULER  moved  to  amend  the  first 
resolution  by  striking  out  all  after  the  word  "  re 
solved,"  and  inserting,  in  lieu  thereof,  the  follow 
ing: — 

That  it  is  expedient  to  provide,  in  the  Con 
stitution,  that  in  the  election  of  a  governor, 
lieutenant-governor,  secretary,  treasurer,  auditor, 
and  attorney-general  of  the  Commonwealth,  the 
person  having  the  largest  number  of  votes  shall 
be  deemed  and  taken  to  be  elected. 

The  CHAIRMAN.  The  Chair  can  receive  and 
announce  the  amendment ;  but  there  is  an  amend 
ment  to  the  third  resolution  now  pending  before 
the  Committee. 

Mr.  SCHOULER.  As  this  is  an  amendment 
to  the  first  resolution,  I  suppose  it  will  be  first  in 
order.  I  do  not  intend  to  occupy  any  time  in 
discussing  this  amendment,  but  taking  the  Report 
of  the  Committee  now  under  consideration,  and 
the  Report  of  the  Committee  in  relation  to  the 
calling  of  this  Convention,  it  seems  to  me  that 
there  is  a  tremendous  clashing  between  them.  I 


96 


ELECTIONS    BY   PLURALITY. 


[60th  day. 


Monday,] 


SCHOULER  —  HALLETT. 


[July  18th. 


will  read  the  seventh  reason  assigned  for  the 
calling  of  this  Convention,  which  will  be  better 
than  anything  that  I  could  say  upon  the  subject. 
That  is  as  follows  : — 

"  7.  The  present  cumbersome,  formal  mode  of 
organizing  the  government,  we  submit,  should  be 
abolished.  Eight  or  ten  days  are  now  usually 
occupied  in  this  organization,  which  is  nothing 
less  than  an  annual  waste  of  six  or  eight  thou 
sand  dollars  of  the  people's  money.  The  election 
of  secretary  of  the  Commonwealth,  treasurer 
and  receiver-general,  auditor  of  accounts,  and 
executive  councillors,  by  the  people,  with  an 
application  of  the  plurality  principle  to  these 
officers,  as  well  as  to  the  governor,  lieutenant- 
governor,  and  state  senators,  would  do  much  to 
remedy  this  evil.  These  changes,  with  a  few 
other  slight  modifications  of  the  Constitution,  in 
the  same  direction,  especially  the  establishment  of 
a  board  of  men  to  count  the  votes,  declare  the 
result,  and  notify  the  persons  elected,  would  en 
able  the  legislature  to  organize  the  government, 
and  be  ready  to  proceed  with  the  business  of  the 
session,  in  two,  or,  at  the  longest,  in  three  days. 
This  change  alone,  would,  in  the  course  of  ten 
years,  nearly,  or  quite  defray  the  whole  expense 
of  the  Convention." 

Now,  Sir,  if  we  adopt  the  Report  of  the  Com 
mittee,  now  under  consideration,  we  shall  be 
leaving  this  present  cumbersome,  formal,  and  ex 
pensive  mode,  exactly  where  it  stands  in  the  Con 
stitution.  It  seems  to  me,  Sir,  as  was  said  by 
my  colleague,  this  morning,  that  those  officers 
who  are  made  elective,  and  for  whom  the  whole 
people  of  the  Commonwealth  are  called  upon  to 
vote,  should  be  elected  by  pluralities,  so  as  to  do 
away  with  all  this  trouble.  If  we  elect  them  by 
majorities,  we  shall  be  keeping  up  this  formal 
and  cumbersome  mode,  which,  as  this  document 
tells  us,  is  a  waste  of  some  six  or  eight  thousand 
dollars  of  the  people's  money,  annually. 

Mr.  HALLETT.  I  understand,  that  there  are 
two  propositions  now  before  the  Committee :  one 
is  to  adopt  an  amendment  to  the  first  resolution, 
by  applying  the  plurality  rule  to  it;  and  the  other, 
is  to  amend  the  third  resolution,  so  as  to  require  a 
majority  to  elect  the  representatives  from  the 
towns.  I  understand,  that  these  two  amendments 
are  now  pending.  I  propose  to  say  a  very  few 
words,  in  order  that  I  may  stand  consistently 
upon  the  record.  When  that  question  was  under 
discussion,  by  this  body,  on  a  former  occasion,  I 
took  the  opportunity  to  express  my  opinion,  that 
the  majority  principle  was  the  only  true  rule — 
that  I  knew  of  no  other  sound,  republican  rule — 
but  that,  if  it  was  a  question  of  expediency,  we 
might  submit  to  the  people  the  question  upon  the 
plurality  and  the  majority,  so  that  they  could 
have  an  opportunity  to  decide  upon  this  question, 


and  that  the  plurality  principle  might  be  applied 
to  certain  officers,  while  we  should  require  a 
majority,  as  applicable  to  other  officers  ;  and  I 
went  so  far  as  to  say — and  I  stand  upon  the  same 
position  now — that  it  is  an  exception  to  the  princi 
ple  that  keeps  the  government  in  the  hands  of  the 
majority.  Nevertheless,  I  should  be  willing  to 
submit  some  proposition  to  the  people,  in  order 
that  they  might  pass  upon  this  question  of  plu 
rality.  But,  Sir,  as  regards  the  amendment 
proposed  by  the  gentleman  from  Plymouth,  I  feel 
bound  to  say,  that  that  is  the  last  fortress  of  the 
majority  principle  which  I  am  willing  to  sur 
render.  While  I  do  not  propose  to  make  a  point 
of  issue,  in  regard  to  the  other  portion  of  the 
Ileport — talcing  the  majority  principle,  in  certain 
cases,  and  the  plurality  rule,  in  other  cases — I 
want  to  present  to  this  Committee  the  single  con 
sideration,  that  we  ought  not,  in  our  Constitution, 
make  any  change  in  the  present  mode  of  elect 
ing  representatives.  The  legislature  has  no  power 
in  the  Constitution  to  touch  it.  The  Constitu 
tion,  Sir,  says  nothing  about  it.  For  two  hundred 
years,  in  this  Commonwealth,  we  have  never 
heard  in  its  history,  that  a  representative  in  gen 
eral  court,  was  ever  chosen  by  less  than  a  majority 
of  the  community  voting  for  him.  There  has 
not  been  a  word  put  into  any  Constitution  about 
it.  It  was  not  put  in  by  the  framers  of  the  Con 
stitution,  in  1780  ;  it  was  not  put  in  by  the  amend 
ments  of  1820,  and  the  legislature  have  never 
acted  upon  it.  Now  I  should  greatly  prefer  one 
of  two  things :  either  to  leave  it  out  of  our 
amendments  to  the  Constitution  altogether,  by 
striking  out  the  whole  of  that  provision  which 
relates  to  representatives,  or  give  authority  to  the 
legislature  to  pass  a  plurality  law,  if  the  towns 
want  it,  or  else  to  amend  it,  so  as  to  require  a 
majority,  by  the  terms  of  the  Constitution.  I 
am  content  to  go  so  far  as  to  leave  the  subject  to 
the  legislature ;  but  I  am  not  content  to  go  so  far 
as  to  say,  as  a  fundamental  law  of  this  Common 
wealth,  unchangeable,  except  in  the  mode  of 
changing  the  fundamental  law,  that  the  towns  of 
this  Commonwealth  may  elect  representatives  by 
minorities.  That  is  precisely  the  same  thing ;  for 
to  say  that  they  may  elect  by  the  plurality  sys 
tem,  is  to  say  that  a  minority  may  elect.  I  go 
upon  principle,  in  regard  to  this  matter.  I  want 
the  towns  to  reflect,  whether  we  can  take  this  step, 
and  hereafter  preserve  our  principles,  in  regard  to 
town  representation.  If  there  is  any  principle  in 
town  representation,  it  is  this  :  that  towns  are 
distinct  communities  in  the  Commonwealth, 
which  communities  are  entitled  to  representation 
— not  merely,  that  individuals  as  parts  of  the 
whole  population,  are  entitled  to  representation — 


60th  day.] 


ELECTIONS    BY   PLURALITY. 


97 


Monday," 


HALLETT. 


[July  18th. 


but  that  town  communities  are  entitled  to  be 
represented,  through  the  individuals  who  compose 
these  respective  communities.  That  is  the  only 
principle  upon  which  I  can  act,  in  advocating 
town  representation ;  and  there  I  can  stand. 
Now,  if  you  give  to  these  communities  the  right 
to  be  represented  in  one  branch  of  the  general 
court,  is  it  safe  to  say,  that  these  communities 
may  be  represented  here  by  a  minority  ?  I  have 
great  doubts  upon  this  matter,  because,  then  it 
comes  to  this  point :  you  may  put  your  House  of 
Representatives  in  the  hands,  in  the  first  place,  of 
of  a  minority  of  the  whole  people,  by  the  mode 
of  a  representation  of  communities,  instead  of 
that  based  upon  the  aggregate  population ;  and 
then,  you  go  one  step  farther,  and  put  these  com 
munities  into  the  hands  of  a  minority  of  the 
communities,  so  that  it  is  a  minority  of  a  minority 
that  will  elect  your  representatives,  for  a  term  of 
years,  until  the  Constitution  is  changed,  and  con 
trol  this  branch  of  the  legislature.  It  is  true — 
and  therefore  our  town  representation  principle 
is  sound— that  the  House  of  Representatives,  so 
apportioned,  does  not  control  the  government, 
and  if  you  preserve  the  other  departments  of  the 
government  in  the  hands  of  a  majority,  that 
may  so  far  balance  it,  and  the  government  will  be 
only  of  a  majority.  But,  I  think  that  we  should 
preserve,  at  least,  the  great  principle  in  regard  to 
the  election  of  representatives,  that  they  should 
be  chosen  by  a  majority,  and  nothing  less.  That 
renders  this  portion  of  the  Report  of  the  Com 
mittee  especially  important,  as  a  matter  of  prin 
ciple. 

Now,  as  it  regards  the  question  of  expediency 
in  town  representation,  if  I  am  right  in  this  prin 
ciple  of  government,  that  we  must  have  a  major 
ity  in  government  to  be  republican,  the  practica 
bility  of  electing  by  majorities  is  very  different  in 
town  elections  from  what  it  is  in  elections  at  large. 
In  the  first  place,  the  towns  may  continue  to  try 
to  elect  representatives,  and  they  may  be  allowed 
to  try  as  they  did  under  the  old  law.  At  all 
events,  they  continue  to  have  trials  for  the  elec 
tion  of  representatives.  But,  Sir,  a  town  has  a 
right  to  be  represented,  or  not  represented,  as  it 
pleases.  That  is  an  ancient  town,  right;  and  I 
hold  that  if  the  people  cannot  agree  as  to  a  repre 
sentation  by  a  majority,  it  is  just  as  much  a  vote 
determining  not  be  represented,  as  if  it  were 
placed  upon  the  record  not  to  send.  But  herein 
you  propose  that  a  town,  by  the  operation  of  the 
plurality,  in  effect,  shall  be  represented,  whether 
it  will  or  not.  I  very  much  question  if  that  is 
not  introducing  a  principle  more  restrictive  of 
town  rights  than  if  we  limited  their  representa 
tion,  because  you  allow  a  minority  to  compel  a 
73 


town  to  be  represented,  when  a  majority  of  the 
people  of  that  town  are  opposed  to  being  repre 
sented  by  the  person  who  is  chosen.  A  few  vo 
ters  will  go  into  the  town  meeting,  who  get  there 
first,  and  vote  to  send,  or  begin  to  ballot,  when 
three-fourths  of  the  voters  will  not  be  represented 
in  the  general  vote,  or  in  the  choice.  So  a  minority 
may  dissolve  the  meeting.  You  may,  neverthe 
less,  call  a  meeting  by  the  selectmen,  at  the 
proper  period  in  November,  and  then  have  an 
election,  by  a  minority  vote ;  and  if  you  have 
four  or  five  parties  in  the  field,  a  plurality,  con 
sisting  of  a  minority  of  one-fourth,  may  elect  a 
representative  and  send  him  to  the  general  court, 
r-gainst  the  majority  who  vote,  and  against  the 
corporate  will  of  the  town,  not  to  be  represented. 
I  do  not  wish  to  place  the  towns  in  that  attitude. 
If  I  were  going  to  vote  in  this  matter  merely  as 
a  politician,  so  as  to  cull  a  plurality  party  out  of 
all  the  three  parties  in  the  Commonwealth,  I 
would  go  for  this  ;  and  it  is  a  strong  temptation 
to  do  so,  because  I  confess  I  want  to  get  rid  of 
that  third  party.  I  believe  that  they  will  do 
much  better  for  themselves  and  for  their  country, 
by  being  fused  into  the  other  two  parties,  accord 
ing  to  their  individualities,  than  by  undertaking 
any  longer  to  keep  house  themselves  as  a  party  j 
and  I  Avill  say,  that  those  who  carry  this  plurality 
doctrine  out,  in  the  choice  of  all  officers,  must  not 
blame  us  who  opposed  it,  if  we  hold  the  knife 
which  they  have  whetted,  to  their  throats.  But 
I  stand  here,  upon  the  general  principle,  that  I 
consider  these  communities  of  towns  as  the  ele 
ments  of  House  Representation,  and  being  the 
elements  of  that  representation,  I  cannot  consist 
ently  vote  for  sending  their  representatives  here 
by  a  minority.  I  hope,  therefore,  as  it  was  only 
my  purpose  to  set  myself  right  on  this  question, 
that  this  amendment,  as  regards  the  third  resolve, 
will  be  adopted,  so  that  it  will  read,  "  that  in  the 
election  of  representatives  to  the  general  court,  a 
majority  of  all  the  votes  given  in  shall  be  neces 
sary  for  an  election,"  and  if  that  does  not  prevail, 
then,  at  least,  let  the  amendment  which  has  been 
suggested,  be  adopted.  You  ought  to  have  an 
election  by  plurality  at  the  first  trial,  at  all  events, 
otherwise  you  say  that  those  who  are  to  elect 
your  representatives  shall  be  men  who  can  afford 
to  ride  to  the  polls,  and  not  those  who  have  to 
walk,  and  cannot  well  lose  a  day's  work  ;  for  that 
is  all  the  difference,  a  difference  between  men  of 
property  in  the  villages,  and  a  sparse  population 
of  farmers  and  laborers,  scattered  in  the  rural 
sections.  Almost  every  man  can  and  will  go  to 
the  polls  on  the  first  day,  when  a  trial  is  to  be 
made ;  but  the  laboring  man  cannot  afford  to  lose 
his  dollar  each  day,  for  four  or  five  times,  unless 


98 


ELECTIONS    BY   PLURALITY. 


[60th  day. 


Monday," 


FOSTER —  STETSON. 


[July  18th. 


it  should  happen  to  be  on  some  great  and  exciting 
occasion.  If  you  will  have  a  plurality,  therefore, 
in  town  representation,  let  it  apply  to  the  first, 
and  not  to  the  second  trial.  My  judgment  is  that 
you  had  better  not  put  this  provision  in  at  all, 
but  keep  the  majority  as  it  now  stands,  and  leave 
it  to  the  legislature  to  decide  whether  the  towns 
want  the  plurality  rule,  and  if  they  really  do,  let 
them  have  it. 

Mr.  FOSTER,  of  Charlemont.  I  am  in  fa 
vor  of  the  amendment  of  the  gentleman  from 
Plymouth.  My  constituents  have  been  unrepre 
sented  for  the  last  two  years  because  they  could 
not  agree  upon  the  man  to  be  sent,  and  when  I 
was  at  home  the  other  day  I  told  them  that  I 
should  still  sustain  the  majority  principle  on  the 
subject,  and  they  consented  still  to  be  without 
representation  ;  for  they  considered  the  majority 
principle  a  safe  one.  I  told  them  that  there  was 
a  special  reason  why  I  should  support  this  prin 
ciple,  and  that  is :  that  we  are  likely  to  have  a 
large  House  of  Representatives  and  I  would  be 
very  willing  to  have  the  House  thinned  out  a 
little  by  these  very  failures  to  elect,  and  that  that 
was  one  of  the  strong  motives  why  I  am  so  much 
in  favor  of  the  majority  system. 

Mr.  STETSON,  of  Braintree.  I  do  not  intend 
to  detain  the  Convention.  When  I  hear  my 
friend  oppose  what  I  consider  a  democratic  prin 
ciple,  and  a  democratic  rule,  I  am  induced  to  ad 
dress  the  Convention.  I  believe,  Sir,  that  the 
majority  principle,  as  it  now  exists  in  the  State, 
is,  in  fact,  a  rule  by  winch  the  very  smallest  mi 
nority  rules  the  majority.  That  is  the  fact ;  and 
I  think  that  some  provision  should  be  made  in 
the  Constitution  by  which  this  may  be  overcome, 
or  set  aside,  in  some  way  or  other ;  and  I  know  of 
no  way  unless  we  adopt  what  is  called  the  plu 
rality  system.  I  believe  that  the  system  of  plu 
rality  is  the  most  just  and  equal  to  the  majority 
of  all  parties,  and  that  the  rule  itself,  nine  times 
out  of  ten,  results  in  giving  a  fair  majority  of  the 
people  in  favor  of  such  candidates  as  are  brought 
forward  for  election.  And  is  it  not  a  fact  that 
under  the  majority  rule,  you  find  the  little  party 
will  govern  in  almost  all  cases  ?  Where  there 
are  two  parties,  the  Whig  and  the  Democratic, — 
or  the  Free  Democratic  and  the  Democratic, — 
where  the  two  parties  are  nearly  balanced,  and  we 
say  that  the  majority  shall  rule,  one  or  the  other 
of  these  parties  are  bound  to  coalesce  if  they  wish 
to  choose.  And  what  is  the  result  ?  By  a  coali 
tion  one  party  will  succeed ;  but  if  each  party 
stands  upon  his  own  right,  independently  of  the 
others,  no  person  can  be  chosen.  Now  that  is  the 
rule.  I  hope  the  Convention  will  adopt  the  Re 
port  of  the  Committee.  I  am  willing  to  go  far 


ther,  and  think  the  plurality  rule  should  go  as 
far  as  it  can  be  made  to  go ;  that  we  should  elect 
all  officers  under  the  State  government  by  a  plu 
rality  vote.  That  is  the  true  doctrine,  and  I  can 
well  conceive  why  my  friend  for  Wilbraham, 
(Mr.  Hallett,)  is  so  loath  to  concede  that  even  a 
majority  should  rule ;  because  I  do  not  know  but 
he  is  one  of  the  fathers  of  the  two-thirds  rule, 
contending  that  two-thirds  of  a  party  should  be 
brought  to  bear  upon  a  single  object,  or  else  110 
one  can  be  chosen. 

Now  the  two-thirds  rule  is  one  of  the  most 
destructive  inventions  that  ever  existed ;  and  I 
would  appeal  to  gentlemen,  whether  that  rule 
does  not  throw  out  all  the  men  who  are  the  most 
deserving  of  office  ?  I  say,  that  by  this  iron  rule, 
the  most  valuable  men  are  thrown  aside.  I  can 
conceive  no  other  reason  why  mv  friend  is  so 
loath  to  adopt  the  Report  of  the  Committee,  except 
that  he  wants  that  iron  rule  to  continue.  Now, 
I  am  sorry  to  say,  we  had  some  long  speeches 
made,  on  a  former  occasion,  upon  the  subject ; 
that  those  who  have  always  supported  the  demo 
cratic  principles,  have  come  out  and  said,  here 
upon  this  floor — and  I  believe  my  friend  on  the 
right  is  among  the  number — that  the  plurality 
principle  tends  to  destroy  the  very  foundation  of 
the  government. 

Sir,  I  am  sometimes  called  radical ;  but  if  this 
plurality  rule  is  a  radical  measure,  then  I  am  a 
radical.  I  do  not  believe  but  that  the  principle 
itself  produces  the  effect  which  we  all  desire ;  that 
it  develops  the  true  principles  of  the  majority. 
I  will  venture  to  say,  Sir,  that  two-thirds  of  all 
the  legal  voters  in  the  State  of  Massachusetts  are 
among  the  working  classes.  One  of  the  prin 
ciples  of  democracy,  I  believe,  is  to  relieve  the 
masses  from  the  oppressions  of  wealth ;  and  I 
contend  that  the  majority  rule,  as  it  operates  un 
der  present  circumstances,  is  one  of  an  oppressive 
character.  The  men  upon  whom  the  burdens  of 
taxation  fall  most  heavily,  are  the  working  men 
— men  who  are  often  compelled  to  meet,  from 
time  to  time,  and  from  day  to  day,  at  the  polls  to 
vote,  or  relinquish  their  right  of  being  represented. 
And  I  would  appeal  to  every  member  of  the  Con 
vention  if  he  does  not  know,  in  every  election, 
after  the  first  or  second  day,  who  are  the  parties 
who  do  not  appear  at  the  polls  ?  Is  it  not  the 
laboring  classes,  the  rank  and  file  of  the  party  ? 
The  consequence  is,  that  we  cannot  get  even 
a  fair  plurality  of  the  voters  of  the  towns  when 
an  election  takes  place.  Persons  are  thus  voted 
into  office  by  a  very  small  number  of  voters. 
I  have  myself  been  voted  into  the  House  of 
Representatives,  on  a  majority  vote,  by  a  less 
number  than  would  have  constituted  a  plurality 


60th  day.] 


REPORTS   FROM   A   COMMITTEE,  &c. 


99 


Monday,] 


HALLETT  —  HALE  —  FROTH  INGHAM. 


[July  18th. 


vote  on  the  first  day  of  election.  And  why  is  it 
that  we  suffer  this  thing  to  remain  on  the  statute 
book,  year  after  year,  without  bringing  the  mat 
ter  forward,  and  putting  it  to  the  people  what 
they  desire ;  that  is  what  the  laboring  classes 
want,  that  we  should  adopt  this  plurality  ques 
tion.  Sir,  during  the  sittings  of  this  Convention, 
I  have  not  seen  a  Democrat  among  my  constitu 
ency,  or  among  any  other,  who  does  not  believe 
that  the  people  desire,  and  want  this  principle  of 
plurality  adopted.  They  desire  it  for  the  best  of 
all  reasons  in  the  world — that  they  may  relieve 
themselves  from  the  oppressive  burden  which  this 
majority  rule  inflicts  upon  them. 

I  contend,  Sir,  that  this  principle  is  one  of 
Democratic  birth ;  that  it  has  received  the  support 
of  Democrats  in  all  the  States  of  the  Union,  and 
that  it  has  been  advocated  in  an  address  to  the 
people  of  the  Commonwealth.  But  enough  has 
been  said  upon  that  point.  The  people  know  it ; 
they  understand  it ;  and  they  expect  to  have  the 
question  put  to  them  upon  this  plurality  mode  of 
election.  They  ask  for  it ;  and,  I  believe,  that  in 
the  present  state  of  parties,  as  that  principle  has 
operated,  it  has  developed  itself  in  the  best  possi 
ble  manner.  It  entirely  does  away  with  that  op 
pressive  burden  which  is  thrown  upon  the  work 
ing  classes.  It  is  right  and  just  that  we  should 
adopt  it ;  and  therefore  I  am  in  favor  of  the  Report 
of  the  Committee  being  sustained,  as  far  as  it 
goes.  I  admit  that  it  does  not  go  far  enough  for 
me ;  but  I  shall  sustain  the  Report  of  the  Com 
mittee. 

On  motion  by  Mr.  CRESSY,  of  Hamilton,  the 
Committee  rose,  and,  the  President  having  re 
sumed  the  chair  of 

THE    CONVENTION, 

The  chairman  of  the  Committee  of  the  Whole  re 
ported  progress,  and  asked  leave  to  sit  again. 
Leave  was  granted. 

Reports  from  a,  Committee. 

Mr.  HALLETT,  for  Wilbraham,  presented  the 
following  Reports  from  the  Committee  on  the  Bill 
of  Rights,  which  were  referred  to  the  Committee 
of  the  Whole,  and  ordered  to  be  printed. 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  18,  1853. 
The  undersigned,  a  minority  of  the  Committee 
on  so  much  of  the  Constitution  as  is  contained 
in  the  Preamble  and  Bill  of  Rights,  report  that 
the  second  Article  of  the  Bill  of  Rights  ought  to 
be  so  altered  as  to  change  the  words  "for  his 
religious  profession  or  sentiments,"  to  the  words 


"  for  his  profession  or  sentiments  concerning  re 
ligion." 

So  that  it  will  read,  if  so  amended  :  "  And  no 
subject  shall  be  hurt,  molested,  or  restrained  in 
his  person,  liberty,  or  estate,  for  worshipping  God 
in  the  manner  and  season  most  agreeable  to  the 
dictates  of  his  own  conscience,  or  for  his  profes 
sion  or  sentiments  concerning  religion." 

B.  F.  HALLETT. 

ANSON  BURLINGAME. 

CHARLES  SUMNER. 

HENRY  WILLIAMS. 

GEO.  S.  HILLARD. 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  18,  1853. 
The  undersigned,  a  minority  of  the  same  Com 
mittee,  also  report. 

To  strike  out  from  the  28th  Article  of  the  Bill 
of  Rights  the  words  "  but  by  the  authority  of  the 
legislature." 

So  it  will  read,  if  amended  :  "  No  person  can, 
in  any  case,  be  subjected  to  law-martial,  or  to  any 
penalties  or  pains  by  virtue  of  that  law,  except 
those  employed  in  the  army  or  navy,  and  except 
the  militia  in  actual  service." 

B.  F.  HALLETT. 
L.  MARCY. 
II.  WILLIAMS. 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  18,  1853. 
The  undersigned,  a  minority  of  the  same  Com 
mittee,  also  report. 

That  there  should  be  added  to  the  loth  Article 
of  the  Bill  of  Rights  the  following  clause  : — 

In  all  trials  for  criminal  offences,  the  jury,  after 
having  received  the  instruction  of  the  court,  shall 
have  the  right,  in  their  verdict  of  guilty  or  not 
guilty,  to  determine  the  law  and  the  facts  of  the 
case. 

B.  F.  HALLETT. 

ANSON  BURLINGAME. 

CHARLES  SUMNER. 

L.  MARCY. 

CHARLES  ALLEN. 

H.  WILLIAMS. 

On  motion  by  Mr.  HALE,  of  Bridgewater,  the 
Convention  adjourned,  until  three  o'clock,  P.  M. 

AFTERNOON   SESSION. 
The  Convention  reassembled  at  three  o'clock. 

Specie  Payments. 

Mr.  FROTHINGHAM,  of  Charlestown,  from 
the  Committee  on  the  subject  of  Banking,  submit- 


100 


CLOSE   OF   DEBATE,  &c. 


[60th  day. 


Monday,] 


EAKLE  —  WILSON  —  BRADBURY  —  WOOD. 


[July  18th. 


ted  the  following  Report,  which  was  referred  to 
the  Committee  of  the  Whole,  and  ordered  to  be 
printed. 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  18,  1853. 
The  Committee  on  the  subject  of  Banking, 
to  whom  was  referred  an  order,  to  consider  the 
expediency  of  providing  that  the  legislature  shall 
have  no  power  to  authorize,  or  pass  any  law  sanc 
tioning  the  suspension  of  specie  payments  by  any 
corporations  issuing  bank  notes,  have  considered 
the  same,  and  report,  that  it  is  inexpedient  to 
take  any  action  on  this  subject. 

RICHARD  FROTHINGHAM,  JR.,  Chairman. 

Final  Adjournment. 

Mr.  EARLE,  of  Worcester,  from  the  Commit 
tee  on  the  subject  of  the  Final  Adjournment  of 
the  Convention,  reported,  that  in  the  opinion  of 
the  Committee,  the  Convention  may  finish  up  its 
business,  and  adjourn  on  Saturday,  the  twenty- 
third  instant. 

The  Report  was  laid  upon  the  table. 

The  Pay  Roll. 

Mr.  WILSON,  of  Natick,  submitted  the  fol 
lowing  order,  which  lies  over  for  consideration 
to-morrow : — 

Ordered,  That  the  Committee  on  the  Pay  Roll 
be  instructed  to  make  up  the  same,  including  the 
day  of  adjournment,  and  that  no  member  receive 
pay  except  for  the  days  of  actual  attendance. 

Limitation  of  Debate. 

Mr.  ADAMS,  of  Lowell.  I  move  now,  Mr. 
President,  that  debate  in  Committee  of  the  Whole, 
upon  the  subject  of  Elections  by  Plurality,  cease 
in  one  hour  after  the  Committee  shall  again  re 
sume  the  consideration  of  the  same. 

Mr.  BRADBURY,  of  Newton.  It  will  be 
remembered,  by  the  Convention,  that  this  subject 
has  been  under  consideration  heretofore,  in  the 
Committee  of  the  Whole,  and  that  we  found  our 
selves,  at  the  close  of  that  discussion,  with  some 
eight  or  nine  entirely  new  and  distinct  questions 
to  settle,  after  the  hour  had  arrived  at  which  de 
bate  had  been  ordered  to  be  closed,  by  an  imper 
ative  vote  of  the  Convention.  There  is  little  time 
now  allowed,  very  little,  and  there  are  a  number 
of  questions  before  the  Committee  of  the  Whole, 
and  they  may  be  varied,  by  new  motions  con 
stantly  offered  ;  and  I  submit,  whether  it  is  proper 
or  fair,  to  the  members  of  the  Convention,  to  put 
it  in  the  power  of  a  member  of  the  Committee  of 
the  Whole,  to  bring  a  member  to  a  vote  upon  a 


question  instanter,  without  any  opportunity  for 
discussion  ? 

The  proceedings  in  this  Convention,  in  this  re 
spect,  have  been  very  unlike  the  usual  deliber 
ative  proceedings  in  this  capitol,  and  I  have  heard 
members  of  different  views  unite  in  condemning 
them.  Under  a  procedure  similar  to  that  now 
recommended  by  the  gentleman  from  Lowell, 
(Mr.  Adams,)  the  basis  of  the  House,  which  had 
been  for  many  days  under  discussion,  and  had 
been  deliberately  modified,  was  at  once,  with 
out  debate,  essentially  transformed,  on  a  motion 
which,  for  want  of  time,  could  be  neither  dis 
cussed  nor  examined. 

And  I  am  fully  of  opinion  that,  exclusive  of 
those  who  had  had  the  privilege  of  previous  exami 
nation,  there  was  not  one  man  in  ten  that  knew 
the  effect  of  the  proposition  to  which  I  refer,  of 
the  gentleman  from  Lowell,  (Mr.  Abbott,)  which 
constitutes  the  vital  part  of  the  adopted  basis  of 
the  House  of  Representatives. 

I  will  say  no  more,  because  I  have  spoken  three 
or  four  times  upon  this  subject,  but  I  have  been 
brought  to  vote  upon  propositions  entirely  new 
to  me,  and  upon  which,  not  one  word  of  ex 
planation  was  allowed,  pro  or  con.  On  the 
previous  occasion,  after  having  consumed  a  great 
deal  of  time  in  the  discussion  of  the  general 
question  of  plurality,  we  were  brought  to  vote 
instanter  upon  eight  or  nine  distinct  issues  ;  and 
now  I  submit,  whether  it  is  right  to  place  our 
selves  in  a  position  where  we  cannot  fairly  and 
fully  understand  the  questions  which  may  be 
presented  ?  I  submit,  as  the  Convention  has  full 
control  over  the  Committee  of  the  Whole, 
whether  it  would  not  be  better  for  the  Conven 
tion  to  instruct  the  Committee  of  the  Whole  to 
report  at  a  certain  time,  so  that  the  right  to  sub 
mit  new  propositions,  and  the  right  to  debate, 
may  be  coextensive  ? 

Mr.  WOOD,  of  Fitchburg.  This  Convention 
has  already  been  in  session  a  month  longer  than 
it  was  expected  to  be,  and  this  subject  now  under 
discussion,  has  heretofore  had  one  full  discus 
sion,  and  at  the  time  it  was  recommitted,  it  was 
said,  as  an  objection  to  its  recommitment,  that  we 
should  have  to  go  over  the  whole  matter,  de  novo, 
its  origin,  its  history,  and  all,  at  as  great  length  as 
at  first.  But  we  were  assured  by  many  members 
of  the  Convention  that  it  should  not  be  so,  for  as 
most  of  us  understood  all  the  bearings  and  all 
the  suggestions  in  relation  to  the  matter,  though 
we  should  not  precisely  approve  of  the  Report  of 
the  Committee,  we  could  proceed  to  vote  without 
much  discussion ;  indeed,  without  there  being  any 
necessity  for  much  discussion.  I  was  surprised, 
under  these  circumstances,  to  see,  this  forenoon, 


60th  day.] 


ELECTIONS    BY   PLURALITY,  &c. 


101 


Monday,] 


WOOD  —  BRADBURY  —  LADD. 


[July  18th. 


with  what  ardor  certain  gentlemen  made  an  attack 
upon  the  Report  of  the  Committee,  and  to  see 
them  proceed  to  argue  it  as  a  new  question  before 
us.  If  this  course  is  to  be  pursued,  I  seriously 
ask,  when  are  we  to  get  through  ?  The  question 
has  been  asked  by  our  constituents  many  times, 
and  as  often  we  have  been  compelled  to  say  we 
do  not  know,  and  cannot  tell ;  that  many  of  our 
debates  are  spun  out  to  an  unreasonable  length, 
and  that  things  which  were  fairly  understood  by 
all  of  us,  have  been  talked  about  over  and  over 
again,  until  we  were  disgusted  by  them.  Now, 
the  question  is,  whether  we  shall  go  on  talking 
over  these  matters,  or  whether  we  will  come  to  a 
decision  upon  them,  and  thus  be  able  to  meet 
our  constituents  with  honest  faces  ? 

It  seems  to  me  that  it  is  about  time,  that  now, 
the  latter  part  of  July,  we  should  seriously  think 
about  adjournment,  and  that  we  should  expedite 
business  by  working  seriously,  and  talking  less. 
Here  is  a  fit  subject  for  us  to  begin  upon  ;  and 
will  we  keep  talking  about  the  matter?  The 
gentleman  from  Newton,  (Mr.  Bradbury,)  thinks 
that  we  are  unable  to  understand  the  matter,  as 
though  we  were  fools.  It  is  not  so.  I  am  some 
what  surprised  to  see  how  well  the  members  of 
this  Convention  understand  subjects  brought  be 
fore  them — most  of  them  much  better  than  I  do. 
"Without  saying  anything  more— because  I  wish 
to  exemplify  my  theory  by  practice — I  hope  the 
motion  will  prevail. 

Mr.  BRADBURY,  of  Newton.  I  move  to 
amend  the  motion  of  the  gentleman  from  Lowell, 
(Mr.  Adams,)  by  striking  out  the  word  "  one," 
and  inserting  in  lieu  thereof,  the  word  "  three," 
BO  as  to  provide  that  the  question  shall  be  taken 
in  three  hours  after  the  Committee  of  the  Whole 
shall  resume  the  consideration  of  the  subject. 

The  question  was  taken  on  the  latter  amend 
ment,  and  it  was  not  agreed  to. 

Mr.  BRADBURY.  I  now  move  to  strike  out 
"one,"  and  substitute  "two." 

The  question  was  taken  on  the  latter  motion, 
and  the  amendment  was  not  agreed  to. 

The  question  recurring  on  the  original  motion 
of  Mr.  Adams — 

Mr.  BUTLER,  of  Lowell,  moved  to  strike  out 
the  word  "  one,"  and  substitute  "  three-quarters 
of  an  hour." 

Mr.  ADAMS  accepted  the  amendment. 

The  question  was  then  taken,  on  the  motion 
offered  by  Mr.  Adams,  as  modified,  and  it  was 
decided  in  the  affirmative — ayes,  107 ;  noes,  73. 

So  the  motion  was  agreed  to. 

Elections  by  Plurality. 
Mr.  UNDERWOOD,   of  Milford.     I   move 


that  the  Convention  resolve  itself  into  Committee 
of  the  Whole,  upon  the  unfinished  business  of 
the  morning,  to  wit :  the  subject  of  Elections  by 
Plurality. 

The  motion  was  agreed  to. 

The  Convention  accordingly  resolved  itself  into 

COMMITTEE    OF    THE   WHOLE, 

Mr.  Hillard,  of  Boston,  in  the  chair. 

The  CHAIRMAN  stated  the  question  to  be 
first,  upon  the  amendment  submitted  by  the  gen 
tleman  from  Plymouth,  (Mr.  Davis,)  and  then 
upon  the  motion  of  the  gentleman  from  Boston, 
(Mr.  Schouler,)  heretofore  inserted. 

Mr.  LADD,  of  Cambridge.  I  confess  that  I 
do  not  fully  understand  the  object  sought  to  be 
accomplished  by  the  third  resolve,  to  which  the 
amendment  of  the  gentleman  from  Plymouth, 
(Mr.  Davis,)  applies,  nor  have  the  Committee 
which  reported  them,  thrown  much  light  upon  the 
subject.  I  find  that  it  is  reported  here,  that, 
upon  the  first  trial  for  the  election  of  representa 
tives,  the  majority  principle  shall  obtain.  But  if 
no  one  shall  obtain  a  majority,  then  that  the  candi 
date  having  the  highest  number  of  votes  upon  a 
second,  or  any  subsequent  ballot,  shall  be  de 
clared  elected.  I  can  very  well  understand  what 
the  majority  rule  itself  is,  and  the  force  of  the 
arguments  which  are  brought  to  sustain  it  and 
show  why  it  should  be  applied.  I  can  very  well 
understand  what  the  plurality  system  is,  and  can 
appreciate  the  force  of  the  arguments  which  are 
advanced  in  support  of  that  rule.  But  when  it 
is  proposed,  that  a  majority  of  all  the  votes  cast, 
shall  be  required  upon  the  first  balloting,  to  elect 
a  member  of  the  legislature,  and  a  plurality  only 
of  votes  cast  upon  a  second,  or  any  subsequent 
ballot,  it  seems  to  me  that,  in  the  first  place,  an 
unnecessary  amount  of  machinery  is  introduced, 
to  accomplish  precisely  the  same  purpose.  If 
there  is  an  election  upon  the  first  balloting,  the 
majority  rule  prevails.  If  there  is  a  plurality 
only  of  votes,  why  precisely  the  same  thing  is 
accomplished  as  is  propc  sed  to  be  accomplished 
by  a  plurality  upon  the  second  balloting.  It  ap 
pears  to  me  that,  as  the  first  trial  is  ordinarily 
held,  and  will  be  held,  when  a  choice  of  officers 
for  the  Commonwealth  is  to  be  made,  that  there 
will,  in  ninety- nine  cases  out  of  one  hundred,  be 
a  much  fuller  expression  of  public  opinion,  than 
there  will  be  upon  the  second  trial ;  and  I  should 
like  to  be  informed  of  the  object  to  be  accom 
plished  by  this  resolve,  that  there  shall  be  an 
election  by  a  plurality  vote  upon  a  second  trial. 
I  can  see  no  purpose  to  be  accomplished.  I  sup 
pose,  in  point  of  fact,  that  in  the  large  towns  of 
the  Commonwealth,  if  there  should  be  no  choice 


102 


ELECTIONS   BY   PLURALITY. 


[60th  day. 


Monday,] 


LADD  —  MOREY. 


[July  18th. 


upon  the  first  balloting,  there  would  be  none  at 
all,  except  by  an  adjournment  to  the  next  day, 
or  to  some  subsequent  day.  Undoubtedly  in  the 
small  towns,  where  it  is  customary  to  ballot  more 
than  once  upon  the  same  day,  a  result  might  be 
obtained.  But  I  do  not  see  how  anything  is  to 
be  accomplished,  by  any  reasoning  which  has 
been  presented  to  this  Convention,  and  it  can  only 
give  force  to  other  considerations  which  are  not 
worthy  of  being  presented  as  arguments  before 
this  Convention.  I  can  see  how  it  gives  an  op 
portunity  of  success  to  the  minority  of  the  elec 
tors  on  the  second  trial,  and,  by  an  arrangement, 
or  some  other  mode,  to  defeat  the  will  of  the  ma 
jority  ;  but  for  all  practical  purposes,  it  seems  to 
me,  that  the  second  provision  is  useless,  and  I 
think  we  ought  to  adhere  to  the  majority  princi 
ple  in  the  election  of  representatives,  or  to  the 
plurality  system ;  and,  at  the  proper  period,  I 
shall  offer  the  following  amendment : — 

Resolved,  That  in  all  elections  of  representa 
tives  to  the  general  court,  the  person  having  the 
highest  number  of  votes  shall  be  elected. 

Mr.  MOREY,  of  Boston.  The  question  now 
under  consideration,  is  one  of  the  most  important 
that  has  been  brought  before  the  Convention.  It 
is  one  in  which  the  people  feel  a  deep  interest, 
probably  a  deeper  interest  than  in  any  other  that 
has  been  discussed  here.  This  matter  came  be 
fore  the  Committee  of  the  Whole  some  weeks 
ago,  and  was  then  discussed  at  much  length,  but 
it  was  found  that  there  was  nearly  an  equal 
division  of  sentiment  upon  the  subject,  and  it 
was  deemed  of  so  much  importance,  that  it  was 
referred  to  a  new  Special  Committee.  That  Com 
mittee  had  the  matter  under  consideration  some 
four  or  five  weeks  before  they  made  their  Report. 
During  this  whole  interval,  the  policy  of  adopt 
ing  the  plurality  principle  must  have  been  dis 
cussed  in  private  circles,  and  I  am  sure  many 
members  have  bestowed  upon  it  much  attention. 
It  certainly  has  been  expected  that  when  this 
Report  should  be  called  up,  there  would  be  a  full 
discussion  upon  it,  and  that  we  should  obtain  the 
views  of  many  gentlemen,  enlarged  and  matured 
by  conversations,  not  only  with  their  associates 
here,  but  with  other  persons,  in  various  parts  of 
the  Commonwealth.  But  when  this  Report  came 
in  order,  and  members  rose  to  express  their 
opinions,  they  found  themselves  embarrassed, 
and  liable  to  be  cut  off  in  the  midst  of  their 
speeches,  by  a  miserable  half-hour  rule,  and  now 
they  are  put  under  the  restriction  of  an  order  just 
adopted,  declaring  that  all  discussion  upon  this 
great  subject  shall  cease  in  the  Committee  of  the 
Whole,  in  three-quarters  of  an  hour.  It  may  be 


said  that  the  question  will  come  up  again  in  the 
Convention ;  but  when  it  does,  a  similar  summary 
process  may  be  adopted,  and  an  end  be  put  to 
all  discussion.  I  do  not  complain  of  this  on  my 
own  account.  I  have  no  desire  to  express  my 
views  in  relation  to  the  plurality  principle,  for  I 
happen  to  belong  to  that  class  of  old  fogies  who 
have  preferred  that  a  majority  should  be  required 
in  our  elections.  I  have  at  all  times,  heretofore, 
been  opposed  to  the  plurality  rule.  Under  present 
circumstances,  however,  I  feel  constrained  to  vote 
in  favor  of  framing  an  amendment,  establishing 
this  rule,  and  of  sending  it  out  to  the  people  for 
their  consideration  and  action  ;  and  my  reasons 
are  mainly  founded  on  the  history  of  this  Con 
vention,  to  which  I  will  now  call  the  attention  of 
the  Committee.  In  the  legislature  of  1851,  the 
senator  from  Franklin,  (Mr.  Griswold,)  now  the 
delegate  for  Erving,  brought  forward  a  propo 
sition  to  alter  the  Constitution  in  relation  to  the 
system  of  representation  in  the  House.  He  in 
troduced  two  or  three  resolves,  drawn  up  in 
proper  form,  for  the  purpose  of  accomplishing 
this  object.  These  resolves  passed  the  Senate, 
but  failed  to  obtain  the  requisite  number  of  votes 
in  the  House.  Afterwards,  an  attempt  was  made 
to  district  the  cities  and  large  towns,  and  a  bill, 
designed  to  effect  that  object,  was  carried  through 
the  Senate  and  was  sent  to  the  House,  where  it 
was  referred  to  the  Judiciary  Committee,  of 
which  the  gentleman  who  is  at  the  present  time 
attorney-general  of  the  United  States,  was  chair 
man.  It  was  understood  that  he  was  of  opinion 
that  the  legislature  had  no  constitutional  power 
to  enact  such  a  law,  and  the  bill  was  not,  I  be 
lieve,  ever  reported  to  the  House,  but  died  in  the 
hands  of  the  Committee. 

The  next  movement  of  the  indefatigable  and 
persevering  senator  from  Franklin,  was  to  offer 
an  order  for  calling  a  convention  to  revise  the 
Constitution,  and  a  bill  was,  in  due  time,  reported 
by  a  committee  of  which  he  was  chairman,  pro 
viding  that  the  question  whether  such  a  Conven 
tion  should  be  held,  should  be  submitted  to  the 
people. 

The  committee,  however,  made  no  formal 
written  report,  and  of  course  did  not  set  forth 
their  reasons  for  this  measure  ;  but  as  the  move 
ment  grew  out  of  a  failure  to  alter  the  Constitu 
tion,  touching  the  basis  of  representation  in  the 
House,  it  was  understood  that  the  great  object  of 
the  Convention  was  to  effect  an  important  change 
of  that  basis.  It  went  before  the  people  with  this 
aspect,  and  the  result  was,  that  the  measure  failed 
by  about  five  thousand  majority  against  it,  many 
of  the  small  towns  even  voting  against  it.  At 
the  next  session  of  the  legislature,  the  project 


60th  day.] 


ELECTIONS    BY   PLURALITY. 


103 


Monday/ 


MOREY  —  GBISWOLD. 


[July  18th. 


was  revived.  The  senator  from  Franklin,  deter 
mined,  if  possible,  to  accomplish  his  favorite 
scheme,  again  brought  forward  a  proposition  for 
calling  a  Convention.  On  his  motion,  a  large 
committee  of  both  branches  was  appointed,  of 
which  he  was  placed  at  the  head. 

The  sagacious  chairman  was  satisfied,  from 
the  result  of  the  former  trial,  that  in  order  to  in 
sure  success  the  next  time,  a  formal  and  direct 
appeal  must  be  made  to  the  people,  by  presenting 
to  them  some  more  powerful  reasons  for  calling  a 
Convention  than  such  as  related  to  the  system  of 
representation  in  the  House.  It  fortunately  so 
happened  for  the  chairman,  that  a  strong  feeling 
had  grown  up  throughout  the  Commonwealth,  in 
favor  of  the  plurality  principle  in  our  elections. 
Several  congressional  districts  had,  for  a  long  time, 
been  unrepresented.  In  the  fourth  district  four 
teen  trials  had  taken  place  without  securing  an 
election.  A  majority  of  the  Senate  had  rarely 
been  elected  for  a  long  period,  and  sometimes  not 
even  a  quorum.  There  had  been  no  election  of 
governor  and  lieutenant-governor  for  a  series  of 
years.  From  these  causes,  a  strong  and  general 
desire  had  arisen  for  the  establishment  of  the  plu 
rality  rule.  The  subject  had  been  much  discuss 
ed  everywhere — in  newspapers,  at  conventions, 
and  other  public  meetings. 

Under  these  circumstances,  the  Franklin  sena 
tor  resolved  to  avail  himself  of  this  manifest  pop 
ular  feeling,  and  drew  up  an  elaborate  report,  set 
ting  forth  the  reasons  for  holding  a  Convention, 
amongst  which  the  necessity  and  expediency  of 
adopting  the  plurality  rule,  were  strongly  and 
pointedly  set  forth.  That  report,  after  stating 
that  the  proposed  new  system  would  save  ex 
pense,  and  prevent  much  party  animosity,  which 
is  now  engendered  by  repeated  trials,  proceeded 
to  say :  "  That  the  practical  operation  of  our 
Constitution  for  the  last  ten  years,  has  been,  in 
very  many  instances,  to  place  in  the  most  impor 
tant  offices  in  the  State,  men  who  have  received, 
not  a  majority,  but  only  a  plurality  of  the  popu 
lar  vote.  Indeed,  this  result  seems  to  be  fast  be 
coming  the  general  rule,  and  not  the  exception. 
And,  in  some  instances,  these  offices  have  been 
filled  by  men  who  have  received  not  even  a  plu 
rality  of  the  popular  vote." 

The  report  goes  on  to  state  what  officers  should 
especially  be  elected  by  a  plurality,  as  follows : 
"  The  election  of  secretary  of  the  Commonwealth, 
treasurer  and  receiver- general,  auditor  of  accounts, 
and  executive  councillors,  by  the  people,  with  an 
application  of  the  plurality  principle  to  these  offi 
cers,  as  well  as  to  the  governor,  lieutenant-gover 
nor,  and  state  senators,  would  do  much  to  remedy 
this  evil." 


Thus  the  report  specifies  what  officers  the  plu 
rality  principle  should  be  applied  to  ;  and  what 
are  they?  "Why,  the  very  ones  who  it  is  now 
proposed  must  have  a  majority  to  secure  their 
election  ;  that  is  the  proposition  now  before  us,  is 
just  the  reverse  of  what  was  recommended  by  the 
legislative  committee. 

Mr.  GRISWOLD,  for  Erving.  Will  the  gen 
tleman  yield  to  me  for  a  moment. 

Mr.  MOIIEY.     For  a  moment. 

Mr.  GRJSWOLD.  As  this  subject  has  been 
so  often  alluded  to,  in  justice  to  the  other  mem 
bers  of  the  committee  who  signed  that  report,  I 
desire  to  make  a  single  remark,  for  I  think  they 
have  been  somewhat  misapprehended  in  relation 
to  this  subject.  For  myself,  I  care  little  about 
the  matter,  for  I  believe  my  sentiments  upon  the 
subject  of  plurality  are  well  enough  understood ; 
I  should  prefer  that  these  officers  should  be  elect 
ed  by  plurality,  if  I  could  get  it,  but  it  is  evident 
that  is  not  the  feeling  of  the  Convention.  But, 
Sir,  if  this  seventh  section  of  the  report  is  quoted, 
it  should  be  done  in  connection  with  the  sixth. 
I  will  read  the  beginning  of  that  article. 

Mr.  MOREY.  I  can  hardly  afford  to  lose  my 
time  for  the  gentleman  to  read  from  his  report. 

Mr.  GUIS  WOLD.     Just  a  line  or  two. 

Mr.  MOKEY.  I  will  read  the  whole  two  sec 
tions,  if  the  gentleman  desires  it.  Here  they  are : 

"  6.  In  the  sixth  place,  we  recommend  the  adop 
tion  of  the  plurality  system,  in  more  of  our  elec 
tions.  To  what  extent  the  Constitution  should 
be  revised  on  this  subject,  and  how  far  the  system 
shall  be  carried,  will  of  course  remain  for  the 
Convention  to  settle.  Nor  do  we  now  express 
any  opinion  as  to  which  would  be  the  most  expe 
dient,  if  the  system  is  to  be  adopted,  to  apply  it 
to  ihcflrst,  or  only  to  the  second,  or  some  subse 
quent  election.  But  the  time  and  money  which 
is  now  expended,  and  the  party  animosity  which 
is  engendered,  by  the  numerous  and  unsuccessful 
attempts  to  elect  the  various  state,  county,  and 
town  or  city  officers,  have  become  grounds  of 
repeated  and  loud  complaints  in  all  portions  of 
the  Commonwealth.  This  part  of  the  Constitu 
tion  should  undergo  a  thorough  revision ;  it 
should  be  done  not  rashly,  but  with  great  care 
and  deliberation.  We  are  aware  that  the  majori 
ty  principle  has  long  been  considered  the  con 
servative  element  of  our  Constitution  ;  and  many 
sound  and  well-balanced  minds  may  take  alarm 
at  a  proposition  of  this  kind ;  but  we  think  that 
a  moment's  reflection  will  satisfy  the  mo.^t  fastid 
ious,  that  their  fears  are  groundless.  The  practi 
cal  operation  of  our  Constitution,  for  the  last  ten 
years,  has  been  in  very  many  instances,  to  place 
in  the  most  important  offices  in  the  State,  men 
who  have  received,  not  a  majority,  but  only  a 
plurality,  of  the  popular  vote.  Indeed,  this  re 
sult  seems  to  be  fast  becoming  the  general  rule, 
and  not  the  exception.  And  in  .some  instances, 


104 


ELECTIONS    BY    PLURALITY. 


[60th  day. 


Monday,] 


MOB.EY. 


[July  18th. 


these  offices  have  been  filled  by  men  who  have 
received  not  even  a  plurality  of  the  popular  vote. 

"  No  one  has  a  right  to  complain  of  these  results, 
so  long  as  the  Constitution  remains  as  it  is ;  and 
we  only  allude  to  them,  for  the  purpose  of  show 
ing  that  the  Constitution  itself,  in  its  practical 
operation,  has  partially  destroyed  a  principle, 
which  by  many  has  long  been  considered  essen 
tial  to  the  stability  and  perpetuity  of  our  govern 
ment.  This  subject  was  thoroughly  discussed,  in 
all  its  bearings,  in  the  popular  branch  of  the  legis 
lature,  during  the  sessions  of  1849,  and  18oO,  and 
although  the  most  disastrous  results  were  then 
predicted,  should  the  plurality  principle  to  any 
extent  become  a  law,  yet  we  believe  that  the  act  of 
last  session,  providing  for  the  election  of  members 
of  congress  by  plurality  on  the  second  trial,  is  not 
only  a  just,  and  safe,  but  very  popular  law. 

"  7.  The  present  cumbersome,  formal  mode  of 
organizing  the  government,  we  submit,  should  be 
abolished.  Eight  or  ten  days  are  now  usually 
occupied  in  this  organization,  which  is  nothing 
less  than  an  annual  waste  of  six  or  eight  thousand 
dollars  of  the  people's  money.  The  election  of 
secretary  of  the  Commonwealth,  treasurer  and 
receiver- general,  auditor  of  accounts,  and  execu 
tive  councillors,  by  the  people,  with  an  application 
of  the  plurality  principle  to  these  officers,  as  well 
as  to  the  governor,  lieutenant-governor,  and  state 
senators,  would  do  much  to  remedy  this  evil. 
These  changes,  with  a  few  other  slight  modifica 
tions  of  the  Constitution  in  the  same  direction, 
especially  the  establishment  of  a  board  of  men  to 
count  the  votes,  declare  the  result,  and  notify  the 
persons  elected,  would  enable  the  legislature  to 
organize  the  government,  and  be  ready  to  proceed 
with  the  business  of  the  session,  in  two,  or  at  the 
longest,  in  three  days.  This  change  alone,  would, 
in  the  course  of  ten  years,  nearly  or  quite  defray 
the  whole  expense  of  the  Convention." 

Now,  Sir,  if  the  gentleman  had  desired  to  use 
language  more  strong  and  specific,  he  could  not 
have  done  it.  That  document  was  regarded  as 
an  able  and  elaborate  report,  as  it  is.  It  was 
praised  and  quoted  from  in  all  the  newspapers, 
except  the  Whig  newspapers,  and  I  believe  in 
some  of  them.  It  certainly  was  extolled,  not  only 
in  all  the  Democratic  newspapers,  but  in  most  of 
the  Free  Soil  journals.  Several  thousand  extra 
copies  were  ordered  to  be  printed  by  the  Senate, 
and  I  think  an  extra  number  was  ordered  in 
the  House.  It  was  regarded  by  the  friends  and 
advocates  of  the  Convention  as  the  great  cam 
paign  document,  and  it  was  so  advertised  in  the 
newspapers.  It  was  reprinted,  and  a  multitude 
of  copies  sent  broadcast  over  the  Commonwealth. 
I  heard  of  it  in  every  direction.  It  was  thrown 
into  every  house,  put  into  every  man's  hands, 
and  was  read  everywhere. 

And  what  was  more,  some  of  the  gentlemen 
who  signed  the  document,  being  the  most  popu 
lar  orators  of  their  parties,  went  forth  and  took 
the  stump  in  favor  of  the  Convention.  By  look 


ing  into  the  Commonwealth,  and  other  newspapers 
of  that  date,  you  will  find  appointments  for  these 
gentlemen  to  speak,  in  different  portions  of  the 
State,  for  almost  every  day  in  the  week,  for  many 
weeks  prior  to  the  time  of  voting  upon  this  sub 
ject.  Well,  Sir,  when  they  thus  went  forth,  they 
surely  supported  the  calling  of  a  Convention,  and, 
I  presume  they  used  the  same  arguments  as  were 
employed  in  the  report  which  they  signed. 

Being  anxious  to  learn  how  things  were  going 
on,  I  made  inquiries  of  some  gentlemen,  belong 
ing  to  the  party  with  which  I  was  associated, 
who  had  been  out  and  addressed  the  people  with 
reference  to  the  approaching  election,  and  occa 
sionally  with  regard  to  the  Convention.  When  I 
asked  what  the  prospect  was,  as  to  the  Conven 
tion,  the  reply  was,  that  the  plurality  doctrine 
was  carrying  all  before  it ;  that  many  of  the 
Whigs  were  coming  out  in  favor  of  it,  and  that 
the  other  parties  were  to  a  man,  advocates  for  it. 

In  consequence  of  this  state  of  things,  the 
Wrhig  speakers  pretty  much  gave  up  the  idea  of 
interposing  any  obstacle  in  the  way  of  calling  of 
the  Convention.  They  seemed  inclined  to  let  the 
thing  take  its  course.  This  was  acquiesced  in, 
inasmuch  as  many  of  those  speakers  were  in  favor 
of  the  plurality  doctrine,  and  that  doctrine  was 
put  forth  with  so  much  prominence  and  effect  by 
its  particular  advocates. 

Under  these  circumstances,  it  was  not  for  me, 
old  fogy  or  not,  to  stand  out  against  this  feeling, 
which  was  prevailing  amongst  the  people, 
especially  when  it  appeared  that  so  many  of  the 
party  with  which  I  was  acting,  were  disposed  to 
support  this  principle.  My  colleague,  (Mr. 
Schouler,)  was,  and  had  for  a  long  time,  been 
earnestly  in  favor  of  the  plurality.  All  the 
speeches  that  were  made  during  the  campaign  by 
advocates  of  the  Convention,  contained  more  or 
less  arguments  in  favor  of  the  plurality  principle ; 
and  I  undertake  to  say  that  it  was  the  expecta 
tion  of  securing  this  reform,  more  than  anything 
else,  that  carried  the  proposition  for  a  Convention 
with  the  people.  I  am  very  confident  that  if  the 
people  had  not  supposed  they  were  sure  of  hav 
ing  the  plurality  system  adopted,  there  would  have 
been  a  decided  majority  against  a  Convention.  If 
the  reformers  in  this  body,  who  took  the  field 
last  autumn,  and  addressed  the  people  on  this 
subject,  had  have  then  made  the  same  speeches 
which  we  have  heard  from  them  here,  against  the 
plurality  rule,  the  whole  project  of  a  Convention 
would  have  been  defeated  by  an  overwhelming 
vote.  You  had  tried  it  once  before  with  refer 
ence  to  the  basis  of  representation  in  the  House, 
and  the  scheme  signally  failed. 

Yet,  these  very  gentlemen,  who  put  forth  the 


60th  day.] 


ELECTIONS    BY   PLURALITY. 


105 


Monday,] 


MOREY  —  GOOCH. 


[July  18th. 


reasons  I  have  stated,  for  calling  a  Convention, 
and  who  induced  the  people  to  act  upon  them, 
now  virtually  say  to  the  people :  "  We  have  got 
the  Convention  out  of  you,  but  as  to  this  plu 
rality  system,  you  shall  not  have  it.  We  not 
only  will  not  give  it  to  you,  but  we  will  not  so 
much  as  frame  an  article  of  amendment,  submit 
ting  the  question  to  you.  We  will  not  allow  you 
to  pass  upon  the  subject." 

Now,  Sir,  notwithstanding  the  fact  that  I  have 
heretofore  been  opposed  to  the  introduction  of 
this  principle,  yet  I,  for  one,  have  too  much  regard, 
too  much  respect  for  the  people,  to  take  the  course 
which  is  pursued  by  members  of  this  Conven 
tion  in  relation  to  this  matter.  I  think  these 
gentlemen  indicate  the  most  utter  contempt  for 
the  people  by  withholding  this  proposition  from 
them.  I  therefore  say,  that  I  am  in  favor  of 
framing  an  article  of  amendment,  establishing 
the  principle,  such  as  is  contained  in  the  propo 
sition  of  my  colleague,  (Mr.  Schouler,)  making 
those  officers  eligible  by  a  plurality,  who  are 
specified  in  the  report  and  programme  of  the 
Convention,  drawn  up  by  the  gentleman  for 
Erving,  (Mr.  Griswold). 

I  would  send  out  such  a  proposition,  and  let 
the  people  decided  upon  it  for  themselves.  Not 
to  do  as  much  as  this,  is,  as  I  said  before,  treating 
the  people  with  perfect  contempt.  It  will  be  not 
much  better  than  obtaining  goods  by  false  pre 
tences.  It  will  be  perpetrating  a  fraud  upon  the 
people.  They  were  called  upon  particularly  to 
vote  for  a  Convention,  in  order  that  the  plurality 
principle  might  be  fully  established  in  our  elec 
tions,  and  now,  when  they  have  called  the  Con 
vention,  they  are  to  be  denied  the  privilege  of 
voting  upon  this  measure,  to  secure  which,  this 
Convention  was  advocated  and  called.  Sir,  I 
repeat  it.  I  shall  vote  in  favor  of  submitting  this 
question  to  the  people.  I  regard  the  members  of 
the  Convention  as  more  pointedly,  specifically,  and 
emphatically  instructed  upon  this  subject  than 
upon  any  other ;  and  I  think  that  by  incorporating 
with  the  amendments,  to  be  submitted  to  the 
people,  an  article  containing  this  provision,  we 
shall  more  directly  and  certainly  carry  out  their 
wishes,  than  by  any  other  proposition  we  can 
adopt. 

The  low  murmur  of  dissatisfaction  with  this 
fraudulent  suppression  of  the  very  amendment 
which  the  people  have  expected,  and  most  of  all 
desired,  has  already  reached  us  from  the  hills  and 
valleys  of  Massachusetts.  Ere  long,  we  shall 
see  the  leaders  of  the  majority  in  this  Convention 
begin  to  quake  and  tremble ;  and  I  venture  to 
predict,  that  before  the  close  of  the  session,  some 
one  of  these  Constitution-menders  will  be  direct 


ed  to  bring  forward  propositions  to  amend  and 
qualify  certain  important  resolutions  which  have 
been  adopted,  and  to  insert  a  shred  here  and  a 
patch  there,  in  order  to  relieve,  if  possible,  the 
most  obvious  defects  of  their  work,  and  to  avert, 
or  moderate,  in  some  degree,  the  censure  of  their 
constituents.  I  warn  gentlemen  not  to  natter 
themselves  with  the  hope  of  escaping  the  indig 
nation  of  the  people  by  any  miserable  apology,  or 
even  half-way  substitute,  for  the  adoption  of  a 
plain,  distinct,  and  extensive  plurality  system.  I 
say,  let  this  principle  be  introduced  in  the  election 
not  only  of  senators,  executive  councillors,  county 
and  district  officers,  but  of  governor,  lieutenant- 
governor,  secretary  of  state,  treasurer,  auditor 
and  attorney- general,  and  on  the  second  trial,  if 
not  on  the  first,  of  representatives  to  the  general 
court.  Let  this  whole  subject  be  submitted  at  once, 
directly  to  the  people,  and  to  the  people  alone. 
Nothing  else  can,  will,  or  ought  to  satisfy  them. 

Mr.  GOOCH,  of  Melrose.  Mr.  Chairman: 
I  never  knew  exactly  what  an  old  fogy  was,  until 
I  came  into  the  Convention  this  afternoon.  But 
if  we  may  take  the  definition  of  the  gentleman 
from  Boston,  (Mr.  Morey,)  he  is  a  man  who 
thinks  one  way,  and  votes  another.  The  gentle 
man  says  he  believes  in  the  majority  principle, 
and  yet,  intends  to  vote  to  submit  to  the  people  a 
proposition  in  favor  of  the  plurality  principle ; 
and  he  claims  to  be  an  old  fogy. 

Now,  Sir,  the  gentleman  has  very  different 
ideas  of  our  duty  as  members  of  this  Convention, 
from  those  which  I  entertain,  if  he  thinks  that 
by  such  a  course  of  conduct  we  shall  discharge 
that  duty.  I  believe  we  were  sent  here  to  recom 
mend  to  the  people  such  alterations  in  the  Con 
stitution  as  we  believe  should  be  made,  and  no 
others.  I  believe  the  people  have  a  right  to 
expect  that  every  man  here  will  act  conscien 
tiously;  that  when  he  votes  he  will  vote  his 
honest  sentiments,  without  regard  to  what  other 
people  think,  and  without  regard  to  what  other 
people  may  do.  It  seems  to  me  that  every  man 
who  fails  to  vote  and  act  in  this  manner,  fails  to 
discharge  his  duty. 

Now,  Sir,  in  relation  to  the  resolves  before  us, 
I  am  sorry,  as  well  as  surprised,  to  see  them  re 
ported  in  the  form  in  which  they  appear  before 
us,  coming,  as  they  do,  from  the  Select  Commit 
tee  upon  this  subject.  When  this  subject  was 
before  us,  upon  a  former  occasion,  I  recollect  a 
certain  distinction  was  made,  or  proposed  to  be 
made,  with  regard  to  the  election  of  certain  offi 
cers  by  a  majority,  and  certain  others  by  plural 
ity.  If  I  recollect  rightly,  the  proposition  was 
introduced  by  the  gentleman  from  Worcester.  It 
was,  in  substance,  that  the  law-making  power 


106 


ELECTIONS   BY   PLURALITY. 


[60th  day. 


Monday,] 


GOOCH. 


[July  18th. 


should  be  elected  by  a  majority,  and  that  the 
other  ministerial  officers  should  be  elected  by  a 
plurality.  I  thought  then,  that  there  was  good 
reason  for  the  distinction,  and  I  think  so  still.  I, 
for  one,  am  perfectly  willing  to  live  in  a  Com 
monwealth,  and  to  abide  by  the  laws  which  are 
enacted  by  a  majority  of  the  people  of  the  Com 
monwealth,  and  I  am  willing  to  yield  my  private 
judgment  to  no  other  authority.  And  should  I 
be  called  upon  to  yield  my  private  judgment,  to 
yield  my  property,  my  liberty,  or  my  life,  under 
the  authority  of  the  laws  of  this  Commonwealth, 
I  desire  that  the  laws  which  make  this  requisition 
upon  me  should  be  the  laws  of  the  majority  of 
the  people  of  the  Commonwealth,  and  not  the 
laws  of  a  minority.  That  is  my  doctrine,  and  I 
had  always  supposed  that  to  be  the  doctrine  of 
the  people  of  Massachusetts. 

I  care  not  what  documents  certain  gentlemen 
have  sent  out  to  the  people,  to  influence  them  in 
calling  this  Convention.  Those  documents  are 
worth  just  as  much  as  the  opinions  and  senti 
ments  of  those  gentlemen  expressed  in  any  other 
way,  and  no  more.  They  have  their  weight  as 
the  opinions  of  those  individuals,  and  no  other. 
But  I  do  not  care  how  many  men  may  have 
recommended,  or  sent  out  this  document  recom 
mending  the  establishment  of  the  plurality  prin 
ciple  ;  it  has  no  weight  with  me,  except  so  far  as 
the  opinions  of  those  men  who  signed  this  docu 
ment  are  concerned,  and  so  far  as  the  reasons  it 
contains  are  entitled  to  weight ;  nothing  farther. 
I  have  been  a  little  surprised,  that  such  argu 
ments  and  such  influence,  as  have  been  used  by 
the  gentleman  from  Boston,  should  have  been 
brought  in  here,  and  pressed  upon  gentlemen  as 
if  they  were  binding  upon  them.  Sir,  I  know 
nothing  about  any  such  document  as  the  gentle 
man  has  referred  to,  and  I  care  nothing  about  it. 
I  care  not  which  party  put  forth  this  document ; 
it  can  have  no  influence  upon  my  vote.  And  I 
believe  it  will  have  no  influence  upon  the  vote  of 
any  honest  man  in  this  Convention. 

I  said  I  was  surprised  to  see  these  resolutions 
reported  in  the  shape  in  which  they  now  come 
before  us,  because  I  did  believe  the  Committee 
would  recognize  the  distinction  made  by  the  gen 
tleman  from  Worcester,  viz. :  that  the  law-making 
power  of  the  Commonwealth  should  be  chosen 
by  a  majority,  and  that  the  mere  ministerial  offi 
cers  should  be  chosen  by  plurality.  I  supposed 
the  Committee  might  be  willing  to  sacrifice  this 
much  of  the  true  principle,  for  the  sake  of  con 
venience  and  accommodation — for  the  sake  of 
saving  time,  expense,  and  trouble.  But  I  did 
not  believe  they  would  go  farther  than  that. 
But  what  have  we  before  us,  in  these  resolves  ? 


In  the  first  place,  the  governor  is  to  be  elected 
by  a  majority  of  the  people,  provided  he  obtains 
a  majority  upon  the  first  trial,  and  if  not,  he  is 
not  to  be  elected  by  the  people  at  all ;  but  he  is 
to  be  elected  by  the  agents  of  the  people.  He  is 
to  be  elected  by  those  whom  the  people  have  del 
egated,  or  whom  they  may  delegate,  for  that  pur 
pose,  in  case  of  a  non-election  by  a  majority  of 
the  people.  "Well,  Sir,  I  suppose  the  reasons  for 
that  provision  are  these  :  I  suppose  they  intended 
to  provide,  in  the  first  place,  that  the  governor 
should  be  elected  by  a  majority  of  the  people, 
but  that,  in  case  no  one  received  a  majority  of 
the  votes  of  the  people,  the  majority  principle 
should  still  be  maintained,  and  that  he  should  be 
elected  by  the  House  of  Representatives  and  by 
the  Senate,  who  were  also  elected  by  a  majority 
of  the  people  ;  and  this  provision  of  the  first 
resolution  I  should  like,  if  the  other  resolutions 
provide  for  the  election  of  the  House  and  Senate 
by  a  majority.  Well,  Sir,  what  do  those  resolu 
tions  do  ?  What  do  they  provide  ?  They  pro 
vide  that  the  governor  shall  not  be  elected  by  the 
people  at  all,  unless  he  is  elected  by  a  majority  at 
their  first  trial.  And  then  they  provide  that  your 
House  of  Representatives  shall  be  elected  by  a 
plurality,  or  that  a  portion  of  its  members  may 
be  elected  by  a  plurality,  and  your  Senate  by  a 
plurality,  and  that  your  governor  shall  be  elected 
by  your  Senate  and  House  of  Representatives. 
You  thus  strike  out  the  majority  principle  from 
your  law-making  power,  from  beginning  to  end. 
Now,  Sir,  although  I  have  always  been  opposed  to 
the  plurality  principle  as  applied  to  the  law-mak 
ing  power ;  yet,  rather  than  vote  for  these  resolu 
tions  as  they  stand,  I  will  vote  for  the  plurality 
principle,  carried  out  to  its  full  extent. 

We  provide,  if  we  adopt  these  resolutions,  that 
every  department  of  the  government  may  be 
chosen  by  plurality,  without  a  single  feature  of 
the  majority  principle  entering  into  the  system, 
from  beginning  to  end,  and  yet  refuse  to  say  that 
a  plurality  of  the  people  shall  elect.  As  I  said  in 
the  outset,  I  care  not  for  the  majority  principle, 
except  so  far  as  the  law-making  power  of  the 
Commonwealth  is  concerned.  I  would  like  to  see 
the  offices  mentioned  in  the  first  resolution 
stricken  out  altogether,  except  the  offices  of  gov 
ernor  and  lieutenant-governor,  and  a  provision 
made,  that,  in  all  elections  of  senators  and  mem 
bers  of  the  House  of  Representatives,  a  majority 
of  votes  shall  be  necessary,  in  all  cases,  to  consti 
tute  an  election.  Then,  if  we  fail  to  elect  our 
governor  by  the  people,  we  have  a  House  of  Rep 
resentatives  and  Senate  elected  by  a  majority  of 
the  people,  and  they  elect  a  governor.  Then, 
what  do  we  establish  ?  If  we  cannot  elect  our 


60th  day.] 


ELECTIONS   BY   PLURALITY. 


107 


Monday,] 


GOOCH  —  BUTLER. 


[July  18th. 


governor  directly  by  our  votes,  we  provide  that 
those  persons  whom  we  have  elected  by  a  major 
ity  of  the  votes  of  the  people  to  represent  us  in 
the  legislature,  shall  elect  our  governor  for  us.  If 
there  is  an  election  by  a  majority  of  the  people, 
the  matter  is  settled ;  but  if  there  is  no  election  by 
a  majority  of  the  people,  then  the  people  have 
said  that  they  could  not  agree  upon  the  election 
of  a  governor.  And  in  such  a  case,  what  do  we 
do  ?  As  we  cannot  meet  again,  and  decide  this 
question  for  ourselves,  we  pass  it  over  to  our 
agents,  elected  by  a  majority  of  the  people,  and 
let  them  settle  this  matter  for  us.  And,  if  our 
agents  cannot  secure  for  us  our  first  choice,  they 
can  take  our  second  choice.  That  is  the  advan 
tage  we  gain  from  this  system.  But,  certain  gen 
tlemen  assert,  that  by  the  adoption  of  such  a  sys 
tem,  certain  towns  must  go  unrepresented.  Why 
must  they  go  unrepresented  ?  Simply,  because 
they  do  not  desire  to  be  represented;  because 
they  had  rather  not  be  represented  at  all,  than  be 
misrepresented.  I  grant  you,  that  non-represeii- 
tation  is  an  evil ;  but  it  is  not  so  great  an  evil  as 
misrepresentation.  I  say,  if  my  town  cannot 
have  a  man  to  represent  it,  who  can  represent  a 
majority  of  its  citizens,  then  no  man  has  any 
right  to  represent  it.  If  my  town  wishes  to  be 
represented  in  the  legislature,  then  the  wishes  of 
a  majority  of  its  citizens  should  be  represented, 
and  not  the  wishes  of  a  minority.  The  evil  of 
non- representation  is  one  which  the  town  can 
cure,  and  will  cure,  just  as  soon  as  it  is  for  its 
interest  to  do  so.  The  very  moment  it  is  for  the 
interest  of  the  town  to  have  a  representation  upon 
the  floor  of  the  House  of  Representatives,  then  it 
will  have  such  representation.  There  is  nothing  in 
the  way.  They  have  nothing  to  do  but  select  and 
vote  for  a  man,  and  send  him  here.  If,  in  some 
instances,  certain  towns  do  not  send  a  representa 
tive,  it  is  because  the  condition  and  sentiments  of 
the  people  of  these  towns  are  such,  that  they  can 
not  find  men  who  will  truly  and  properly  repre 
sent  them  here.  The  House  of  Representatives, 
by  the  plan  proposed,  is  to  be  larger  hereafter  than 
it  has  been  in  times  past,  but  we  have  never 
known  the  time  when  there  has  not  been  on  the 
floor  of  the  House  a  sufficiently  large  number  of 
representatives  to  transact  the  business  of  the 
Commonwealth.  I  think  an  instance  can  scarcely 
be  found,  when  any  town  has  suffered  one  iota 
from  the  evil  of  non-representation.  I  hope  that 
the  resolution,  as  it  now  stands,  will  not  be 
adopted  by  the  Committee.  Gentlemen  ask  me 
how  we  will  fill  vacancies  in  the  Senate,  I 
would  provide  for  a  second  election,  in  the  case 
of  the  non-election  of  senators  ;  and  I  would  see 
to  it,  that  a  man  should  be  sent  who  would  truly 


represent  the  majority  of  the  district,  or  else  send 
no  man  at  all. 

Mr.  BUTLER,  of  Lowell.  In  the  few  minutes 
given  me  I  will  endeavor  to  say  a  word  upon  a 
given  subject,  not  proposing  to  enter  upon  an 
argument  of  this  question,  for  the  time  for  argu 
ment  has  passed.  I  wish  to  say  a  word  about 
that  immortal  "document"  upon  this  subject  of 
plurality,  which  has  now  been  read  five  times. 
It  was  a  very  good  argument,  and  it  did  its  office 
well,  which  was,  to  beat  the  old  fogies,  as  their 
chief  admits ;  but  I  do  not  see  why  it  could  not 
have  been  suffered  to  rest  in  peace.  The  gentle 
man  from  Boston,  (Mr.  Schouler,)  read  it ;  then 
the  gentleman  from  Brookline  (Mr.  Aspiiiwall) 
threw  it  at  the  head  of  the  gentleman  from  Wor 
cester,  (Mr.  Davis,)  then,  the  gentleman  from 
Worcester  not  being  here,  I  read  another  portion 
of  it;  then  the  gentleman  from  Boston,  (Mr. 
Schouler,)  read  it  again,  and  when  another  gen 
tleman  from  Boston,  (Mr.  Morey,)  so  happily 
edified  the  Committee  by  quoting  from  the 
same  able  document,  I  was  inclined  to  say, 
et  tu  Brute.  I  should  like  to  ask  the  gentleman 
from  Boston,  (Mr.  Morey,)  if  he  could  make  up 
his  mind  to  elect  a  Whig  representative  "  who  is 
worth  his  weight  in  gold"  to  the  gentleman,  by 
plurality,  without  trying  to  get  a  majority? 
Would  he  wish  to  elect  even  "  a  Hunker  Demo 
crat  seventy-five  years  old?"  Would  he  not, 
after  all,  rather  have  a  majority  ?  I  was  very 
much  surprised  to  find  that  the  gentleman  from 
Melrose  was  going  against  the  Report  because 
there  was  nothing  of  the  majority  principle  in  it. 
I  am  surprised  that  my  younger  friend  from 
Melrose,  (Mr.  Gooch,)  should  say  that  rather 
than  have  this,  he  would  have  the  plurality  all 
through.  There  is  some  of  the  majority  principle 
in  this  Report.  This  proposition,  as  I  said  upon  a 
former  occasion,  is  a  compromise,  or  an  agreement 
to  go  upon  one  side  as  far  as  we  could  towards  a 
plurality  system,  and  at  the  same  time  to  save  the 
majority  rule  as  far  as  we  could  upon  the  other. 
We  endeavored  to  bring  this  matter  to  a  close, 
and  labored  as  earnestly  as  we  could  to  present  a 
system  which  should  have  little  complexity,  and 
which  should  meet  the  opinions  of  all.  What 
ever  we  may  do,  I  do  not  see  how  we  are  to  be 
accused  of  endeavoring  to  get  the  votes  of  the 
people  by  false  pretences,  because  that  document 
said  originally  that  this  plurality  question  was  to 
be  settled  in  such  a  way  as  the  Convention  thought 
best.  That  is  what  we  are  doing  to-day.  I  say 
to  gentlemen  who  make  such  strong  objection  to 
the  adoption  of  this  system,  if  they  will  have 
the  kindness  to  take  my  place  and  go  into  the 
committee-room  along  with  the  other  gentlemen 


108 


ELECTIONS   BY   PLURALITY. 


[60th  day. 


Monday,] 


BUTLER  —  HUBBARD  —  HATHAWAY  —  WALKER. 


[July  18th. 


who  compose  the  Committee  that  presented  this 
plan,  and  make  a  better  system,  one  that  will 
better  bring  together  all  these  various  views,  I 
shall  be  most  happy  to  vote  for  their  report ;  but 
until  they  can  do  that,  I  must  stand  by  the  Re 
port  which  I  have  presented.  I  have  no  particu 
lar  pride  of  opinion  about  it.  The  only  wish  I 
have  is,  that  the  matter  may  be  settled,  and  that, 
too,  without  delay. 

The  hour  at  which  it  was  ordered  that  debate 
should  cease,  in  Committee  of  the  "Whole,  on  the 
subject  of  elections  by  plurality,  having  arrived, 
the  Committee  proceeded  to  vote  upon  the  pend 
ing  question,  being  the  motion  of  the  gentleman 
from  Plymouth,  (Mr.  Davis,)  to  amend  the  third 
resolve,  relative  to  the  election  of  representatives, 
so  as  to  provide  that  they  shall,  in  all  cases,  be 
elected  by  a  majority  instead  of  on  second  trial  by 
plurality.  A  count  being  demanded,  there  were 
— ayes,  70  ;  noes,  164. 

So  the  amendment  was  rejected. 

The  question  recurred  on  the  amendment  of 
the  gentleman  from  Cambridge,  to  strike  out  all 
after  the  word  "  Resolved,"  and  insert  the  fol 
lowing  : — 

That  in  all  elections  of  representatives  to  the 
general  court,  the  person  having  the  highest 
number  of  votes  shall  be  elected. 

The  question  was  taken,  and  it  was,  upon  a 
division— ayes,  82 ;  noes,  163— decided  in  the 
negative. 

So  the  amendment  was  rejected. 

The  question  recurred  on  the  motion  of  the 
gentleman  from  Boston,  (Mr.  Schouler,)  to  strike 
out  all  after  the  word  "Resolved,"  and  insert  the 
following : — 

That  it  is  expedient  to  provide  in  the  Consti 
tution  that  in  all  elections  for  governor,  lieuten 
ant-governor,  secretary,  treasurer,  auditor,  and 
attorney-general  of  the  Commonwealth,  the  per 
son  having  the  highest  number  of  votes  shall  be 
deemed  and  taken  to  be  elected. 

Mr.  HUBBARD,  of  Boston,  proposed  to 
amend  the  pending  amendment  by  inserting  after 
the  words  "lieutenant-governor"  the  word 
"  councillors." 

Mr.  SCHOULER  accepted  the  amendment,  as 
a  modification  of  his  own. 

Mr.  GRAY.  I  will  take  the  liberty  of  suggest 
ing  to  my  colleague,  that  councillors  are  provided 
for  in  the  next  resolve. 

Mr.  HUBBARD.  My  object  was  to  have  two 
chances  to  secure  this  provision. 

The  question  was  taken  upon  the  amendment 
of  the  gertleman  from  Boston,  (Mr.  Schouler,) 


as  modified,  and,  upon  a  division — ayes,  85 ; 
noes,  156 — it  was  decided  in  the  negative. 

So  the  amendment  was  rejected. 

Mr.  HATHAWAY  moved  to  strike  out  all 
after  the  words  "general  court,"  and  to  insert 
the  following :  "  All  county,  district,  city,  and 
town  officers,  shall  be  elected  as  shall  by  law  be 
provided."  That,  Mr.  Hathaway  remarked,  will 
leave  the  matter,  so  far  as  the  election  of  these 
officers  is  concerned,  precisely  as  it  now  stands 
under  the  present  Constitution. 

The  amendment  did  not  prevail. 

Mr.  CHURCHILL,  of  Milton,  proposed  to 
amend  the  last  resolve  by  striking  out  the  word 
"  legislature,"  and  inserting  the  words  "  governor, 
by  and  with  the  advice  and  consent  of  the  coun 
cil." 

The  amendment  did  not  prevail. 

Mr.  GARDNER,  of  Seekonk,  moved  a  recon 
sideration  of  the  vote  by  which  the  Committee 
rejected  the  amendment  offered  by  the  gentleman 
from  Plymouth. 

Mr.  DENTON,  of  Chelsea.  I  confess,  Sir, 
that  I  did  not  quite  understand  the  amendment 
of  the  gentleman  from  Plymouth.  The  gentle 
man  from  Plymouth,  in  his  explanation,  did  not 
satisfy  me  that  it  would  include 

The  CHAIRMAN.  The  Chair  must  remind 
the  gentleman  that  debate  is  not  in  order. 

The  motion  to  reconsider  was  rejected. 

Mr.  ADAMS,  of  Lowell,  moved  that  the  Com 
mittee  rise,  and  report  the  resolves  to  the  Conven 
tion,  with  the  amendments  proposed  by  the  Com 
mittee,  with  a  recommendation  that  they  be 
adopted. 

The  motion  was  agreed  to,  and  the  Committee 
accordingly  rose,  and  the  President  having  re 
sumed  the  chair  of 

THE    CONVENTION, 

The  chairman  of  the  Committee  of  the  Whole 
reported  the  resolves  and  amendments,  with  a  re 
commendation  that  they  do  pass. 

The  question  being  on  concurring  in  the  amend 
ments  proposed  by  the  Committee  of  the  Whole. 

Mr.  WALKER,  of  North  Brookfield.  It  is  a 
very  unpleasant  task  to  undertake  to  oppose  what 
has  been  settled  in  Committee  of  the  Whole. 
We  have  voted  to  report  these  resolves  to  the 
Convention,  but  I  cannot  allow  the  question  to 
be  taken  without  saying  that  I  hope — that  is,  that 
I  desire— that  the  Report  of  the  Committee  will 
not  be  accepted.  The  third  resolve  provides 
that  the  representatives 

The  PRESIDENT.  With  the  leave  of  the 
gentleman,  the  Chair  would  suggest  that  the  first 
question  is  on  concurring  in  the  amendments 


60th  day.] 


ELECTIONS   BY    PLURALITY. 


109 


Monday, 


SCHOULER. 


[July  18th. 


reported  by  the  Committee,  which  are  merely 
verbal. 

The  amendments  reported  by  the  Committee  of 
the  Whole,  were  concurred  in. 

Mr.  SCHOULER  moved  the  adoption  of  the 
amendment  which  he  had  proposed  in  Commit 
tee  of  the  Whole. 

Mr.  SCHOULER,  of  Boston.  I  intend  to 
take  up  but  very  little  time  in  the  discussion  of 
this  question,  although  it  is  one  upon  which  I 
have  bestowed  a  great  deal  of  thought,  and  one  in 
which  I  feel  a  great  deal  of  interest.  It  appears 
to  me,  notwithstanding  the  remarks  of  the  gentle 
man  from  Fitchburgh,  (Mr.  Wood,)  that  this 
matter  has  not  been  discussed  at  that  length 
which  its  merits  deserve.  We  did  have,  in  the 
early  part  of  the  session,  a  proposition  about  plu 
rality  in  elections.  The  gentleman  from  Fall 
River,  (Mr.  Hooper,)  the  chairman  of  the  Com 
mittee  upon  that  subject,  made  a  Report,  which 
was,  as  I  understand,  the  unanimous  Report  of 
the  Committee,  in  favor  of  adopting  the  plurality 
system  in  our  elections.  That  question  was  dis 
cussed  in  Committee  of  the  Whole,  but  the  vote 
was  so  close  that  one  moment  we  would  carry  it 
one  way,  by  one  or  two  votes,  and  the  next  mo 
ment  a  reconsideration  would  be  moved,  and  then 
it  would  go  the  other  way.  When  the  whole 
matter  was  reported  to  the  Convention,  before  we 
could  get  to  a  vote  upon  it  here,  and  before  we 
could  call  the  yeas  and  nays,  to  see  what  was 
the  true  state  of  feeling  of  the  members  of  the 
Convention  in  regard  to  the  subject,  it  was  taken 
from  our  hands  and  sent  to  one  of  the  committee- 
rooms.  We  have  got  another  proposition,  re 
ported  by  the  gentleman  from  Lowell,  (Mr.  But 
ler,)  and  what  is  it  ?  It  gives  up  the  whole  prin 
ciple  contended  for  by  gentlemen  who  oppose 
the  plurality  system.  I  do  not  like  to  go  into 
matters  outside  of  the  particular  subject  now  be 
fore  us  ;  but  no  one  can  look  at  that  resolution, 
and  who  knows  the  history  of  this  Common 
wealth,  and  fail  to  see,  that  there  is  something 
behind  all  this  thing,  which  is  not  explained  in 
the  Report.  What  is  the  proposition  ?  It  was 
stated  by  the  gentleman  from  Melrose,  (Mr. 
Gooch,)  that  we  should  elect  our  Senate  and 
House  of  Representatives  by  a  plurality,  but 
should  not  elect  any  of  the  general  officers  by 
that  rule,  and  that  they  must  be  elected  by  a  ma 
jority.  What  is  the  effect  of  it  ?  It  is  to  throw 
the  election  of  all  these  officers  into  the  legisla 
ture,  where  there  would  be  finesse  and  caucus 
ing  employed,  and  there  would  be  this  man  to 
be  weighed  against  the  other,  this  office  against 
the  other,  and  then  comes  the  matter  into  the 
legislature,  and  they  are  to  vote  upon  it.  How 


are  these  officers  to  be  elected  ?  By  men  who  are 
chosen  by  a  plurality  vote.  You  will  not  allow 
the  people  to  decide  it  in  the  first  place ;  you  get 
the  election  into  the  State  House,  where  the  leg 
islature  are  to  decide  it  for  them.  I  think  there 
is  no  sense  in  this.  The  gentleman  from  Lowell, 
(Mr.  Butler,)  speaks  about  this  proposition  being 
a  compromise ;  but  it  is  the  most  singular  com 
promise  that  I  ever  heard  of  in  my  life.  It  does 
not  compromise  anything  but  principle,  arid  it 
does  compromise  the  principle  of  the  majority, 
and  gives  no  satisfaction  whatever  to  those  who 
are  in  favor  of  the  plurality  system.  I  should 
like  to  have  an  explanation  of  this  compromise — 
where  it  begins,  and  where  it  ends.  It  leaves  all 
the  difficulty  with  which  we  have  so  often  found 
fault,  precisely  where  we  found  it,  and  it  leaves 
us  in  this  predicament :  that  we  cannot  organize 
the  legislature  for  seven,  eight,  or  ten  days,  after 
coming  together,  at  an  expense  of  seven  or  eight 
thousand  dollars  every  year.  I  ask  the  members 
of  this  Convention,  whether  seven  or  eight  thou 
sand  dollars  a  year  are  not  worth  saving  ?  and  we 
can  save  it  by  saying  that  the  people  shall  decide, 
instead  of  leaving  it  to  a  plurality  legislature  to 
decide.  I  think  this  matter  deserves  some  con 
sideration. 

If  we  are  to  elect  at  all  by  plurality,  I  go  for 
electing  everything  by  plurality.  We  may  elect 
by  a  majority,  if  we  have  a  mind  so  to  do,  but 
what  advantage  are  we  to  gain  by  it  ?  Where  are 
we  to  make  any  reform  here,  by  which  we  are  to 
save  one  single  cent  of  the  people's  money  ?  His 
tory  shows  in  the  progress  of  commonwealths  and 
nations,  that  corruption  does  creep  in,  and  it 
seems  to  me,  that  this  is  a  plan  for  the  corruption 
of  offices,  or  rather  for  the  corruption  of  those 
who  hold  office.  This  is  an  entering  wedge  which 
will  bring  about  such  a  state  of  things.  We  may 
just  as  well  have  no  election  by  the  people,  and 
give  the  legislature  the  right  of  electing  in  the 
first  instance,  instead  of  going  through  this  mere 
sham,  and  having  a  vote  taken  which  amounts  to 
nothing.  As  long  as  this  majority  principle  for 
the  general  officers  is  kept  up,  just  so  long  there 
will  be  no  election  by  the  people.  In  the  state 
of  parties  of  this  Commonwealth,  as  they  now 
exist,  there  will  be  no  election  by  the  people  so 
long  as  the  majority  principle  is  retained  in  the 
Constitution ;  but  when  you  take  that  out  of  the 
Constitution,  then,  in  my  judgment,  there  will 
be  elections  by  the  majority  of  the  people.  It 
does  seem  to  me — I  do  not  make  the  charge,  but 
I  cannot  dismiss  it  from  my  mind — that  this  pro 
position  is  presented  for  the  very  purpose  of 
getting  the  election  of  these  officers  into  the 
legislature,  where  the  offices  might  be  sold  and 


110 


ELECTIONS    BY   PLURALITY. 


[60th  day. 


Monday/ 


SCHOULER  —  WALKER. 


[July  18th. 


doled  out,  and  where  men  could  make  bargains 
in  regard  to  them.  I  say  that  the  people  demand 
no  such  thing,  but  quite  a  different  thing.  It 
may  be  denied,  but  it  appears  upon  the  face  of  the 
proposition.  If  I  stood  upon  the  other  side  of 
the  House,  where  I  could  address  the  eastern 
gallery,  which  seems  to  vote  down  all  these 
propositions,  I  might,  perhaps,  be  able  to  effect 
more  than  I  now  shall  do.  I  recollect  a  few  years 
ago,  in  this  House,  that  there  was  a  gentleman 
from  one  of  the  western  towns,  who,  although  he 
had  the  right  in  his  case,  always  had  the  majority 
against  him.  He  stood  right  here,  and  when  they 
took  the  vote,  he  carried  the  fifth  and  sixth  divi 
sions  unanimously,  while  the  other  side  of  the 
House  went  against  him.  He  thought  he  would 
change  his  position,  so  he  went  to  the  other  side 
of  the  House,  spoke  there  once,  and  then  spoke  in 
the  centre  of  the  House,  so  that  when  they  came 
to  take  the  question  the  next  time,  he  carried  his 
point  by  the  unanimous  vote  of  the  whole  House. 
[Laughter.]  I  do  not  say  that  we  want  to  send 
missionaries  into  either  side  of  the  House,  but  it 
seems  to  me,  when  the  gentleman  from  Lowell 
speaks  of  this  proposition  being  a  compromise, 
that  it  is  time  we  should  require  some  missionaries 
to  look  into  it  and  see  whether  it  is  a  compromise 
or  not. 

But,  I  do  not  wish  to  occupy  the  time  of  the 
Convention.  I  suppose  it  is  all  settled  ;  and  I 
feel,  and  I  have  no  doubt  the  minority  feel  all  the 
time,  that  there  are  certain  measures  which  are  put 
in  here,  that,  however  much  argument  may  be 
presented  on  the  one  side,  or  the  other,  we  are 
always  voted  down.  Perhaps  it  is  on  account  of 
strength,  and  perhaps  it  is  on  account  of  cau 
cusing.  But,  I  stand  here  on  the  Report  made 
by  the  majority  of  the  legislature  last  year,  calling 
this  Convention  ;  I  stand  here  as  a  humble  advo 
cate  of  the  plurality  system  ;  and  it  was  my  hope, 
that  this  Convention,  when  it  came  together,  would 
put  that  principle  into  the  Constitution,  or  at 
least,  that  they  would  take  the  majority  principle 
out  of  the  Constitution,  and  leave  the  legislature 
to  decide  as  the  wishes  of  the  people  should  direct. 
As  it  is  now,  we  get  nothing.  We  violate  the 
principle  of  the  gentleman  from  North  Brook- 
field,  and  others  who  have  advocated  the  majority 
principle  ;  and  those  who  have  advocated  the  plu 
rality  principle,  get  nothing.  While  we  asked 
bread,  we  got  a  stone.  It  amounts  to  the  same 
thing  ;  it  may  be  a  brick.  [Laughter.]  But,  as 
the  gentleman  from  Lowell  may  want  a  little 
time  to  explain  this  compromise,  I  will  conclude, 
by  asking  for  the  yeas  and  nays,  so  that  those 
who  have  stood  up  for  principle  against  expe 
diency,  and  contended  for  the  right  all  along,  may 


stand  on  the  imperishable  record,  as  having  sus 
tained  the  plurality  system. 

The  yeas  and  nays  were  ordered. 

Mr.  WALKER,  of  North  Brookfield.  On  a 
previous  occasion,  I  have  given  my  views  with 
regard  to  the  general  principle  in  relation  to  the 
plurality  system,  and  I  gave  my  views  as  entirely 
adverse  to  that  principle,  believing  it  to  be  wrong, 
and  consequently  that  it  could  only  be  productive 
of  evil.  When  I  saw  the  Report  of  this  Com 
mittee,  I  looked  at  it  with  great  interest ;  and, 
supposing  it  was  a  compromise,  I  was  disposed 
to  do  everything  I  could,  consistently,  to  meet 
the  exigency  of  the  case.  But,  when  I  saw  that 
the  third  resolution  provided  that  representatives 
should  be  chosen  by  plurality  after  the  first  trial, 
I  was  obliged  to  dissent  from  it  entirely.  It 
seems  to  me  there  is  no  sound  policy  in  this  Re 
port.  Our  towns  are  democracies.  They  meet 
together,  and  they  may  try  several  times  in  a 
day,  for  the  election  of  a  representative ;  they 
may  even  have  forty  trials,  perhaps,  between  the 
time  when  the  meeting  is  called  to  elect  represen 
tatives,  and  the  meeting  of  the  legislature.  So 
that  there  seems  to  be  no  excuse  that  the  power 
to  elect  by  a  majority,  shall  not  be  preserved  to 
the  towns.  Shall  we  take  it  away  ?  The  idea  of 
making  one  trial  by  majority,  and  then,  if  an 
election  is  not  made,  to  allow  a  plurality  to  elect, 
I  discard  altogether.  There  is  no  statesmanship 
and  no  principle  in  the  thing.  If  we  are  to  have 
the  plurality  principle  at  all,  let  us  have  it  at 
once.  Then  the  question  will  be  met  promptly. 
By  the  present  proposition,  the  several  parties 
would  have  to  put  up  their  respective  candidates, 
which  some  party  would  have  at  last,  to  with 
draw  ;  and  hence,  if  we  adopt  a  plurality  system 
at  all,  I  would  much  rather  apply  it  in  the  first 
place  than  in  the  second. 

Sir,  since  I  last  spoke  on  this  subject,  I  have 
met  a  very  intelligent  gentleman  from  the  State 
of  Ohio,  who  has  resided  there  many  years,  and 
he  asked  me  the  question,  what  we  were  going 
to  do  with  regard  to  the  plurality  principle  in 
this  Commonwealth.  I  told  him  that  it  was  pro 
posed  to  adopt  it.  He  says  :  "  Do  not  take  that 
course,  if  you  do  you  will  have  the  same  results 
that  we  have  had,  namely  :  a  general  demorali 
zation  in  political  action.  That  is  the  conse 
quence  with  us,  and  we  deplore  it.  In  all  our 
elections  we  find  it  difficult  to  get  a  good  man  to 
stand  as  a  candidate.  For  the  moment  we  put 
up  a  good  man,  there  are  a  half  a  dozen  other 
men  put  up,  some  of  whom  are  of  disreputable 
character,"  and,  to  use  his  own  phrase,  "  the 
meanest  scamp  is  the  most  likely  to  be  success 
ful.  Hence,  intelligent  and  respectable  men  are 


60th   day.] 


ELECTIONS    BY   PLURALITY. 


Ill 


Monday,] 


WALKER  —  LORD. 


[July  18th. 


not  willing  to  be  put  up,  for  the  greater  number 
of  men  you  have  as  candidates,  the  less  is  the 
chance  of  the  election  of  a  good  man."  Such  is 
the  operation  of  the  system  everywhere. 

I  saw,  also,  a  few  days  since,  a  gentleman  from 
Alabama,  who  expressed  great  anxiety  about  our 
abandoning  the  majority  principle.  "  If  you  do 
it,"  stiid  he,  "  you  will  rue  the  day ;  you  will 
cause  a  general  demoralization  in  politics,  as  has 
been  the  case  in  Alabama.  We  are  always 
troubled  to  get  the  first  and  best  men  to  stand  for 
any  office,  for  the  reason  that  when  they  have  to 
run  against  many  men,  of  indifferent  character — 
and  they  know,  that  as  a  general  rule,  the  man  of 
the  most  indifferent  character  is  quite  as  likely  to 
be  elected  as  any  other — they  feel  that  it  is  a  dis 
grace  to  stand,  and  they  will  not  do  it.  That  is 
the  general  result." 

As  to  the  election  of  officers  in  large  cities, 
there  may  be  some  reason  for  adopting  this  rule, 
but  when  you  come  to  towns,  there  is  no  excuse 
for  it  at  all.  It  must  be  merely  on  the  ground 
that  we  are  unwilling  to  take  the  trouble.  But 
there  is  no  difficulty  in  that ;  the  towns  have  only 
to  repeat  their  trials  as  long  as  they  choose.  It 
has  been  said,  and  cannot  be  repeated  too  often, 
that  this  is  the  great  question  of  misrepresenta 
tion,  or  non-representation,  and  there  is  a  great 
choice  between  them ;  for  it  is  much  better  not  to 
be  represented  than  to  be  misrepresented. 

We  are  about  to  provide  a  Constitution,  which 
will  give  a  House  of  some  four  hundred  members, 
and  that  will  be  an  objection  against  our  Consti 
tution  ;  and  if  we  adopt  this  plurality  system,  it  is 
certain  that  that  House  will  consist  of  nearly  the 
full  number ;  and  that  will  make  an  additional 
argument  against  the  adoption  of  our  Constitu 
tion.  On  the  other  hand,  if  we  provide  that  a 
majority  shall  elect,  then  it  will  happen  that 
many  towns  will  choose  not  to  be  misrepresented, 
and  they  will  adhere  to  their  candidates  and  their 
principles,  and  will  not  be  represented  in  the 
House.  What  will  be  the  consequence?  The 
House  will  be  reduced,  perhaps,  some  fifty  or  a 
hundred  members.  Now,  I  maintain,  that  it  is 
vastly  more  desirable  to  have  such  a  result,  than 
to  adopt  the  plurality  rule  and  have  the  House 
filled  every  year ;  because  the  people  will  not  be 
any  more  represented  under  the  plurality  rule 
than  under  the  majority  rule,  even  if  many  towns 
are  not  represented. 

Then  there  is  another  consideration  with  regard 
to  the  basis  of  representation.  By  the  plan  which 
•we  have  adopted,  if  I  understand  it,  eighteen 
thousand  less  than  one-third  of  the  population  of 
the  State,  may  choose  a  majority  of  seven  in  the 
House  of  Representatives.  Now,  shall  we  re 


duce  that  constituency  still  more  by  adopting  the 
plurality  system  ?  We  know  that  if  the  plurality 
system  is  adopted,  it  is  more  than  probable  that 
one- quarter  of  the  population  of  the  Common 
wealth  will  choose  a  majority  of  the  House  of 
Representatives.  I  would  like  to  know  if  it  is 
right,  if  it  is  desirable ;  I  would  like  to  know  if 
gentlemen  suppose  that  it  will  be  agreeable  to  the 
people  of  Massachusetts.  I  do  not  believe  it  will. 
Hence,  it  will  be  a  strong  argument  against  the 
adoption  of  the  Constitution. 

Sir,  if  you  could  have  the  majority  principle 
retained,  with  regard  to  members  of  the  legisla 
ture,  I  would  not  make  any  opposition  to  this  Re 
port.  I  do  not  say  I  would  be  content  with  it, 
for  I  would  not  be  content  with  anything  that  I 
do  not  think  right ;  but  I  would  submit  to  it. 

If  it  be  in  order,  before  taking  my  se.at,  I  would 
move  to  strike  out  from  the  third  resolution  all 
after  the  word  "  election,"  in  the  third  line.  I 
do  not  wish  to  detain  the  Convention  by  farther 
remarks,  having  discussed  the  plurality  principle 
at  length  on  a  previous  occasion. 

The  PRESIDENT.  It  is  not  in  order  at  this 
time,  as  an  amendment  is  pending  to  the  first 
resolve. 

Mr.  LORD,  of  Salem.  If  I  understand  the  ar 
gument  of  the  gentleman  from  North  Brookfield,  it 
is  this  :  That  in  consequence  of  what  he  has  heard 
from  a  gentleman  from  Ohio,  and  from  another 
gentleman  from  Alabama,  if  the  plurality  system  is 
adopted,  the  same  result  will  follow  here  that  has 
followed  there.  In  Ohio,  the  meanest  rascals  get 
chosen ;  and  in  Alabama  the  most  indifferent 
people.  Now,  if  I  had  such  a  judgment  of  the 
people  of  Massachusetts,  that  there  were  more  of 
them  who  would  vote  for  the  meanest  rascals 
that  could  be  thought  of,  than  would  vote  for  a 
good  man,  I  would  try  some  method  to  curtail 
their  power  ;  and  I  am  not  surprised  that  the  gen 
tleman  from  North  Brookfield  wants  to  do  so. 
He  cannot  trust  these  people,  because  more  of 
them  will  be  willing  to  vote  for  the  meanest  ras 
cal,  than  for  a  good  man.  But,  differing  from 
him,  I  believe  the  people  are  capable  of  self-gov 
ernment,  capable  of  selecting  good  men,  and  that 
they  will  not  pick  out  the  meanest  rascals.  I  be 
lieve  that  they  will  not  be  demoralized ;  that  the 
adoption  of  the  plurality  rule  will  not  cause  a 
general  demoralization ;  but  that  those  men  will 
be  chosen  whom  the  most  of  the  people  are  in 
favor  of.  I  am  quite  as  unwilling  to  say  that  the 
people  will  select  the  most  indifferent  persons,  as 
to  say  they  will  select  the  meanest  rascals.  I  do 
not  think  they  will  take  either  course.  I  am 
rather  inclined  to  adopt  the  opinion  of  the  gen 
tleman  who  now  represents  Wilbraham,  (Mr. 


112 


ELECTIONS   BY   PLURALITY. 


[60th  day. 


Monday,] 


LORD. 


[July  18th. 


Hallett,)  that  the  adoption  of  the  plurality  sys 
tem  will  destroy  the  third  party,  and  having  de 
stroyed  the  third  party,  and  made  but  two  parties, 
I  do  not  exactly  understand  how  a  person  will  be 
elected  without  a  majority.  When  you  get  down 
to  two  parties,  as  the  plurality  principle  brings  it 
down,  it  is  simply  a  process  for  concentrating  the 
public  mind  upon  an  individual.  Whoever  sup 
posed  that  the  public  mind  uniformly  fell  upon 
the  particular  person  who  was  to  be  elected  to  the 
office  ?  We  know,  Sir,  that  in  the  primary  meet 
ings,  where  a  candidate  is  to  be  selected,  there  is 
generally  a  great  diversity  of  opinion ;  and  that 
diversity  of  opinion  is  reconciled,  and  one  person 
is  selected  and  agreed  upon.  The  same  thing 
happens  in  all  parties,  and  the  number  of  candi 
dates  gets  reduced,  out  of  which  the  people  are  to 
select.  It  is  not  the  selection  of  an  individual  by 
a  majority  of  the  people,  because  we  know  that  a 
majority  of  the  people  are  in  favor,  individually, 
of  a  particular  individual ;  but  because,  by  the 
political  economy  and  political  arrangement,  there 
has  been  a  concentration  upon  certain  members 
who  represent  certain  interests  ;  and  out  of  those 
numbers,  one  is  to  be  selected.  The  plurality 
principle  simply  reduces  the  number  of  candidates, 
so  that  the  public  will  be  obliged  to  select  one  of 
two,  instead  of  selecting  from  three  or  four ;  and 
generally  speaking, — I  put  it  as  a  matter  of  his 
torical  fact, — where  the  plurality  rule  prevails, 
there  the  candidate  is  elected  by  a  majority  of 
voters. 

As  a  general  proposition,  that  is  true.  I  think 
there  was  an  exception  or  two,  perhaps,  in  the 
case  of  an  election  of  representatives  to  congress, 
but  they  were  merely  exceptions.  Take  the  coun 
try  through,  and  you  will  find  that  where  the 
plurality  system  prevails,  no  men  get  into  office 
so  frequently  without  receiving  a  majority  of  votes, 
as  they  do  in  Massachusetts  where  the  majority 
rule  has  prevailed.  Then  why  talk  about  this  be 
ing  an  abandonment  of  the  majority  principle  ? 
It  is  one  of  the  instrumentalities  by  which  the 
majority  principle  can  be  concentrated  upon  an 
individual.  It  is  developing,  and  bringing  out, 
and  enforcing,  the  majority  principle.  Gentlemen 
say  here,  with  a  flaunt,  that  we  have  got  into  new 
company.  Well,  I  want  to  know  if,  because  men 
have  become  convinced  that  they  are  wrong,  and 
have  joined  them,  they  must  desert  their  old 
ground.  We  have  had  gentlemen  get  up  here 
and  say,  this  plurality  system  was  always  a  good 
democratic  doctrine,  and  we  were  always  in  favor 
of  it.  Do  not  these  gentlemen  know  that  de 
mocracy  is  progressive,  and  that  among  other 
things,  they  have  compelled  us,  poor  Whigs,  to 
abandon  some  of  our  \iews  as  obsolete  ideas  ? 


And  I  am  sorry,  that  so  soon  as  the  Whigs  are 
obliged  to  change  their  condition,  that  there  is 
another  party  that  whips  around  and  feels  it  glory 
enough  if  they  can  be  in  opposition  to  these  poor 
Whigs.  I  have  not  heard  any  reason  given  by 
those  gentlemen  who  have  all  along  advocated  the 
plurality  system,  why  they  should  change  now. 
When  we  all  seem  to  be  coming  to  agree  that  it 
is  the  true  ground,  all  at  once  some  gentlemen 
say,  because  we  have  got  new  allies,  we  will, 
therefore,  abandon  our  old  notions.  That  seems 
to  be  all  the  argument  there  is. 

Now,  Sir,  I  desire  to  express  only  a  very  few 
words  upon  this  subject,  having  already  devel 
oped  the  principal  thoughts  which  I  rose  to  sug 
gest,  that  the  people  of  this  Commonwealth  will 
be  gratified  at  the  device  of  such  an  instrumen 
tality  as  shall  concentrate  the  votes  upon  the 
smallest  number  of  candidates.  There  is  not  a 
voter  in  this  Commonwealth,  who  cannot  see 
clear  through  this  proposition. 

We  may  involve  it  in  diplomacy  here,  if  we 
will,  but  every  voter  in  the  Commonwealth  will 
see  and  understand  what  these  six  large  offices 
are  put  into  the  legislature  for.  There  is  no  gen 
tleman  in  this  House  who  cannot  tell  what  it  is 
done  for.  I  am  a  little  at  a  loss  to  understand,  I 
confess,  how  we  are  to  manage  this  matter. 
There  is  a  little  inconvenience  about  the  manner 
of  choosing  our  governor.  We  have  already 
almost  unanimously  voted,  that  we  would  choose 
him  by  joint  ballot,  and  here  we  say  that  we  will 
choose  him  by  a  concurrent  vote.  Sometime  ago 
— so  long  ago  that  we  have,  perhaps,  almost  for 
gotten  it — some  time  in  month  before  last,  the 
Convention  determined,  that,  whenever  the  peo 
ple  did  not  choose  a  governor,  he  should  be 
chosen  by  the  legislature  on  joint  ballot ;  and 
now  we  are  to  have  it  done  by  concurrent  vote. 
I  have  no  objection  to  the  two  propositions  ;  I  am 
willing  to  have  them  both  put  there ;  but,  Sir,  I 
desire  to  have  those  gentlemen  who  charge  me 
with  not  confiding  in  the  people,  and  who  them 
selves  do  confide  in  the  people,  I  desire  to  have 
them  explain  to  me  how  it  is  that,  under  this 
system,  the  people  cannot  be  deprived  of  their 
choice.  For  example,  in  this  matter  of  governor, 
we  change  from  four  to  three  ;  one  man  has 
eighty  thousand  votes,  another  has  seventy  thou 
sand,  and  another  fifteen  thousand,  and  there  is 
no  election.  Now  a  majority  of  your  House  of 
Representatives  are  chosen  by  one- third  part  of 
the  people,  and  you  pretend  that  your  governor 
is  a  representative  of  the  whole  people.  Well, 
Sir,  this  majority  of  the  House  of  Representa 
tives,  thus  chosen  by  one- third  part  of  the  people, 
can  exclude  the  individual  who  had  eighty  thou- 


60th  day.] 


ELECTIONS   BY   PLURALITY. 


113 


Monday,] 


LORD. 


[July  18th. 


sand  votes,  and  send  up  to  the  Senate  the  one 
with  seventy  thoxisand,  and  the  one  who  had 
fifteen  thousand.  This  is  giving  the  governor  to 
the  people,  and  taking  the  House  of  Representa 
tives  from  the  towns — doing  it  with  a  vengeance  ! 
I  remember  to  have  heard  the  argument  in  favor 
of  the  distribution  of  power,  that,  inasmuch  as 
the  people  have  the  governor,  the  towns  ought 
to  have  the  House ;  but  one-third  of  the  people 
of  these  towns  voting  thus,  through  a  majority 
of  the  House,  say  that  the  man  who  has  eighty 
thousand  votes,  shall  not  be  governor,  no  matter 
even  if  the  Senate,  who  do  represent  the  people, 
want  him.  The  popular  majority  may  send  to 
the  Senate  a  majority  in  favor  of  the  individual 
who  has  eighty  thousand  votes ;  but  the  towns 
send  to  the  House  a  majority  who  are  in  favor  of 
the  individual  who  has  only  fifteen  thousand 
votes  ;  and  of  these  three  candidates,  the  House 
sends  up  to  the  Senate  the  seventy  thousand  man 
and  the  fifteen  thousand  man,  to  let  them  take 
their  pick  between  them.  I  say,  therefore,  upon 
this  hypothesis,  you  have  no  popular  representa 
tion  in  the  governor,  you  have  no  popular  branch 
in  the  government.  Your  House  is  from  towns 
— your  Senate  is  from  districts,  chosen  by  plural 
ities  ;  and,  as  gentlemen  say  here,  pluralities  are 
the  same  as  minorities.  Here  the  governor  is 
forced  upon  the  Senate,  by  the  House  chosen  by 
the  towns  ;  and  yet  you  say  that  there  are  two 
branches  that  represent  the  people,  while  the 
House  represents  the  towns.  Sir,  the  poor  people, 
in  this  arrangement,  fail  of  having  any  represen 
tation  anywhere,  except  as  it  comes  from  the 
Senate.  In  this  respect,  as  relates  to  the  Senate, 
I  address  my  remarks  to  those  gentlemen  who  say 
that  a  plurality  does  not  represent  the  people.  I 
am  of  the  opinion  that  a  plurality  does  represent 
the  people  ;  and  therefore,  the  argument  relating 
to  the  Senate  has  no  force  in  my  mind,  but  it 
has  and  must  have  force  with  those  gentlemen 
who  say  that  the  Senate  is  a  representative  of  a 
minority. 

If,  Sir,  it  is  desirable  to  establish  any  rule  as  a 
constitutional  rule,  it  appears  to  me  that  the  prin 
ciple  that  the  rule  should  be  uniform,  is  so  obvi 
ous  to  every  mind,  that  it  gains  no  force  from 
argument  or  reasoning.  We  propose  to  say  here, 
that  certain  officers  shall  be  chosen  by  a  majority, 
and  certain  other  officers  by  a  plurality.  Has 
any  gentlemen  told  why  that  line  is  drawn  in 
that  way  r  I  have  heard  no  reason  given  for  it — 
I  can  see  the  reason  for  it — every-body  can  see 
the  reason  ;  but  has  anybody  avowed  that  reason  ? 
Has  any  gentleman  told  us  why  it  is  that  the  line 
should  be  drawn  as  it  is  drawn  ?  why  the  gov 
ernor,  lieutenant-governor,  secretary,  treasurer, 

83 


auditor,  and  attorney- general  of  the  Common 
wealth,  should  be  chosen  by  majorities,  and  all 
other  officers  by  a  plurality  ?  Now,  if  we  were 
about  to  make  a  rule  on  the  subject,  and  have 
some  officers  elected  by  a  majority  and  others  by 
a  plurality,  what  rule  would  seem  reasonable  and 
proper  ?  I  believe  that  the  universal  opinion 
would  be  in  favor  of  a  rule  of  this  kind  :  that,  in 
proportion  as  it  is  difficult  to  obtain  a  second  ex 
pression  of  opinion  from  the  same  constituency, 
just  in  such  proportion  is  the  necessity  for  the 
adoption  of  the  plurality  principle.  I  would  like 
to  hear  anybody  undertake  to  controvert  that 
proposition.  I  agree  with  the  gentleman  from 
North  Brookfield,  (Mr.  Walker,)  that  it  is  not 
half  so  important  for  the  town  of  Hull,  which 
can  vote  forty  times,  and  perhaps  four  hundred 
times  a  day — I  am  inclined  to  think  that  they 
could  vote  four  hundred  times  between  sunrise 
and  sunset ;  but  if  they  could  not,  Nahant  could 
— it  is  not  half  so  important  for  these  little  towns 
to  choose  their  representatives  by  the  plurality 
system,  as  it  is  that  all  the  people  of  the  Common 
wealth  should  have  a  chance  to  choose  their  gov 
ernor  by  the  plurality  system.  The  difficulty 
is  nothing,  in  comparison — the  inconvenience  is 
nothing,  in  comparison ;  as  the  gentleman  from 
Boston  said  this  morning,  the  whole  Report  is  in 
inverted  order,  and  ought  to  be  reversed  or  shifted 
end  for  end.  I  am  glad  that  I  had  the  concur 
rence  of  the  gentleman  from  North  Brookfield  in 
that  respect ;  the  thing  is  exactly  reversed,  for  in 
those  constituencies  which  cannot  be  called  to 
gether  twice,  you  insist  upon  applying  the  major 
ity  principle;  but  in  those  constituencies  which  can 
be  called  together  twice,  without  any  considerable 
difficulty,  you  allow  the  election  to  take  place  by 
the  plurality  principle.  Why  is  this  so  ?  It  is 
nothing  in  the  name  of  State  officers,  because  one 
is  a  State  and  the  others  are  local  officers.  I  re 
peat,  Sir,  that  there  is  no  individual  in  this  assem 
bly  who  does  not  see  why  it  is  so,  and  yet  there 
is  no  gentleman  in  this  assembly  who  will  tell 
why  it  is  so.  Every-body  knows  what  it  is  for, 
and  yet  nobody  will  tell  us  what  it  is  for.  The 
gentleman  from  Lowell,  who  reported  this  reso 
lution,  knows  why  the  Committee  made  these 
officers  at  large,  through  the  State,  to  be  elected 
by  majorities,  in  preference  to  ocal  officers,  and 
yet  I  do  not  hear  anybody  say  why.  There  is  a 
reason,  Sir,  and  it  is  a  reason  that  has  no  force 
whatever  with  me  in  making  fundamental  law. 
We  know  something  about  what  the  popular  will 
is — those  of  us  who  are  willing  to  confide  in  the 
people — and  we  know  that  the  popular  mind  has 
been  for  years  demanding  that  the  legislature 
should  so  alter  the  law  that  a  plurality  should 


114 


ELECTIONS   BY   PLURALITY. 


[60th  day. 


Monday,] 


LORD. 


[July   18th. 


elect.  And  we  know,  too,  that  the  legislature 
has  gone  a  great  ways,  almost  to  the  very  verge  of 
constitutional  right,  in  altering  the  law  upon  this 
subject ;  and  they  have  never  made  a  single  ad 
vance  on  this  subject,  which  the  people  have  not 
approved.  They  have  made  representatives  to 
congress  eligible  by  plurality  on  the  second  ballot ; 
and  has  the  first  man  in  the  Commonwealth  sent 
up  a  petition  to  the  legislature  to  change  that  law 
since  ?  Not  one.  The  people  of  the  Common 
wealth  approved  of  it.  I  do  not  know  a  single 
individual  who,  this  day,  would  wish  to  alter  it. 
I  say,  also,  that  the  majority  principle  has  never 
been  adopted  by  any  people,  or  acted  upon  by  any 
people,  where  the  counter  proposition  received  a 
respectable  advocacy,  for  a  single  moment;  or 
where  the  plurality  principle  has  been  carried 
into  practice  in  a  single  election. 

Are  we  then  desirous  of  finding  out  what  is  the 
popular  will  ?  I  do  not  care  how  much  gentle 
men  charge  me  with  change,  or  how  much  they 
charge  those  with  whom  I  am  accustomed  to  act, 
with  change.  The  party  that  called  this  Conven 
tion,  called  it  upon  the  open  and  avowed  ground, 
that  the  plurality  principle  ought  to  be  adopted — 
that  we  ought  not  to  spend  a  week  here  in  the 
organization  of  the  government,  and  in  managing 
and  bargaining  how  the  offices  should  be  dis 
tributed.  It  was — I  do  not  say  the  known — but 
it  was  the  avowed  object  of  those  who  called  this 
Convention,  to  prevent  that  great  evil  of  the  organ 
ization  of  the  government  being  delayed  a  whole 
week.  I  have  heard  it  said,  here  or  somewhere, 
that  where  there  has  been  an  abuse,  that  has  lasted 
for  fifteen  or  twenty  years,  and  some  particular 
individuals  have  got  the  benefit  of  that  abuse,  it 
will  not  do  to  stop  it  until  every-body  else  has 
had  a  hand  in  it,  and  has  had  a  chance  to  profit 
by  it  in  the  same  manner ;  and  then  you  can  let 
the  abuse  be  reformed.  Well,  Sir,  here  you  have 
got  a  real  abuse  ;  but  it  seems  that  we  must  not 
touch  it,  until  every-body  has  had  the  advantage 
of  it.  Here  is  a  real  evil ;  every-body  knows  and 
feels  it  to  be  an  evil,  that  the  organization  of  this 
government,  where  there  is  a  distraction  of  senti 
ment  in  the  public  mind,  must  be  delayed  a  week 
at  the  beginning  of  every  year.  It  is  an  evil  that 
has  been  acknowledged,  and  those  gentlemen  who 
reported  in  favor  of  calling  this  Convention,  re 
ported  that  it  would  be  enough  to  pay  all  the 
expense  of  this  Convention,  if  we  could  save  the 
extraordinary  spectacle,  and  the  extraordinary 
cost  of  the  non-organization  of  this  government 
for  an  entire  week  every  year.  What  has  changed 
the  minds  of  gentlemen  upon  this  subject  ?  If 
ever  I  was  in  favor  of  the  majority  principle — 
and,  I  cannot  remember  that  I  ever  was — iflever 


was  in  favor  of  that  principle,  these  very  delays, 
and  difficulties,  and  abuses,  have  long  ago  dis 
abused  my  mind  of  the  idea  that  a  majority  was 
necessary.  They  say  that  a  majority  should 
rule;  but  who  rules  under  the  majority  prin 
ciple  ?  Does  a  majority  rule  ?  No,  Sir  ;  never. 
A  little  band,  a  factious  minority,  rule,  and  always 
have  ruled.  How  came  that  most  excellent  pre 
siding  officer,  and  much  lamented  man,  to  occupy 
the  chair  which  you  now  occupy  in  this  House, 
in  that  political  year  when  the  House  was  so 
divided,  that  the  candidate  of  one  party  received 
just  exactly  as  many  votes  as  the  candidate  of 
another,  and  a  certain  individual  of  my  own 
county,  received  one  vote,  and  one  vote  only  ? 
The  other  two  great  parties  gave  exactly  an  equal 
number,  and  that  gentleman  received  one  vote 
only  ;  but  he  held  that  one  vote  until  enough  to 
make  a  majority  came  to  him  ;  and  the  majority 
ruled,  did  they  ?  I  say  it  is  always  so  ;  there  is  a 
fallacy  in  this  mode  of  argument  that  a  majority 
should  rule.  It  is  putting  it  into  the  power  of  a 
small  portion  of  the  people,  to  defeat  the  whole 
great  bulk  of  the  people ;  that  is  the  operation 
of  the  majority  system.  Thus  a  very  small  pro 
portion  of  the  voters  of  this  Commonwealth,  can 
throw  these  six  offices,  as  articles  of  merchandise, 
into  the  House  of  Representatives.  I  want  to 
keep  them  out  of  it.  I  do  not  believe  in  that  phi 
losophy  at  all,  which  we  have  heard  here  so  many 
times,  that  the  gentleman  who  receives  the  smallest 
number  of  the  votes  of  the  people,  if  he  shall  get 
a  majority  of  the  votes  of  the  House,  and  of  the 
Senate,  will  thus  be  a  majority  governor.  That 
is  the  sublimation  of  political  mathematics,  which 
goes  beyond  my  comprehension.  A  man  who  gets 
less  than  one-third  part  of  the  votes,  somehow 
or  other,  comes  up  here,  and  goes,  as  they  say, 
into  a  most  unequal  House — they  always  say  it 
has  been  very  unequal — which  unequal  House 
has  filled  up  the  Senate  full.  We  have  a  House 
not  representing  the  people  at  all ;  and  the  man 
who  receives  less  than  one-third  part  of  the  votes 
is  passed  from  the  House  to  the  Senate,  and  is 
made,  by  some  hocus  pocus  which  I  never  could 
exactly  understand,  a  majority  governor.  I  have 
heard  it  assumed  here  a  great  many  times,  that 
such  a  gentleman  as  that,  is  in  reality  elected  by 
a  majority  of  the  people. 

I  cannot  understand  that.  I  think  that  if  the 
majority  of  the  people  very  particularly  want  a 
man,  they  will  be  very  apt  to  vote  for  him.  Now 
and  then  you  may  get  a  few  voters,  here  and 
there,  who  will  vote  contrary  to  their  own  notions 
of  what  is  right, — of  course  it  is  not  to  be  won 
dered  at  that  some  few  among  the  people  should 
do  so,  when  we  find  the  same  thing  done  by  gen- 


60th  day.] 


ELECTIONS    BY   PLURALITY. 


115 


Monday,] 


FRENCH  —  WILSON. 


[July  18th. 


tlemen  in  this  Convention, — and  others,  again, 
vote  as  they  are  told  to  vote ;  but  the  great  ma 
jority  of  the  people  vote  as  they  please,  with  per 
fect  independence ;  and  when  we  introduce  such 
a  system  as  to  bring  the  people  to  vote  in  such  a 
manner  as  to  get  a  majority  vote  upon  any  ques 
tion,  then  we  shall  best  advance  the  interests  of 
our  constituents,  and  promote  that  public  good 
which  we  were  sent  here  to  accomplish.  Any 
thing  to  concentrate,  as  I  said  in  the  begin 
ning 

[Here  the  hammer  fell.] 

Mr.  FRENCH,  of  Berkley.  I  have  always 
been  in  favor  of  the  majority  system,  and  I  can 
not,  now,  very  well  make  up  my  mind  to  give  it 
up.  I  have  an  amendment,  which  I  desire  to 
offer  to  the  third  resolution,  which,  I  think,  will 
make  it  stand  a  little  better.  It  is  this  :  after  the 
word  "  ballot"  insert  the  following : — 

But  in  case  of  the  failure  of  election  on  such 
ballot,  then  at  a  subsequent  meeting,  called  for 
that  purpose,  the  person  having  the  highest  num 
ber  of  votes  shall  be  deemed  and  declared  to  be 
elected. 

The  whole  resolution,  if  thus  amended,  will 
then  read 

The  PRESIDENT.  The  amendment  is  not 
in  order  at  this  time,  but  the  gentleman  from 
Berkley  will,  no  doubt,  have  an  opportunity  of 
offering  his  amendment. 

Mr.  FRENCH.  Then,  if  my  amendment  is 
not  in  order,  I  suppose  it  is  not  in  order  to  make 
any  remarks. 

The  PRESIDENT.  The  whole  question  is 
open  to  debate  on  the  first  resolution. 

Mr.  WILSON,  of  Natick.  It  seems  to  me, 
Mr.  President,  that  it  is  rather  too  late  to  go  into 
a  general  discussion  upon  this  question.  Some 
weeks  ago  this  subject  was  discussed  with  great 
ability  for  several  days,  and  a  vote  was  taken  in 
the  largest  Committee  of  the  Whole  that  we  have 
yet  had  ;  we  had  a  larger  vote  than  we  have  had 
upon  any  question  which  has  been  taken  during 
the  session.  The  judgment  of  the  Convention 
was  :  that  for  governor,  lieutenant-governor,  and 
the  other  State  officers,  a  majority  should  be  re 
quired  ;  that  for  members  of  the  House  of  Repre 
sentatives,  and  town  officers,  a  majority  should 
be  required.  The  judgment  of  the  Convention 
then  was  :  that  for  senators,  and  county  and  dis 
trict  officers,  a  plurality  only  should  be  required 
to  elect. 

Mr.  SCHOULER.  I  wish  to  correct  the  gen 
tleman.  There  has  been  no  vote  taken  in  the 
Convention  upon  this  question. 

Mr.  WILSON.     The  gentleman  from  Boston 


is,  I  think,  hypercritical.  There  was  a  vote  taken 
in  Committee  of  the  Whole,  which  I  apprehend 
is  pretty  much  the  same  thing  ;  and  I  say  that  a 
larger  number  of  members  were  present,  and 
voted  on  these  questions,  than  have  been  present 
on  any  contested  point  during  this  session.  I 
believe  that  the  vote  stood  187  to  188.  The 
question  was  then  recommitted  to  a  Committee  ; 
and  I  understood  that  at  that  time  it  was  gener 
ally  conceded,  that  the  judgment  of  the  Commit 
tee  was  to  stand  as  the  judgment  of  the  Conven 
tion,  for  the  reasons  which  were  then  given. 

Now,  Sir,  I  am  in  favor  of  a  majority,  out  and 
out.  I  adhere  to  that  principle.  I  would  accede, 
however,  to  the  plurality  system  in  the  election 
of  district  and  county  officers,  and  senators,  for 
they  must  be  elected  by  the  people.  I  would 
consent  that  it  should  stand  as  reported  by  the 
Committee ;  but,  in  regard  to  the  election  of  rep 
resentatives  and  town  officers,  I  am  opposed 
altogether  to  the  Report  of  the  Committee.  I  do 
not  believe  that  it  is  expedient  for  the  Committee 
to  pkce  a  provision  in  the  Constitution  author 
izing  our  town  officers  to  be  chosen  by  a  plural 
ity.  I  doubt  very  much  whether  the  people 
themselves  wish  or  desire  it. 

The  gentleman  from  Boston,  (Mr.  Morey,)  the 
old  political  war-chief  of  the  Whig  party  of  the 
State,  came  out  to-day,  and  pressed  upon  us  the 
necessity  of  going  for  the  plurality  system, 
although  he  says  that  he  is  in  favor  of  a  majority 
system.  They  put  it  on  the  ground  that  the  ad 
dress  put  forth  by  the  gentleman  for  Erving, 
and  other  gentlemen  of  the  legislature,  in  1852, 
represented  this  plurality  system  as  one  great 
object  to  be  achieved  by  the  proposed  Convention. 
Now,  Sir,  it  is  common  for  gentlemen,  in  advocating 
questions  here,  to  say  that  the  people  are  on  their 
side.  I  take  it,  that  we  do  not  know  what  the 
judgment  of  the  people  is  upon  this  question.  I 
can  say  that  through  the  canvass  of  last  year,  the 
political  friends  who  acted  with  me  did  not  advo 
cate  the  plurality  system.  The  press  which  sup 
ported  the  political  organization  with  which  I  act, 
did  not  advocate  the  plurality  system  in  support 
ing  the  call  for  the  Convention.  On  the  contrary, 
the  thirty- six  thousand  men  who  gave  their  votes 
for  this  Convention,  in  November  last,  were  gen 
erally  opposed  to  the  plurality  system,  and  are  so 
to  this  day.  I  know  the  Democratic  party  gen 
erally  goes  for  the  plurality  system.  Some  of 
them  advocated  it  then,  and  many  do  so  now. 
They,  however,  are  here  to  speak  for  themselves. 
But  as  to  the  Whig  party,  all  that  we  know  of 
their  opinions  is,  that  they  went  into  their  State 
conventions,  and  denounced  the  Convention  as  an 
untried  and  hazardous  experiment ;  got  up  at  an 


116 


ELECTIONS   BY   PLURALITY. 


[60th   day. 


Monday,] 


WILSON  —  BRADBURY. 


[July  18th. 


expense  of  $250,000,  to  break  down  the  Consti 
tution  of  the  Commonwealth,  and  to  change  those 
great  principles  which  had  constituted  the  glory 
and  strength  of  the  State  ;  that  we  were  about 
to  strike  at  the  independence  of  the  judiciary, 
and  at  everything  which  was  great  and  glorious 
in  our  past  history.  And  more,  Sir.  My  friend 
from  Boston,  (Mr.  Schouler,)  who  advocates  the 
plurality  system,  was  one  of  the  gentlemen  who 
signed  the  minority  report  denying  the  constitu 
tionality  of  this  Convention,  although  I  will  do 
him  the  justice  to  say,  that,  on  the  floor  of  the 
House  of  Representatives  at  the  time,  he  said  he 
did  not  concur  in  that  doctrine. 

Now,  in  relation  to  this  matter,  I  hope  that 
this  Convention,  if  it  is  to  take  any  portion  of 
this  plurality  doctrine,  is  to  apply  it  where  it  is 
absolutely  necessary  to  apply  it,  and  nowhere 
else  ;  that  we  are  to  stand  by  the  majority  system 
where  we  can  get  along  well  with  that  system. 
It  would  be  difficult  to  send  back  a  State  officer 
to  the  people  for  reelection,  and  therefore,  we 
provide  another  mode  of  election.  We  provide 
for  the  election  of  county  and  district  officers, 
and  senators,  by  the  plurality  system.  But,  Sir, 
the  people  of  the  towns  can  elect  their  town  offi 
cers  and  representatives ;  and  if  necessary  to  do 
so,  they  can  meet  from  day  to  day  in  order  to  do 
it.  If  there  be  any  necessity  for  their  having 
representatives  here,  they  can  govern  themselves 
by  that  necessity. 

If  I  had  my  wish,  I  would  like  to  strike  out 
the  third  resolution,  altogether,  and  substitute 
the  following  in  place  of  it  : — 

Resolved,  That  the  Constitution  be  so  amended 
as  to  provide  that  in  all  elections  of  representa 
tives  to  the  general  court,  when  no  election  is 
effected  at  the  first  trial,  the  meeting  shall  be 
adjourned  from  time  to  time  until  the  meeting  of 
the  legislature  for  which  the  said  representatives 
are  to  be  chosen :  provided,  that  no  one  adjourn 
ment  shall  be  for  a  longer  term  than  six  days. 

When  it  is  in  order,  I  propose  to  move  that  as 
a  substitute  for  the  third  resolution,  and  to  strike 
out  the  fourth  resolution,  altogether. 

Mr.  BRADBURY,  of  Newton.  I  do  not 
propose,  Mr.  President,  to  trespass  upon  the  time 
of  the  Convention,  at  any  length.  I  have  not 
done  so  in  regard  to  any  of  the  great  questions 
which  have  been  agitated  before  it ;  but  I  wish 
to  say  a  word  or  two  upon  one  point.  The  gen 
tleman  from  Salem,  (Mr.  Lord,)  has,  in  part, 
anticipated  what  I  intended  to  say.  Gentlemen 
who  have  looked  through  the  whole  history  of 
this  question,  will  readily  perceive  Avhat  I  mean, 
and  the  point  which  I  wish  them  to  consider. 

The  Report  of  the  Committee  on  the  basis  for 


the  House  of  Representatives  was  presented  to 
this  Convention,  and  defended  by  the  chairman 
of  the  Committee,  upon  the  principle  of  checks 
and  balances,  expressly  and  emphatically,  basing 
his  comments  on  a  text  from  De  Tocqueville,  in 
which  he  proves  that  majorities  are  dangerous — 
that  they  might  prove  to  be  tyrannies,  and  there 
fore,  he  contended  for  municipal  representation 
in  order  that  they  might  be  a  check — upon  what  ? 
Why,  Sir,  upon  popular  representation.  So  he 
then  argued ;  and  those  who  followed  him  have 
so  argued  throughout  this  whole  debate,  in  favor 
of  the  representation  of  municipalities,  because 
they  say  they  want  a  check  upon  the  masses  in 
the  cities,  and  the  Convention  has  justified  the 
arrangement  on  the  ground  of  checks  and 
balances.  Yes,  Sir,  it  has  been  said  over  and  over 
again,  that  because  the  governor  and  Senate  were 
chosen  by  the  people  directly,  and  on  the  munici 
pal  principle,  that  therefore  you  were  justified  in 
departing  from  that  principle  in  regard  to  elec 
tions  for  the  lower  House.  Sir,  when  was  this 
argument  presented  ?  It  was  after  you  had  dis 
cussed  the  question  whether  the  supreme  execu 
tive  and  the  highest  officers  of  the  State  should 
be  chosen  by  a  plurality  or  a  majority,  and  had 
taken  it  away  from  before  the  Convention  with  a 
balance  vote.  And  what  is  done  in  this  Report  ? 
In  case  of  the  failure  of  the  people  to  elect  a 
governor,  you  have  what  you  suppose  to  be  a 
remedial  process  in  the  House  of  Representatives, 
and  yet  you  have  defended  the  basis  of  that 
House  on  the  ground  of  a  system  of  checks  and 
balances.  Sir,  to  have  been  consistent  with  the 
argument  which  has  been  taken  as  a  groundwork 
of  the  basis  of  the  House  of  Representatives,  you 
should  have  given  to  the  Senate  jurisdiction  in 
case  of  the  failure  to  elect  on  the  part  of  the 
people.  Then  you  might  have  said  that  the 
House  of  Representatives  must  be  submitted  to, 
because  it  was  an  offset  to  the  popular  principle 
implied  in  the  other  two  departments  of  the  gov 
ernment. 

If  the  Convention  will  allow  me  for  a  few  mo 
ments,  I  will  quote  what  was  said  upon  this  floor 
in  defence  of  the  town  representation  principle. 
The  gentleman  for  Erving,  in  his  remarks  on 
this  subject,  read  the  following  passage  from  De 
Tocqueville : — 

"Unlimited  power  is  in  itself  a  bad  and  dan 
gerous  thing ;  human  beings  are  not  competent 
to  exercise  it  with  discretion,  and  God  alone  can 
be  omnipotent,  because  His  wisdom  and  His  jus 
tice  are  always  equal  to  His  power.  But  no  pow 
er  upon  earth  is  so  worthy  of  honor  for  itself,  or 
of  reverential  obedience  to  the  rights  which  it 
represents,  that  I  would  consent  to  admit  its  un 
controlled,  and  all-predominant  authority.  When 


60th  day.] 


ELECTIONS   BY   PLURALITY. 


117 


Monday,] 


BRADBURY. 


[July  18th. 


I  see  that  the  right,  and  the  means  of  absolute 
command  are  conferred  upon  a  people  or  upon  a 
king,  upon  an  aristocracy  or  a  democracy,  a  mon 
archy  or  a  republic,  I  recognize  the  germ  of  ty 
ranny,  and  I  journey  onward  to  a  land  of  more 
hopeful  institutions." 

That  is  the  text.  Now  we  have  the  comment 
of  the  chairman  of  the  Committee,  which  has 
been  carried  out  and  amplified  in  a  number  of 
lectures  since.  He  proceeds  : — 

"  This  great  writer,  who  seems  to  have  reflected 
profoundly  upon  the  workings  of  our  institutions, 
says,  that  it  is  not  safe  to  put  power  into  the 
hands  of  an  uncontrolled  majority,  in  the  sense 
in  which  it  would  be  if  the  district  system  pre 
vails.  You  must  have  a  system  of  checks  for  this 
great  majority  of  numbers.  And  this  brings  me 
to  my  last  reason  in  favor  of  this  system,  which 
is  the  doctrine  of  checks  and  balances." 

What  is  the  proposition  here  ?  Why,  we  pro 
pose  to  elect  the  governor  and  council  in  single 
districts,  directly  by  the  people.  We  propose  also 
to  elect  the  Senate  by  the  people,  in  single  sena 
torial  districts ;  and  then  we  propose  to  elect  the 
House  of  Representatives  by  towns,  varying  the 
system  so  far  as  towns  are  concerned,  by  basing 
it,  to  a  certain  extent,  upon  population;  and 
these  features,  taken  together,  will,  I  apprehend, 
make  the  most  perfect  system  of  checks  and 
balances  that  you  can  have.  The  people  will  be 
represented  in  the  Senate  of  Massachusetts,  and 
no  measure  can  be  passed  or  defeated  in  that  body, 
which  a  majority  of  the  people  either  dislike  or 
approve.  They  will  be  potential  in  that  branch 
of  the  legislature,  and  as  they  elect  the  governor 
directly,  he  will  also  represent  the  whole  people. 
There  is  the  security  for  the  people  of  the  Com 
monwealth.  Then,  if  you  base  your  House  of 
Representatives  upon  towns,  mixing  with  it  the 
population  basis,  so  far  as  it  is  practicable,  you 
will  have,  in  one  representative  from  each  town, 
a  check  upon  centralization,  and  also  a  check  up 
on  the  other  branches  of  the  government,  so  that 
it  will  be  on  the  whole  a  very  safe  and  practicable 
system  of  government. 

Sir,  this  has  been  the  doctrine,  in  various  forms, 
advanced  in  this  House,  for  the  defence  of  the 
right  of  town  corporate  representation,  and  as 
justifying  a  departure  from  the  popular  principle. 

And  now  we  have  here,  a  proposition  before 
us,  which  is  almost  certain  to  transfer,  in  a  ma 
jority  of  cases,  the  election  of  governor  some 
where  else.  And  what  has  been  done  ?  What 
was  required  to  be  done,  in  good  faith,  after  this 
declaration  of  doctrine  ?  What  was  the  duty  of 
a  majority  of  this  Convention,  after  holding  forth 
this  doctrine  ?  Was  it  to  send  the  election  of 


governor  to  the  House  of  Representatives  in  the 
first  instance  ?  No,  Sir.  In  consistency  with 
their  principles,  as  declared  here  solemnly  and 
repeatedly,  it  was  their  duty  to  place  the  remedy 
where  the  people  would  exert  that  remedy.  But 
what  are  the  facts  ?  Why,  we  have,  in  the  basis 
of  the  House  of  Representatives,  as  wide  a  de 
parture  from  the  numerical  principle,  as  the  one 
prepared  and  defended  by  the  chairman  of  the 
Committee,  (Mr.  Griswold,)  when  his  remarks 
were  made,  from  which  I  have  already  quoted. 
We  have  a  basis  which  gives,  in  the  beginning, 
now,  a  majority  of  the  House  of  Representatives 
to  one-third  of  the  people  of  Massachusetts.  You 
have  established,  by  adopting  the  proposition  of 
the  gentleman  from  Lowell  thirty  minutes  be 
fore  you  -were  stopped  from  saying  a  word  upon 
the  subject,  a  principle  which  qualifies  and  moulds 
the  basis  of  the  House  of  Representatives — which 
moulds,  and  shapes,  and  transforms  it  more  than 
any  man  in  this  Convention  could  tell,  in  the 
time  allowed  him,  unless  he  is  a  mathematician 
beyond  any  precedent  we  have  ever  had.  There 
are  gentlemen  who  probably  did  know  it,  but  I 
say  to  those  who  had  not  examined  it,  that  no 
man  can  tell  what  effect  the  proposition  will  pro 
duce.  What  will  it  produce  ?  It  does  not  alter 
the  House  for  the  first  ten  years,  but  it  allows 
one-third  of  the  people  to  hold  a  majority  in  the 
House  of  Representatives.  In  1860,  according 
to  the  ratio  used  in  the  pamphlet  prepared  by  the 
ex-secretary  of  state,  the  member  from  North 
Brookfield,  (Mr.  Walker,)  and  which  is  a  per 
fectly  safe  ratio  to  use — (I  wish  to  say  that  here, 
because  it  has  been  often  said  that  the  future  is 
all  an  uncertainty,  but  I  do  not  so  consider  it, 
for  Massachusetts  is  an  exception  to  the  gener 
al  rule  that  ratios  of  increase  diminish  after  a 
state  reaches  a  certain  number  of  inhabitants. 
Her  ratio  is  an  ascending  one,  and,  therefore,  the 
report  to  which  I  have  alluded  is  perfectly  safe 
upon  which  to  base  our  calculations) — in  1860,  I 
say,  the  growing  towns  will  have  more  than  their 
specified  number,  by  these  tables,  because  their 
increase  will  be  by  an  increasing  ratio.  The 
rule  is,  that  after  a  state  has  grown  to  a  certain 
degree,  its  farther  increase  is  by  a  descending 
ratio ;  but  Massachusetts  is  an  exception  to  that 
rule.  If  that  conclusion  is  right,  one-third  part 
of  the  people  of  Massachusetts  will  make  the 
governor,  if  the  people  fail  to  elect  him  now.  In 
1860,  one-quarter  part  of  the  people  of  the 
Commonwealth  will  make  the  governor,  if  the 
people  fail  to  elect  him.  In  1870,  one-fifth  part 
of  the  people  will  make  him,  if  the  people  fail  of 
an  election. 

Well,  Sir,  we  had  an  implied,  if  not  an  express 


118 


AMENDMENTS  TO   THE   CONSTITUTION. 


[60th  day. 


Monday,] 


HALLETT  —  HALE. 


[July  18th. 


pledge,  in  the  arguments  of  those  who  prepared 
this  basis,  that  there  should  be,  in  good  faith,  a 
system  of  checks  and  balances  ;  but  instead  of 
that,  we  have  a  system  proposed  which  throws 
away  the  rightful  expectations  of  all,  and  throws 
into  the  House  of  Hepresentatives  the  power  to 
make  a  governor  when  the  people  fail  to  elect 
him. 

Mr.  OLIVER,  of  Lawrence.  I  move  that  the 
Orders  of  the  Day  be  laid  upon  the  table. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

Amendments  to  the  Constitution. 

Mr.  HALLETT.  There  is  a  subject  upon  the 
calendar  which,  I  think,  may  be  disposed  of  this 
evening.  It  stands  in  the  list  of  unfinished  Jausi- 
ness,  and  is  document  number  seventy- five  of 
the  Convention,  relating  to  the  subject  of  Amend 
ments  to  the  Constitution.  I  move  that  the  Con 
vention  resolve  itself  into  a  Committee  of  the 
Whole  upon  that  subject. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

The  Convention  accordingly  resolved  itself  into 

COMMITTEE    OF   THE   WHOLE, 

Mr.  Wood,  of  Fitchburg,  in  the  chair,  and  pro 
ceeded  to  the  consideration  of  the  matter  referred 
to. 

The  CHAIRMAN  stated  the  question  which 
was  pending  at  the  time  the  Convention  was  last 
in  Committee  of  the  Whole  upon  the  same  subject, 
to  be  the  motion  of  the  gentleman  from  Bridge- 
water,  (Mr.  Hale,)  to  strike  out  the  second  resolve, 
which  is  as  follows  : — 

Resolved,  That  it  is  expedient  farther  to  pro 
vide  in  the  Constitution,  that,  whenever  the 
legislature  shall  fail  to  submit  to  the  people,  at 
the  periods  designated  in  the  foregoing  resolve, 
the  question  of  calling  a  Convention  for  the  pur 
poses  indicated  therein,  the  qualified  voters  in 
State  elections,  in  the  several  cities  and  towns, 
may,  at  the  next  general  election  thereafter,  and 
upon  notice  of  such  failure  by  the  Secretary  of 
the  Common  wealth.,  whose  duty  it  shall  be  to 
issue  such  notice,  proceed  to  vote  upon  said  ques 
tion  as  though  it  had  been  propounded  by  the 
legislature  ;  and  if,  upon  a  return  to  the  governor 
and  council,  of  the  vote  so  given,  it  shall  appear 
that  a  majority  have  voted  in  favor  of  the  propo 
sition,  the  governor  shall  forthwith  issue  his 
proclamation,  calling  upon  the  voters  of  said  cities 
and  towns,  at  meetings  legally  warned  for  that 
purpose,  to  elect  delegates  to  such  Convention ; 
the  time  and  place  for  holding  its  session,  being 
expressed  therein. 

Mr.  HALLETT,  for  Wilbraham,  proposed  to 


amend,  by  inserting  the  following  as  a  substitute 
for  all  the  resolves : — 

Resolved,  That  it  is  expedient  to  provide  in  the 
Constitution,  that  a  Convention  to  revise  or  amend 
this  Constitution  may  be  called  and  held  in  the 
following  manner  :  At  the  general  election  which 
shall  be  in  the  year  eighteen  hundred  and  seventy 
three,  and  in  each  twentieth  year  thereafter,  the 
qualified  voters  in  State  elections  shall  give  in 
their  votes,  to  be  received,  counted,  returned  and 
declared,  in  the  same  manner  as  by  law  is  pro 
vided  in  the  choice  of  general  officers  at  such  elec 
tion,  upon  the  question  :  "  Shall  there  be  a  Con 
vention  to  revise  the  Constitution  in  conformity 
to  the  provisions  of  the  Act  of  1852,  chapter  188, 
relating  to  the  calling  a  Convention  of  Delegates 
of  the  people  for  the  purpose  of  revising  the 
Constitution  ?"  and  if  it  shall  appear,  by  the  re 
turns  made,  that  a  majority  of  the  qualified  voters 
throughout  the  State,  who  shall  assemble  and 
vote  thereon,  are  in  favor  of  such  revision,  the 
same  shall  be  deemed  and  taken  to  be  the  will  of 
the  people  of  the  Commonwealth,  that  a  Conven 
tion  should  meet  accordingly ;  and  thereupon  del 
egates  shall  be  chosen  on  the  first  Monday  of 
March  next  succeeding,  and  such  delegates  shall 
meet  in  Convention  in  the  State  House  on  the 
first  Wednesday  of  May  succeeding,  in  the  same 
manner  and  with  the  same  authority  as  is  provided 
in  the  second,  third,  and  fourth  sections  of  said 
Act. 

The  general  court  shall  have  power  and  author 
ity  in  any  year  other  than  the  year  above  specified, 
to  submit  to  the  people  the  same  proposition,  to 
be  voted  on  in  the  same  manner,  at  the  next  en 
suing  general  election ;  and  if  it  shall  appear  by 
the  returns  made,  that  a  majority  of  the  qualified 
voters  throughout  the  State,  who  shall  assemble 
and  vote  thereon,  are  in  favor  of  such  revision, 
the  same  shall  be  deemed  and  taken  to  be  the  will 
of  the  people  of  the  Commonwealth,  that  a  Con 
vention  should  meet  accordingly  ;  and  thereupon 
the  same  proceedings,  with  the  same  powers  and 
authority,  shall  be  had,  as  is  provided  in  the  fore 
going  clause  of  this  Constitution. 

The  foregoing  provisions,  shall  in  no  wise  re 
strain  or  impair  the  reserved  right  of  the  people, 
in  their  sovereign  capacity,  at  all  times,  to  reform, 
alter,  or  totally  change  their  Constitution  and 
frame  of  government. 

The  CHAIRMAN.  The  Chair  is  of  opinion 
that  the  motion  of  the  gentleman  from  Bridge- 
water,  (Mr.  Hale,)  has  precedence  of  the  amend 
ment  of  the  gentleman  for  Wilbraham,  (Mr. 
Hallett,)  and  that  the  latter  amendment  will  be 
in  order  after  the  question  shall  have  been  taken 
upon  the  first  motion  to  strike  out  the  second 
section  of  the  resolves. 

Mr.  HALE,  of  Bridgewater.  The  object  I 
desired  to  accomplish,  when  I  made  the  motion 
to  strike  out  the  second  resolve,  was  explained  at 
the  time.  The  motion  made  by  the  gentleman 
for  Wilbraham  seems  to  be  an  entire  new  prop- 


60th  day.]  AMENDMENTS   TO   THE   CONSTITUTION. 


119 


Monday,] 


HALE  —  HALLETT. 


[July    18th. 


osition,  and  one  which  seems  to  me  to  require 
very  grave  consideration  before  it  shall  be  adopted 
by  this  Convention.  By  simply  hearing  it  read, 
it  appears  to  me,  that  there  are  provisions  there 
which  we  should  be  very  cautious  about  adopting, 
and  therefore,  as  the  amendment  proposed  by  the 
gentleman  for  Wilbraham  has  not  been  printed, 
and  as  the  members  of  the  Committee  have  had 
no  time  or  opportunity  to  examine  its  details,  I 
would  suggest  that  the  Committee  now  rise,  re 
port  progress,  and  ask  leave  to  sit  again,  in  order 
that  the  proposition  of  the  gentleman  for  Wilbra 
ham  may,  in  the  meantime,  be  printed. 

The  CHAIRMAN.  The  Chair  would  suggest 
that  if  the  gentleman  from  Bridgewater  should 
withdraw  his  own  motion,  then  the  motion 
of  the  gentleman  for  Wilbraham  will  be  in 
order. 

Mr.  HALE,  of  Bridgewater.  I  do  not  wish  to 
withdraw  my  motion,  until  I  know  something 
more  about  the  amendment  of  the  gentleman  for 
Wilbraham,  and  my  object  is  to  give  the  gentle 
man  time  to  have  his  amendment  printed. 

The  CHAIRMAN.  Did  the  Chair  understand 
the  gentleman  to  move  that  the  Committee  rise, 
report  progress,  and  ask  leave  to  sit  again  ? 

Mr.  HALE.     I  made  that  motion. 

Mr.  HALLETT.  I  think  there  is  no  difficulty 
in  the  Committee's  understanding  this  proposition 
now.  My  proposition  does  not  essentially  vary 
the  import  of  the  Report  of  the  Committee  as 
contained  in  the  second  resolve.  It  is  only  in 
tended  to  carry  out  the  intention  of  that  Report,  as 
I  think,  more  definitely  and  distinctly.  I  hope, 
therefore,  as  the  gentleman  from  Bridgewater 
desires  it,  that  the  question  will  be  taken  upon  his 
motion,  and  then  we  can  proceed  to  the  discussion 
of  this  amendment,  and  we  have  time  to  explain 
and  understand  it ;  and  if  I  can  have  time  for  a 
brief  explanation,  there  is  no  necessity  for  hav 
ing  it  printed. 

Mr.  HALE.  It  seems  to  me  that  the  propo 
sition  of  the  gentleman  for  Wilbraham  is  to  in 
corporate  into  the  Constitution  the  details  of  the 
Act  of  1852,  concerning  which  there  is  so  much 
difference  of  opinion  in  this  Convention,  and  out 
of  it ;  and  I,  for  one,  am  not  willing,  with  so 
much  haste,  to  incorporate  it  into  the  Constitution, 
and  I  think  we  had  better  take  time  to  examine 
and  look  into  it. 

The  question  was  then  taken  upon  the  motion  of 
Mr.  Hale,  that  the  Committee  rise,  report  pro 
gress,  and  ask  leave  to  sit  again  ;  and  it  was  de 
cided  in  the  negative — yeas,  28  ;  noes,  76. 

So  the  Committee  refused  to  rise. 

The  question  was  then  taken  upon  the  motion 
of  the  gentleman  from  Bridgewater,  (Mr.  Hale,) 


to  strike  out  the  second  resolve,  and  it  was  decided 
in  the  affirmative. 

So  the  second  resolve  was  stricken  out. 

Mr.  HALLETT  then  renewed  his  motion  to 
amend,  by  substituting  the  proposition  which 
he  had  submitted  for  the  resolves  reported  by  the 
Committee. 

Mr.  HALLETT.  I  desire  very  briefly  to  ex 
plain  the  proposition  I  have  just  offered.  In  all 
its  leading  characteristics,  it  conforms  to  the  Re 
port  of  the  Committee,  except  that  it  does  not  put 
the  Convention  in  the  power  of  the  legislature. 
It  provides  with  more  caution,  as  I  think,  for  car 
rying  out  the  object  designed  by  the  Committee 
in  their  Report.  That  Report  embraces  three  dis 
tinct  propositions. 

First,  that  periodical  Conventions  may  be  called 
for  revising  the  Constitution  every  twentieth  year. 
We  desire  that  that  shall  be  done  by  a  law — a 
constitutional  and  fundamental  law — which  shall 
execute  itself,  so  that  the  people  hereafter  shall 
have  no  occasion  to  be  dependent  upon  the  leg 
islature  for  its  action,  and  so  as  to  avoid  the  pos 
sibility  of  the  people  and  the  legislature  coming  in 
conflict  with  each  other  upon  the  subject. 

The  second  provision  is,  that  the  legislature  shall 
have  power  to  submit  a  proposition  for  a  Conven 
tion  to  the  people  at  other  times  than  at  these  stated 
periods.  Many  believe  that  under  the  present 
Constitution,  the  legislature  has  not  that  power. 
I  believe  it  has  not.  We  want  now  to  place  the 
provision  in  a  form  which  cannot  be  mistaken  ;  and 
farther  than  that,  when  the  legislature  submits 
such  a  proposition  to  the  people,  and  it  is  adopt  - 
ted  by  the  people,  we  want  that  it  shall  become 
the  will  of  the  people,  requiring  no  subsequent 
action  upon  the  part  of  the  legislature,  and  sub 
ject  to  no  repeal  by  another  legislature  of  different 
party  politics. 

Thirdly,  we  desire,  behind  and  beyond  this,  to 
reserve  to  the  people  the  right  to  alter  and  amend 
their  fundamental  law,  whenever  they  think  prop 
er,  in  the  exercise  of  their  sovereignty. 

Now,  Mr.  Chairman,  I  believe  there  is  no  dele 
gate  to  this  Convention,  holding  the  republican 
doctrine  of  the  right  of  the  people  to  control  their 
own  government,  who  will  not  say  that  these 
propositions  are  right.  The  only  question  for  us  to 
determine,  then,  is,  does  the  proposed  amendment 
carry  them  into  practical  effect  ?  I  have  given 
the  subject  a  good  deal  of  examination ;  and  more 
than  that,  I  have  consulted  with  many  members 
of  the  Convention  relative  to  this  proposition,  and 
I  think  it  will  meet  the  enlightened  and  deliber 
ate  judgment  of  a  majority  of  the  Convention;  I 
am  also  happy  to  say  that  the  proposition  meets 
the  concurrence  of  the  chairman  of  the  Commit- 


120 


AMENDMENTS   TO   THE   CONSTITUTION.  [60th  day. 


Monday, 


HALLETT. 


[July  18th. 


tee  (Mr.  Nayson)  which  reported  the  resolutions 
now  under  consideration. 

Now,  then,  I  will  briefly  refer  to  the  details  of 
this  proposition  to  see  if  it  meets  my  object,  and 
the  object  which  we  all  have  in  view.  It  is  sub 
stantially  the  same  proposition  as  that  embraced 
in  the  Constitution  of  1780,  which  provided  for 
calling  a  Convention  in  fifteen  years  after  its 
adoption.  The  only  difficulty  in  relation  to  that 
proposition  was,  that  it  required  action  upon  the 
part  of  the  legislature  to  call  the  Convention  and 
prescribe  its  powers.  It  failed  of  its  object  be 
cause,  when  the  fifteen  years  had  expired,  the 
legislature  either  took  no  action,  or  took  such  ac 
tion  that  the  Convention  failed  to  be  called.  It 
required  a  two-thirds  vote,  which  defeats  it  of 
course  ;  and  ever  since  that  failure,  the  people  have 
been  taunted  and  told  that  when  that  Convention 
failed  to  be  called,  they  lost  their  right  to  amend 
their  Constitution  in  any  other  way  except  by 
such  amendments  as  the  legislature  chose,  from 
time  to  time,  to  submit  to  them.  Hence,  it  is  im 
portant,  in  the  new  Constitution,  to  avoid  that 
difficulty  which  was  met  with  in  revising  the 
Constitution  of  1780.  And  what  is  the  provision 
before  us  ?  It  declares  that  the  question  "  Shall 
there  be  a  Convention  ?  "  shall,  in  1875,  and  in 
every  twentieth  year  thereafter,  be  voted  upon  by 
the  people,  at  the  annual  election,  at  which  time  the 
qualified  voters  in  State  elections  of  the  cities  and 
towns  of  the  Commonwealth  shall  give  in  their 
votes,  to  be  received,  returned,  and  declared  in  the 
same  manner  as  is  by  law  provided  in  the  elec 
tion  of  general  officers. 

By  this  provision,  it  follows,  if  there  are  any 
selectmen  in  towns,  or  any  inspectors  in  cities,  to 
return  votes,  in  short,  if  there  is  any  law  by  which 
votes  are  to  be  received  in  general  elections — by 
which  they  are  to  be  returned,  counted,  and  de 
clared,  then  that  law  applies  to  this  mode  of  vot 
ing  upon  the  question,  so  that  every  citizen  who 
has  the  right  to  vote  in  State  elections,  may  go 
into  the  town  meeting,  in  every  one  of  these 
twentieth  years  and  deposit  a  vote  upon  the  ques 
tion — yea  or  nay.  Of  course,  these  votes  of 
"  Convention,"  or  "  No  Convention,"  will  be 
provided,  if  there  is  any  call  for  them,  and  every 
voter  may  give  in  his  vote,  yea  or  nay.  If  a  ma 
jority  of  the  votes  in  the  Commonwealth  are  in 
favor  of  a  Convention  to  revise  the  Constitution, 
after  the  manner  of  the  act  of  1852,  then  that  shall 
be  construed  as  the  will  of  the  people.  The  Act 
of  1852,  has  in  fact,  become  the  uniform  mode  of 
holding  Conventions.  It  is  the  same  as  that  of 
1820,  by  which  the  Convention  of  1820  was  called. 
These  acts  embody  all  necessary  details,  and  are 
generally  understood  and  approved  of,  so  far  as 


the  direct  act  of  calling  and  holding  a  Convention 
is  concerned.  They  are  almost  verbatim  the  same, 
and  it  has  become  almost  a  common  law  mode  of 
proceeding,  by  which  Conventions  shall  be  called. 
Then,  if  the  majority  of  the  people  say  "Yes," 
what  follows  ?  Why,  this  Act  shall  be  taken  to 
be  the  will  of  the  people,  and  the  Convention  shall 
be  called  accordingly.  And  thereupon  the  people 
will  proceed,  on  the  first  Monday  in  March  follow 
ing,  under  the  forms  of  law  governing  elections, 
in  all  the  towns,  to  choose  delegates  to  represent 
them  in  a  Constitutional  Convention.  You  require 
no  action  upon  the  part  of  the  legislature,  from 
first  to  last.  You  have  got  your  law  here,  which, 
if  accepted  by  the  people,  is  to  be  the  declared  will 
of  the  people,  and  must  be  carried  into  effect  ac 
cordingly.  The  selectmen  in  the  towns,  and  the 
inspectors  in  the  cities,  must  call  the  meetings,  or 
be  liable  to  penalties.  They  must  receive  the 
votes  for  delegates,  who  are  to  be  chosen  to  meet 
at  the  State  House,  on  the  first  Wednesday  of 
May,  following.  Thus  you  will  have  the  whole 
process  and  form  of  law  for  calling  a  Convention, 
provided  for  in  the  Constitution,  so  that  no  act  of 
the  legislature  will  be  required  to  call  it,  and  no 
alteration  or  repeal  can  be  made  by  any  subse 
quent  legislature.  I  think,  therefore,  that  this 
provision  is  complete,  so  far  as  the  holding  of  a 
Convention  every  twenty  years  is  concerned. 

But,  if  the  people  do  not  desire  to  have  a  Con 
vention,  then  the  nays  will  have  the  majority 
when  the  vote  is  taken  upon  the  question.  That 
vote  will  btf  proclaimed,  and  that  will  be  the  end 
of  it.  I  cannot  see  what  other  provisions  are 
needed  for  holding  these  periodical  elections.  The 
Act  of  1852  becomes  a  Convention  law,  just  so  far 
as  it  is  applicable  to  the  year  the  Convention  is 
held. 

The  second  proposition  relates  to  the  power  of 
the  legislature  for  submitting  the  question  of 
calling  a  Convention  at  times  other  than  at  these 
specified  periods.  I  want  that  the  legislature 
should  have  express  power  to  do  it,  and  I  want 
that  power  should  be  put  in  the  Constitution  ;  be 
cause,  I  trust  that  hereafter  we  shall  have  no 
powers  exercised  by  the  legislature  which  are  not 
in  the  Constitution.  And  what  is  this  provision  ? 
It  is  that  the  general  court  shall  have  power  and 
authority  in  any  year  between  these  specified  pe 
riods,  to  submit  the  same  question  to  the  people, 
to  be  voted  on  in  the  same  manner,  and  the  re 
turns  to  be  received  and  declared  in  the  same 
manner  as  is  provided  for  in  the  case  of  the  pe 
riodical  elections.  And  if  a  majority  of  the  peo 
ple  are  in  favor  of  calling  a  Convention,  the  same 
proceedings  are  to  be  had  as  are  provided  for  in 
the  first  clause  of  this  amendment. 


60th  day.]  AMENDMENTS    TO   THE    CONSTITUTION. 


121 


Monday,] 


HALLETT. 


[July  18th. 


Now,  what  is  the  effect  of  that  ?  The  legisla 
ture  at  any  time,  may  vote  to  submit  the  ques 
tion  to  the  people  :  "  Shall  a  Convention  be  called 
according  to  the  Act  of  1852  ? "  The  people  vote 
upon  that  question  in  the  several  cities  and  towns 
— these  votes  are  returned,  counted  and  declared, 
and  if  there  is  a  majority  in  favor  of  calling  a 
Convention,  then  the  people  proceed  on  the  first 
Monday  in  March  to  elect  their  delegates,  who 
shall  assemble  in  the  State  House  on  the  first 
"Wednesday  of  May  following,  in  the  same  man 
ner  and  with  the  same  powers  as  is  provided  in 
the  2d,  3d  and  4th  sections  of  the  Act  of  1852. 
No  subsequent  act  upon  the  part  of  the  legisla 
ture  is  required,  and  no  subsequent  act  can 
change  or  defeat  the  expressed  will  of  the  people. 
The  legislature,  simply  by  an  act  of  theirs,  sub 
mit  the  question  to  the  people,  and  if  the  people 
vote,  a  majority  of  them,  in  favor  of  the  Conven 
tion,  the  matter  is  then  beyond  the  control  of  the 
legislature  ;  and  no  action  of  theirs  can  affect  it. 
I  think  these  two  propositions  will  cover,  sub 
stantially,  any  case  that  may  arise,  because  if  a 
majority  of  the  people  want  a  Convention,  they 
will  have  a  majority  of  delegates  in  the  legisla 
ture  who  will  vote  to  submit  the  question  to  the 
people. 

But,  still,  there  may  an  extreme  case  arise, 
when  the  people  will  desire  to  call  a  Convention 
outside  of  any  provision  upon  the  part  of  the 
legislature.  When  more  than  the  voters,  the 
whole  community  may  claim  to  act.  And  this 
third  clause  provides  for  that  extremity.  It  is 
an  extreme  case,  and  I  can  hardly  see  how  it 
could  ever  occur  under  our  system  of  govern 
ment.  But  still,  if  the  legislature  should  come 
to  represent  the  minority  of  the  people,  they 
might  refuse  to  submit  the  question  when  a 
majority  of  the  people  desired  it,  or  the  whole 
people  might  demand  a  different  basis  for  a  Con 
vention.  But  even  in  this  case,  if  the  people 
could  have  a  Convention  once  in  twenty  years,  I 
think  they  would  sooner  wait  for  the  return  of 
the  regular  period,  when  the  question  must,  as  a 
matter  of  necessity,  be  before  them,  than  to 
take  the  matter  into  their  own  hands.  But  then, 
I  want  that  they  should  have  the  right  of  amend 
ing  their  Constitution  at  all  times,  without  a 
revolution  ;  and  therefore  it  is  proper  to  make  a 
provision  which  shall  reserve  to  them  that  right, 
•which  the  Bill  of  Rights  declares  they  should 
have,  to  reform  and  alter  their  Constitution  ;  and 
this  is  put  in  form,  to  prevent  any  construction 
of  the  courts  against  that  great  popular  right. 

The  whole  proposition,  taken  together,  guards 
the  process  by  which  the  people  can  act  in  enforc 
ing  that  right  without  being  dependent  on  the 


legislature  to  move  first,  and  thus  it  carries  out 
that  view  and  enforces,  in  the  most  practical 
manner  that  can  be  done  in  the  Constitution,  the 
admirable  doctrine  which  was  laid  down  at  a  very 
early  period  in  this  excellent  work  which  I  hold 
in  my  hand,  and  from  which  I  have  read  very 
often  in  this  Convention.  It  is  a  very  remarkable 
book.  It  was  published  in  1775,  by  Robert  Bell, 
of  Philadelphia,  under  the  direct  patronage  of 
Washington,  Franklin,  Hancock,  Jefferson,  and 
all  the  great  revolutionary  statesmen  of  that  day, 
for  the  purpose  of  imbuing  the  people  of  this 
country  with  right  opinions  of  constitutional 
liberty.  It  is  the  very  book  that  was  quoted 
from  by  Dr.  John  Warren  when  he  delivered  his 
oration  on  the  fourth  of  July,  1783,  that  being 
the  first  fourth  of  July  oration  ever  delivered  in 
Boston.  The  book  is  entitled  "  BURGH'S  POLITI 
CAL  DISQUISITIONS  ;"  and  I  must  again  ask  the 
attention  of  the  Committee  to  one  or  two  passages 
which  I  quoted  on  a  former  occasion.  He  says, 
p.  456,  of  vol.  iii.  : — 

"  As  the  people  ai'e  the  fountain  of  power,  and 
object  of  government,  so  are  they  the  last  resource 
when  governors  betray  their  trust.  And  hap 
py  is  that  people,  who  have  originally  so  princi 
pled  their  Constitution,  they  themselves  can, 
without  violence  to  it,  lay  hold  of  its  power, 
wield  it  as  they  please,  arid  turn  it,  when  neces 
sary,  against  those  to  whom  it  was  intrusted,  and 
who  have  exerted  it  to  the  prejudice  of  its  original 
proprietors." 

Again,  he  says  : — 

"  In  planning  a  government,  by  representation, 
the  people  ought  to  provide  against  their  own 
annihilation.  They  ought  to  establish  a  regular 
and  constitutional  method  of  acting,  by  and  from 
themselves,  without,  or  even  in  opposition  to 
their  representatives,  if  necessary  !  " 

Now,  Sir,  that  is  a  lesson  for  us.  It  is  precisely 
the  point  to  which  I  think  these  resolutions  should 
be  carried,  and  embodied  in  the  Constitution,  so 
as  to  enable  the  people  to  alter  and  amend  their 
Constitution  without  ever  coming  in  conflict  with 
their  own  government,  under  any  circumstances. 
Such  instances  of  conflict  have  occurred  in  other 
States ;  and  it  is  known  to  this  Convention,  that 
during  the  early  period  of  its  session,  we  were 
told  that  the  Convention  was  entirely  at  the  mercy 
of  the  legislature,  which  could,  at  any  moment, 
by  repealing  the  Act  under  which  it  was  called, 
render  its  session  unlawful.  I  therefore  hope  we 
shall  provide,  in  the  new  Constitution,  against 
any  such  possible  emergencies,  or  conflicts,  and 
remove  all  the  doubts  and  denials  of  the  lawyers 
as  to  how  we  are  to  collect  the  will  of  the  people 


122 


AMENDMENTS  TO  THE  CONSTITUTION. 


[60th  day. 


Monday,] 


GILES. 


[July  18th. 


without  the  consent  of  the  legislature.  And  we 
should  adopt  this,  not  only  as  a  great  popular 
measure,  but  also  as  a  conservative  measure,  a 
peaceful  measure  for  reforms  and  changes  in  gov 
ernment,  by  the  popular  will,  without  danger, 
and  without  the  necessity  of  resorting  to  physical 
revolution.  That  is  my  sole  purpose,  and  if  it 
can  be  secured  in  this  mode,  or  in  any  other 
which  shall  be  found  adequate  to  the  purpose,  I 
shall  be  satisfied  that  the  great  and  inherent  will 
of  the  people,  which  is  now  denied  to  them  by 
courts  and  lawyers,  has  been  affirmed. 

Mr.  GILES,  of  Boston.  I  do  not  rise  for  the 
purpose  of  opposing  the  amendment  of  the  gen 
tleman  for  Wilbraham,  (Mr.  Hallett,)  because  I 
said  the  other  day  that  I  agreed  with  him  in 
reference  to  this  subject.  I  have  seen  the  amend 
ment  now  before  us,  and  the  only  objection  I 
have  to  it  is  its  length  and  complexity,  which  I 
fear  will  impede  its  adoption,  if  not  defeat  it 
entirely. 

The  difficulty  in  incorporating  a  Convention 
law  into  the  Constitution  is,  that  if  it  goes  into 
specific  provisions,  it  is  too  long ;  and  more  than 
that,  it  undertakes  to  settle  details  which  should 
be  left  to  posterity.  I  agree  with  the  gentleman 
for  Wilbraham,  and  I  believe  he  agrees  with  me, 
that  we  do  not  wish  to  say  in  the  Constitution 
that  it  shall  be  constitutional  to  violate  the  Con 
stitution  ;  nor  do  we  wish  to  say  that  it  shall  be 
legal  to  violate  law.  When  a  revolution  comes, 
basing  itself  upon  the  right  of  revolution,  it  will 
declare  itself,  and  needs  no  declaration  from  us 
beforehand.  What  we  wish  is,  to  secure  to  the 
people  the  right  of  amending  their  Constitution 
whenever  they  see  proper  ;  so  that  when  they 
declare  their  will  to  that  end,  no  hostile  legisla 
ture  shall  ever  have  the  power  to  come  in  and 
baulk  them  in  their  purpose.  And  when  I  say 
the  will  of  the  people,  I  mean  that  will  legally 
expressed.  I  mean  the  people  in  the  legislature, 
otherwise  the  people  in  the  towns  at  one  end  of 
the  State  might  vote  for  one  proposition,  and 
those  at  the  other  end  for  another,  and  their  votes 
would  bind  nobody.  What  I  want  is,  the  will 
of  the  people  in  the  legal  sense  ;  that  the  popu 
lar  voice,  constitutionally  expressed,  shall  be  con 
sidered  and  recognized  as  obligatory.  I  want  it 
to  have  "  free  course,  to  run  and  be  glorified ;  " 
I  speak  it  with  deference. 

Now,  I  should  be  content  with  this  first  reso 
lution.  In  fact,  I  should  prefer  the  first  resolu 
tion,  with  an  addition  which  I  shall  read  for 
information,  and  which,  at  a  proper  time,  I  pro 
pose  to  offer.  I  shall  be  willing  to  strike  out  the 
second  and  third  resolutions  entirely.  The  lan 
guage  of  the  first  is  a  little  objectionable,  but  I 


take  it  the  Committee  on  Revision,  will  take  care 
of  that.  I  say,  then,  that  I  should  rather  prefer 
the  first  resolution,  with  this  addition  : — 

And  the  right  of  the  people  at  all  times  to 
amend  that  constitution  of  government,  by  Con 
vention  or  otherwise,  according  to  their  will, 
legally  expressed,  shall  never  be  restrained  or 
obstructed  in  this  Commonwealth. 

It  seems  to  me  that  this  will  secure  all  that  is 
necessary  for  us  to  secure  in  the  Constitution. 
It  will  provide,  that  when  the  people  have  signi 
fied  their  will,  the  legislature  shall  not  obstruct 
or  restrain  that  will ;  but  on  the  contrary,  that 
they  shall  promote  and  assist  in  carrying  it  into 
execution.  So  that,  if  the  people  have  willed  a 
Convention,  and  in  the  mean  time  the  State 
House  should  burn  down,  it  would  be  the  duty 
of  the  legislature,  if  in  session,  to  provide  an 
other  place  for  the  meeting  of  the  Convention. 
Or  if  any  other  unforeseen  event  should  inter 
vene  to  render  legislation  necessary,  the  legisla 
ture,  if  in  session,  should  perform  it  with  a  view 
to  carry  out  the  will  of  the  people.  I  will  go  any 
length  to  secure  that  object.  If  it  should  be 
thought  advisable  to  go  farther  than  that  first 
resolution,  with  the  addition  I  have  indicated, 
and  have  a  Convention  Act  incorporated  into  the 
Constitution,  you  must  do  one  of  two  things : 
You  must  either  adopt,  as  a  part  of  your  resolu 
tion,  the  Convention  Act  of  1852, — which  is  the 
same  as  that  of  1819,— and  entail  that  for  sub 
stance  and  detail  upon  posterity,  whether  it  will 
suit  or  not,  or  you  must  depend  upon  the  inter 
vention  of  the  legislature. 

I  have  drawn  up  a  Convention  Act,  which  I 
should  prefer,  if  the  Committee  would  go  that 
length,  as  a  substitute  for  the  one  offered  by  my 
friend  for  Wilbraham,  (Mr.  Hallett,)  for  the  rea 
son  that,  instead  of  calling  upon  the  people  to 
vote  whether  they  want  a  Convention,  and  then 
to  vote  for  delegates  to  that  Convention,  or  de 
pending  upon  future  legislation,  or  incorporating 
existing  law  into  the  Constitution,  it  will  secure 
a  Convention  once  in  twenty  years.  I  will  read 
it  for  the  information  of  the  Committee,  and  as  a 
part  of  my  remarks  : — 

Resolved,  That  the  qualified  voters  in  State 
elections,  in  the  several  cities  and  towns,  shall,  in 
the  year  eighteen  hundred  and  seventy-three,  and 
in  each  twentieth  year  thereafter,  and  as  much 
oftener  as  shall  be  required  by  law,  elect  Con 
vention  Delegates,  in  conformity  with  the  law 
then  in  force  for  the  election  of  representatives ; 
and  the  delegates  so  elected  shall  meet  at  the 
State  House  on  the  first  Wednesday  of  May  next 
after  said  election,  and  when  organized,  with  not 
less  than  one  hundred  members  as  a  quorum  for 


60th   day.]  AMENDMENTS  TO   THE   CONSTITUTION. 


123 


Monday,] 


CHURCHILL  —  WILSON  —  ASPINWALL. 


[July  18th. 


the  transaction  of  business,  may  consider,  and 
adopt,  and  submit  to  the  people  for  their  ratifica 
tion,  such  amendments  of  the  Constitution,  as 
shall  be  deemed  best ;  and  the  right  of  the  people, 
at  all  times,  to  amend  their  constitution  of  gov 
ernment,  by  Convention,  or  otherwise,  according 
to  their  will  legally  expressed,  shall  never  be 
restrained  or  obstructed  in  this  Commonwealth. 

Mr.  CHURCHILL,  of  Milton.  I  am  op 
posed  to  the  proposition  which  has  been  submit 
ted  to  us  upon  this  subject,  because  I  see  no  good 
reason  or  sense  in  it.  It  seems  to  me  it  is  an 
attempt  to  foresee,  for  fifteen  or  twenty  years, 
when  the  people  of  this  Commonwealth  will  need 
and  require  a  Convention  to  reform  their  Consti 
tution,  which  we  had  better  leave  to  the  people 
themselves.  I  contend  that  we  should  leave  the 
matter  as  it  stands  in  the  Bill  of  Rights,  and  upon 
the  precedent  set  in  calling  this  Convention.  The 
Bill  of  Rights  declares  nearly  all  that  the  gentle 
man  from  Boston,  (Mr.  Giles,)  who  has  just 
taken  his  seat,  has  embraced  in  his  proposition, 
and  the  precedent  cited  for  calling  this  Conven 
tion  will  enable  the  people  hereafter,  when  they 
desire  a  Convention,  to  demand  of  the  legislature 
that  they  shall  pass  an  act  for  that  purpose.  It 
seems  to  me  that  such  a  proposition  as  this  is 
nothing  more  or  less  than  subjecting  this  subject 
of  calling  a  Convention  to  the  decision  of  political 
parties,  and  the  party  which  is  dissatisfied  with 
the  operation  of  the  Constitution,  will  be  perpet 
ually  submitting  a  proposition  for  calling  a  fresh 
Convention.  I  think  the  people  hereafter  will 
be  able  to  settle  better  than  we  can,  when  they 
need  a  Convention  ;  and  when  they  need  it,  they 
have  a  precedent  and  Bill  of  Rights,  to  which  they 
can  resort. 

I  move  that  the  subject  be  indefinitely  post 
poned. 

Mr.  WILSON,  of  Natick.  The  proposition 
made  by  the  delegate  for  Wilbraham,  (Mr.  Hal- 
lett,)  is  rather  a  lengthy  one. 

Mr.  ASPINWALL,  of  Brookline.  I  rise  to  a 
question  of  order.  I  suggest  that  there  is  not  a 
quorum  present. 

Mr.  OTIS,  of  Sumner.  I  move  that  the  Com 
mittee  rise,  report  progress,  and  ask  leave  to  sit 
again. 

Mr.  WILSON.     I  believe  I  have  the  floor. 

The  CHAIRMAN.  The  Chair  understands 
that  the  gentleman  from  Natick  has  the  floor. 
The  gentleman  from  Brookline  rises  to  a  point  of 
order,  but  the  Chair  cannot  see  how  that  can  be 
properly  made  at  the  present  time.  Therefore, 
the  gentleman  from  Natick  will  proceed. 

Mr.  ASPINWALL.  Will  the  Chair  allow 
me  to  suggest  that  the  Committee  cannot  sit  if 
there  is  no  quorum  present  ? 


The  CHAIRMAN.  How  are  we  to  ascertain 
that  fact  ? 

Mr.  ASPINWALL.  By  a  count  taken  by  the 
moderators.  That  is  the  way  it  is  done  in  the 
House  of  Commons,  or  any  other  legislative  body. 

The  CHAIRMAN.  The  Chair  is  of  the  opinion, 
that  while  the  gentleman  from  Natick  is  occupy 
ing  the  floor,  that  a  motion  for  a  count  is  not  in 
order. 

Mr.  WILSON.  It  seems  to  me,  Mr.  Chair 
man,  very  strange,  that  gentlemen  who  are  daily 
and  hourly  pressing  upon  the  Convention  the 
importance  of  closing  our  labors  here,  should  find 
it  convenient  to  themselves  to  be  absent  so  much 
of  the  time.  Some  of  us  are  left  here,  however. 
I  suppose  those  who  are  here  at  this  hour,  are 
governed  by  a  sense  of  public  duty  in  remaining  ; 
and,  therefore,  we  had  better  proceed  to  do  the 
business  before  us.  The  proposition  made  by 
the  delegate  for  Wilbraham,  (Mr.  Hallott,)  is  a 
lengthy  one,  and  therefore  \ve  cannot  fully  com 
prehend  it,  unless  it  be  printed,  and  we  have  an 
opportunity  to  examine  it.  The  gentleman  from 
Boston,  (Mr.  Giles,)  has  already  presented  another 
proposition.  It  seems  to  me,  that  a  plain,  clear, 
and  distinct  proposition,  can  be  prepared,  and 
incorporated  into  our  amended  Constitution,  pro 
viding  for  future  amendments.  Some  gentlemen 
of  the  Convention  think  it  unnecessary  to  have 
any  such  proposition  inserted  in  the  Constitution. 
I  do  not  agree  with  these  gentlemen,  in  that 
respect.  Some  gentlemen  think  that  such  a  pro 
vision  would  be  a  limitation  of  the  power  of  the 
people.  I  do  not  so  understand  it.  In  the  de 
bate  upon  the  Berlin  case,  the  judgment  of  this 
Convention  was,  that  the  people  have  a  right  to 
amend  their  Constitution  without  going  to  the 
legislature  for  authority  so  to  do.  Now,  gentle 
men  propose  to  leave  the  Constitution,  in  this 
respect,  precisely  and  exactly  where  it  is  at  pres 
ent.  We  know  that  nearly  all  the  eminent  law 
yers  of  Massachusetts,  believe  that  we  are  sitting 
here  without  any  constitutional  authority — that 
this  Convention  is  an  unconstitutional  body.  My 
friend  for  Manchester,  (Mr.  Dana,)  shakes  his 
head,  but  does  he  not  know  that  in  the  canvass 
of  1851,  that,  for  party  purposes,  the  judgment 
of  the  learned  and  distinguished  gentleman  from 
Cambridge,  (Mr.  Greenleaf,)  and  professor  in  the 
law  school,  who  addressed  the  Convention  the 
other  day,  was  taken  as  an  opinion,  and  that  he 
declared  the  call  for  a  Constitutional  Convention 
was  not  constitutional  ?  Another  eminent  law 
yer  of  Boston,  Mr.  Charles  G.  Loring,  a  man 
whose  opinions  upon  legal  subjects  are  not  sur 
passed  by  any  other  man,  perhaps,  in  Massachu 
setts,  gave  it  as  his  deliberate  opinion,  that  the 


124 


AMENDMENTS   TO   THE    CONSTITUTION.  [60th  day. 


Monday,] 


WILSON. 


[July  18th. 


Act  of  the  legislature  calling  this  Convention,  was 
an  unconstitutional  Act.     The  present  governor 
of  Massachusetts,  in  his  address  to  the  legislature, 
declared  that  Act  to  he  of  douhtful  constitution 
ality.     I  know  that  some  members  of  the  exist 
ing  supreme  court,  have  expressed  the  opinion 
that  the  Act  is  unconstitutional.     I  know  that 
Ex-Judge  Wilde,  who  was  for  thirty  years  and 
upwards  a  member  of  the  supreme  court,  has 
expressed  that  same  opinion.     And  I  say  that 
four- fifths  of  the  eminent  Whig  lawyers  of  Mas 
sachusetts,  believe  to-day,  that  we  are  sitting  here 
in  a  body  not  called  in  accordance  with  the  Con 
stitution   of  Massachusetts.     It  was  just  so  in 
1820.     The  eminent  legal  gentlemen  of  that  day 
denied  the  constitutionality  of  that  Convention. 
I  believe  Judge  Parker  charged  the  grand  jury 
upon  the   subject   of  that  Convention.     In  the 
Convention  of  New  York,  held  in    1821,  Mr. 
Tallmadge,  a  leading  man  of  that  day  in  that 
Convention,  declared  that  body  to  be  unconstitu 
tional.     This  question  of  the  sovereignty  of  the 
people  of  this  country,  of  their  right  to  call  Con 
stitutional  Conventions,  from  the  origin  of  the 
government  to  the  present  time,  has  been  denied 
by  many  eminent  lawyers  who  have  been  called 
statesmen.     The  right  of  the  people  to  call  Consti 
tutional   Conventions,    whenever  and  wherever 
they  please,  without  the  intervention  of  legislative 
bodies,  has  never  yet  been  fully  accepted  by  many 
of  the  eminent  men  of  the  legal  profession  of  this 
country — men  who   borrow   their  ideas  of  our 
institutions  from  England,  instead  of  fully  com 
prehending  the  scope,  genius,  and  spirit  of  our 
institutions.     I  believe  it  to  be  the  duty  of  this 
Convention,  to  insert  a  provision  in  the  Constitu 
tion  for  calling  future  Conventions,  so  that  the 
people  shall   not  depend  upon  the  will  of  the 
legislature,  and  so  that  no  future  professors  of 
Harvard  University,  no  future  judges  of  the  su 
preme  court,  no  future  governors  of  Massachu 
setts,  no  future  attorney- generals  of  Massachu 
setts,  shall  ever  doubt  the  constitutionality  of  a 
Convention  of  the  people  of  Massachusetts.     In 
my  judgment,  we  should  incorporate  a  provision 
of  that  character  into  the  Constitution,  to  give  the 
people   an  opportunity  of  holding   Conventions 
hereafter,  without  coming  to  the  legislature  and 
asking  leave  to  hold  such  Conventions.     I  main 
tain,  that  the  people  of  this  State  have  a  right  to 
order  a  Constitutional  Convention,  whether  the 
legislature  give  them  that  power  or  not.     That  is 
the  American  doctrine  upon  this  subject.     When 
the  present  provisions  of  the  Constitution  are  so 
interpreted,  and  interpreted  too  by  learned  men, 
and  whose  opinions,  in  my  judgment,  lost  us  the 
Convention  in  1851, — for  these  opinions  of  Pro- 


essor   Greenleaf,   and   Charles   G.  Loring,  and 
)ther  eminent  legal  gentlemen,  were  spread  broad 
cast  over  the  State,  as  election  documents, — I  say 
t  is  our  duty  to  incorporate  such  a  provision  into 
the  Constitution,  that  hereafter  the  question  of 
he  constitutionality  of  a  Convention  for  revising 
he  Constitution,  shall  never  be  raised  upon  the 
joil  of  Massachusetts  by  any  lawyer  or  public 
man.      A  provision  of  that  character,   can   be 
framed  and  adopted  by  this  body.     It  does  not 
seem  to  me,  that  it  should  be  a  lengthy  proposi 
tion,  and  it  may  be  brief  and  comprehensive. 
Such  a  provision  is  incorporated  in  the  Constitu 
tions  of  nearly  every  State  of  the  Union.     Gen 
tlemen  tell  us  it  is  only  a  restriction  upon  the 
rights  of  the  people.     Theoretically  it  may  be  so, 
but  practically  it  is  not  so.     Therefore,  I  wish  to 
see  a  provision  of  that  character  incorporated  into 
the  Constitution,  and  if  this  Convention  adjourns 
without  doing  that,  I  believe  we  shall  be  false  to 
our  obligations  here ;  and  you  must  expect,  when 
the  question  is  hereafter  raised,   that  you   will 
have  professors  at  Cambridge  consulted,  and  you 
will  have  a  committee  of  the  Senate  and  House 
of  Representatives  following  the  example  of  the 
minority  committee  of  1852,  who  declared  that 
it  was  unconstitutional  to  have  such  a  Conven 
tion.      I  have  not  the  report  of  that  minority 
committee  before  me,  but  they  reported  that  the 
Act  calling  such  Convention  was  unconstitutional. 
Such  was  the  judgment  of  the  great  mass  of  the 
Whig  party  of  this   State,  declared  before  the 
people  in  public  assemblies,  and  declared  through 
the  columns  of  the  press.     The  Daily  Advertiser, 
and  other  leading  journals  of  this  city,  advocated 
the  repeal  of  that  Act,  as  an  unconstitutional  Act, 
after  the  legislature  came  together,  and  after  the 
governor  had  declared  it  to  be  of  doubtful  consti 
tutionality.      The   gentleman   from   Cambridge, 
(Mr.  Parker,)    came   into   this  Convention  and 
declared  that  he  believed  the  Act  was  constitu 
tional,  but  he  thought  that  the  legislature  had  a 
right  to  repeal  it,  and  turn  us  all  out  of  doors. 
I  do  not  believe  in  this  doctrine.     I  desire  to  see 
placed  in  the  Constitution  a  plain  and  clear  pro 
vision  upon  this  subject.     I  do  not  wish  to  see 
the  legislature  of  this  State  amending  the  Consti 
tution  ;  and  I  trust  that  that  great  work  will  be 
left  hereafter  to  the  agents  of  the  people,  chosen 
for  that  express  purpose. 

On  motion  of  Mr.  BREED,  of  Lynn,  the  Com 
mittee  rose,  and  the  President  having  resumed  the 
chair  of 

THE    CONVENTION, 

The  Committee,  by  their  chairman,  reported  pro 
gress,  and  obtained  leave  to  sit  again. 


61st  day.] 


COMPENSATION    OF   MEMBERS,  &c. 


125 


Tuesday, 


WILSON  —  HOBBS  —  GRISWOLD  —  BRIGGS. 


[July  19th. 


On  motion  by  Mr.  WILSON,  of  Natick,  the 
propositions  submitted  by  Messrs.  Hallett  and 
Giles,  as  substitutes  for  the  resolves  reported  by 
the  Committee  on  future  amendments  to  the  Con 
stitution,  were  ordered  to  be  printed. 

The  Convention  then,  on  motion,  at  seven 
o'clock,  adjourned  until  to-morrow  morning,  at 
nine  o'clock. 


TUESDAY,  July  19,  1853. 

The  Convention  met  pursuant  to  adjournment. 

Prayer  by  the  Chaplain. 

The  Journal  of  yesterday  was  read. 

Delegate  from  Concord. 

Mr.  HOBBS,  of  Weston,  presented  the  cre 
dentials  of  Mr.  CHARLES  C.  HAZEWELL,  elected  a 
delegate  from  Concord,  in  place  of  Mr.  Gourgas, 
deceased,  which  were  received,  and  the  delegate 
took  his  seat. 

Report  from  a  Committee. 

Mr.  GRISWOLD,  for  Erring,  from  the  Com 
mittee  on  the  House  of  Representatives,  reported 
that  it  was  inexpedient  to  act  upon  the  subject  of 
an  order  of  May  25th,  concerning  the  expediency 
of  providing  that  towns  and  districts  may  have 
the  right  to  be  represented  by  any  citizens  of  the 
Commonwealth. 

The  Report  was  referred  to  the  Committee  of 
the  Whole,  and  ordered  to  be  printed. 

Compensation  of  Members. 

The  order  submitted  yesterday  by  Mr.  Wil 
son,  of  Natick,  being  the  first  item  on  the  Orders 
of  the  Day,  was  taken  up  for  consideration. 

It  was  read,  as  follows  : — 

Ordered,  That  the  Committee  on  the  Pay  Roll 
be  instructed  to  make  up  the  same,  including  the 
day  of  final  adjournment,  allowing  to  each  mem 
ber  pay  only  for  his  actual  attendance,  except  in 
cases  of  sickness. 

The  question  being  on  the  adoption  of  the 
order. 

Mr.  BRIGGS,  of  Pittsfield,  said  he  would  like 
to  be  informed  how  the  mover  of  this  order  in 
tended  that  it  should  apply  in  the  case  of  those 
members  who  were  absent  a  part  of  Saturday  and 
a  part  of  Monday.  He  would  like  to  hear  the 
gentleman  explain  what  he  means  by  a  day's 
attendance.  I  do  not,  continued  Mr.  Briggs, 
intend  to  take  up  any  time  in  talking  about  this 
matter,  but  it  does  seem  to  me  that  the  proposition 
should  not  be  adopted. 


There  is  necessarily  a  very  great  inequality  in 
regard  to  the  attendance  of  members  here.  The 
record  shows  that  about  one-half  of  the  members 
of  this  Convention  live  at  their  own  homes,  and 
that  they  go  home  each  evening  and  have  some 
opportunity  to  attend  to  their  business,  while  those 
who  live  farther  have  not  that  privilege.  Some 
who  live  at  a  distance  go  home  every  Saturday 
and  return  on  Monday.  If,  then,  such  a  rule  as 
this  be  stringently  applied,  it  will  cut  off  a  large 
part  of  the  compensation  of  those  wrho  are  so 
situated.  It  appears  to  me  there  should  be  a  little 
more  liberality  in  matters  of  this  kind.  I  speak 
in  behalf  of  those  members  who  live  away  from 
their  homes  as  well  as  myself,  and  whose  only  op 
portunity  to  go  home  is  to  take  a  part  of  Saturday 
for  that  purpose,  and  a  part  of  Monday  to  return. 
So  far  as  I  am  concerned,  I  shall  have  no  hesitation 
in  putting  down  in  my  charge  for  attendance, 
every  day  in  the  week,  although  I  have  been 
absent  on  Saturday  and  Monday.  I  should  have 
no  compunctions  of  conscience  whatever  on  that 
score,  the  more  especially  if  those  gentlemen  who 
go  home  every  day,  leaving  this  hall  long  before 
the  adjournment  in  the  evening,  are  entitled,  un 
der  this  order,  to  make  a  charge  for  such  days' 
attendance.  I  merely  wish  to  be  informed  in 
regard  to  this  order  what  is  to  be  its  construction 
in  this  respect. 

Mr.  WILSON,  of  Natick.  I  can  only  say, 
Mr.  President,  that  it  appears  to  me  that  the 
Convention  ought  to  adopt  some  such  rule  as 
this.  I  think  that  honesty  and  sound  policy 
alike  demand  its  adoption.  What  are  the 
facts  ?  The  record  will  show  that  from  the  com 
mencement  of  the  session  to  the  present  time 
there  have  been  at  least  a  hundred  members 
absent  each  day ;  one-fourth  of  the  members  of 
this  Convention  have  been  daily  absent.  That  is 
about  the  average.  Now,  Sir,  we  have  voted 
ourselves  three  dollars  a  day.  This  is  a  large 
increase  over  the  pay  of  members  of  the  legisla 
ture,  and  if  we  are  to  draw  our  pay  while  we  are 
not  here  attending  to  our  duties,  twenty-five  or 
thirty  thousand  dollars  will  be  taken  out  of  the 
public  treasury,  that  have  not  been  fairly  earned. 
The  gentleman  from  Pittsfield  may  think  it  un 
necessary  to  adopt  a  resolution  of  this  character, 
but  I  confess  I  view  the  matter  differently.  There 
has  been  a  similar  rule  in  the  legislature,  but  what 
has  been  the  action  of  gentlemen  of  the  legislature, 
during  the  past  year  ?  I  hold  in  my  hand  the 
record  of  the  pay  of  the  members  of  the  last  legis 
lature,  taken  from  the  books  of  the  treasury  office, 
which  shows  that  the  last  legislature  must  have 
taken  out  of  the  public  treasury  twenty  or  twenty- 
five  thousand  dollars  that  did  not  belong  to  them. 


12G 


COMPENSATION   OF  MEMBERS. 


[61st  day. 


Tuesday,] 


WlLSOX  —  SCHOULER  —  HYDE. 


[July  19th. 


There  were  two  hundred  and  eighty-seven  mem 
bers  at  least ;  and  from  the  pay  roll  it  would 
appear  that  there  was  an  average  attendance  of 
two  hundred  and  eighty-four  and  a  half,  although 
every  one  knows  that  there  were  eighty  or  ninety 
members  absent  every  day.  Our  record  shows 
that  one-quarter  and  recently  one-third  of  the 
members  of  tlu's  Convention  have  not  attended 
here  daily. 

Now  I  am  one  of  those  who  believe,  that  the 
sense  of  public  justice  should  be  stronger  than 
the  instinct  of  public  plunder.  I  am  in  favor  of 
having  our  pay  while  we  are  here,  attending  to 
our  duties  ;  and,  while  we  are  at  home,  attending 
to  our  own  private  business,  let  us  pay  ourselves. 
I  have  not,  myself,  been  absent  from  the  Conven 
tion,  for  a  single  hour,  from  the  time  of  its  first 
meeting  until  the  present  time.  I  have  not  been 
at  home,  because  I  cannot  go  home,  while  the 
Convention  is  in  session,  without  absenting  my 
self  from  some  one  or  more  of  its  sittings.  And 
I  feel  it  to  be  my  duty  to  remain  here,  so  long  as 
the  public  business  remains  to  be  done.  I  think 
there  is  only  one  fair  and  honest  way  of  dealing, 
in  making  up  the  pay  roll.  It  is  that  members 
shall  receive  pay  while  attending  to  their  duties, 
and  not  while  absent.  What  I  wish,  is,  that  the 
Committee  on  the  Pay  lloll  should  see  to  it,  that 
a  proper  reduction  is  made  for  absences,  and  that 
money  be  not  paid  where  no  service  is  rendered. 
Mr.  SCIIOULER,  of  Boston.  I  have  nothing 
to  say  in  regard  to  this  order,  but  I  do  wish  to 
correct  au  erroneous  impression  that  may  go 
abroad,  in  regard  to  the  last  legislature  taking 
twenty- five  or  thirty  thousand  dollars  out  of  the 
public  treasury  which  did  not  belong  to  them,  as 
would  appear  to  be  the  case,  according  to  the 
testimony  of  the  gentleman  from  Natick.  It 
appears  he  has  been  down  to  the  office  of  the 
Auditor,  and  found  out  that  thirty  thousand  dol 
lars  have  been  taken  out  of  the  State  treasury 
by  the  members  of  the  last  legislature,  without 
any  authority. 

Mr.  WILSON.  Will  the  gentleman  allow  me 
to  explain  ? 

Mr.  SCHOULER.  Yes,  Sir.  I  think  it  re 
quires  explanation. 

Mr.  WILSON.  I  wish  to  say  to  the  gentle 
man  from  Boston,  that  when  he  undertakes  to 
repeat  a  statement  made  by  me,  he  ought  at  least 
to  state  it  correctly.  What  I  said  was  this  :  that 
in  my  judgment  there  were,  as  appeared  by  the 
record,  eighty  or  ninety  members  of  the  last  leg 
islature  absent  daily ;  and,  that  being  so,  from 
twenty  to  twenty- five  thousand  dollars  must 
have  been  drawn  from  the  treasury  by  members 
of  that  legislature,  that  had  not  been  earned  by 


them.     That  is  what  I  said,  and  I  am  ready  to 
stand  by  it. 

Mr.  SCHOULER.  That  is  exactly  what  I 
said,  or  intended  to  say,  that  accordirg  to  the 
gentleman's  statement,  twenty  or  twenty- five 
thousand  dollars  were  taken  out  of  the  State 
treasury  wrongfully.  Now  I  do  not  know  how 
it  may  be.  I  presume  the  figures  of  the  gentle 
man  are  right,  in  regard  to  the  attendance  of 
members  of  the  legislature.  Every-body  knows 
that  they  have  a  rule  in  the  legislature — and  there 
is  a  similar  rule  here — that  every  member  shall 
keep  an  account  of  his  own  time,  and  make  re 
turns  of  his  attendance  to  the  Committee  on  the 
Pay  Roll.  And  the  custom  has  been,  from  time 
immemorial,  I  believe,  for  members  to  return 
quite  as  much  time  as  the  rule  permitted,  and 
this  practice  has  not  been  confined  to  members  of 
the  last  legislature.  If  the  gentleman  had  only 
pursued  the  investigation,  he  would  have  found, 
that  all  legislatures,  heretofore,  have  pursued  the 
same  course.  Members  think  they  are  entitled  to 
pay,  whether  here  or  not.  I  will  state  for  my 
self,  that  I  never  did  take  a  day's  pay  for  a  day 
on  which  I  did  not  attend ;  but  I  am  aware  that 
members  who  have  been  absent  attending  to  their 
own  private  business,  and  who  have  not  been  in 
attendance  in  the  legislature  more  than  half  the 
time,  have  drawn  more  pay  for  the  session  than 
I  have,  although  I  had  been  present  every  day 
with  the  exception  of  two  or  three.  I  merely 
rose  to  correct  an  erroneous  impression,  that 
might  naturally  be  entertained  in  view  of  the 
representation  of  the  gentleman  from  Natick,  in 
reference  to  the  last  legislature  being  culpable  in 
this  matter,  more  than  former  ones.  I  do  not 
think  there  is  any  good  grounds  for  making  the 
distinction. 

Mr.  WILSON.  I  did  not  mean,  Sir,  to  speak 
of  the  last  legislature  as  being  at  all  different  from 
those  which  preceded  it.  But  I  have  only  ex 
amined  in  reference  to  that,  and  in  my  opinion 
the  legislatures  of  the  last  six  years,  have  pur 
sued  about  the  same  course. 

Mr.  SCIIOULER.  That  is  what  I  want  to 
get  at.  I  do  not  wish  that  the  last  legislature 
should  bear  all  the  blame  to  which  others  are 
equally  liable.  I  think  each  member  ought  to 
keep  an  account  of  his  own  time,  and  render  a 
correct  account  to  the  Committee.  Therefore,  I 
see  no  necessity  for  this  resolution. 

Mr.  HYDE,  of  Sturbridge.  I  think  this  reso 
lution  altogether  unnecessary.  Members  will  see 
that  the  twenty- seventh  rule  prescribes  that  every 
member  shall  keep  an  account  of  his  own  attend 
ance  and  travel,  and  deliver  the  same  to  the  Com 
mittee  appointed  to  make  up  the  Pay  Roll,  and 


61st  day.] 


COMPENSATION   OF   MEMBERS. 


127 


Tuesday,]       LIVERMORE —  RANTOUL —  WHEELER  —  BUTLER  —  EDWARDS — WILSON.    [July  19th. 


on  his  failure  so  to  do,  he  shall  be  omitted  from 
the  pay  roll ;  and  no  member  shall  receive  pay  for 
any  weekday  on  which  he  has  not  actually  at 
tended,  except  in  case  of  sickness.  It  seems  to 
rae,  therefore,  that  this  order  is  wholly  unneces 
sary  ;  and  for  the  purpose  of  saving  time,  I  move 
that  it  be  laid  upon  the  table. 

Mr.  LIVERMORE.  I  will  ask  the  gentleman 
to  withdraw  his  motion  for  a  moment. 

Mr.  HYDE.  To  accommodate  my  friend  from 
Cambridge,  I  will  withdraw  it. 

Mr.  LIVERMORE.  I  came  in  just  as  my 
friend  from  Xatick  was  administering  either  some 
advice,  or  a  rebuke,  to  the  Committee  on  the  Pay 
Roll.  I  do  not  know  why.  I  heard  only  the 
conclusion  of  his  remarks,  wherein  he  said  he 
hoped  the  Committee  would  see  to  it  that  no 
member  was  paid  for  any  day  that  he  is  not  in 
attendance.  Now,  I  do  not  know  how  the  Com 
mittee  on  the  Pay  Roll  is  to  know  when  every 
member  is  here,  and  when  not  here.  Are  they  to 
go  round  and  find  out  who  are  absent,  and  keep 
a  record  of  the  absentees  ?  The  Committee  on 
the  Pay  Roll  have  agreed  to  send  to  each  member 
a  certificate  to  be  signed  by  him,  stating  the  time 
of  his  attendance  and  travel,  in  accordance  with 
the  rule  that  has  just  been  read.  Now,  I  do  not 
know  what  more  the  Committee  can  do ;  they  are 
not  the  keepers  of  the  consciences  of  members  of 
the  Convention ;  and  if  gentlemen  see  proper  to 
send  in  a  false  certificate,  it  is  a  matter  which 
rests  wholly  with  themselves,  though  I  trust  no 
such  imputation  will  be  made.  I  will  add,  that 
the  Committee  have  decided  not  to  insert  any 
name  upon  the  pay  roll,  unless  accompanied  by  a 
certificate,  signed  by  the  member.  I  believe  this 
has  always  been  the  custom. 

Mr.  RANTOUL,  of  Beverly.  The  gentleman 
from  Boston  has  stated  that  the  custom  has  been, 
from  time  immemorial,  that  members  of  the  leg 
islature  charge  for  attendance  when  they  are  not 
actually  in  attendance.  I  must  take  the  liberty 
of  differing  from  the  gentleman,  and  saying  that 
within  the  memory  of  man,  the  custom  has  been 
different.  I  have  had  some  experience  in  the 
legislature,  upwards  of  twenty  years  ago,  and  I 
recollect  very  well  that  the  custom  then  was,  to 
make  a  deduction  from  the  pay  of  a  member 
when  absent,  attending  to  his  own  private  busi 
ness.  The  practice  which  the  gentleman  alludes 
to,  as  having  prevailed  from  time  immemorial, 
must  certainly  have  grown  up  within  the  last 
twenty  years. 

Mr.  YVHEELER,  of  Lincoln.  I  will  move  to 
amend  the  proposition  of  the  gentleman  from 
Natick,  so  as  to  make  it  read,  that  members  shall 
certify  their  attendance,  agreeably  to  the  twenty- 


seventh  rule,  under  oath.  I  will  remark,  that  I 
made  a  similar  proposition  in  the  last  legislature, 
and  I  think  it  is  one  that  it  is  very  proper  to 
adopt.  Members  ought  not  to  be  paid  for  attend 
ance  when  not  here  attending  to  the  public  busi 
ness. 

Mr.  BUTLER,  of  Lowell.  I  wish  simply  to 
say,  Sir,  that  the  gentleman  from  Lincoln  states 
the  fact  correctly,  that  he  offered  this  proposition 
in  the  last  legislature  ;  and,  Sir,  I  will  add  what 
he  omitted  to  inform  us  of,  that  we  voted  it  down 
almost  unanimously.  [A  laugh.] 

Mr.  EDWARDS,  of  Southampton.  I  should 
like  to  move  to  amend,  so  that  every  member 
shall  be  obliged  to  state  how  many  hours  he  has 
been  here  on  successive  days.  If  the  gentleman 
will  adopt  that  modification,  and  make  ten  hours 
constitute  a  day's  work,  I  shall  be  willing  to  go 
for  it.  I  have  attended,  each  day,  until  the  close 
of  the  proceedings,  but  I  have  noticed  that  there 
are  gentlemen  who,  after  five  o'clock,  each  day, 
absent  themselves.  We  cannot  equalize  the  mat 
ter.  Some  gentlemen  have  attended  one  hour, 
and  others  have  attended  closely  to  business  until 
the  close  of  the  sessions  each  day. 

Mr.  WILSON.  I  wish  to  say,  in  regard  to 
the  amendment  proposed  by  the  gentleman  from 
Lincoln,  that  I  can  see  no  necessity  for  its  adop 
tion  ;  on  the  contrary,  I  do  not  see  how  it  can  be 
adopted,  and  carried  out.  I  take  it,  that  the 
gentlemen  who  have  not  attended  the  sittings 
of  the  Convention  every  day,  will  find  it  very 
difficult  to  make  up  a  statement  of  their  at 
tendance,  under  oath.  They  ought  not  to  be 
required  to  do  anything  of  the  kind.  All  that 
can  be  expected  of  members  of  this  Convention, 
who  have  not  been  able  to  be  here  daily,  is  this : 
that  in  making  up  their  account,  they  should 
endeavor  to  deal  fairly  and  honestly  with  the 
Commonwealth,  and  to  deduct  those  days  on 
which  they  think,  or  have  reason  to  know,  that 
they  have  been  unable  to  attend  here.  Now, 
the  gentleman  says  we  have  a  rule  of  that  char 
acter  ;  so  we  have,  and  have  had  during  the  last 
six  or  eight  years,  but  we  have  not  acted  up  to  it. 
It  has  not  been  at  all  operative.  I  do  not  know 
that  it  will  be  of  any  avail  if  we  pass  this,  but 
we  had  better  adopt  it,  nevertheless,  and  act  up 
to  it,  if  we  can.  As  to  the  rule  in  the  legisla 
ture,  it  is  a  mere  matter  of  form.  No  attention 
is  paid  to  it.  In  1841  and  1842,  it  was  the 
practice  to  deduct  the  time  when  absent.  Nearly 
all  the  members  did  it ;  but,  during  the  last  seven 
or  eight  years,  it  has  grown  into  a  practice  to  allow 
for  attendance  when  members  are  not  here.  Now, 
Sir,  I  hope  that  the  Convention  will  set  the  example 
of  dealing  fairly  and  honestly  with  the  Common- 


128 


COMPENSATION    OF   MEMBERS. 


[61st  day. 


Tuesday, 


LlVEIlMORE  —  BlUGOS  —  WlLSON. 


[July  19th. 


•wealth  in  this  matter,  and  that,  after  voting  three 
dollars  a  day,  to  each  member,  we  shall  not  take 
out  of  the  public  treasury  any  more  funds  than 
are  required  to  remunerate  members  for  actual 
attendance.  Here  is  a  simple  proposition,  order 
ing  the  Committee  to  make  up  the  pay  roll  ac 
cording  to  the  rule  we  have  adopted,  and  I  see 
no  reason  why  it  should  be  opposed.  If  it  should 
be  opposed,  and  voted  down,  it  will  surely  be 
taken  as  an  indication  that  we  mean  to  pay  our 
selves  for  all  the  time,  whether  we  have  been 
absent,  or  whether  we  have  been  in  attendance. 

Mr.  LIVERMORE,  of  Cambridge,  asked  for 
the  reading  of  the  order. 

It  was  accordingly  read,  by  the  Secretary. 

Mr.  LIVERMOHE.  It  appears  to  me,  Sir, 
that  there  is  an  incongruity  in  the  phraseology  of 
that  order,  for,  as  I  understand  it,  it  directs  the 
Committee  on  the  Pay  Roll  to  make  up  the  Com 
mittee  on  the  Pay  lloll.  It  strikes  me,  that  that 
Committee  has  been  made  up  for  some  time,  and 
are  ready  to  act. 

Mr.  BRIGGS.  I  do  not  see  the  necessity  for 
any  such  order  as  this.  At  the  beginning  of  this 
session,  this  Convention  prescribed  a  rule  by 
which  members  have  been  drawing  their  pay  for 
attendance,  and  it  seems  to  me,  that  it  is  only 
necessary  that  the  order  should  instruct  the  Com 
mittee  to  make  up  the  pay  roll ;  they  will  un 
derstand  how  to  do  it.  I  should  like  to  have  the 
sense  of  the  Convention  as  to  what  we  are  to  do 
in  this  matter.  I  stated,  when  up  before,  that  if 
I  occasionally  went  home  on  Saturday  night,  and 
returned  on  Monday,  I  should  feel  authorized 
and  perfectly  justified  in  putting  those  two  days 
into  my  account  for  attendance,  and  if  it  is  not 
right  to  do  so,  I  should  like  to  be  so  informed. 
If  those  members  of  the  Convention,  from  the 
country,  who  come  here  and  sit  from  nine  o'clock 
in  the  morning  until  the  hour  of  adjournment, 
day  after  day,  making  a  quorum,  when  other  gen 
tlemen  see  fit  to  absent  themselves,  receiving  pay 
for  full  attendance,  I  want  to  know  if,  when 
others  run  home  on  Saturday  night  and  return  on 
Monday  morning,  they  are  to  have  their  allowance 
for  attendance  on  those  two  days  stricken  out, 
while  other  gentlemen  go  home  every  night,  leav 
ing  the  Convention  long  before  the  hour  of  ad 
journment,  and  are  absent  from  the  session  of 
the  body  three  times  as  long  as  those  who  go 
home  on  Saturday,  and  return  on  Monday?  I 
say,  I  should  like  the  instruction  of  the  Conven 
tion  in  regard  to  this  question. 

As  to  the  matter  of  swearing,  I  have  not 
sworn  as  yet,  and  I  hope  I  shall  not  be  com 
pelled,  at  this  late  period  of  the  session,  to 
swear  as  our  army  did  in  Flanders.  I  desire, 


in  good  faith,  to  know  how  I  am  to  act  in  this 
matter. 

Mr.  WILSON.  I  supposed  it  would  be  a  very 
plain  case,  and  one  to  be  easily  comprehended, 
that  every  gentleman,  under  this  rule,  will  be 
allowed  to  make  up  his  accounts  according  to  his 
own  judgment,  and  what  he  thinks  is  fair,  hon 
est  and  proper;  and  that  there  would  be  no 
trouble  in  the  matter.  I  see  no  necessity  for  any 
objection  being  made  to  the  passage  of  the  order 
by  my  friend,  on  that  account. 

Mr.  BRIGGS.  Well,  as  an  experienced  man 
in  this  matter,  I  should  like  to  have  my  friend 
from  Natick  say,  whether  he  thinks  I  would  be 
doing  right  or  wrong  in  claiming  for  attendance 
on  those  days.  I  ask  him  in  good  faith,  as  I 
know  nothing  about  it  from  my  own  experience, 

Mr.  WILSON,  of  Natick.  Mr.  President:  In 
reply  to  the  inquiries  made  by  the  gentleman 
from  Pittsfield,  (Gov.  Briggs,)  I  have  to  say,  that 
the  order  is  plain  and  simple  in  its  language; 
that  the  gentleman  from  Pittsfield,  and  every 
other  member  of  the  Convention,  can  readily 
comprehend  it.  The  member  from  Pittsfield,  and 
other  members,  in  making  up  the  number  of  days' 
attendance,  must  be  guided  by  their  own  sense  of 
public  duty. 

It  is  true,  Mr.  President,  that  the  rule  explicitly 
declares,  that  "  No  member  shall  receive  pay  for 
any  weekday  on  which  he  has  not  actually  attended, 
except  in  case  of  sickness."  But,  Sir,  what  does 
the  rule  amount  to  ?  It  is  practically  a  dead  let 
ter.  It  has  been  the  rule  of  the  House  of  Rep 
resentatives  for  years,  and  it  has  been  generally 
evaded— disregarded  altogether.  A  few  members 
have  acted  up  to  its  requirements ;  but  the  mem 
bers  generally  pay  no  regard  to  it,  none  whatever. 
Sir,  I  venture  to  say,  that  with  that  rule  before 
them,  the  members  of  the  last  five  legislatures, 
have  taken  more  than  $100,000  out  of  the  treas 
ury — never  earned.  Here  to-day,  on  the  floor 
of  this  Convention,  I  make  this  declaration,  and 
no  man  here  or  elsewhere,  can  or  will  deny  it. 

Sir,  I  have  been  to  the  treasury  department, 
and  I  have  procured  a  statement  of  the  pay  roll 
of  the  last  House  of  Representatives.  That  House 
consisted  of  two  hundred  and  eighty-seven  mem 
bers  ;  two  hundred  and  forty-three  of  those 
members  drew  pay  for  every  day's  attendance ; 
leaving  only  forty-four  members  who  made  any 
deduction  for  absent  days.  The  average  attend 
ance  during  the  session — by  the  standard  of  the  pay 
roll — was  two  hundred  and  eighty-four  and  one- 
half  daily,  making  only  two  and  one-half  absences 
daily.  Now,  Sir,  every  man  knows,  Avho  has  any 
knowledge  of  the  last  House  of  Representatives, 
that  the  daily  absences  amounted,  in  that  body 


61st  day.] 


COMPENSATION   OF   MEMBERS. 


129 


Tuesday,] 


WILSON  —  LORD. 


[July  19th. 


of  two  hundred  and  eighty-seven  members,  to 
at  least,  eighty-seven  members.  I  venture  to  say, 
that  the  daily  average  attendance  of  the  House 
did  not  exceed  two  hundred  members.  Yet,  if 
we  are  to  take  the  pay  roll  as  the  evidence  of  at 
tendance,  the  actual  daily  attendance  averaged 
two  hundred  eigty-four  and  one-half.  Is  this 
right  ?  Is  it  an  evidence  of  public  integrity  ?  Not 
less  than  $20,000  were  taken  out  of  the  public 
treasury  by  the  members  of  the  last  legislature, 
which  were  never  earned ;  money  taken  out  of 
the  public  treasury,  in  violation  of  the  rules  of 
the  House  ;  rules  made  by  the  members  for  their 
own  government. 

Mr.  President :  I  wish  to  be  distinctly  under 
stood.  I  do  not  mean  to  say,  that  the  members 
of  the  last  House  of  Representatives  were  more 
remiss  in  their  attendance  than  were  the  members 
of  the  legislatures  of  the  two  preceding  years. 
Neither  do  I  wish  to  give  the  impression  that  they 
took  more  money  from  the  public  treasury — 
which  they  had  never  earned — than  did  the  mem 
bers  of  preceding  legislatures.  I  have  not  taken 
time  to  examine  the  pay  rolls  of  those  legislatures. 
I  take  the  last  legislature  as  an  example  of  the 
loose  way  the  accounts  of  members  are  now  made 
up.  It  is  time  to  put  a  stop  to  this  mode  of 
settling  accounts — to  this  manner  of  squandering 
the  public  money.  It  is  bad  enough  for  members 
to  neglect  the  duties  assigned  them  here,  to  at 
tend  to  their  own  private  affairs,  without  at  the 
same  time  drawing  pay  for  services  rendered — not 
to  the  public— but  to  themselves. 

This  Convention,  Mr.  President,  owes  it  to  its 
own  reputation,  to  honesty,  to  a  sense  of  public 
duty,  to  enforce  its  own  rule,  which  declares  that 
"  .iYb  member  shall  receive  pay  for  any  weekday  on 
which  he  has  not  actually  attended,  except  for  sick 
ness."  This  Convention,  called  here  to  revise 
the  organic  law  of  this  old  Puritan  Common 
wealth,  should  set  to  future  legislatures,  who  are 
to  assemble  under  the  revised  Constitution,  an  ex 
ample  of  inflexible  integrity.  The  members  of 
this  Convention  should  deduct  the  days  they  have 
been  absent,  unless  those  days  were  days  of  sick 
ness. 

Sir,  the  adoption  of  this  order  will  be  deemed, 
and  taken,  by  the  members,  to  be  a  declaration 
that  the  members  are  required  to  obey  the  rule, 
which  requires  them  to  deduct  from  their  account 
the  days  they  have  not  attended.  If  this  order  is 
not  adopted,  the  members  will  take  it  to  be  the 
sense  of  the  Convention,  that  the  rule  is  to  be 
considered  in  the  Convention  as  it  has  been  con 
sidered  in  the  legislature,  a  dead  letter.  I  have 
performed  my  duty,  as  a  member  of  the  Conven 
tion,  by  proposing  this  order,  which  if  adopted 


and  obeyed,  will  secure  to  the  treasury,  at  least, 
$25,000.  There  are  four  hundred  and  nineteen 
members  of  the  Convention.  The  average  daily 
attendence  has  not,  I  venture  to  say, — and  I  have 
some  right  to  speak,  for  I  have  not  been  absent 
half  an  hour  during  the  session, — exceeded  three 
hundred,  making  about  one  hundred  and  twenty 
absences,  daily.  There  should  be  deducted,  at 
least,  $25,000  from  the  pay  roll  of  the  Conven 
tion,  for  non-attendance. 

Mr.  President :  We  have  voted  tfe  pay  ourselves 
three  dollars  per  day.  I  gave  my  vote  for  that 
resolve  with  a  great  deal  of  hesitation  and  reluc 
tance.  Gentlemen  were  called  here  during  the 
busiest  portion  of  the  year;  called  from  their 
farms  and  business  avocations ;  called  here  at  a 
pecuniary  sacrifice.  Compelled  to  work  here  from 
six  to  nine  hours,  daily,  in  mid-summer,  I  felt 
that  those  gentlemen  'who  were  here,  away  from 
their  homes,  ought  to  have  that  sum,  and  I  voted 
for  it  against  my  own  personal  wishes  and  feelings. 
Having  voted  for  the  liberal  sum  of  three  dollars 
per  day,  I  hope  we  shall  all  of  us  join  in  an  ef 
fort  to  require  the  pay  roll  to  be  made  up  so  that 
members  will  not  draw  from  the  treasury  three 
dollars  per  day  to  which  they  have  no  claim — 
which  they  are  forbidden  to  touch  by  their  own 
rule,  if  enforced,  as  1  hope  it  will  be. 

Mr.  LOUD,  of  Salem.  I  desire  to  inquire  as  a 
question  of  order,  whether  this  resolution  can  be 
entertained  without  a  suspension  of  the  rules. 
The  twenty- seventh  rule  provides  that  members 
shall  have  pay  for  Sundays  ;  this  order  excludes 
that  and  consequently  is  a  violation  of  that  stand 
ing  rule.  I  desire  to  know  if  such  an  order  can 
be  entertained  while  the  rule  I  have  mentioned  is 
in  force. 

The  PRESIDENT.  The  question  suggested 
by  the  gentleman  from  Salem  is  a  question  of 
consistency.  The  gentleman  may  object  to  this 
order  as  being  inconsistent  with  the  existing  rule, 
which  fact,  it  will  be  for  the  Convention  to  deter 
mine,  and  not  for  the  Chair  to  decide.  It  is  a 
matter  wholly  within  the  province  of  the  Conven 
tion. 

Mr.  LORD.  I  had  supposed  that  if  it  is  pro 
posed  to  do  something  that  is  contrary  to  what 
our  rules  require,  it  would  be  the  duty  of  the 
President  to  decide  how  far  it  is  permissible. 
The  rule  requires  members  to  certify  their  attend 
ance,  including  Sundays  ;  this  order  requires  that 
that  day  shall  be  excepted.  I  do  not  believe  it  is 
of  any  consequence,  however,  and  I  move  to  by 
the  whole  subject  upon  the  table. 

The  question  was  taken  on  agreeing  to  the 
motion,  and  it  was,  upon  a  division — ayes,  137  ; 
noes,  44— decided  in  the  affirmative. 


130 


LIMITATION   OF   DEBATE. 


[61st  day. 


Tuesday,] 


KINSMAN  —  STEVENSON  —  ALLEN. 


[July  19th. 


Limitation  of  Debate. 

The  following  order,  submitted  yesterday  by 
the  gentleman  from  Medway,  (Mr.  Brown,)  was 
taken  up  for  consideration  : — 

Ordered,  That  no  member,  except  the  chairmen 
of  committees,  shall  speak  upon  any  subject  more 
than  fifteen  minutes,  without  leave. 

Mr.  KINSMAN,  of  Newburyport.  I  see  no 
propriety,  Mr.  President,  in  passing  such  an  order 
as  this,  and  I  can  conceive  of  no  reason  why  a 
distinction  should  be  made  between  the  chairmen 
of  committees  and  others.  As  every  one  knows, 
there  is  a  minority  in  this  Convention,  who  have 
to  content  themselves  merely  with  the  right  to 
speak  and  protest ;  and  though  it  is  a  poor  privi 
lege,  especially  on  a  subject  of  importance,  it  is 
one  they  ought  to  enjoy,  and  which  ought  to  be 
secured  to  them. 

Now,  what  does  this  order  do.  It  deprives 
them  of  the  right  of  speaking  more  than  fifteen 
minutes,  and  gives  the  prevailing  party,  in  addi 
tion  to  the  power  they  have  already  to  control  the 
whole  action  of  the  Convention  by  their  votes, 
the  right  to  occupy  a  whole  hour  in  speaking, 
because  the  chairmen  of  the  committees,  accord 
ing  to  parliamentary  usage,  are  always  of  the 
predominant  party.  I  do  not  make  these  remaiks 
because  I  desire  to  speak,  but  it  seems  to  me  that 
the  effect  of  the  order  will  be  to  abridge  the  right 
which  belongs  to  the  minority  to  be  heard,  and 
to  debate  all  subjects  fully,  and  that  therefore  it 
ought  not  to  pass. 

Mr.  ASPINWALL,  of  Brookline,  moved  to 
strike  out  the  words  "except  the  chairmen  of 
committees." 

Mr.  STEVENSON,  of  Boston.  I  hope  the 
amendment  will  prevail,  if  the  Convention  have 
any  intention  of  passing  such  an  order  as  this ; 
but  I  am  free  to  say  that  we  shall  hardly  be  able 
to  determine,  at  present,  how  many  matters  there 
are  on  the  Orders  of  the  Day  which  will  be  affected 
by  the  adoption  of  an  order  like  this,  which  puts 
it  out  of  the  power  of  those  who  are  opposed  to 
the  propositions  to  discuss  them  fully.  If  there 
be,  as  I  suppose,  important  questions  to  come 
before  the  Convention  for  consideration,  before 
we  can  adjourn,  it  seems  to  me  that  it  is  highly 
improper  that  we  should  adopt  a  rule  which  will 
prevent  them  from  being  discussed,  merely  because 
they  necessarily  come  up  late  in  the  session.  The 
proposition  is  made,  it  is  said,  in  accordance  with 
the  practice  that  prevails  in  the  legislature.  Now 
there  is  a  clear  and  palpable  distinction  upon 
which  the  propriety  of  such  a  rule  in  the  legisla 
ture  may  rest,  but  which  can  form  no  foundation 


for  it  here.  In  the  legislature,  where  high  party 
contests  sometimes  prevail,  if  an  impression 
arises  in  the  mind  of  the  majority  that  the  mi 
nority  are  endeavoring  to  create  delay,  the  major 
ity  may  be  provoked  to  pass  such  a  rule  for  their 
protection ;  and  it  would  be  justifiable,  perhaps, 
because  if  it  be  a  private  matter,  you  can  say  to 
the  individual  interested,  you  should  have  come 
earlier ;  or  if  it  be  public  matter,  they  may  say 
we  shall  be  here  six  months  hence,  and  no  great 
evil  can  result  from  the  delay.  But  in  an  assem 
bly  constituted  as  this  is,  to  recommend  to  the 
people  changes  in  the  Constitution,  neither  of  these 
reasons  can  operate. 

Then,  in  regard  to  giving  an  hour  to  chairmen 
of  committees,  and  limiting  other  members  to  a 
less  time,  it  appears  to  me  that  if  such  a  rule  is 
to  be  made,  it  ought  to  be  made  in  another  direc 
tion.  The  chairman  of  a  committee  has  the  ad 
vantage  of  the  prestige  of  the  report.  He  has  the 
advantage  of  the  views  he  has  presented  to  the 
Committee,  and  the  concurrence  of  the  Commit 
tee,  whereas  those  who  come  in  opposition,  stand 
upon  a  new  ground,  and  their  reasons  are  surely 
entitled  to  be  heard.  The  rule  ought,  therefore,  to 
be  the  other  way  ;  but  I  object  to  the  adoption  of 
any  rule  that  shall  prevent  any  question  being 
debated ;  and  let  me  say  to  this  Convention, 
through  you,  that  such  a  rule  does  not  save  one 
moment  of  time.  The  true  way  to  insure  a  short 
debate  on  any  subject,  in  Committee  of  the 
Whole,  is  to  allow  those  who  have  examined  the 
subject  to  discuss  it  thoroughly,  otherwise  each 
suggestion  calls  up  members  in  every  part  of  the 
House  ;  and  every  suggestion  which  carries  with 
it  indications  of  justice  and  propriety  costs  abso 
lutely  more  time  in  an  assembly  composed  of 
over  four  hundred  delegates  than  would  be  the  case 
in  the  absence  of  such  a  rule.  I  hope  the  order  will 
be  rejected  ;  but  if  it  is  to  be  adopted,  I  trust  that 
the  amendment  proposed  by  the  gentleman  from 
Brookline  will  first  be  made. 

Mr.  ALLEN,  of  Worcester.  I  hope  the 
amendment  will  not  be  adopted,  for  I  like  the 
exception  better  than  the  rule.  If  the  Commit 
tee  make  a  report  recommending  an  amendment 
to  the  Constitution,  it  is  necessary  to  make  such 
explanation  of  the  report  as  cannot  be  done  in 
fifteen  minutes  ;  and  I  believe  it  is  according  to 
the  practice  of  parliamentary  bodies  elsewhere  to 
allow  the  chairman  of  the  Committee  an  oppor 
tunity  to  explain  the  report;  but  I  doubt  the 
expediency  of  adopting  the  rule  at  all.  I  think 
the  limitation  to  one  hour,  with  a  right  on  the 
part  of  the  chairman  to  close  the  debate,  is  strin 
gent  enough.  I  therefore  move  that  the  order 
be  laid  upon  the  table. 


61st  day.] 


ELECTIONS    BY   PLURALITY,  &c. 


131 


Tuesday,] 


BRIGGS  —  ADAMS  —  UPTOK  —  DURGIN. 


[July  19th. 


The  motion  was  agreed  to,  and  the  order  was 
accordingly  laid  upon  the  table. 

Sectarian  Softools. 

Mr.  BKIGGS,  of  Pittsfield,  moved  to  take 
from  the  table  the  Report  of  the  Committee  in  rela 
tion  to  Sectarian  Schools,  with  the  view  to  its 
being  placed  upon  the  Orders  of  the  Day. 

The  question  being  taken  on  agreeing  to  the 
motion,  it  was— by  ayes,  73 ;  noes,  85— decided 
in  the  negative. 

Orders  of  the  Day. 

On  motion  of  Mr.  ADAMS,  of  Lowell,  the 
Convention  proceeded  to  the  consideration  of  the 
Orders  of  the  Day.  The  first  matter  on  the 
Orders  of  the  Day  was  the  resolves  on  subject  of 

Elections  by  Plurality, 

On  their  second  reading,  the  question  being  on 
their  final  passage ;  pending  this  question  the  gen 
tleman  from  Boston,  (Mr.  Schouler,)  had  moved 
to  amend  the  first  resolution,  by  striking  out  all 
after  the  word  "Resolved,"  and  inserting  the 
following : — 

That  it  is  expedient  to  provide  in  the  Consti 
tution  that  in  the  election  of  governor,  lieutenant- 
governor,  secretary,  treasurer,  auditor,  attorney- 
general  and  councillors,  the  person  having  the 
largest  number  of  votes  shall  be  deemed  to  be 
elected. 

Mr.  UPTON,  of  Boston.  Is  an  amendment 
still  in  order. 

The  PRESIDENT.     It  is  in  order. 

Mr.  UPTON.  Then  I  move  to  strike  out  all 
after  the  word  "  the  "  in  the  sixth  line,  and  insert 
the  following :  "  individual  having  the  highest 
number  of  votes  shall  be  declared  to  be  elected." 

Mr.  President:  In  offering  the  amendment,  I 
had  supposed  that  this  Convention  would  agree 
to  the  principle  laid  down  in  the  first  part  of  this 
resolution,  namely :  "  that  is  is  expedient."  I 
hope  gentlemen  of  the  Convention  will  mark  and 
note  the  phraseology — "  that  it  is  expedient  to 
provide  in  the  Constitution  that  a  majority  of  all 
the  votes  given  shall  be  necessary  "  to  elect  cer 
tain  officers.  I  agree  to  that  expediency.  It  is 
well  to  provide  in  the  Constitution  that  it  is  expe 
dient  that  these  individual  officers  shall  be  elected 
by  a  majority  of  the  votes  cast.  But,  Sir,  it  is  also 
expedient  to  provide  something  beyond  that,  if  the 
people  do  not  see  fit  to  elect  these  officers  by  a 
majority  of  votes,  and  to  do  the  next  best  thing. 
Therefore,  I  propose  to  strike  out  the  latter  part 
of  this  resolution,  and  put  in  the  next  best  thing, 
and  that  is  :  that  the  individual  candidate  having 


the  highest  number  of  votes  shall  be  declared 
elected.  It  seems  to  me  it  is  hardly  worth  while 
to  go  into  an  argument.  It  is  not  enough  to  de 
clare  the  expediency  of  the  principle,  that  the  in 
dividual  having  the  majority  of  votes  shall  be 
elected.  But  we  must  go  beyond  that,  as  these 
individuals  voted  for  do  not  have  a  majority  of 
the  votes  cast,  perhaps  ;  and  therefore  instead  of 
leaving  the  question  to  the  minority  of  the  people, 
which  most  assuredly  will  be  the  case,  when  it 
comes  to  the  legislature,  I  propose,  in  the  amend 
ment  which  I  have  offered,  that  the  person  hav 
ing  the  highest  number  of  votes  shall  be  declared 
elected.  I  do  not  propose  to  go  into  a  discussion 
of  the  question  of  the  majority  and  the  plurality ; 
but  simply  to  state  the  grounds  of  the  amend 
ment,  and  to  express  the  hope  that  it  may  meet 
the  approbation  of  the  members  of  this  Conven 
tion. 

Mr.  DURGIN,  of  Wilmington.  When  this 
subject  was  up  before,  I  had  the  audacity  to  offer 
a  few  remarks,  and  I  have  some  of  the  same  sort 
left.  I  wish,  on  this  occasion,  to  express  freely 
my  feelings  and  my  v.ews  upon  this  subject.  I 
have  seen  no  good  reason  for  changing  them  from 
that  time  to  the  present.  In  every  age  of  the 
world,  Sir,  when  republics  and  independent  gov 
ernments  have  arisen,  great  men  have  been  there, 
and  great  men  acted ;  and  these  republics  came 
up,  in  despite  and  in  defiance  of  monarchy  of 
every  kind.  While  those  great  men,  those  guar 
dian  spirits,  those  master  spirits  of  the  storm 
were  there,  those  republics  were  safe.  The  same 
was  true  of  our  government.  When  this  repub 
lic  sprang  up,  there  were  great  men  and  true 
there,  men  that  feared  God  and  regarded  the 
interests  of  men — not  like  the  unjust  judge  that 
feared  not  God  nor  regarded  man — but  men  wil 
ling  to  sacrifice  life,  sacred  honor,  and  fortune. 
Perhaps  these  great  men  have  fallen. 

Then,  what  has  been  the  tendency  of  the  an 
cient  republics  ?  There  was,  and  there  is,  a  ten 
dency  in  republics  towards  monarchy.  If  you 
look  for  the  ancient  republics,  where  are  they  ? 
They  are  not.  They  live  only  in  history— only 
in  song.  And,  if  you  look  to  modern  republics 
even,  look  to  Mexico,  look  to  the  South  American 
republics,  and  what  is  the  tendency  to-day  ?  Are 
they  breathing,  are  they  panting,  are  they  striv 
ing,  as  the  heart  of  one  man,  for  liberty,  or  is 
there  a  tendency  to  monarchy  ?  Look  at  France, 
with  all  her  boasted  liberty  and  her  republican 
ism  ;  that  peaceful  and  bloodless  conquest ;  that 
bloodless  transit  from  monarchy  to  republican 
ism,  and  where  is  France  now  ?  Is  it  a  republic  ? 
I  say  there  is  a  tendency  in  republics  to  monar 
chy.  How  did  it  happen,  and  how  does  it  hap- 


132 


ELECTIONS   BY   PLURALITY. 


[61st  day. 


Tuesday,] 


DURGIN. 


[July  19th. 


pen?  Is  it  because  the  people  come  out  en 
masse,  and  assert  their  rights,  and  assert  their 
liberties,  and  take  the  responsibility  of  the  gov 
ernment  upon  their  own  shoulders— take  the 
government  into  their  own  hands  ?  No,  Sir ;  but 
this  tendency  arises  from  the  fact,  that  the  people 
relinquish  and  yield,  daily  and  unresistingly,  that 
which,  in  duty,  they  are  bound  before  God,  to 
come  out  and  to  support.  They  yield  it  into  the 
hands  of  a  few,  and  that  few  hand  it  down  to  a 
still  less  number,  and  that  less  number  may  per 
haps  make  the  one  man  power  in  the  nation. 
Thus  the  tendency  is  going  on,  and  every  man 
that  has  half  an  eye,  that  has  half  a  thought,  can 
comprehend  this  fact. 

But,  Sir,  let  me  say,  that  there  is  no  absolute 
and  fatal  necessity  for  this  state  of  affairs.  The 
first  cause  of  this  tendency,  is  the  removal  of  the 
government  from  the  people.  While  the  people 
hold  the  government  in  their  hands,  and  while 
they  exercise  its  functions,  this  thing  never  can 
take  place ;  but,  when  the  government  is  re 
moved  from  them,  or  when  they  surrender  it, 
then  this  is  the  legitimate  tendency.  The  cutting 
off  of  the  participation  of  the  people  in  the  gov 
ernment,  is  the  first,  and  one  of  the  fundamental 
causes  why  this  state  of  things  ever  exists  in  the 
world; 

The"  second  cause,  is  the  want  of  knowledge  on 
the  part  of  the  people,  of  the  principles  of  a  free 
government.  You  give  to  every  individual  citi 
zen  a  knowledge  of  the  great  principles  of  a  free 
government,  and  there  is  no  danger  of  a  republic's 
waning,  or  becoming  a  monarchy.  How  shall  you 
give  to  the  people  a  knowledge  of  the  great  prin 
ciples  of  a  free  government  ?  Throw  the  govern 
ment  upon  their  shoulders ;  throw  it  into  their 
heads  and  hearts,  and  make  the  people  respon 
sible  ;  make  them  understand  their  rights ;  school 
them;  educate  them  in  these  principles.  And 
how  shall  they  be  educated  ?  By  withdrawing 
the  great  principles  of  free  government  from 
them  ?  No,  Sir ;  but  by  holding  them  up  before 
their  understanding,  and  making  the  people  feel 
that  government  is  for  the  people. 

Again.  The  more  widely  the  government  is 
diffused  among  the  people,  the  farther  it  is  from 
monarchy.  Let  the  people  of  any  nation,  the 
whole  mass  of  the  people  be  responsible,  and  be 
actors  in  the  great  principles  of  a  free  govern 
ment,  and  a  monarch  will  die ;  he  cannot 
breathe ;  there  is  no  air  which  is  congenial  to  his 
existence.  There  is  no  food  on  which  a  monarch 
can  be  sustained,  none  that  shall  give  subsistence 
and  vitality,  and  he  fails  and  dies.  He  moves  not ; 
he  thinks  not ;  he  feels  not ;  he  is  not  there. 

Again,  let  me  say,  the  fewer  the  people  who 


participate  in  the  government,  the  nearer  that  gov 
ernment  approaches  to  a  monarchy  or  an  aris 
tocracy.  I  want  this  principle  clearly  understood, 
that  the  fewer  the  people,  the  less  the  number  of 
those  who  participate  in  the  government,  and 
have  a  voice  in  its  concerns,  the  nearer  that  gov 
ernment  approaches  to  a  minority,  and  by  so 
much  it  approaches  to  an  aristocracy,  both  of 
which  are  opposed  to  the  great  principles  of  true 
republicanism,  and  true  democracy. 

Plurality,  Sir,  is  something  less  than  the  peo 
ple.  Yes,  I  avow  it.  A  mere  plurality  is  not 
the  people  in  any  correct  republican  sense  of  the 
term,  as  used  in  a  government  like  ours.  I  say, 
that  a  plurality  is  something  less  than  the  people ; 
it  is  not  the  voice  of  the  people,  it  is  but  a  voice 
of  a  minority  of  the  people.  What  are  its  ten 
dencies  ?  You  may  undertake  to  convince  me 
that  seven  is  not  less  than  ten.  Who  will  believe 
it  ?  Who  can  admit  it  as  a  fact  ?  No  one,  unless 
he  is  deprived  of  his  senses.  The  legitimate,  and 
the  only  tendency  of  a  plurality  system,  no  matter 
where  it  is  adopted,  or  where  it  acts,  whether  in 
Massachusetts,  or  Rhode  Island,  or  in  every  State 
in  this  federal  republic,  whether  in  America,  or 
in  Europe,  is  to  contract  and  narrow  down  the 
powers  of  men,  instead  of  extending  them  abroad 
and  diffusing  life  and  vitality  ;  and  the  tendency 
is  constantly  towards  monarchy ;  towards  the  one 
man  power,  in  spite  of  the  very  fates.  Sir,  look 
at  it.  If  you  have  a  plurality  to-day,  you  have 
a  less  number  to-morrow,  and  a  less  number  next 
year,  and  so  on.  Some  good  mathematician, 
some  individual  skilled  in  algebra,  or  well  skilled 
in  progression,  perhaps,  may  tell  if  you  give  him 
the  data,  how  long  it  would  be,  before  the  one 
man  power  would  exist.  Every  man  knows  that 
this  is  the  legitimate  tendency,  if  there  is  any 
tendency  at  all. 

Again.  I  say  every  man  should  be  made  to  feel, 
as  far  as  possible,  his  responsibility  in  relation  to 
the  government  in  such  a  country  as  ours.  I  am 
opposed,  therefore,  to  anything  that  will  lessen  a 
man's  responsibility  in  this  government.  I  was 
very  much  pleased  with  an  order  introduced  by 
the  reverend  gentleman  from  Boston,  (Mr.  Loth- 
rop,)  sometime  since,  making  it  penal  to  neglect 
the  discharge  of  duties  towards  the  government, 
and  not  to  go  out  and  vote  and  take  a  share  of  the 
responsibility  in  this  great  government.  Why, 
Sir,  I  would  no  more  neglect  the  government 
than  I  would  neglect  my  God.  It  is  the  duty  of 
every  man  in  this  republic  to  go  up  to  the  polls 
and  there  show,  by  his  voice  and  his  vote,  that  he 
feels  his  responsibility,  and  teach  it  to  his  sons, 
and  his  sons'  sons,  and  teach  it  to  the  rising  gen 
eration  that  they  are  to  take  the  responsibility  of 


61st  day.] 


ELECTIONS   BY   PLURALITY. 


133 


Tuesday,] 


DTJRGIN. 


[July  19th. 


this  great  government  upon  themselves.  The 
individual  who  looks  at  the  specific  and  legitimate 
tendencies  of  curtailing  and  checking  this  respon 
sibility  upon  the  rising  generation,  though  he  may 
not  feel  it  in  his  heart,  is  virtually  an  enemy  to 
his  country,  an  enemy  to  his  God.  These  are  my 
convictions,  and  these  are  my  views.  The  plu 
rality  system,  Sir,  is  a  departure,  it  is  a  daring, 
fearful  departure  from  those  high,  world-wide 
principles  which  distinguish  Americanism  from 
monarchy.  Is  there  no  specific  difference,  is  there 
no  difference  in  the  practical  workings  of  Ameri 
canism,  so-called  republicanism,  as  enjoyed  by 
this  great  federal  republic,  and  the  government  of 
a  monarchy,  or  a  monarchical  form  of  govern 
ment  ? 

Now,  Sir,  I  say  that  the  plurality  system  is  a 
daring,  and  I  had  almost  said,  a  Heaven-daring 
departure  from  those  principles.  Tell  it  to  some 
of  those  patriots  of  177G,  who  have  long  slum 
bered  in  their  graves,  and  I  should  not  think  it 
strange  at  all  that  they  moved  from  their  resting 
places. 

What  do  the  principles  of  monarchy  do,  Sir  ? 
When  these  principles  are  carried  out,  their  legit 
imate  tendency  is  to  extort  groans,  and  tears,  and 
sighs.  They  not  only  clothe  a  people  in  rags  in 
too  many  cases,  but  they  spread  hunger  and  death 
through  the  realm.  Look  at  England,  proud  as 
she  is,  and  see  what  has  been  the  result  of  her 
system  of  government,  with  all  the  professions  of 
liberty  which  they  make — see  what  results  have 
been  produced  there  for  the  last  quarter  of  a  cen 
tury  in  this  respect.  Why,  Sir,  there  is  Ireland, 
which  contributes  largely  to  the  funds  of  that 
nation  ;  and  it  presents  the  most  frightful  picture 
of  distress,  poverty  and  wretchedness — all  owing 
to  the  working  of  that  government,  which  is 
world- wide  from  that  of  a  republic. 

Let  me  say  again,  that  the  tendency  of  the 
plurality  system,  if  carried  out,  will  be  to  lull  the 
mass  of  the  people  to  sleep  ;  for  it  does,  and  it 
will  of  necessity,  deprive  the  great  mass  of  the 
people  from  acting,  or  from  seeing  any  results  of 
their  action.  A  man  will  stay  at  home  because 
he  cannot  act  conscientiously.  We  have  had  a 
question  up  here  this  morning  about  the  pay  roll, 
and  the  gentleman  from  Pittslield  avowed  his 
wish  to  act  conscientiously  in  relation  to  this 
matter ;  and  that  is  the  way  it  will  be  with  a 
great  many  people  throughout  the  Common 
wealth.  Men  will  not  go  and  vote,  if  they  cannot 
vote  upon  principle.  They  will  say :  "If  you  tie 
up  my  hands  and  my  feet,  how  can  I  act  ?  If 
you  adopt  the  plurality  system,  what  can  I  do  ? 
If  I  act  at  all,  I  want  to  act  conscientiously."  So 
you  see,  Mr.  President,  that  the  result  of  the 


plurality  system  will  be  to  keep  a  great  many 
men  from  the  polls.  A  man  will  say  to  himself 
and  to  his  boys  :  "  Let  us  stay  at  home,  for  if  we 
were  to  go  and  vote,  we  should  vote  so  and  so  ; 
and  we  know  that  we  cannot  have  the  privilege 
of  expressing  our  opinions,  or  if  they  are  expressed, 
it  will  do  no  good  at  all.  Let  us  stay  at  home, 
and  let  the  government  go  to  rack  and  ruin." 
Men  will  feel  thus,  and  they  will  talk  thus. 
Every  man  can  see,  if  he  will  reflect  on  it,  that 
this  will  be  the  result  of  that  system. 

It  is  said  that  the  plurality  system  will  be  more 
convenient.  That  seems  to  be  the  great  bugbear 
that  is  brought  up  here  against  the  majority  sys 
tem  ;  but  what  have  we  got  to  do  with  conven 
ience,  in  a  government  like  this  ?  It  might  have 
been  more  convenient  for  our  fathers  in  1776  to 
have  remained  at  home  quietly,  and  let  the  iron 
heel  of  tyranny  and  oppression  tread  out  the  last 
spark  of  life  and  liberty  from  these  colonies — 
that  might  have  been  more  convenient ;  but,  Sir, 
they  were  not  men  who  heeded  the  labor,  and  toil, 
and  peril,  of  the  cause  in  which  they  were  en 
gaged.  They  loooked  beyond  all  these  considera 
tions  to  the  principle  of  right  and  justice,  and  upon 
these  they  acted ;  and  Sir,  they  acted  nobly,  wisely, 
and  victoriously.  A  government  like  ours,  if  it 
does  not  cost  anything,  would  scarcely  be  worth 
anything  ;  can  we  expect  that  such  a  government 
as  ours  will  be  brought  to  us  if  we  lie  supinely  upon 
our  backs  and  make  no  effort  ?  If  it  be  a  mere  mat 
ter  of  convenience,  I  would  rather  take  the  noble 
principle  of  one  anciently,  when  he  said  :  "I will 
not  sacrifice  to  God  that  which  costs  me  nothing." 
It  seems  to  be  a  mere  matter  of  dollars  and  cents 
— a  mere  saving  of  a  little  time.  I  ask  the  mem 
bers  of  this  Convention,  through  you,  Mr.  Presi 
dent,  must  we  sacrifice  principles  which  are  as 
high  as  eternal  truth,  at  the  shrine  of  sordid  con 
venience?  This  is  nothing  more  nor  less  than 
sordid  convenience ;  it  is  a  mere  saving  of  dol 
lars  and  cents  ;  and  I  hope  and  pray  that  we  shall 
do  no  such  thing.  Why  shall  we  not  have  the 
plurality  system  in  all  things,  if  it  is  a  good 
principle  ?  I  was  pleased  to  hear  the  remarks  of 
the  gentleman  from  Boston,  (Mr.  Stevenson). 
When  he  made  his  remarks  I  said  "  Amen  !"  in 
spite  of  myself — it  drew  it  right  out  of  ine — for 
he  is  a  gentleman  who  speaks  so  eloquently,  and 
more  than  that,  he  speaks  only  when  he  has 
something  to  say.  Why  not  have  the  plurality 
in  everything  ?  Why  not  carry  it  into  your 
juries  r  If  they  cannot  decide,  let  the  majority 
rule ;  or  why  not  let  even  a  plurality  rule,  if  a 
case  could  arise,  where  there  could  be  a  plurality, 
why  not  let  them  decide  the  question  ?  Would 
it  be  a  departure  from  principle,  and  a  sacrifice  of 


134                                   ELECTIONS   BY   PLURALITY. 

[61st  day. 

Tuesday,]                                                     DURGIN  —  YEAS. 

[July  19th. 

principle  ?    I  tell  you  it  would.     Sir,  no  little 
fraction,  no  clique,  no  little  squad  of  men  ought 
to  rule  in  the  town,  in  the  parish,  in  the  county, 

Ayres,  Samuel 
Barrows,  Joseph 
Bell,  Luther  V. 
Bishop,  Henry  W. 

Hobart,  Aaron 
Hobbs,  Edwin 
Hooper,  Foster 
Hopkinson,  Thomas 

in  the  state,  or  in  the  nation,  and  woe  to  this 

Blagden,  George  W. 

Hubbard,  William  J. 

Union  when  the  people  allow  such  a  state  of 

Boutwell,  George  S. 

Hunt,  William 

affairs. 

Bradbury,  Ebeiiezer 

Huntington,  Asahel 

Sir,  the  adoption  of  this  plurality  system  is  not 
a  tacit  acknowledgment,  but  it  is  an  open,  unblush 
ing  avowal,  that  men  are  not  capable  of  govern 

Braman,  Milton  P. 
Breed,  Hiram  N. 
Brewster,  Osmyn 
Brinley,  Francis 

Huntington,  Charles  P, 
Hurlburt,  Samuel  A. 
Hyde,  Benjamin  D. 
Jackson,  Samuel 

ing  themselves. 

Briggs,  George  N. 

Jacobs,  John 

Sir,  that  is  just  what  Old  England,  just  what 

Brown,  Adolphus  F. 

James,  William 

Russia,    just  what  Austria,    just    what    every 
tyrannical  government  under  heaven  declares  — 
they  all  agree  in  the  opinion  that  men  cannot 
govern   themselves.     Now,  this  is    not    a    tacit 

Bullock,  Rufus 
Bumpus  Cephas  C. 
Burlingame,  Alison 
Carter,  Timothy  W. 
Chandler,  Amariah 

Jenkins,  John 
Jeiiks,  Samuel  II. 
Kellogg,  Giles  C. 
Kingman,  Joseph 
Kinsman,  Henry  W. 

acknowledgment  of  this  doctrine,  but  it  is  a  can 

Chapin,  Chester  W. 

Knight,  Hiram 

did,  open,  unblushing  avowal,  that  a  majority  of 

Childs,  Josiah 

Knight,  Jefferson 

the  people  cannot  govern  themselves  ;  and  there 
fore  you  must  place  the  government  in  the  hands 

Clark,  Henry 
Clarke,  Alpheus  B. 
Clarke,  Stillman 

Knight,  Joseph 
Kiiowlton,  Charles  L. 
Kuhn,  George  H. 

of  somebody  else.     Now,  Mr.  President,  I  am 

Coggin,  Jacob 

Ladd,  John  S. 

not    in  favor    of  making   this  avowal   to-day, 

Cogswell,  Nathaniel 

Leland,  Alden 

or  at  any  time.     Far  from  it,  Sir.     As  I  have 

Cole,  Sumner 

Littlefield,  Tristram 

said  before,  this  is  the  acknowledgment  ;  for  a 

Conkey,  Ithamar 

Livermore,  Isaac 

plurality  is  not  the  people,  but  it  is  something 
less  than  the  people.     If  you  adopt  this  system, 

Cook,  Charles  E. 
Cooledge,  Henry  F. 
Critteiiden,  Simeon 

Lord,  Otis  P. 
Lothrop,  Samuel  K. 
Loud,  Samuel  P. 

therefore,  you  declare,  by  a  vote  of  this  body,  the 

Crockett,  George  W. 

Meader,  Reuben 

conviction  that  the  people  cannot  govern  them 

Crosby,  Leaiider 

Miller,  Seth,  Jr. 

selves.     But,  says  one,  other  States  have  adopted 

Crowell,  Seth 

Mixter,  Samuel 

it.     So  much  the  worse,  say  I.     Suppose  every 
State  in  this  whole  republic  should   adopt  the 

Cushmaii,  Henry  W. 
Dana,  Richard  H.,  Jr. 
Do.  vis   Solomon 

Morcy,  George 
Morss,  Joseph  B. 
Morton,  Marcus 

plurality  system,  I  say  that  only  makes  the  mat 

Dawes,  Henry  L. 

Nayson,  Jonathan 

ter  so  much  the   worse;  it  is  only  making  the 

Dean,  Silas 

Noyes,  Daniel 

acknowledgment  so   much  the   more   universal, 

Doaiie,  James  C. 

Oliver,  Henry  K. 

that  men  cannot   govern  themselves,  and  it  is 

Easton,  James,  2d 

Orcutt,  Nathan 

consequently  so  much  the  more  to  be  lamented 
and  deplored.      There  is   only  one  tiling  under 

Eaton,  Lilley 
Edwards,  EHsha 
Edwards,  Samuel 

Osgood,  Charles 
Park,  John  G. 
Parker,  Adolphus  G. 

Heaven  that  would  induce  me  to   go   for  the 

Ely,  Homer 

Perkins,  Jonathan  C. 

plurality  system,  and  that  is  this  :  If  we  were 

Farwcll,  A.  G. 

Pomroy,  Jeremiah 

likely  to  fail   and   not  have  any  government  at 

Foster,  Aaron 

Putnam,  George 

all,  I  would  go  for  the  plurality  system,  or  al 
most  anything  else,  in  order  to  prevent  such  a 

French,  Charles  H. 
Frothingham,  R.,  Jr. 
Gilbert,  Wanton  C. 

Putnam,  John  A. 
Rantoul,  Robert 
Read,  James 

result,  upon  the  principle  that  almost  any  govern 

Gould,  Robert 

Sargent,  John  M. 

ment  is  better  than  no  government  at  all.     But 

Gouldiiig,  Dalton 

Schouler,  William 

that  is  the  only  inducement  that  would  operate 

Gray,  John  C. 

Sikes,  Chester 

upon  me  to  make  me  favor  that  system. 
[The  hammer  fell,  the  time  allowed  having 

Green,  Jabez 
Griswold,  Josiah  "W. 
Griswold,  Whiting 

Sleeper,  John  S. 
Souther,  John 
Stetson,  Caleb 

expired.] 

Hale,  Artemas 

Stevens,  Charles  G. 

The  question  being  taken  on  the  amendment  of 

Hall,  Charles  B. 

Stevens,  Granville 

Mr.  Upton,  it  was  not  agreed  to. 

Hammond,  A.  B. 

Stevens,  Joseph  L.,  Jr. 

The  question  then  recurred  on  the  amendment 

Haskell,  George 

Stevenson,  J.  Thomas 

of  Mr.  SCHOULER,   and  the   question   being 
taken  by  yeas  and  nays,  the  result  was  —  yeas,  159  ; 

Hawkes,  Stephen  E. 
Hayward,  George 
Heard,  Charles 

Storrow,  Charles  S. 
Strong,  Alfred  L. 
Sumner,  Increase 

nays,  159  —  as  follows  :  — 

Henry,  Samuel 

Talbot,  Thomas 

Hersey,  Henry 

Taylor,  Ralph 

YEAS. 

Hewes,  James 

Train,  Charles  R. 

Adams,  Benjamin  P.       Aspinwall,  "William 

Heywood,  Levi 

Turner,  David 

Aklrich,  P.  Emory          Atwood,  David  C. 

Hillard,  George  S. 

Turner,  David  P. 

Andrews,  Robert             Austin,  George 

Hinsdale,  William 

Upham,  Charles  W. 

61st  day.] 

ELECTIONS   BY   PLURALITY. 

135 

Tuesday,] 

NAYS  —  ABSENT. 

[July  19th. 

Upton,  George  B. 

Wilbur,  Daniel                      Penniman,  John 

Taft,  Arnold 

Viles,  Joel 

Wilder,  Joel 

Perkins,  Jesse 

Thayer,  Willard,  2d 

Walcott,  Samuel  B. 

Wilkins,  John  H. 

Perkins,  Noah  C. 

Thompson,  Charles 

Wales,  Bradford  L. 

Wilkinson,  Ezra 

Phelps,  Charles 

Tilton,  Abraham 

"Walker,  Samuel 

Williams,  J.  B. 

Phinney,  Silvanus  B. 

Tilton,  Horatio  W. 

Warner,  Samuel,  Jr. 

Wilson,  Milo 

Pool,  James  M. 

Tyler,  William 

Weeks,  Cyrus 

Winn,  Jonathan  B. 

Rawson,  Silas 

Underwood,  Orison 

Wheeler,  William  F. 

Wood,  Nathaniel 

Rice,  David 

Wallis,  Freeland 

White,  Benjamin 

Richards,  Luther 

Walker,  Amasa 

Richardson,  Daniel 

Ward,  Andrew  H. 

NAYS. 

Richardson,  Samuel  H. 

Warner,  Marshal 

Abbott,  Josiah  G-. 

Freeman,  James  M. 

Rogers,  John 

Waters,  Asa  H. 

Adams,  Shubael  P. 

French,  Rodney 

Ross,  David  S. 

Weston,  Gershom,  B. 

Allen,  Charles 

French,  Samuel 

Sanderson,  Amasa 

Whitney,  Daniel  S. 

Allen,  James  B. 

Gale,  Luther 

Sanderson,  Chester 

Whitney,  James  S. 

Allen,  Joel  C. 
Allen,  Parsons 

Gates,  Elbridge 
Gilbert,  Washington 

Sheldon,  Luther 
Sherril,  John 

Wilbur,  Joseph 
Williams,  Henry 

Alvord,  D.  W. 

Giles,  Charles  G. 

Simonds,  John  W. 

Wilson,  Henry 

Baker,  Hillel 

Giles,  Joel 

Smith,  Matthew 

Wilson,  Willard 

Banks,  Nath'l  P.,  Jr. 

Gooch,  Daniel  W. 

Sprague,  Melzar 

Winslow,  Levi  M. 

Barrett,  Marcus 

Gooding,  Leonard 

Spooner,  Samuel  W. 

Wood,  Charles  C. 

Bates,  Eliakim  A. 

Graves,  John  W. 

Stevens,  William 

Wood,  Otis 

Bates,  Moses,  Jr. 
Bennett,  Zephaniah 

Greene,  William  B. 
Hallett,  B.  F. 

Stiles,  Gideon 

Wright,  Ezekiel 

Bigelow,  Edward  B. 

Hapgood,  Lymaii  W. 

ABSENT. 

Bird,  Francis  W. 

Hapgood,  Seth 

Booth,  William  S. 

Haskins,  William 

Abbott,  Alfred  A. 

Hadley,  Samuel  P. 

Boutwell,  Sewell 

Hathaway,  Elnathan  P. 

Alley,  John  B. 

Hale,  Nathan 

Bronson,  Asa 

Hayden,  Isaac 

Allis,  Josiah 

Harmon,  Phineas 

Brown,  Alpheus  B,. 

Heath,  Ezra,  2d 

Appleton,  William 

Holder,  Nathaniel 

Brown,  Artemas 

Hewes,  William  H. 

Ballard,  Alvah 

Houghton,  Samuel 

Brown,  Hammond 
Brownell,  Joseph 
Bryant,  Patrick 

Hobart,  Henry 
Hood,  George 
Howard,  Martin 

Ball,  George  S. 
Bancroft,  Alpheus 
Bartlett,  Russel 

Rowland,  Abraham  H. 
Hunt,  Charles  E. 
Huiitington,  George  H. 

Buck,  Asahel 
Butler,  Benjamin  F. 

Hoyt,  Henry  K. 
Hurlbut,  Moses  C. 

Bartlett,  Sidney 
Beach,  Erasmus  D. 

Kellogg,  Martin  R. 
Langdoii,  Wilber  C. 

Carruthers,  William 

Ide,  Abijah  M.,  Jr. 

Beal,  John 

Lawton,  Job  G.,  Jr. 

Case,  Isaac 

Johnson,  John 

Beebe,  James  M. 

Lincoln,  F.  W.,  Jr. 

Chapin,  Daniel  E. 

Kendall,  Isaac 

Bennett,  William,  Jr. 

Loomis,  E.  Justin 

Chapin,  Henry 
Churchill,  J.  McKean 

Keyes,  Edward  L. 
Kimball,  Joseph 

Bigelow,  Jacob 
Bliss,  Gad  O. 

Lowell,  John  A. 
Marvin,  Theophilus  R. 

Clark,  Ransom 

Kiiowlton,  J.  S.  C. 

Bliss,  William  C. 

Monroe,  James  L. 

Cleverly,  William 

Knowlton,  William  H. 

Bradford,  William  J.  A 

Morton,  Marcus,  Jr. 

Crane,  George  B. 

Knox,  Albert 

Brown,  Hiram  C. 

Nash,  Hiram 

Cressy,  Oliver  S. 

Ladd,  Gardner  P. 

Brownell,  Frederick 

Nute,  Andrew  T. 

Cross,  Joseph  W. 

Lawrence,  Luther 

Bullen,  Amos  H. 

Ober,  Joseph  E. 

Cushnian,  Thomas 

Lincoln,  Abishai 

Cady,  Henry 

Paige,  James  W. 

Cutler,  Simeon  N. 

Little,  Otis 

Choate,  Rufus 

Parker,  Joel 

Davis,  Ebenezer 

Marble,  William  P. 

Clark,  Salah 

Parker,  Samuel  D. 

Davis,  Isaac 

Marcy,  Laban 

Cole,  Lansing  J. 

Parsons,  Thomas  A. 

Day,  Gilman 

Marvin,  Abijah  P. 

Copeland,  Benjamin  F. 

Payson,  Thomas  E. 

Deming,  Elijah  S. 

Mason,  Charles 

Crowninshield,  F.  B. 

Peabody,  George 

Denton,  Augvistus 

Merritt,  Simeon 

Cummings,  Joseph 

Perkins,  Daniel  A. 

DeWitt,  Alexander 

Moore,  James  M. 

Curtis,  Wilber 

Pierce,  Henry 

Duncan,  Samuel 

Morton,  Elbridge  G. 

Davis,  Charles  G. 

Plunkett,  William  C. 

Dunham,  Bradish 

Morton,  William  S. 

Davis,  John 

Powers,  Peter 

Durgin,  John  M. 

Newman,  Charles 

Davis,  Robert  T. 

Preston,  Jonathan 

Eames,  Philip 

Nichols,  William 

Dehon,  William 

Prince,  F.  O. 

Earle,  John  M. 

Norton,  Alfred 

Denison,  Hiram  S. 

Reed,  Sampson 

Easland,  Peter 
Eaton,  Calvin  D. 

Orne,  Benjamin  S. 
Packer,  E.  Wing 

Dorman,  Moses 
Ely,  Joseph  M. 

Richardson,  Nathan 
Ring,  Elkanah,  Jr. 

Fay,  Sullivan 
Fellows,  James  K. 

Paine,  Benjamin 
Paine,  Henry 

Eustis,  William  T. 
Fisk,  Lyman 

Rockwell,  Julius 
Rockwood,  Joseph 

Fiske,  Emery 

Parris,  Jonathan 

French,  Charles  A. 

Royce,  James  C. 

Fitch,  Ezekiel  W. 

Parsons,  Samuel  C. 

Gardner,  Henry  J. 

Sampson,  George  R. 

Foster,  Abram 

Partridge,  John 

Gardner,  Johnson 

Sherman,  Charles 

Fowle,  Samuel 
Fowler,  Samuel  P. 

Peabody,  Nathaniel 
Pease,  Jeremiah,  Jr. 

Goulding,  Jason 
Greenleaf,  Simon 

Simmons,  Perez 
Stacy,  Eben  H. 

136 


ELECTIONS   BY   PLURALITY. 


[61st  day. 


Tuesday,] 


HATHAWAY. 


[July  19th. 


Stutson,  "William 
Sunmer,  Charles 
Swain,  Alanson 
Taber,  Isaac  C. 
Thayer,  Joseph 
Thomas,  John  W. 


Tyler,  John  S. 
Vinton,  George  A. 
Wallace,  Frederick  T. 
"Wetmore,  Thomas 
"White,  George 
Wood,  William  H. 


Tileston,  Edmund  P.       Woods,  Josiah  B. 
Tower,  Ephraim 

Absent  and  not  voting,  99. 

The  PRESIDENT.  One  hundred  and  fifty-nine 
gentlemen  have  voted  in  the  affirmative,  and  one 
hundred  and  fifty-nine  gentlemen  in  the  negative. 
In  the  belief  that  it  is  inexpedient  to  submit  to 
the  people  so  radical  a  change  in  the  Constitution 
upon  a  casting  vote,  the  Chair  votes  in  the  nega 
tive,  and  the  amendment  is  rejected. 

Mr.  HATHAWAY,  of  Freetown,  moved  to 
amend  the  third  resolution,  so  that  it  would  read 
as  follows : — 

Resolved,  That  representatives  to  the  gener 
al  court  shall  be  elected  as  by  law  shall  be  pro 
vided. 

Mr.  HATHAWAY.  It  is  with  diffidence  that 
I  propose  this  amendment.  I  know  the  fate  that 
befell  the  amendment  which  I  proposed  yesterday, 
when  this  Convention  was  in  another  situation, 
that  of  the  Committee  of  the  Whole.  I  suppose 
that  I  have  a  little,  if  not  a  full  share,  of  the  same 
feeling  that  it  is  said  pervades  most  families  :  that 
the  more  sickly  and  rickety  the  bantling,  the  more 
the  parent  becomes  attached  to  it,  because  of  its 
weakness ;  while  the  healthy  and  strong  one  is 
left  to  care  for  itself.  Sir,  I  recollect  that  this 
proposition,  when  offered  to  the  Convention  in 
another  situation,  fell  almost  lifeless.  There  is 
another  reason,  that  oppresses  me,  upon  this  mat 
ter.  I  know  very  well  the  situation  in  which  I 
stand  here,  in  relation  to  certain  gentlemen,  and 
this  Convention ;  but  before  proceeding  to  that, 
let  me  say  to  the  gentleman  from  Salem,  (Mr. 
Lord,)  that  what  he  yesterday  said  is  not  pre 
cisely  true,  as  to  myself.  He  yesterday  said,  if  I 
understood  him  correctly,  that  no  man  dared  give 
the  reasons  why  this  lleport  was  made,  and  reso 
lutions  offered  in  their  present  form.  Sir,  let  me 
say  to  him,  that  I  "  dare  do  all  that  becomes  a 
man,  and  he  who  dares  do  more,  is  none."  But, 
Sir,  there  are  certain  reasons,  I  doubt  not,  for  this 
lleport,  which  the  Committee  itself  do  not  like  to 
give,  and  would  not  be  judged  to  be  exactly  ap 
propriate  and  parliamentary ;  and  therefore  it 
would  be  improper  for  me  here  to  say,  that  such 
reasons  controlled  their  action,  and  hence  I  shall 
not  undertake  to  give  them  ;  but  in  giving  rea 
sons  that  are  proper  and  appropriate,  and  from 
which  no  one  would  start  back,  I  will  assure 


the  gentleman  from  Salem  that  he  will  find  me 
by  no  means  backward  in  giving,  in  defence  of 
any  measure  I  may  propose ;  but  I  am  not  an 
swerable  for  this  lleport  and  resolutions,  and 
shall  leave  it  to  the  Committee  who  reported  them, 
to  give  their  reasons  therefor.  I  cannot  refuse 
the  temptation  of  saying,  that  I  feel  that  a  debt  of 
gratitude  is  due  from  me  to  my  constituents,  for 
the  generous  confidence  they  have  bestowed  upon 
me, — aye,  Sir,  something  more, — a  debt,  not  only 
of  gratitude,  but  of  duty.  I  feel  as  though  I 
should  fail  of  performing  my  duty  to  them,  did  I 
not  make  the  proposition  which  I  have  made  to 
this  Convention,  in  reference  to  this  amendment. 
Permit  me,  Sir,  to  say,  that  I  may  be  again,  as  I 
unjustly  heretofore  have  been,  subjected  to  the 
shafts  of  calumny,  from  a  certain  quarter,  for  the 
course  which  I  am  taking ;  but  I  have  had,  thus 
far,  and  trust  that  I  shall  continue  hereafter  to 
have,  but  one  rule  to  guide  me  in  this  Conven 
tion.  When  I  came  into  it,  it  was  for  the  pur 
pose  of  correcting  our  fundamental  and  organic 
law,  wherever,  in  my  judgment,  it  had  operated 
badly  with  or  upon  the  people ;  and  wherever  it  had 
worked  well,  and  we  stood  well  upon  it,  there,  I 
said,  long  since,  that  I  was  willing  to  stand,  with 
out  a  change  ;  and  where  I  thus  stood,  to  "stand 
still."  I  believe  that  such  are  the  views  of  all  my 
associates,  in  this  Convention,  from  the  county  of 
Bristol;  and  although  we  may  have  sometimes 
voted  differently,  yet  our  difference  was  a  manly 
one,  and  in  good  faith,  all  of  us  seeking  for  the  best 
measures  and  greatest  good  ;  but  others  have  lev 
elled  at  some  of  us — because  we  choose  thus  to 
act,  independent  of  their  direction  and  bidding — 
the  shafts  of  detraction  and  calumny.  I  presume 
that  there  is  no  one  here,  from  the  county  of 
Bristol,  who  is  not  perfectly  willing  to  stand  up 
and  meet  these  Parthian  arrows  of  detraction, 
although  they  may  fall  as  fast  as  hail  from  a  sum 
mer's  cloud  ;  but  let  me  say,  that  they  have  been, 
thus  far,  impotent,  because  they  were  hurled  at 
us  by  a  puny  arm,  and  came  from  a  feeble  hand. 
And  let  me  say,  farther,  that  time  will  soon  heal 
the  wounds  which  have  been  inflicted  by  that 
feeble  hand  and  puny  arm,  and  will  soon  allay 
the  stings  that  calumny  has  attempted  and 
intended. 

Sir,  to  come  to  the  matter  in  hand,  I  go  for  the 
amendment  to  the  resolution,  because  the  people 
do  not  demand  the  change  which  is  contemplated 
by  the  resolution.  Let  me  say,  as  the  gentleman 
for  Erving,  (Mr.  Griswold,)  said  the  other  day, 
in  reference  to  the  loan  of  the  State  credit,  that 
the  object  of  this  resolution  was  not  a  part  of  the 
programme  of  the  campaign  which  preceded  the 
call  of  this  Convention.  Will  he,  or  anybody 


61st  day.] 


ELECTIONS   BY   PLURALITY. 


137 


Tuesday,] 


HATHAWAY  —  HOOPER. 


[July  19th. 


else,  tell  me  where  this  amendment  to  the  present 
Constitution,  in  reference  to  elections  for  repre 
sentatives,  town,  or  district  officers,  was  put  forth, 
or  recommended,  in  that  famous  document  that 
was  drawn  up  by  him,  and  sent  out  to  the  peo 
ple  ?  Sir,  so  far  as  I  know,  it  made  neither  part 
nor  parcel  of  that  document.  It  was  not  one  of 
those  propositions  which  were  there  chalked  out 
for  us  here  to  act  upon.  It  may  possibly  be 
there,  nevertheless ;  but  if  it  is,  it  has  escaped 
my  observation. 

But,  Sir,  I  have  a  deeper  and  more  solid  ob 
jection  than  this ;  and  I  ask  whether  our  present 
Constitution,  thus  far,  in  regard  to  this  matter  of 
choosing  representatives  and  town  officers,  has 
worked  well  ?  Permit  me  to  say,  still  farther, 
that  I  hope  that  your  Constitution  will  remain 
precisely  as  it  now  stands,  and  has  stood  ever 
since  1780,  as  to  the  election  of  your  representa 
tives  and  town  officers.  Will  gentlemen  point  to 
a  single  word  in  that  Constitution  that  requires 
by  which  mode  your  representatives  and  town 
officers  shall  be  elected,  whether  by  a  majority 
vote  or  a  plurality  vote  ?  Sir,  have  there  been 
any  petitions  from  the  people  laid  upon  your  table, 
showing  that  they  desire  a  change  of  the  Consti 
tution  in  this  matter  ?  Again,  Sir,  I  ask,  has  the 
table  of  any  of  your  legislatures  ever  groaned  un 
der  the  weight  of  complaints,  embodied  in  peti 
tions  from  the  people,  in  regard  to  this  matter  ? 
No,  Sir — Xo,  Sir.  Then,  if  there  be  no  com 
plaint,  and  has  been  none,  in  the  community, 
why  make  this  change  ?  I  put  it  to  gentlemen 
seriously  :  Why  should  we  make  this  change  r 
The  great  complaint  has  been  in  reference  to  the 
election  of  your  governor,  and  those  officers  who 
have  been  elected,  not  by  towns,  but  by  the  peo 
ple  generally ;  that  it  was  necessary  to  have  a 
plurality  vote  as  the  test  in  such  elections,  because 
of  the  great  difficulty  of  calling  the  whole  people 
of  the  Commonwealth,  or  any  great  portion  of 
them,  out  a  second  time.  Gentlemen  have  said, 
and  repeated  it,  and  it  has  been  handed  from  the 
lips  of  one  to  the  other,  that  your  towns  were  but 
little  republic?,  and  that  you  could  go  on  and  vote 
perhaps  as  many  as  three  or  four  hundred  times 
in  a  day,  in  some  instances — that  in  town  elec 
tions  the  people  are  all  together ;  and  it  has  been 
repeated  here,  again  and  again,  that  your  nomi 
nations  in  town  meetings  for  representatives,  or 
town  officers,  are  not  made  in  caucus  and  in  con 
vention,  as  for  State  officers,  where  the  nomina 
tions  are  taken  from  the  towns,  but  that  they  are 
nominated  upon  the  spot,  and  at  the  time  of  the 
election ;  that  these  nominations  come  from  the 
people  themselves,  when  they  are  all  together ; 
and,  if  this  is  so,  I  cannot  see,  for  the  life  of  me, 


why,  in  this  matter,  you  should  not  allow  the 
Constitution  to  remain  as  it  is.  This,  as  I  said 
before,  did  not  constitute  any  part  of  the  reasons 
that  were  given  why  this  Convention  was  called ; 
neither  has  there  been  any  complaint,  to  my 
knowledge,  in  reference  to  this  matter,  on  the 
ground  that  the  people  did  not  choose,  or  had 
failed  to  choose,  all  the  representatives  to  which 
they  were  entitled.  Sir,  whenever  it  is  shown  to 
me  that  the  people  demand  this  change,  I  shall 
go  heart  and  hand  for  it ;  but,  until  I  do  see  it,  I 
shall  go,  not  for  rebuking  them  because  they  have 
not  complained — as  you  virtually  would  if  this 
resolution  shall  pass — but,  I  am  for  retaining  the 
good  old  rule  which  has  thus  far  worked  so  well, 
and  in  regard  to  which  no  one  has  ever  complain 
ed.  I  would  leave  it  precisely  as  it  is ;  and  let 
me  say  to  gentlemen,  in  reference  to  this  matter, 
that  if  this  resolution  shall  be  adopted,  then  I 
would  make  not  only  the  representatives  and  town 
officers  elective,  under  a  statute  such  as  the  legis 
lature  may  hereafter  make,  but  I  would  apply  it 
to  all  your  state  and  district  officers.  I  cannot 
see  any  reason  why  the  rule  should  not  be  a  uni 
form  one,  and  apply  to  the  whole,  as  well  as  a 
part  of  them. 

Sir,  I  am  not  inclined  to  discuss  this  matter  at 
any  great  length  ;  but  it  seems  to  me  that,  unless 
gentlemen  show  a  substantial  reason  for  making 
this  change  in  the  organic  law  as  it  now  stands, 
no  such  change  should  be  made.  I  know  of 
no  rule  in  the  present  Constitution,  under,  and 
by  which,  the  legislature  might  not,  at  any 
time,  since  1780  down  to  the  present  time,  have 
changed  the  law  in  an  hour,  and  have  adopted 
the  plurality  system  in  the  election  of  representa 
tives  and  town  officers,  if  it  had  so  pleased ;  and 
if  there  had  been  any  great  evils  in  this  matter, 
arising  from  the  requisition  of  a  majority  of  the 
voters,  and  if  the  people  had  felt  and  suffered 
inconvenience  and  wrong,  think  you  that  the 
legislature  would  not  have  been  called  upon, 
again  and  again,  to  make  a  change  ?  Assuredly, 
it  would. 

Sir,  I  have  no  great  regard  for  the  amendment 
to  these  resolutions,  on  any  other  ground  than 
that  I  believe  it  to  be  right  and  a  good  one.  It 
is  not,  however,  such  an  amendment  that  I  cher 
ish  so  dearly  as  to  induce  me  to  vote  against  the 
whole  of  these  resolutions,  in  case  it  should  not 
be  adopted ;  but  it  does  seem  to  me,  that  the  Con 
stitution  as  it  now  stands,  is  altogether  better 
than  the  change  which  is  proposed.  I  do  not 
believe  that  the  people  of  the  Commonwealth  are 
ready  for  a  change  in  this  matter ;  and  least  of  all, 
for  such  a  change  as  this. 

Mr.  HOOPEB,  of  Fall  River.     I  shall  vote 


138 


ELECTIONS   BY   PLURALITY. 


[61st  day. 


Tuesday,] 


HOOPER  —  KEYES. 


[July  19th. 


for  the  gentleman's  proposition  to  amend,  but 
not  for  the  reasons  which  he  has  assigned  for  its 
adoption,  but  for  reasons  precisely  the  opposite  of 
those  which  he  has  given.  I  shall  vote  for  it  be 
cause  I  am  in  favor  of  electing  representatives  by 
a  plurality  vote.  I  should  prefer  to  have  all  elec 
tions  decided  on  the  first  ballot ;  and  if  I  cannot 
get  that,  then  I  would  leave  the  matter  to  the 
legislature ;  and  then  the  people  can  accommo 
date  themselves,  and  have  the  plurality  system 
whenever  they  choose  to  have  it.  I  think  it 
altogether  preferable  to  leave  it  to  the  legislature 
to  determine,  than  to  put  into  the  Constitution  a 
provision  providing  for  the  plurality  mode  on  the 
second  ballot,  and  only  on  the  second  ballot.  If 
that  is  done,  the  mode  can  never  be  changed 
until  we  change  the  Constitution  itself. 

I  fully  concur  with  the  gentleman  from  Free 
town,  (Mr.  Hathaway, )  that  as  this  thing  has 
stood  in  the  Constitution,  the  legislature  might 
have  changed  the  mode  at  any  time,  and  have 
adopted  the  plurality  system.  They  might  have 
made  this  change  in  reference  to  representatives 
and  all  town  officers,  and  therefore  I  am  willing 
to  leave  it  in  that  shape ;  for  1  believe  that  the 
people  will  see  to  it,  that  they  will  have  their 
views  carried  out,  and  that  the  time  is  not  distant 
when  they  will  require  all  elections  of  town  offi 
cers,  to  be  conducted  on  the  plurality  system. 

For  these  reasons,  in  brief,  I  hope  that  the 
amendment  may  be  adopted. 

Mr.  KEYES,  for  Abington.  Since  this  discus 
sion  took  place,  I  have  waited  without  saying  a 
word ;  supposing  that  it  was  well  understood 
that  this  plan  was  a  compromise  between  the  two 
parties  here,  in  relation  to  the  questions  of  plu 
rality  and  majority.  When  the  Committee  re 
ported  to  the  Convention  in  favor  of  universal 
plurality,  it  was  defeated,  and  it  was  found  that 
there  was  a  great  difference  of  opinion,  a  major 
ity  of  the  members  of  the  Convention  being  in 
favor  of  the  majority  system,  and  a  new  Commit 
tee  was  appointed,  and  a  compromise  plan  was 
drafted,  which,  so  far  from  being  an  unmeaning 
and  imperfect  system,  was  founded  on  reason  in 
every  part  of  it ;  and  if  there  had  been  a  disposi 
tion  to  concede  anything  on  the  part  of  either  one 
side  or  the  other,  that  system  would  have  been 
adopted  without  farther  strife,  by  a  large  majority 
of  this  body.  I  must  confess,  however,  my  sur 
prise  at  the  vote  just  taken ;  and  while  I  am 
filled  with  surprise,  I  must  also  be  allowed  to 
express  my  gratification  at  the  fact  that  this  Con 
vention  has  been  saved  from  lasting  disgrace  by 
the  casting  vote  of  the  Chairman ;  for,  had  we 
lost  this  question,  what  should  we  not  have  lost  ? 
Everything.  The  liberal  party  in  the  Convention 


would  have  been  defeated  in  all  the  most  impor 
tant  matters ;  the  Whig  party  would  have  been 
triumphant,  and  in  a  fair  way  to  hold  the  reins 
of  power,  for  an  indefinite  period.  Sir,  had  that 
amendment  succeeded,!  would  have  prayed  Heav 
en  that  the  people  might  have  hissed  the  whole 
amended  Constitution  into  oblivion. 

Now,  what  is  the  system  before  us  ?  It  has 
been  mainly  adopted,  and  there  was  a  reason 
why  it  should  have  been  adopted.  It  was  adopt 
ed  as  a  compromise,  on  the  ground  that  the 
Convention  was  about  equally  divided  upon  the 
subject  to  which  it  refers.  We  have  proposed  a 
plan  of  compromise,  basing  the  elections  in  part 
upon  the  plurality  system,  and  in  part  upon  the 
majority  system.  The  reason  was  this,  viz.  : 
certain  officers  elected  on  general  ticket,  were 
restricted  to  the  majority  rule  on  the  ground  that 
if  the  people  should  fail  to  elect,  and  the  election 
should  devolve  on  the  legislature,  they  wrould 
still  be  elected  by  the  immediate  representatives 
of  the  whole  people ;  and  according  to  this  the 
people  would  be  allowed  to  nominate  their  own 
officers  without  trouble,  or  the  intervention  of 
others. 

In  regard  to  the  Senate,  the  majority  system 
has  been  objected  to,  under  the  present  system, 
on  the  ground  that  the  representatives  of  one 
locality  or  section,  have  elected  the  local  repre 
sentatives  of  other  sections.  To  do  a\vay  with 
that  difficulty,  it  is  provided  that  the  Senate  shall 
be  elected  by  a  plurality  vote,  so  that  each  district 
may  elect  its  own  senators,  and  other  district 
officers,  without  interference  on  the  part  of  rep 
resentatives  of  other  districts. 

We  supposed  that  that  would  do  away  with 
every  difficulty  which  existed  in  regard  to  the 
present  system. 

Those  who  go  for  the  plurality  system  in  ref 
erence  to  State  officers,  are  at  heart  in  favor  of  the 
majority  principle  for  electing  members  of  the 
House  of  Representatives.  What  is  the  reason 
that  they  now  go  for  a  plurality  system  ?  Why, 
Sir,  because  they  suppose  that  they  are  going  to 
derive  some  advantage  from  it.  Within  the  last 
ten  years,  the  people  of  the  country  towns  have 
been  deprived  of  a  thousand  representatives,  by 
the  operation  of  the  majority  system.  If  there 
be  any  place  where  the  plurality  system  is  want 
ed,  it  is  in  the  election  of  town  representatives. 
If  you  want  to  establish  the  principle  of  equality, 
there  is  no  case  on  earth,  where  plurality  in  vot 
ing  is  justifiable  to  so  great  an  extent,  as  it  is  in 
the  election  of  town  representatives,  that  the 
towns  may  enjoy  their  own  legal  rights  on  the 
floor  of  this  House.  I  want  to  see  every  town  in 
the  State  of  Massachusetts  represented  according  to 


61st  day.] 


ELECTIONS   BY   PLURALITY. 


139 


Tuesday,] 


KEYES  —  HATHAWAY. 


[July  19th. 


its  legal  rights,  every  year,  in  the  legislature  ;  be 
cause,  let  party  ties  be  as  strong  as  they  may,  they 
are  looser  in  the  country  towns  than  they  are  any 
where  else.  In  State  conventions,  the  leaders  of 
a  party  can  obtain,  and  hold  control,  and  the 
delegates  en  masse,  in  nine  cases  out  of  ten,  are 
mere  machines  to  register  their  edicts.  By  this 
term,  I  mean  no  disrespect,  but  simply  to  inti 
mate  that  they  usually  follow  their  leaders,  either 
for  the  reason  that  they  have  confidence  in  them, 
or  because  they  see  no  practicable  mode  of  doing 
otherwise.  I  have  had  some  experience  myself, 
in  regard  to  this  matter.  The  first  time  I  was 
elected  to  the  House  of  Representatives,  although 
belonging  to  the  dominant  party,  1  was  just  on  the 
extreme  verge  of  it ;  and,  on  that  account,  was 
considered  as  being  no  better  than  an  infidel. 
But  with  six  of  the  leaders  pitted  against  me,  and 
without  a  single  voice  raised  in  my  favor,  I  flog 
ged  them  over  and  over  again,  by  the  aid  of  the 
country  members.  It  was  upon  a  party  question, 
to  be  sure ;  but  the  country  members  are  not 
trained  altogether,  and  solely,  to  follow  party 
lead  ;  and  when  they  come  here,  and  see  how  the 
wires  are  pulled — which,  towards  the  close  of  a 
session,  they  have  generally  pretty  well  learned — 
they  are  then  able  to  act  independently. 

If  you  will  have  plurality,  therefore,  give  it  to 
the  country  towns,  that  they  may  always  elect 
their  representatives,  and  not  be  deprived  of  such 
a  large  fragment  of  their  strength,  as  is  exhibited 
in  that  long  list  which  has  been  presented  to  us 
by  the  gentleman  from  Boston,  (Mr.  Giles).  Now 
these  are  the  reasons  why  a  compromise  was  pro 
posed  ;  and  it  was  supposed  that,  on  these  grounds, 
and  with  the  proposition  which  the  new  Commit 
tee  put  forth,  the  Convention  would  be  harmonized 
on  the  subject,  if  parties  were  disposed  to  harmo 
nize  at  all.  But  this  feeling,  I  am  sorry  to  say, 
has  not  been  met  in  what  would  seem  to  me,  to 
be  a  proper  spirit,  on  the  part  of  members  of  this 
Convention  ;  but  gentlemen  have  stood  up  here, 
and  opposed  this  compromise,  not,  as  I  believe,  I 
may  safely  say,  because  they  have  changed  their 
principles  within  the  last  two  years,  but  because 
of  some  advantage,  which  they  expect  will  accrue 
to  their  party,  from  the  course  they  are  pursuing. 
They  have  their  own  objects  in  view,  and  the 
men  who  desire  the  success  of  the  Whig  party, 
have  voted  that  way,  whether  they  are  called 
Whigs,  or  by  some  other  name.  There  is  no  use 
in  trying  to  disguise  that  fact  any  longer. 

Now,  in  respect  to  all  these  resolves  but  one, 
and  I  do  not  recollect  indorsing  that  one  which 
relates  to  municipal  officers — in  the  Committee — 
I  hope  they  will  pass.  I  thought,  at  least,  that  in 
regard  to  the  election  of  municipal  and  town 


officers,  the  mode  was  to  be  left  to  the  legislature. 
We  have  comprehended  the  whole  organization 
of  the  legislature,  and  have  prescribed  the  method 
by  which  that  body  shall  be  constituted ;  and  if 
any  change  is  to  be  made,  wherein  the  plurality 
rule  is  to  be  made  to  apply,  it  should  be,  accord 
ing  to  my  view,  to  the  election  of  town  represen- ' 
tatives  ;  because  we  know  that  a  state  of  things  has 
existed,  and  will  exist,  hereafter,  for  the  next  four 
years  at  least,  which  renders  it  necessary  ;  for 
there  is  an  impassible  barrier  between  the  union 
of  any  two  of  the  existing  parties  within  that 
period  ;  and  therefore,  I  say,  that  in  case  of  fail 
ure  to  elect,  on  the  part  of  the  country  towns,  by 
reason  of  the  majority  system,  it  would  be  equiv 
alent  to  reducing  their  representation  in  propor 
tion  to  the  number  of  said  failures. 

Mr.  HATHAWAY.  Will  the  gentleman  par 
don  me  a  moment.  The  gentleman  entirely  mis 
takes  the  proposition  I  made.  The  proposition 
which  I  made,  was  to  leave  it  entirely  within 
the  power  of  the  legislature  to  determine  whether 
the  mode  of  election  should  be  by  plurality,  or 
majority,  or  any  other  mode. 

Mr.  KEYES.  In  order  to  have  a  system  which 
shall  embrace  the  three  great  branches  of  the 
government,  so  that  all  the  people  could  under 
stand  it,  and  to  place  it  beyond  the  possibility  of 
change  by  the  legislature,  I  should  prefer  to 
have  the  matter  fixed  and  stationary  in  the  Con 
stitution.  As  regards  town  and  municipal  offi 
cers,  I  would  leave  it  to  the  people  themselves, 
to  do  as  they  please. 

Now,  Mr.  President,  it  strikes  me,  that  if  the 
Convention  itself  had  sat  in  Committee,  and  con 
sidered  what  the  state  of  opinion  was  in  this  body, 
as  indicated  by  the  votes  already  taken,  and  if 
they  had  been  willing  to  indulge  the  same  liberal 
spirit  which  actuated  the  Committee,  in  order  to 
harmonize  the  views,  by  conceding  something  on 
both  sides  ;  then  I  think  that  this  plan  would 
have  been  adopted  by  a  triumphant  majority. 

I  have  looked  at  the  Convention — prehaps  I 
shall  be  out  of  order  in  saying  so — from  a  hun 
dred  miles  distance ;  and  when  I  have  seen  the 
votes  recorded  on  several  important  questions,  it 
struck  me  that  the  Convention  was  not  acting 
upon  its  own  judgment,  but  that  members  were 
actuated  by  unwise  fears  of  the  people.  They 
have  seemed  to  desire  to  show  that  they  were 
more  economical,  for  example,  than  they  actually 
are ;  they  do  not  seem  to  me,  to  have  acted  as 
if  they  were  elected  to  exercise  their  own 
judgment  and  sense  of  right,  according  to  their 
ideas,  but  to  take  counsel  of  every  bugbear  and 
opinion  in  the  community,  so  that  their  course 
might  be  shaped  accordingly. 


140 


ELECTIONS   BY   PLURALITY. 


[61st  day. 


Tuesday,] 


KEYES  —  SUMNEK  —  HOOPER —  BATES. 


[July  19th. 


How  these  amendments  are  to  be  submitted  to 
the  people,  I  do  not  know ;  but  so  far  as  the  action 
of  the  Convention  is  concerned,  in  my  opinion,  it 
has  defeated,  in  many  important  cases,  the  very  ends 
which  a  large  majority  of  the  people  desired,  espe 
cially  in  relation  to  the  judiciary.  The  election  of 
j  udges,  by  the  people,  would  have  been,  in  my  opin 
ion,  a  jewel  in  the  Constitution,  which  the  people 
would  have  rallied  most  strongly  to  support. 
Yes,  Sir,  the  people  all  over  the  State,  talk  to-day 
about  the  Convention,  as  not  daring  to  utter  its 
sentiments,  on  various  important  matters,  and  es 
pecially  on  the  question  of  loaning  the  credit  of  the 
State  to  private  corporations,  because  a  certain 
portion  of  the  people  threaten  to  rise  in  opposi 
tion  to  the  new  Constitution,  should  it  contain 
any  restrictions  in  regard  to  that  policy.  Now  a 
Convention  so  controlled,  is  worthy  of  the  hisses 
and  scorn  of  the  people,  instead  of  its  votes. 
How  can  we  expect  them  to  indicate  their  real 
sentiments,  if  we  stand  here  cowering  before 
them,  afraid  to  declare  our  own  ? 

But  I  will  not  detain  the  Convention  with  any 
thing  of  that  sort ;  I  wish  to  say,  in  sincerity,  that 
the  Committee  was  appointed  to  take  up  and 
consider  the  various  views  of  this  Convention. 
They  have  given  the  subject  their  careful  atten 
tion,  and  have  brought  in  a  compromise  plan, 
which  has  reason  and  common  sense  as  its  basis, 
and  I  trust  it  may  be  adopted. 

Reconsideration. 

Mr.  SUMNER,  of  Otis.  I  move  to  recon 
sider  the  vote  by  which  the  Convention  rejected 
the  amendment,  offered  by  the  gentleman  from 
Boston,  (Mr.  Schouler,)  if  such  a  motion  is  in 
order. 

Mr.  HOOPER,  of  Fall  River.  I  should  like 
to  inquire  of  the  Chair,  whether  the  motion  of 
the  gentleman  from  Freetown,  (Mr.  Hathaway,) 
is  not  the  tirst  motion  under  consideration  ? 

The  PRESIDENT.  That  amendment  is  to 
the  third  resolve,  but  the  gentleman  from  Otis, 
(Mr.  Sumner,)  moves  to  reconsider  a  vote  already 
taken  in  reference  thereto,  and  it  is  the  subject 
first  in  order,  under  the  rules. 

Mr.  SUMNER,  of  Otis.  I  have  but  few  words 
to  say,  in  reference  to  this  subject.  Aware  that 
the  Convention  must  be,  to  a  very  considerable 
extent,  wearied  with  the  debate  which  has  been 
had  upon  this  most  important  matter  ;  yet  from 
the  consideration  that  in  relation  to  it  I  have 
kept  silence  heretofore,  I  trust  that  a  few  sugges 
tions  from  me,  in  support  of  the  motion  which  I 
have  made,  will  be  entertained. 

I  make  the  motion,  among  other  reasons,  for 
this  :  that  it  is  very  apparent  from  the  vote  which 


has  been  taken,  that  there  is  a  very  strong  dispo 
sition  in  this  Convention,  and  out  of  it,  to  sus 
tain  the  plurality  principle ;  and  if  the  votes  which 
have  just  been  given  in  favor  of  the  affirmative 
of  the  proposition  were  canvassed,  I  apprehend 
they  will  be  found  to  rest  upon  a  large  majority 
of  the  people  of  Massachusetts.  Sir,  I  have  no 
doubt  of  the  fact,  radical  as  the  proposition  may 
appear  in  the  minds  of  some,  that  there  is  in  this 
Commonwealth  a  very  great  majority  of  the 
people  in  favor  of  a  change.  I,  as  one  of  the 
friends  of  this  Convention,  supposed,  from  the 
way  in  which  it  was  called,  and  in  which  the 
delegates  were  elected  to  it,  that  one  of  the  prom 
inent  objects  which  would  be  carried  into  effect 
by  its  action,  would  be  the  adoption  of  the  plu 
rality  system ;  and  no  one  could  have  been  so 
deaf  as  not  to  have  heard,  from  every  section 
of  this  Commonwealth,  one  complete  chorus  of 
voices  proclaiming  that  the  old  majority  princi 
ple,  like  many  other  matters  of  policy  which  had 
been  used  in  this  Commonwealth  in  times  past, 
had  become  worn  out.  Once,  it  was  required 
that  our  governor,  lieutenant-governor,  senators, 
and  representatives,  should  have  a  property  qual 
ification.  That  requisition  answered  their  day 
and  generation  perfectly  well.  But  that  has  long 
since  been  worn  out,  and  others,  newer  and 
fresher,  have  been  adopted.  And  such  has  been 
the  difference  of  opinion,  so  to  speak,  that  the 
majority  rule  is  now  worn  out ;  and  I  submit, 
that  if  the  people  have  demanded  any  change  in 
the  fundamental  law  of  the  State,  they  have  de 
manded  a  change  in  respect  to  the  majority  rule. 

Sir,  I  do  not  propose  to  go  into  a  discussion  of 
this  question  at  length,  but  I  have  very  great 
doubt  whether,  upon  a  fuller  consideration  of 
this  subject,  this  Convention  will  be  content  with 
the  limited  proposition  which  is  now  offered  to 
the  people  in  regard  to  this  matter.  I  think  it  is 
worthy  of  fuller  consideration,  and  reconsidera 
tion,  also  ;  and  therefore  I  have  made  my  motion. 

Mr.  JAMES,  of  South  Scituate.  I  hope  the 
motion  to  reconsider  will  prevail. 

Mr.  BATES,  of  Plymouth.  I  rise  to  a  ques 
tion  of  order.  I  believe  a  motion  to  reconsider, 
must  go  into  the  Orders  of  the  Day. 

The  PRESIDENT.  Not  upon  a  collateral 
question. 

Mr.  BATES.  I  also  rise  to  a  question  of  priv 
ilege.  As  appears  by  the  yeas  and  nays  called 
this  morning,  and  recorded  by  the  Secretary  of 
the  Convention,  opposite  the  name  of  H.  C. 
Brown  is  recorded  the  word  "  yes."  To  the  call 
of  that  name  the  clerk  says,  there  was  an  audible 
response,  and  he  so  recorded  it.  The  gentleman 
says  he  was  not  in  the  hall,  and  did  not  vote  upon 


61st  day.] 


ELECTIONS   BY   PLURALITY. 


141 


Tuesday,] 


BKOWN  —  ASPINWALL  —  JAMES  —  WHITNEY. 


[July  19th. 


the  question.  I  should  like  to  know  how  far  that 
matter  has  been  carried,  and  how  many  gentlemen 
have  been  recorded  as  voting  who  did  not  vote  ? 

The  PRESIDENT.  It  is  competent  for  any 
member  of  the  Convention  who  is  recorded  as 
having  voted  upon  the  question,  to  call  the  atten 
tion  of  the  Convention  to  the  subject,  and  have 
the  record  amended  in  that  respect,  if  wrong. 

Mr.  H.  C.  BROWN,  of  Tolland.  I  was  not 
present  at  the  time  the  yeas  and  nays  were  called. 
Had  I  been  present,  I  should  have  voted  differ 
ently  from  what  appears  by  the  record. 

The  PRESIDENT.  It  is  competent  to  have 
the  record  amended,  inasmuch  as  the  question 
immediately  pending  is  on  a  reconsideration  of  the 
vote  rejecting  the  amendment,  and  if  it  shall  ap 
pear  that  the  vote  was  improperly  announced, 
then  the  action  falls.  By  reference  to  the  record, 
the  Clerk  informs  the  Chair  that  the  word  "  yes  " 
is  placed  opposite  the  name  of  II.  C.  Brown, 
and  it  is  for  the  Convention  to  say,  whether  a 
deduction  shall  be  made  from  the  affirmative  vote, 
and  if  the  Chair  hears  no  objection,  the  record  will 
be  amended  according  to  the  facts. 

No  objection  was  made,  and  the  record  was 
amended  accordingly. 

The  PRESIDENT.  The  change  does  not  af 
fect  the  result,  and  therefore  it  is  unnecessary  for 
the  Convention  to  pursue  the  matter  farther. 

Mr.  ASPINWALL.  It  may  be  as  well  to 
suggest  at  this  time,  as  there  are  several  gentlemen 
in  the  Convention  by  the  name  of  Brown,  and  a 
mistake  has  occurred,  that  some  one  of  them  may 
have  answered  to  the  "wrong  name.  I  therefore 
request  that  the  record  may  be  examined  to  ascer 
tain  whether  all  the  gentlemen  by  that  name  are 
recorded  as  they  answered. 

The  PRESIDENT.  Any  gentleman  who  thinks 
that  his  vote  is  improperly  recorded,  can  examine 
the  journal  at  his  pleasure.  The  gentleman  from 
Scituate  is  entitled  to  the  floor. 

Mr.  JAMES,  of  South  Scituate.  I  was  about 
to  say,  when  I  was  interrupted,  that  I  hoped  that 
the  motion  to  reconsider  would  prevail,  and  the 
amendment  adopted,  and  then  the  Convention 
will  have  done  one  thing  which  the  community 
desire.  I  can  speak  for  my  own  constituents,  and 
for  those  in  the  neighboring  towns,  that  they  con 
sider  this  one  of  the  most  important  matters  be 
fore  the  Convention,  and  are  almost  unanimously 
of  the  opinion  that  the  plurality  system  should  be 
adopted.  We  have  met  with  a  great  deal  of  dif 
ficulty,  not  only  in  our  elections  of  members  of 
congress,  but  in  our  elections  of  members  of  the 
legislature.  For  five  years  the  town  of  Scituate 
went  unrepresented,  because  trial  after  trial  could 
affect  nothing.  I  would  ask  if  that  is  not  an 


evil  ?  That  is  a  sufficient  answer  to  the  gentleman 
from  Freetown,  (Mr.  Hathaway,)  who  asks  if  any 
evil  exists  in  the  Commonwealth  ?  That  is  an 
evil,  and  ought  not  we  to  lay  our  hands  upon  it, 
and  reform  the  evil  ?  I  should  be  glad  to  see  this 
matter  reconsidered,  and  to  see  the  plurality  sys 
tem  adopted  throughout,  and  I  hope  the  motion 
will  prevail. 

Mr.  WHITNEY,  of  Conway.  The  immediate 
question,  I  believe,  is  upon  the  motion  to  recon 
sider  the  vote  by  which  the  amendment  of  the 
gentleman  from  Boston,  (Mr.  Schouler,)  was 
rejected.  I  wish  to  say  a  word  in  reply  to  the 
arguments  urged  in  favor  of  a  reconsideration. 
They  are  based  upon  the  idea  that  the  people 
desire  the  plurality  rule,  in  order  to  get  rid  of  the 
inconvenience  of  a  second  election.  Now,  Sir, 
if  gentlemen  will  examine  the  Report  of  this 
Committee — which  is  the  second  Committee  upon 
this  subject,  and  appointed  in  full  view  of  the  votes 
previously  taken  upon  the  subject, — it  will  be 
found  that  they  have  carefully  matured  the  sys 
tem  they  present,  so  as  to  avoid  a  second  elec 
tion  by  the  people.  They  simply  leave  the  Con 
stitution,  in  reference  to  the  officers  for  whom  the 
whole  people  of  the  State  vote,  where  the  Con 
stitution  now  leaves  it.  They  provide  that  the 
House  of  Representatives  shall  send  the  names 
of  two  out  of  three — instead  of  two  out  of  four — 
to  the  Senate,  and  that  the  Senate,  from  the  two 
thus  sent,  shall  select  one.  Now,  here  is  the 
principle  of  the  present  Constitution  retained, 
which,  so  far  as  I  know,  is  satisfactory  to  the 
people.  What  the  people  complain  of,  is  the 
trouble,  expense,  and  ill-feeling  growing  out  of 
second  elections.  Now,  your  Committee  have 
provided  against  this.  They  have  reported  that 
in  the  election  to  be  held  by  the  people,  when 
they  shall  vote  for  members  of  the  House,  and 
for  senators — after  they  have  adopted  the  amend 
ment — they  will  vote  for  those  representatives 
with  a  full  knowledge  that  they  delegate  to  them 
the  right  to  vote  in  the  legislature  for  State  offi 
cers  not  elected  by  a  majority  vote.  Now,  I  take 
it,  as  I  have  before  said — and  I  must,  to  some 
extent,  repeat — that  the  people  have  no  attachment 
to  the  plurality  rule,  as  an  abstract  question. 
They  have  no  attachment  to  the  idea,  theoreti 
cally,  that  a  less  number  than  the  majority  should 
rule.  It  is  a  necessity  forced  upon  them  by  a 
division  of  the  Commonwealth  into  more  parties 
than  two,  that  makes  them  desire  some  expedient 
to  rid  themselves  of  the  trouble  and  expense  at 
tending  repeated  elections.  The  resolutions,  as 
they  now  stand,  meet  the  desires  of  the  people  here, 
and  they  will  prefer  to  delegate  to  their  represent 
atives  the  right  to  vote  in  the  legislature  in  case 


142 


ELECTIONS   BY   PLURALITY. 


[61st  day. 


Tuesday,] 


WHITNEY. 


[July  19th. 


of  failure  to  make  a  choice,  to  being  called  upon 
a  second  time  to  ballot.  They  will  choose  to 
provide  against  this  in  the  manner  here  proposed. 
I  undertake  to  say,  in  every  town  in  the  Com 
monwealth  of  Massachusetts,  when  a  representa 
tive  is  to  be  elected  under  your  amended  Consti 
tution,  he  will  be  elected  with  a  direct  reference  to 
some  man  standing  before  the  people  as  candidate 
for  governor.  No  candidate  for  election  as  a  rep 
resentative  could  be  elected,  unless  it  were  under 
stood  by  the  constituency  which  is  to  elect  him, 
that  he  would  vote  for  the  candidate  for  governor, 
which  a  major  part  of  that  constituency  favor,  in 
this  House,  in  case  of  a  failure  upon  the  part  of 
the  people  to  elect  their  governor,  and  the  election 
is  thrown  into  the  House  of  Representatives.  In 
case  there  are  three  parties,  and  two  unite  in  their 
preference  for  a  particular  candidate  for  governor 
still  it  is  expected  that  the  representatives  will 
carry  out  the  will  of  a  majority  of  the  people 
in  that  respect,  and  the  people  will  take  care  of 
this  matter  when  they  elect  representatives  and 
senators. 

Now,  Sir,  the  argument  has  been  brought  up, 
that  our  governors  have  been  elected  by  a  legisla 
ture  in  which  all  the  people  of  the  Commonwealth 
were  not  represented.  It  must  be  recollected 
that  under  the  amended  Constitution,  if  this 
compromise  Report  be  adopted,  we  shall  not  as 
semble  here  with  vacancies  in  half  the  towns  in 
the  Commonwealth.  By  the  application  of  the 
plurality  rule  in  your  election  of  representatives, 
you  will  have  filled  your  House,  and  there  will 
stand  here  a  representative  for  every  town  in  the 
Commonwealth  of  Massachusetts.  And  those  rep 
resentatives  will  come  here  indoctrinated  with  the 
principles  of  the  constituents  they  represent ;  they 
will  bring  with  them  the  voice  of  a  majority  of 
the  people  in  the  towns  from  which  they  are 
elected,  in  reference  to  the  man  for  whom 
they  are  to  vote  to  fill  the  office  of  governor  of 
the  Commonwealth.  They  will  come  here,  and 
vote,  not  by  ballot,  but  vote  viva,  voce,  for  there 
is  to  be  no  dodging  hereafter  in  this  matter.  The 
men  who  are  sent  here  must  declare  by  the 
voice  the  will  of  their  constituents  ;  and  I  under 
take  to  say,  that  men  will  come  here  virtually 
instructed  by  their  constituents  to  vote  one  way, 
and  there  will  be  no  danger  that  they  will  vote 
another,  but  they  will  meet  the  desires  and  will 
of  the  people  who  elected  them. 

Mr.  President :  I  did  not  come  here  prepared  to 
discuss  this  question  ;  but  in  relation  to  this  mo 
tion  for  a  reconsideration,  made  by  the  gentle 
man  for  Otis,  (Mr.  Sumner,)  I  believe  that  any 
judicious  mind  who  wishes  for  the  adoption  of 
the  amendments  which  we  shall  recommend,  by 


the  people,  would  not  think  it  wise  or  expedient 
to  submit  to  the  people  an  amendment  making 
so  important  and  radical  a  change  as  this  makes, 
which  was  adopted  in  the  Convention  only  by  a 
bare  majority  of  one  or  two  votes ;  adopted  by 
less  than  a  majority  of  those  who  favored  the 
calling  of  a  Convention  originally,  who  have  the 
responsibility  of  calling  the  Convention,  and  who 
will  have  the  responsibility  of  carrying  these 
amendments  before  the  people.  I  say,  a  major 
ity  of  these  men  are  against  a  reconsideration  of 
this  question,  on  the  grounds  proposed,  to  wit : 
in  order  to  ingraft  upon  these  resolutions  an 
amendment  to  be  carried  by  a  bare  majority. 
And,  I  repeat,  it  is  these  men  who  will  have  the 
responsibility  of  carrying  the  amended  Constitu 
tion  before  the  people,  who  object  to  the  amend 
ment  proposed  by  the  gentleman  for  Otis. 

Now,  Mr.  President,  I  put  it  to  you,  I  put 
it  to  the  members  of  the  Convention,  whether  it 
would  be  wise,  expedient,  or  in  any  sense  desir 
able,  for  us  to  go  before  the  people  upon  any 
amendment  to  the  Constitution,  in  relation  to 
which  we  are  about  equally  divided  ?  There  can 
be  no  doubt  about  it.  The  part  of  wisdom,  then, 
seems  to  be,  to  agree,  as  we  have  done,  upon  some 
medium  ground  upon  this  subject,  and  stand 
there.  But,  Sir,  where  is  the  necessity  to  alter 
the  resolutions  ?  As  they  now  stand,  we  shall 
have  filled  our  Senate  by  elections  by  the  people, 
for  a  plurality  elects  there.  We  shall  have  filled 
the  House  of  Representatives  by  plurality  elec 
tions,  so  that  there  will  be  no  vacancies  there, 
and  we  shall  thereby  have,  in  the  legislature,  an 
expression  of  a  majority- will  of  the  people  of  the 
Commonwealth,  elected  with  a  direct  reference  to 
this  question  of  State  officers.  A  majority  of  the 
people  will  have  delegated  their  power  to  their 
senators  and  representatives  to  elect  their  gover 
nor,  in  case  they  themselves  fail  in  an  election. 
So  that,  in  the  election  of  governor,  and  of  your 
highest  State  officers,  you  will  still  recognize  the 
great  majority  principle  as  the  true  principle. 
We  shall  still  preserve  that  principle  in  the  choice 
of  our  governor,  lieutenant-governor,  secretary, 
auditor,  &c.,  and  we  shall  keep  embodied  in  our 
Constitution,  permanently,  the  sacred  principle, 
that,  in  the  majority  of  the  people  alone,  resides 
the  sovereignty  of  this  Commonwealth.  We  shall 
transmit  that  principle,  sacred  with  our  Constitu 
tion,  to  our  posterity.  Sir,  let  us  not  give  up 
that  principle.  I  would  keep  it  in  the  Constitu 
tion,  in  some  form.  I  would  recognize  that  fun 
damental  doctrine  of  all  republican  governments, 
somewhere  in  our  amended  Constitution. 

Sir,  gentlemen  go  for  the  plurality,  not  because 
it  is  right  in  principle,  but  because  it  is  a  politi- 


61st  day.] 


ELECTIONS   BY   PLURALITY. 


143 


Tuesday,] 


WHITNEY  —  DANA. 


[July  19th. 


cal  necessity,  forced  upon  them  by  circumstances 
now  existing  in  the  Commonwealth.  This  is  the 
only  avowed  reason.  Now,  Sir,  the  Report  of 
the  Committee  has  adopted  that  principle  so  far 
as  that  necessity  exists,  but  it  does  not  exist  in 
the  election  of  governor,  lieutenant-governor,  and 
your  other  State  officers,  elected  by  general  ticket. 
I  therefore  hope,  that  we  shall  stand  by  the  Re 
port  of  the  Committee,  and  that  we  shall  not  vote 
to  reconsider,  for  the  purpose  of  farther  altera 
tions  in  the  amendment  proposed  by  these  resolu 
tions.  Let  us  stand  upon  this  ground,  and  I  fear 
not  the  people ;  they  will  sustain  us.  I  believe 
•we  can  then  go  triumphantly  before  the  people 
with  this  amendment  as  it  is;  and  I  repeat,  I 
hope  the  Report  will  be  adopted  as  it  now  stands, 
without  any  alteration. 

Mr.  WHEELER,  of  Lincoln,  demanded  the 
yeas  and  nays  upon  the  motion  to  reconsider. 

The  yeas  and  nays  were  ordered.  (Cries  of 
' < question , "  "question .") 

Mr.  DANA,  for  Manchester.  I  am  aware,  by 
the  call  of  "  question,"  "question,"  which  I  have 
just  heard,  that  the  Convention  wish  to  come  to 
a  vote  upon  this  motion,  and  I  will  not,  there 
fore,  detain  them  but  a  moment.  I  had  the 
privilege  of  addressing  the  Convention,  on  another 
occasion,  upon  the  plurality  side  of  this  question. 
I  then  said  all  that  I  deemed  it  important  to  say  ; 
but,  I  now  wish  to  call  the  attention  of  the  Con 
vention,  for  a  moment,  to  the  principles  contained 
in  the  proposition  before  us,  as  it  came  from  the 
Committee. 

When  this  subject  was  before  under  considera 
tion,  the  question  was  on  the  adoption  of  the  plu 
rality  or  the  majority  system  absolutely ;  but  it 
now  comes  before  us  in  the  form  of  a  compromise, 
and  to  the  merits  of  that  compromise  our  atten 
tion  is  called.  Now,  Sir,  the  only  distinction, 
which  I  can  see,  upon  which  a  compromise  of 
these  two  principles  can  properly  be  made,  b  this  : 
In  deliberative  assemblies,  where  there  can  be 
frequent  ballotings  taken  without  inconvenience, 
and  where  there  is  danger  of  being  taken  by  sur 
prise,  the  majority  principle  should  be  adopted. 
I  would  always  require  it  in  an  assembly  like  this  ; 
I  would  always  require  it  in  your  town  affairs, 
and  in  the  election  of  town  officers.  But  where 
the  people  vote  in  large  masses,  where  they  can 
not  vote  often,  without  very  great  inconvenience, 
and  where,  from  the  nature  of  the  case,  there  is 
no  danger  of  surprise,  then,  from  the  experience 
we  have  had  for  the  last  eight  years,  I  would 
adopt  the  plurality  rule.  I  can  see  no  other  dis 
tinction  in  principle,  than  that.  It  lies  between 
deliberative  assemblies  which  can  vote  often,  and 
which  are  liable  to  be  taken  by  some  surprise,  and 


between  more  large  assemblies,  which  cannot  re 
sort  to  frequent  voting  without  great  inconven 
ience.  I  am  willing  to  make  that  distinction. 
I  am  in  favor  of  retaining  the  majority  system  in 
town  meetings — in  voting  for  town  officers — in 
town  affairs,  and  in  the  election  of  representatives 
to  the  general  court.  I  would,  at  any  rate,  have 
that  matter  in  the  hands  of  the  legislature;  I 
would  not  tie  the  hands  of  the  legislature,  and  if 
the  towns  found  the  majority  principle  to  work 
too  much  inconvenience,  I  would  allow  the  legis 
lature  to  establish  the  plurality  system  for  them. 

Now,  my  objection  to  this  compromise  system 
is  this  :  it  proposes  to  retain  the  majority  princi 
ple  where  the  reasons  are  the  strongest  against  it. 
It  proposes  to  retain  the  majority  in  cases  where 
there  can  be  no  danger  of  surprise,  and  where, 
from  the  nature  of  the  case,  a  second  election  can 
not  be  held  without  great  inconvenience.  You 
propose,  if  you  cannot  get  a  majority  upon  the 
popular  vote,  to  throw  the  election  of  your  gov 
ernor  and  of  your  high  State  officers  into  the 
legislature.  Now,  this  very  system  constitutes 
the  strongest  objection  to  the  whole  majority  prin 
ciple.  The  result  of  the  plan  submitted  by  the 
Committee,  will  be  that  in  your  great  offices,  the 
people  will  not  elect  at  all ;  but  these  officers  will 
be  elected  by  assemblies  which  meet  in  this  Hall, 
and  which  were  not  chosen  for  that  purpose  at  all. 
I  repeat  it,  your  compromise  proposes  to  retain  the 
majority  system  where  the  strongest  reasons  exist 
for  adopting  the  plurality  system,  and  the  result 
of  it  will  be  to  place  it  in  the  power  of  the  Senate 
and  House  of  Representatives  to  elect  all  the  great 
officers  of  the  Commonwealth. 

Now,  Mr.  President,  let  we  ask  gentlemen  who 
advocate  this  plan,  if  the  most  objectionable  fea 
ture  of  the  present  system  of  election  is  not  that 
the  great  officers  of  the  State  are  elected  by  the 
legislature  ?  And  will  it  not  be  still  more  objec 
tionable  under  the  system  which  you  propose  to 
adopt,  when  a  larger  number  of  these  officers  are 
made  elective?  There  are  more  officers  to  be 
elected  by  the  popular  vote  now,  by  the  system 
you  have  provided,  than  there  were  under  the 
former  Constitution.  It  increases  the  patronage 
of  the  people,  and  in  case  they  fail  to  elect,  will 
increase  the  patronage  of  your  legislature ;  that  is 
to  say,  we  shall  increase  the  evil  which  already 
exists  under  the  present  system.  There  is  now 
nearly  double  the  necessity  for  taking  the  power 
from  the  legislature  that  there  was  under  the 
former  Constitution. 

For  this  reason,  if  for  no  other,  I  cannot  support 
the  proposition  reported  by  your  Committee,  and 
throw  into  the  hands  of  your  legislature  the  elec 
tion  of  all  these  officers,  which  you  propose  to 


144 


ELECTIONS   BY   PLURALITY. 


[61st  day. 


Tuesday/ 


DANA  —  WHITNEY. 


[July  19th. 


make  elective.  It  is  from  this  very  system  that 
this  danger  of  corruption  and  perversion  of  the 
popular  voice,  from  which  we  have  suffered,  has 
arisen.  It  seems  to  me  that  this  proposition  of 
compromise  is  not  founded  in  principle,  and  that 
we  ought  not  to  support  it.  Let  the  people  of  the 
Commonwealth  elect  by  one  election,  their  gov 
ernor,  their  lieutenant-governor,  and  all  their 
State  officers.  I  believe  it  is  the  will  of  the  people 
of  the  State  that  they  should  be  thus  elected,  and 
that  the  people  should  not  be  kept  in  suspense  for 
four  or  five  months  after  the  election  has  taken 
place,  before  they  can  know  who  will  be  the 
officers  of  the  State. 

Mr.  WHITNEY,  of  Con  way,  (interposing). 
I  would  suggest  to  the  gentleman  for  Manchester, 
that  the  secretary  of  the  Commonwealth,  the 
treasurer,  and  those  officers  of  which  he  speaks 
as  having  now  been  made  elective,  are  now  elected 
by  the  legislature  under  the  present  Constitution, 
so  that  in  case  of  a  failure  to  elect  by  the  people, 
the  legislature  will  have  no  more  officers  to  elect 
than  under  the  present  Constitution. 

Mr.  DANA.     The  attorney-general  is  not. 

Mr.  WHITNEY.  True,  the  attorney-general 
is  not,  but  the  secretary,  treasurer,  and  auditor, 
are,  and  the  evil  of  which  the  gentleman  speaks, 
therefore,  at  least,  cannot  be  increased  by  the 
system  which  the  Committee  propose. 

Mr.  DANA.  Well,  Sir,  the  adoption  of  the 
provision,  making  these  officers  elective  by  the 
people,  shows  one  thing.  It  shows  that  it  is 
better  that  all  these  officers  should  be  elected  by 
the  people  rather  than  by  the  legislature,  so  that 
the  gentleman's  remark  certainly  does  not  affect 
my  argument.  I  want  that  the  election  of  these 
officers  shall  be  taken  out  of  the  hands  of  the 
legislature  and  put  into  the  hands  of  the  people. 
We  have  taken  the  appointment  of  the  attorney- 
general  away  from  the  governor  and  given  it  to 
the  people.  We  have  taken  the  appointment  of 
the  secretary  and  auditor  out  of  the  hands  of  the 
legislature,  and  yet,  with  the  experience  of  the 
last  eight  years  before  us,  you  propose  to  give  this 
appointing  power  back  to  the  legislature,  for  that 
will  be  the  result  of  it.  No  gentleman  can  be 
blind  to  the  result.  If  you  adopt  this  majority 
principle,  it  is  verbally  saying  that  four  out  of  five 
times — I  am  not  certain  about  my  arithmetic,  but 
it  is  somewhere  about  that — these  officers  shall 
be  elected  upon  this  floor. 

Now,  Mr.  President,  that  is  the  first  aristocratic 
feature  of  this  government,  to  say  that  a  small 
body  of  men — some  four  hundred  or  five  hundred 
in  number — shall  elect  the  great  officers  of  the 
State,  and  to  say,  that  they  shall  not  be  elected  by 
the  people.  Sir,  I  am  opposed  to  the  establish 


ment  or  continuance  of  any  such  principle.  It  is 
not  a  question  of  electing  those  officers  by  a 
majority  of  the  people.  Your  compromise  plan 
does  not  provide  for  that  in  its  practical  effect. 
You  provide,  that  four  out  of  five  shall  be  elected 
upon  this  floor,  instead  of  being  elected  by  the 
people  at  all.  But,  gentlemen  should  recollect, 
that  if  they  elect  these  officers  by  plurality, 
they  do  not  vote  against  electing  by  a  majority. 
If  a  majority  of  the  people  of  the  Commonwealth 
are  in  favor  of  any  one  candidate  for  governor,  a 
majority  will  elect,  whether  the  rule  be  estab 
lished,  that  the  plurality  or  the  majority  shall 
elect.  But,  if  you  cannot  get  a  majority,  then 
the  plurality  rule  provides  the  nearest  approach 
to  a  majority,  that  you  can  get.  For  these  rea 
sons  I  cannot  support  that  part  of  the  first  of  the 
compromise  resolutions. 

The  last  portion  of  it,  also  seems  to  me  to  be 
somewhat  objectionable.  It  says,  that  in  the 
election  of  representatives  to  the  legislature,  a 
majority  shall  be  required  upon  the  first  trial,  but 
that  a  plurality  shall  prevail  upon  the  second 
trial.  Now,  if  the  plurality  is  to  prevail,  why 
not  adopt  it  at  once  ?  Why  not  let  it  prevail  at 
the  first  trial  ?  By  your  proposition,  in  many 
places,  the  first  trial  will  be  a  mere  tentative.  The 
people  will  say,  that  the  first  trial  will  amount  to 
nothing — that  they  will  vote  for  anybody  just  to 
try  their  hands.  Then,  upon  the  second  trial, 
comes  the  real  contest — and  it  is  not  apt  to  be  near 
so  fair  a  contest — not  so  fair  an  expression  of  the 
public  opinion,  as  if  the  people  knew  beforehand, 
that  the  first  trial  would  settle  the  whole  matter. 
Now,  Sir,  I  submit  it  to  the  judgment  of  gentlemen 
better  acquainted  with  town  affairs  than  I  am, 
although  I  am  somewhat  acquainted  with  them. 
It  is  not  true,  as  the  gentleman  from  Boston  re 
marked,  that  I  have  never  been  in  a  town  meeting 
in  all  my  life.  I  lived  in  the  town  of  Cambridge, 
and  attended  their  town  meetings,  until  Cam 
bridge  became  a  city,  and  they  would  not  give 
me  any  more  town  meetings  to  attend.  I  say,  I 
appeal  to  gentlemen  who  are  conversant  with  the 
proceedings  of  town  affairs,  if  it  is  not  true,  that 
if  the  people  know  beforehand,  that  the  first  vote 
is  to  be  decisive,  they  would  not  give  a  fuller  vote, 
and  whether  we  should  not  have  more  fully  an 
expression  of  the  popular  voice,  than  upon  any 
second  trial  ?  Why,  after  the  first  vote  is  taken, 
a  few  of  the  leading  politicians  in  the  towns  will 
settle  the  matter  among  themselves.  When  the 
moderator  announces  the  vote,  that  there  is  no 
choice,  a  majority  being  required  upon  the  first 
ballot,  and  another  ballot  is  immediately  opened, 
what  is  the  consequence  ?  The  consequence  must 
be,  that  a  few  of  the  leading  men  will  put  their 


61st  day.] 


ELECTIONS   BY   PLURALITY. 


145 


Tuesday,] 


DANA  —  TRAIN  —  KEYES  —  WILSON  —  SCIIOULER  —  ALLEN. 


[July  19th. 


heads  together,  agree  upon  some  candidate,  and  he 
will  go  right  in.  Will  not  that  be  the  result  ? 
The  second  trial  will  follow  so  closely  upon  the 
first,  that  the  people  will  not  have  time  to  consult 
together  at  all ;  no  time  for  deliberation  ;  and  so 
the  whole  matter  will  be  settled  by  a  few  of  the 
leading  politicians.  It  seems  to  me,  therefore, 
that  as  to  the  towns,  we  had  better  not  tie  the 
hands  of  the  legislature.  I  think  we  had  better 
allow  them  to  remain  as  they  are,  for  the  present, 
but  to  leave  the  matter  in  the  hands  of  the  legis 
lature,  so  that,  if  in  the  course  of  time,  they  get 
tired  of  their  majority  elections,  they  can  come  to 
the  legislature,  and  the  legislature  can  release 
them,  and  give  them  the  plurality  system.  I  am 
willing  that  they  should  have  the  plurality  rule, 
if  it  should  be  found  expedient  for  them ;  but  I 
think  it  would  not  be  a  wise  course  for  us  to  tie 
their  hands,  and  the  hands  of  the  legislature,  in 
relation  to  the  matter,  by  declaring  in  the  Consti 
tution,  that  they  shall  elect  by  plurality. 

Now,  I  submit  to  the  Convention,  whether  it 
would  not  be  the  simplest  thing  after  all,  and 
whether  it  would  not  be  better  to  adopt  the 
plurality  system  for  everything  except  town 
affairs,  and  leave  that  matter  in  the  hands  of  the 
legislature.  I  had  prepared  an  amendment  to 
this  effect,  but  of  course  it  is  not  in  order  to  offer 
it  now.  I  hope,  however,  that  the  motion  to 
reconsider  will  prevail,  and  that  something  like 
that  result  will  be  reached — that  we  shall  adopt 
the  plurality  plan  throughout,  except  in  regard  to 
the  town  elections,  and  that  they  may  be  left  to 
the  legislature  to  provide. 

Mr.  TRAIN,  of  Framingham.  I  move  the 
previous  question. 

Mr.  KEYES,  for  Abington.  I  hope  the  pre 
vious  question  will  not  be  sustained.  It  is  very 
easy  as  we  have  just  heard,  for  gentlemen  to 
adopt  a  principle  and  then  to  suit  their  plans  to  it. 
There  is  another  principle  which  should  be  illus 
trated,  if  we  had  an  opportunity,  and  it  is  a 
principle  which  happens  to  be  in  accordance  with 
the  whole  scheme,  as  I  said  before 

The  PRESIDENT.  The  question  is  upon 
sustaining  the  previous  question. 

Mr.  KEYES.  I  only  want  to  say  this,  that 
this  is  not  the  time  to  take  the  vote ;  I  think  this 
is  a  very  important  question 

Mr.  TRAIN.  I  rise  to  a  question  of  order, 
that  the  gentleman  is  not  discussing  the  previous 
question. 

The  PRESIDENT.  The  Chair  does  not  un 
derstand  the  gentleman  as  yet  to  be  debating  the 
main  question. 

Mr.  KEYES.  I  believe  that  this  Convention 
thoroughly  understand  this  question,  and  the 

10 3 


principles  upon  which  this  plan  was  adopted  in 
Committee. 

The  PRESIDENT.  It  is  not  in  order  for  the 
gentleman  to  discuss  the  merits  of  the  question. 

Mr.  KEYES.  I  am  stating  the  reasons  why 
discussion  should  be  had,  and  why  the  previous 
question  should  not  be  sustained  at  this  time. 
Drummers  have  been  sent  here  to  assist  my  friend 
for  Manchester  (Mr.  Dana,)  to  help  the  Whig 
party  to  sustain  its  life  ;  and  the  reason  why  I 
hope  the  previous  question  will  not  be  sustained 
is,  if  the  case  was  thoroughly  understood,  that 
the  question  would  not  be  decided  as  it  might  be 
under  other  circumstances. 

Mr.  WILSON,  of  Natick.  I  wish  to  say  a 
single  word  in  relation  to  this  motion  for  the  pre 
vious  question,  which  has  been  moved  by  my 
very  adroit  and  skilful  friend  from  Framingham, 
(Mr.  Train).  I  wish  to  say  nothing  in  regard  to 
this  matter  which  is  not  distinctly  understood  by 
the  members  of  this  Convention.  The  delegate 
for  Abington  has  hinted  at  the  matter.  I  wish  to 
say  that  one  of  the  reasons  why  the  previous 
question  should  not  be  taken  at  this  time,  is  this : 
we  now  see  the  advantage,  to  which  allusion  has 
so  often  been  made,  that  the  city  of  Boston  has 
upon  this  floor.  I  wish  simply 

The  PRESIDENT.  The  Chair  would  suggest 
to  the  gentleman  from  Natick,  that  he  is  entering 
upon  a  wider  field  of  discussion  than  the  motion 
for  the  previous  question  would  warrant. 

Mr.  WILSON.  I  wish  simply  to  say  in  rela 
tion  to  this  matter,  drummers  have  been  out,  and 
gentlemen  from  sick  beds  are  here ;  and  we  are 
to  have  the  advantage  of  the  votes  of  these  gen 
tleman,  at  this  particular  time,  for  the  first  time 
in  the  session  ;  and  we  are  to  be  cut  off  from  the 
discussion  of  this  question.  Debate  is  to  be 
stopped,  and  the  previous  question  forced  upon 
us  at  a  particular  time  to  serve  a  particular  pur 
pose. 

Mr.  SCHOULER,  of  Boston.  I  hope  the 
previous  question  will  be  sustained.  This  is  a 
question  simply  upon  a  reconsideration.  If  we 
vote  in  favor  of  a  reconsideration,  the  whole  ques 
tion  is  open  for  discussion,  and  as  much  discus 
sion  as  the  gentleman  for  Abington  and  the  gen 
tleman  from  Natick  could  desire.  It  is  a  mere 
matter  of  reconsideration,  and  I  hope,  therefore, 
that  the  motion  will  prevail. 

Mr.  ALLEN,  of  Worcester.  I  was  gone  out 
of  the  Convention  a  short  time,  and  on  returning, 
to  my  great  surprise,  I  find  this  state  of  things 
existing.  Before  I  went  out,  upon  one  side  of 
the  House  there  was  an  earnest  desire  that  there 
might  be  free  opportunity  to  discuss  all  important 
questions  here,  and  that  no  limitation  should  be 


146 


ELECTIONS  BY  PLURALITY. 


[61st  day. 


Tuesday, 


ALLEX  —  LOUD  —  WHITNEY  —  HILLARD. 


[July  19th. 


imposed  upon  debate.  In  accordance  with  the 
wish  of  gentlemen  upon  that  side  of  the  House, 
and  expressed  in  various  quarters  by  their  leading 
men,  I  thought  we  were  to  have  a  free  and  full 
discussion.  But,  to  my  astonishment,  I  find 
those  same  gentlemen  pressing,  at  this  moment, 
the  demand  for  the  previous  question.  If  they 
insist  upon  it,  I  trust  that  they  will  not  complain 
hereafter,  if  the  majority  should  adopt  rules,  such 
as  may  suit  them,  upon  the  subjects  discussed, 
and  rigidly  adhere  to  them.  I  think  that  if  mem 
bers  of  this  Convention  have  occasion  to  look 
back  to  the  changes  of  opinion  which  have  been 
expressed  on  other  occasions,  and  manifested  from 
time  to  time  by  that  same  minority,  they  will  see, 
in  the  sudden  change  which  has  taken  place  in  all 
their  views  this  very  morning,  and  this  very  hour, 
upon  the  subject  of  free  discussion,  that  some  mo 
tive,  not  quite  so  apparent  to  all,  may  exist,  for 
pressing  the  previous  question  at  this  time.  I 
hope  it  will  not  be  urged,  because  upon  the  right 
decision  of  the  question  now  under  consideration, 
— I  will  not  say  how  it  should  be  decided, — may 
depend  the  whole  result  of  this  Convention ;  for 
gentlemen  may  rely  upon  it,  that  this  is  a  ques 
tion  of  vital  importance  to  the  business  we  have 
before  us,  and  the  adoption  or  rejection  of  our 
labors  may  depend  upon  our  harmonious  action 
in  this  matter.  In  a  Convention  so  equally  di 
vided  in  regard  to  this  subject,  it  seems  to  me  the 
most  unfitting  time  that  has  occurred,  from  the 
commencement  of  our  deliberations,  for  the  adop 
tion  of  any  rule  which  shall  put  an  end  to  all 
debate. 

Mr.  LORD,  of  Salem.  There  is  one  consider 
ation  which  influences  me  very  strongly  to  desire 
a  vote  upon  this  question.  I  wish  to  see  how 
gentlemen  feel  under  it.  That  is  the  only  con 
sideration  which  induces  me  to  vote  for  the  pre 
vious  question.  When  debate  has  been  stopped, 
over  and  over  again,  upon  a  subject  which  had 
not  been  half  discussed,  gentlemen  felt  remarkably 
well,  and  I  desire  to  see  how  they  feel  now,  when 
there  is  a  proposition  to  stop  debate  upon  a  sub 
ject  which  has  been  debated  more  than  all  others 
put  together.  The  principle  I  hold  to,  in  re- 
regard  to  this  matter,  is,  that  debate,  like  trade, 
should  regulate  itself,  and  that  when  the  subject 
is  exhausted,  debate  will  cease.  That  is  the  prin 
ciple  upon  which  I  act.  Now  and  then  gentle 
men  will  feel  it  necessary  to  talk  a  little  against 
time.  For  example,  if  it  should  be  deemed  in 
expedient  to  take  the  yeas  and  nays  fifteen  min 
utes  before  the  hammer  should  come  down  for 
the  hour  of  adjournment,  it  would  be  well  enough 
to  talk  up  to  that  time,  because  you  cannot  con 
veniently  take  the  vote  at  that  time.  It  has  been 


suggested  here  that  the  House  is  fuller,  and  that 
there  are  more  gentlemen  to  vote  here  now  than 
there  were  before ;  but  this  fact,  to  my  mind,  is 
no  argument  against  the  previous  question.  If 
there  were  three  hundred  and  twenty  gentlemen 
present  when  the  question  was  taken  before,  and 
there  should  happen  to  be  three  hundred  and  fifty 
here  now,  I  do  not  think  that  is  any  reason  why 
we  should  not  vote  now  in  preference  to  voting 
in  a  thin  House. 

The  PRESIDENT.  The  Chair  would  suggest 
to  the  gentleman  from  Salem,  as  he  did  to  the 
gentleman  from  Natick,  that  he  is  entering  upon 
a  wider  field  of  remark  than  the  motion  for  the 
previous  question  would  warrant. 

Mr.  LORD.  I  was  not  replying  to  what  the 
gentleman  from  Natick  said  about  drummers,  but 
only  speaking  to  what  the  gentleman  said  about 
there  being  more  persons  here  now  than  there 
were  before. 

Mr.  WHITNEY,  of  Conway.  I  think  the 
previous  question  should  not  prevail  at  this  time, 
because  the  main  question  is  a  reconsideration  of 
the  vote  which  we  have  just  taken.  We  have 
had  no  time  to  review  and  reconsider  the  ques 
tion,  and  we  do  need  the  time  until  to-morrow 
for  the  examination  of  this  question.  The  pre 
vious  question,  if  sustained,  will  precipitate  this 
important  question  upon  us  now,  at  a  time  when 
we  are  unprepared  for  it.  I  think,  after  a  tie 
vote  upon  this  matter,  and  which  has  been  de 
cided  by  the  vote  of  the  President  of  the  Conven 
tion,  that  we  do  need  twenty-four  hours  for  a  con 
sideration  of  the  main  question,  and  that  gentle 
men  should  not  press  a  reconsideration  of  this 
matter  upon  the  spur  of  the  moment.  I  hope  the 
previous  question  will  not  be  sustained  by  the 
honest  and  fair-minded  men  of  this  Convention. 
I  ask  it  as  a  privilege,  so  that  I  may  reflect  upon 
this  question  until  to-morrow.  I  may  change  my 
vote  upon  this  subject,  upon  farther  considera 
tion,  and  I  not  know  what  I  may  do  to-morrow. 
I  hope  gentlemen  will  give  us  all  an  opportunity 
of  getting  more  light  upon  this  matter,  and  for 
that  reason  I  hope  the  previous  question  will  not 
be  sustained. 

Mr.  HILLARD,  of  Boston.  It  occurs  to  me,  if 
I  understand  the  operation  of  the  motion  to  re 
consider,  that  the  delegate  from  Conway  will  gain 
the  very  advantage  which  he  desires.  If  the  mo 
tion  to  reconsider  prevails,  the  whole  subject  is 
open  for  discussion  and  consideration  as  it  was  in 
the  early  part  of  the  day.  I  would  suggest,  by 
way  of  meeting  the  wishes  of  all,  that  we  shall 
agree  to  take  the  question  to  reconsider  by  yeas 
and  nays,  and  if  that  motion  should  prevail,  that 
we  assign  some  hour  to-morrow  for  taking  the 


61st  day.] 


ELECTIONS    BY   PLURALITY. 


147 


Tuesday,] 


ALLEN  —  TRAIN  —  BRIGGS  —  GRAY. 


[July  19th. 


question  upon  the  amendment,  so  that  there  may 
be  no  surprise  ;  for  I  take  it,  the  difficulty  in  this 
matter  is,  that  there  is  an  uneasy  feeling  in  the 
minds  of  those  who  were  absent,  that  they  had 
not  voted,  and  all  parties,  whatever  may  be  their 
opinions,  will  be  content  with  the  result,  if  they 
have  as  full  expression  of  the  sentiment  of  the 
Convention  as  it  is  possible  to  get. 

Mr.  ALLEN,  of  Worcester.  I  move  that 
when  the  vote  is  taken  on  the  motion  for  the 
previous  question,  it  be  taken  by  yeas  and 
nays. 

Mr.  TRAIN,  of  Framingham.  I  merely  wish 
to  set  myself  right  upon  this  matter  of  the  pre 
vious  question.  I  am  not  aware  that  I  ever 
moved  the  previous  question  before  in  my  life, 
although  I  have  had  a  little  legislative  experience, 
not  enough,  however,  to  acquire  the  reputation 
for  adroitness  which  my  friend  from  Natick,  (Mr. 
Wilson,)  would  give  to  me  ;  but  then  it  is  a  habit 
in  our  country,  to  pat  each  other  upon  the  shoul 
ders,  and  call  each  other  good  fellows.  [Laugh 
ter.]  I  rose  to  address  the  Convention  amid  cries 
all  over  the  House,  for  the  question,  and  like  an 
adroit  lawyer,  I  covered  my  retreat  by  saying  that 
I  rose  to  move  the  previous  question,  which  I 
thought  would  come  from  me  with  exceeding  good 
grace  under  the  circumstances.  [Laughter.]  Then 
my  friend  for  Abington,  (Mr.  Keyes,)  rose,  under 
some  degree  of  excitement,  proper  excitement  I 
will  admit,  and  desired  to  make  a  speech  upon 
this  question.  With  the  utmost  degree  of  fairness, 
I  then  offered  to  withdraw  my  motion,  if,  after 
he  had  made  his  speech,  which  I  wanted  to  hear, 
he  would  renew  the  motion ;  but  he  would  not 
do  that.  When  you  cannot  suit  others,  it  is 
the  best  way  to  suit  yourself;  and,  therefore, 
although  I  have  been  interceded  with  to  withdraw 
the  motion,  I  shall  persist  in  adhering  to  it,  be 
cause  I  think  the  motion  was  made  fairly  and 
properly.  If  the  Convention  choose  to  reconsider, 
the  whole  discussson  will  be  then  opened,  and 
those  gentlemen  who  have  not  spoken,  or  who 
wish  to  repeat  their  old  speeches,  can  have  the 
opportunity  of  so  doing.  Having  stated  the  rea 
sons  which  induced  me  to  make  the  motion  I  did, 
and  having,  I  trust,  set  myself  right  before  the 
Convention,  and  thanking  the  gentleman  from 
Natick,  (Mr.  Wilson,)  for  the  compliment  which 
he  has  bestowed  upon  me,  I  have  said  all  that  I 
desire  to  say. 

Mr.  BRIGGS,  of  Pittsfield.  I  would  like  to 
know,  if  we  commence  calling  the  yeas  and  nays, 
we  lose  our  dinner :  [Laughter.]  Mr.  Pres 
ident  :  I  shall  most  certainly  vote  against  the 
previous  question,  whether  the  yeas  and  nays  are 
taken  upon  it  or  not.  I  feel  a  little  as  my  friend 


from  Salem,  (Mr.  Lord,)  does.  Our  friends  mxist 
feel  what  it  is  to  be  skinned  themselves.  We  have 
got  used  to  it,  so  that  it  hardly  makes  us  smart 
when  the  skin  is  peeled  off.  But  I  do  not  believe 
in  the  previous  question  except  upon  extraordinary 
occasions,  and  I  do  not  think  this  is  one.  We 
have  a  full  house  now,  and  I  hope  we  shall  have 
a  vote  this  afternoon.  If  we  take  the  question 
now  and  should  happen  to  succeed  in  it,  it  settles 
nothing.  Sir,  no  snap  judgment  here,  is  worth 
anything,  and  it  should  not  be  sought  by  any 
party  or  the  friends  of  any  measure.  On  all 
important  questions,  I  hold  that  we  should  let 
debate  run  its  course.  It  is  very  important  that 
it  should,  and  more  important  that  questions 
should  be  settled  right,  than  it  is  that  we  should 
settle  them  before  dinner,  or  to-day,  or  to-mor 
row.  I  wish  we  could  agree  upon  some  time  to 
take  this  question,  and  then  upon  some  time  to 
take  the  main  question,  if  it  is  reconsidered,  and 
then  see  that  our  friends  in  the  city  are  all  here, 
for  I  do  not  think  it  would  be  unconstitutional 
to  have  them  all  here  once  to  vote,  and  I  do  not 
think  it  would  be  an  alarming  concentration  of 
power  for  them  all  to  be  here  once  during  this 
Convention.  I  wish,  for  these  reasons,  and  others 
which  might  be  stated,  that  we  might,  by  common 
consent,  fix  upon  some  time,  either  this  afternoon 
or  some  other,  when  we  will  take  the  vote  on 
this  question  on  the  motion,  so  that  we  may  have 
a  full  Convention  and  a  fair  vote,  and  one  which 
will  settle  the  question  satisfactorily. 

Mr.  GRAY,  of  Boston.  I  do  not  feel  disposed 
to  vote  for  the  previous  question,  and  I  need  not 
travel  over  the  reasons  which  have  been  generally 
given  by  other  gentlemen ;  Sir.  I  have  been  against 
limiting  debate  in  any  way,  either  by  the  previ 
ous  question  or  by  fixing  an  hour  for  taking  the 
question,  because  I  have  yet  to  see  a  single  in 
stance  in  which  there  has  been  any  speaking,  to 
to  any  extent,  against  time.  But  I  cannot  agree 
with  the  suggestion  of  my  colleague,  to  take  the 
question  without  the  yeas  and  nays,  because  he 
will  recollect  that  if  the  motion  for  reconsideration 
succeeds,  it  is  very  well.  The  whole  question 
will  be  open  ;  but  suppose,  in  taking  the  question 
upon  the  motion  for  reconsideration  by  yeas  and 
nays,  it  is  rejected ;  that  vote  is  final.  Now,  what 
I  suggest  is  this  :  that,  under  the  circumstances, 
the  motion  for  the  previous  question  should  be 
withdrawn.  Then  I  am  ready  to  go  with  my 
friend  from  Pittsfield  and  fix  some  time  to  take 
the  question,  which  will  give  gentlemen  an  op 
portunity  to  debate  it  to  the  fullest  extent ;  and 
when  that  time  comes,  if  farther  debate  is  really 
wished,  I  hope  farther  time  will  be  given.  I 
should  be  very  glad  to  see  every  one  of  my  col- 


148 


PERPETUATION  OF  RECORDS,  &c. 


[61st  day. 


Tuesday,] 


LORD  —  HOOPER  —  BIRD  —  WILSON. 


[July  19th. 


leagues,  as  well  as  both  of  the  intelligent  and 
respectable  members  from  Pittsfield,  and  every 
member  of  this  Convention,  present,  when  the 
vote  is  taken ;  and  if  I  knew  of  any  drum  to 
be  beaten  which  would  bring  them  all  in,  for  the 
first  time  in  my  life,  I  would  lend  a  hand  at  the 
work. 

Mr.  LORD,  of  Salem.  It  is  my  impression, 
that  a  motion  for  the  previous  question,  cannot 
survive  an  adjournment.  If  I  am  right,  inas 
much  as  we  have  ordered  the  yeas  and  nays  on 
the  motion  to  take  the  previous  question,  I  will, 
for  the  first  time  in  my  life,  move  an  adjourn 
ment.  I  ask,  if  the  motion  for  the  previous 
question  lives  over  an  adjournment  ? 

The  PRESIDENT.     It  does  not. 

Mr.  LORD.  Then  I  move  that  the  Conven 
tion  adjourn. 

The  motion  was  agreed  to,  and  the  Convention 
adjourned  until  three  o'clock,  P.  M. 

AFTERNOON    SESSION. 
The  Convention  reassembled  at  three  o'clock. 

Reconsideration. 

Mr.  HOOPER,  of  Fall  River,  moved  a  re 
consideration  of  the  vote,  by  which  the  resolves 
relating  to  the  limitation  of  the  incorporation  of 
towns,  was  indefinitely  postponed. 

The  motion  was  placed  upon  the  Orders  of  the 
Day,  to  be  considered  to-morrow. 

Mr.  HOOPER.  I  move  that  the  rule  be  sus 
pended,  so  that  the  motion  to  reconsider  may  be 
considered  at  this  time. 

Mr.  ASPINWALL,  of  Brookline.  I  hope 
that  the  rule  will  not  be  suspended,  but  that  we 
shall  go  on  with  the  unfinished  business  of  the 
morning. 

Mr.  LORD,  of  Salem.  I  think  it  is  hardly 
worth  while  to  change  the  order  of  business,  un 
less  there  be  some  special  reason  for  doing  so.  If 
the  order  is  to  be  changed,  it  ought  to  be  known 
beforehand.  I  therefore  ask,  or  shall,  before  I  sit 
down,  that  the  question  be  taken  by  yeas  and 
nays. 

The  PRESIDENT.  The  motion  to  suspend 
the  rule,  is  not  debatable. 

Mr.  LORD.  Then,  inasmuch  as  we  have,  at 
present,  rather  a  thin  House,  if  the  gentleman 
does  not  withdraw  his  motion,  I  must  ask  for 
the  yeas  and  nays. 

Mr.  HOOPER.  I  supposed  there  would  be 
no  objection,  and  that  the  matter  would  not  give 
rise  to  debate  ;  but,  as  objection  is  made,  I  will 
withdraw  my  motion. 

The  motion  was  accordingly  withdrawn. 


Perpetuation  of  the  Records. 

Mr.  BIRD,  of  Walpole,  from  the  Committee 
appointed  under  an  order  of  May  5th,  to  consider 
and  report  what  measures  were  necessary  for  the 
Convention  to  adopt,  to  continue  and  perpetuate 
its  records,  made  the  following  Report : — 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  19,  1853. 
The  Committee  appointed  under  the   order  of 
the   Convention  of    May   5th,   viz. :    "  Ordered, 
That  a  Committee  of  five  be  appointed,  to  con 
sider  and  report  what  measures  it  is  desirable  for 
the  Convention  to  adopt,  to  preserve  and  perpet 
uate  its  Records,"   have  attended  to  that  duty, 
and  submit  the  following  resolves. 
For  the  Committee, 

F.  W.  BIKD,  Chairman. 

Resolved,  That  at  the  close  of  the  session,  the 
Secretaries  of  the  Convention  deposit  the  original 
Journals,  together  with  the  papers  of  the  Con 
vention,  in  the  office  of  the  Secretary  of  State. 

Resolved,  That  William  S.  Robinson  prepare 
an  Index  to  the  Journal,  and  procure  two  thou 
sand  copies  of  the  Journal  and  Index  to  be 
printed  and  boinid,  on  such  terms  and  in  such 
manner  as  shall  be  approved  by  the  Committee 
on  the  Preservation  of  the  Records,  and  that  he 
be  paid  four  dollars  a  day  for  his  services  therein. 

Resolved,  That  his  Excellency  the  Governor 
be  requested  to  draw  his  warrant  on  the  treasury 
for  such  expenses  incurred  in  the  execution  of 
the  preceding  Resolves,  as  shall  be  approved  by 
the  Committee  on  the  Preservation  of  the  Records. 

Resolved,  That  the  Secretary  of  the  Common 
wealth  be  requested  to  distribute  copies  of  the 
Journal  to  each  member  of  the  Convention,  and 
to  all  persons  and  public  bodies  mentioned  in 
chapter  2,  section  2,  of  the  Revised  Statutes, 
excepting  members  of  the  Legislature. 

The  Report  having  been  read,  Mr.  BIRD 
moved  that  it  be  considered  now. 

The  motion  was  agreed  to. 

The  question  being  taken  on  the  adoption  of  the 
Report  of  the  Committee,  it  was  decided  in  the 
affirmative. 

Assignment  of  time  for  taking  the  Question. 

Mr.  WILSON,  of  Natick,  moved  that  ten  o' 
clock,  to-morrow,  be  assigned  for  taking  the  ques 
tion  on  the  resolves  on  the  subject  of  Elections  by 
Plurality. 

Pending  which  motion,  Mr.  LORD,  of  Salem, 
moved  that  the  Convention  proceed  to  the  con 
sideration  of  the  Orders  of  the  Day,  which  being 
a  privileged  motion,  had  precedence  over  the  mo 
tion  of  the  gentleman  from  Natick.  And  the 
question  being  taken,  it  was  decided  in  the  affirm- 


61st  day.]                         ELECTIONS   BY   PLURALITY. 

149 

Tuesday,]                                                        YEAS  —  NAYS. 

[July  19th. 

ative.     And  the  Convention  thereupon  proceeded 
to  consider  the 

Loud,  Samuel  P. 
Miller,  Seth,  Jr. 

Stevens,  Granville 
Stevens,  Joseph  L.,  Jr. 

Mixter,  Samuel 

Storrow,  Charles  S. 

Orders  of  the  Day, 

Morey,  George 

Sumner,  Increase 

Morss,  Joseph  B. 

Talbot,  Thomas 

The  first  item  being  the  resolves  on  the  subject 

Morton,  Marcus 

Taylor,  Ralph 

of 

Morton,  Marcus,  Jr. 

Thomas,  John  W. 

Noyes,  Daniel 

Tileston,  Edmund  P. 

Elections  by  Plurality. 

Oliver,  Henry  K. 

Train,  Charles  R. 

The  pending  question  being  on  the  motion  of 

Orcutt,  Nathan 
Paige,  James  W. 

Tyler,  John  S. 
Upham,  Charles  W. 

the  gentleman  from  Otis,  Mr.  Simmer,  to  recon 

Park,  John  G. 

Upton,  George  B. 

sider  the  vote  by  which  the  amendment  offered  by 

Parker,  Adolphus  G. 

Viles,  Joel 

the  gentleman  from  Boston,  (Mr.  Schouler,)  had 

Peabody,  George 

Walcott,  Samuel  B. 

been  rejected. 
Upon  this  motion  the  yeas  and   nays,  having 

Pomroy,  Jeremiah 
Powers,  Peter 
Putnam,  John  A. 

Wales,  Bradford  L. 
Walker,  Samuel 
Weeks,  Cyrus 

been  previously  ordered,  were   taken,  with  the 

Rantoul,  Robert 

Wetmore,  Thomas 

following  resxilt—  yeas,  146  ;  nays,  188  :— 

Read,  James 

Wheeler,  WiUiam  F. 

Reed,  Sampson 

White,  Benjamin 

YEAS. 

Sargent,  John 

Wilbur,  Darnel 

Adams,  Benjamin  P.       Gilbert,  Wanton  C. 
Aldrich,  P.  Emory          Gould,  Robert 
Andrews,  Robert             Goulding,  Dalton 
Aspinwall,  William         Goulding,  Jason 
Atwood,  David  C.            Gray,  John  C. 
Ayres,  Samuel                  Green,  Jabez 

Schouler,  William 
Sikes,  Chester 
Sleeper,  John  S. 
Souther,  John 
Stetson,  Caleb 
Stevens,  Charles  G. 

Wilder,  Joel 
Wilkins,  John  H. 
Wilkinson,  Ezra 
Williams,  J.  B. 
Wilson,  Milo 
Wood,  Nathaniel 

Barrows,  Joseph               Greenleaf,  Simon 

NAYS. 

Beebe,  James  M.              Hale,  Artemas 

Bigelow,  Jacob                 Hale,  Nathan 

Abbott,  Josiah  G. 

Clark,  Ransom 

Bliss,  Gad  O.                    Hammond,  A.  B. 

Adams,  Shubael  P. 

Clarke,  Stillman 

Bradbury,  Ebenezer        Hawkes,  Stephen  E. 

Allen,  Charles 

Cleverly,  William 

Braman,  Milton  P.          Hayward,  George 

Allen,  James  B. 

Crane,  George  B. 

Breed,  Hiram  N.              Heard,  Charles 

Allen,  Joel  C. 

Cross,  Joseph  W. 

Brewster,  Osmyn             Henry,  Samuel 

Allen,  Parsons 

Cushman,  Henry  W. 

Briiiley,  Francis               Hersey,  Henry 

Alley,  John  B. 

Cushman,  Thomas 

Briggs,  George  N.            Hewes,  James 

Alvord,  D.  W. 

Cutler,  Simeon  N. 

Bullock,  Rufus                 Hey  wood,  Levi 

Baker,  Hillel 

Davis,  Charles  G. 

Bumpus,  Cephas  C.         Hillard,  George  S. 

BaDard,  Alvah 

Davis,  Ebenezer 

Carter,  Timothy  W.         Hindsdale,  William 

Ball,  George  S. 

Davis,  Isaac 

Chandler,  Amariah          Hobart,  Aaron 

Barrett,  Marcus 

Day,  Gilman 

Chapin,  Chester  W.         Hopkinson,  Thomas 

Bates,  Eliakim  A. 

Dean,  Silas 

Choate,  Rufus                  Hubbard,  William  J. 

Bates,  Moses,  Jr. 

Duncan,  Samuel 

Coggin,  Jacob                   Hunt,  William 

Bennett,  William,  Jr. 

Dunham,  Bradish 

Cogswell,  Nathaniel        Huntington,  Asahel 

Bennett,  Zephaiiiah 

Durgin,  John  M. 

Cole,  Sunnier                    Huntington,  Charles  P. 

Bigelow,  Edward  B. 

Eames,  Philip 

Conkey,  Ithamar              Hurlburt,  Samuel  A. 

Bird,  Francis  W. 

Eaiie,  John  M. 

Cooledge,  Henry  F.         Hyde,  Benjamin  D. 

Boutwell,  Geo.  S. 

Easland,  Peter 

Crockett,  George  W.       Jackson,  Samuel 

Booth,  William  S. 

Eaton,  Calvin  D. 

Crosby,  Leander               James,  William 

Boutwell,  Sewell 

Edwards,  Elisha 

Crowell,  Seth                   Jenkins,  John 

Bradford,  William  J.  A. 

Edwards,  Samuel 

Cummings,  Joseph          Jenks,  Samuel  II. 

Bronson,  Asa 

Fay,  Sullivan 

Dana,  Richard  H.,  Jr.     Johnson,  John 

Brown,  Alpheus  R. 

Fellows,  James  K. 

Davis,  John                      Kellogg,  Giles  C. 

Brown,  Artemas 

Fiske,  Emery 

Davis,  Solomon                Kingman,  Joseph 

Brown,  Hammond 

Fisk,  Lyman 

Dawes,  Henry  L.             Kinsman,  Henry  W. 

Brown,  Hiram  C. 

Fitch,  Ezekiel  W. 

Deming,  Elijah  S.           Knight,  Hiram 

Brownell,  Joseph 

Foster,  Abram 

Denton,  Augustus           Knight,  Jefferson 

Bryant,  Patrick 

Fowle,  Samuel 

Easton,  James,  2d             Knight,  Joseph 

Buck,  Asahel 

Fowler,  Samuel  P. 

Eaton,  Lilley                    Kuhn,  George,  H. 

Cady,  Henry 

Freeman,  James  M. 

Ely,  Homer                      Ladd,  John  S. 

Caruthers,  William 

French,  Charles  A. 

Eustis,  WiUiam  T.           Leland,  Alden 

Case,  Isaac 

French,  Samuel 

Farwell,  A.  G.                 Lincoln,  Frederic  W.,  Jr. 

Chapin,  Daniel  E. 

Gale,  Luther 

Foster,  Aaron                   Littleneld,  Tristram 

Chapin,  Henry 

Gardner,  Johnson 

French,  Charles  H.          Livermore,  Isaac 

Churchill,  J.  McKean 

Gates,  Elbridge 

Frothingham,  Rich'd,  Jr.Lord,  Otis  P. 

Clarke,  Alpheus  B. 

Gilbert,  Washington 

Gardner  Henry  J.            Lothrop,  Samuel  K. 

Clark,  Henry 

Giles,  Charles  G. 

150 

ELECTIONS   BY   PLURALITY.                         [61st  day. 

Tuesday,] 

NAYS  —  ABSENT  —  WILSON.                                          [July  19th. 

Giles,  Joel 

Partridge,  John 

Butler,  Benjamin  F.        Nayson,  Jonathan 

Gooding,  Leonard 

Peabody,  Nathaniel 

Childs,  Josiah                   Norton,  Alfred 

G  nives  John  W. 

Pease,  Jeremiah,  Jr. 

Clark,  Salah                      Paine,  Henry 

(ill-  wold,  Josiah  W. 

Peimirnan,  John 

Cole,  Lansing  J.               Parker,  Joel 

Griswold,  Whiting 

Perkins,  Jesse 

Cook,  Charles  E.              Parker,  Samuel  D. 

Hartley,  Samuel  P. 

Perkins,  Noah  C. 

Copeland,  Benjamin  F.  Parsons,  Thomas  A. 

Hallett,  B.  F. 

Phelps,  Charles 

Cressv,  Oliver  S.              Payson,  Thomas  E. 

II:t])'j;ood,  Lyman  W. 

Phiimcy,  Silvanus  B. 

Crittenden,  Simeon          Perkins,  Daniel  A. 

JIapgood,  Seth 

Pierce,  Henry 

Crowninshield,  F.  B.       Perkins,  Jonathan  C. 

Haskins,  William 

Pool,  James  M. 

Curtis,  Wilber                  Plunkett,  William  C. 

Hathaway,  Elnathan  P. 

Rawson,  Silas 

Davis,  Robert  T.              Preston,  Jonathan 

Hay  den,  Isaac 

Rice,  David 

Dehon,  William               Prince,  F.  O. 

Hazewell,  Charles  C. 

Richards,  Luther 

Denison,  Hiram  S.           Putnam,  George 

Heath,  Ezra  2d, 

Richardson,  Daniel 

DeWitt,  Alexander         Ring,  Elkanah,  Jr. 

He\ves,  William  II. 

Richardson,  Nathan 

Doane,  James  C.              Rockwell,  Julius 

Hobart,  Henry 

Richardson,  Samuel  II. 

Dorman,  Moses                 Rockwood,  Joseph  M. 

Hobbs,  Edwin 

Rogers,  John 

Ely,  Joseph  M.                 Sampson,  George  R. 

Hood,  George 

Ross,  David,  S. 

French,  Rodney               Sherman,  Charles 

Hooper  Foster 

Royce,  James  C. 

Gooch,  Daniel  W.           Simmons,  Perez 

Howland,  Abraham  H. 

Sanderson,  Amasa 

Greene,  William  B.         Stevenson,  J.  Thomas 

Hovt,  Henry  K. 

Sanderson,  Chester 

Hall,  Charles  B.               Stutson,  William 

Hunt,  Charles  E. 

Sheldon,  Luther 

Harmon,  Phineas             Sumner,  Charles 

Huilbut,  Moses  C. 

Sherril,  John 

Haskell,  George               Swain,  Alanson 

Ide,  Abijah  M.,  Jr. 

Simonds,  John  W. 

Holder,  Nathaniel            Taber,  Isaac  C. 

Jacobs,  John 

Smith,  Matthew 

Houghton,  Samuel          Thayer,  Joseph 

Kendall,  Isaac 

Sprague,  Melzar 

Howard,  Martin               Turner,  David  P. 

Keyes,  Edward  L. 

Spooner,  Samuel  W. 

Huntington,  George  H.  Tower,  Ephraiai 

Kimball,  Joseph 

Stacy,  Eben  H. 

Kellogg,  Martin  R.          Tyler,  William 

Knowlton,  J.  S.  C. 

Stevens,  William 

Knowlton,  Charles  L.      Wallace,  Frederick  T. 

Knowlton,  William  H. 

Stiles,  Gideon 

Langdoii,  Wilber  C.        Warner,  Samuel,  Jr. 

Knox,  Albert 

Strong,  Alfred  L. 

Lawton,  Job  G.,  Jr.         White,  George 

Ladd,  Gardner  P. 

Taft,  Arnold 

Lowell,  John  A.               Woods,  Josiah  B. 

Lawrence,  Luther 

Thayer,  Willard,  2d 

Marvin,  Theophilus  R.    Wood,  William  H. 

Lincoln,  Abishai 

Thompson,  Charles 

Nash,  Hiram 

Little,  Otis 

Tilton,  Abraham 

Loomis,  E.  Justin 

Tilton,  Horatio  W. 

Absent  and  not  voting,  85. 

Marble,  William  P. 

Turner,  David 

Marcy,  Laban 

Underwood,  Orison 

So  the  motion  did  not  prevail. 

Marvin,  Abijah  P. 

Vinton,  George  A. 

The  question  recurred  on  the  motion  of  the 

Mason,  Charles 

Wrallis,  Frecland 

gentleman  from  Freetown,  (Mr.  Hathaway,)  to 

Header,  Reuben 

Walker,  Amasa 

amend  the  third  resolve  so  as  to  provide  that  rep 

Merritt,  Simeon 
Monroe,  James  L. 
Moore,  James  M. 

Ward,  Andrew  H. 
Warner,  Marshal 
Waters,  Asa  H. 

resentatives  in  the  general  court  be,   hereafter, 
chosen  as  by  law  shall  be  established. 

Morton,  Elbridge  G. 

Weston,  Gershom  B. 

The  question  was  taken,  and  the  amendment 

Morton,  William  S. 

Whitney,  Daniel  S. 

was  rejected. 

Newman,  Charles 

Whitney,  James  S. 

Mr.  WILSON,   of  Natick.     I  now  move  to 

Nichols,  William 
Nute,  Andrew  T. 

Wilbur,  Joseph 
Williams,  Henry 

amend  the  third  resolve  by  substituting  the  fol 

Obcr,  Joseph  E. 

Wilson,  Henry 

lowing  :  — 

Orne,  Benjamin  S. 
Osgood,  Charles 
Packer,  E.  Wing 
Paine,  Benjamin 
Parris,  Jonathan 
Parsons,  Samuel  C. 

Wilson,  Willard 
Winn,  Jonathan  B. 
Winslow,  Levi  M. 
Wood,  Charles  C. 
Wood,  Otis 
Wright,  Ezckiel 

Resolved,  That  the  Constitution  be  so  amended 
as  to  provide  that  in  all  elections  of  representa 
tives  to  the  general  court,  when  no  election  is 
effected  on  the  first  trial,  the  meetings   may  be 
adjourned,  from  time  to  time,  until  the  meeting  of 
the  legislature  to  which  the  said  representatives 

are  to  be  chosen,  provided  that  no  one  adjourn 

AJJSENT. 

ment  shall  be  for  a  longer  time  than  six  days. 

Abbott,  Alfred  A. 

Beal,  John 

Allis,  Josiah 

Hell,  Luther  V. 

Mr.  WILSON,  of  Natick.     I  will  detain  the 

Appleton,  William 

Bishop,  Henry  W. 

Convention  but  a  few  moments  on  this  question. 

Austin,  George 
Bancroft,  Alpheus 
Banks,  Nathaniel  P.,  Jr. 

Blagden,  George  W. 
Bliss,  Willam  C. 
Brown,  Adolphus  F. 

I  am  willing,  although  I  am  in  favor  of  adhering 
to  the  majority  system,  to  depart  from  that  system 

Bartlett,  Russel 

Brownell,  Frederick 

under  the  pressure  of  necessity.     By  the  Report  of 

Bartlett,  Sidney 

Bullen,  Amos  H. 

the  Committee,  senators  are  to  be  chosen  by  the 

Beach,  Erasmus  D. 

Burlingame,  Anson 

plurality  rule,  and  county  and  district  officers  are 

61st  day.] 


ELECTIONS   BY   PLURALITY. 


151 


Tuesday,] 


WILSON  —  HOOPER. 


[July  19th. 


also  to  be  chosen  by  that  rule.  I  see  a  necessity 
for  this,  and  I  am  willing  to  acquiesce  in  it.  But 
I  see  no  necessity  for  making  the  representatives 
and  town  officers  elected  by  the  plurality  rule  ; 
none  whatever.  Gentlemen  may  say  that  it  is 
necessary  in  order  to  secure  a  representation  from 
all  the  towns  in  the  Commonwealth.  I  say  to 
gentlemen,  you  cannot  secure  a  representation  by 
the  plurality  system.  It  is  competent  for  the 
towns  of  the  Commonwealth,  when  the  voters  are 
assembled  together,  to  vote  not  to  send  a  repre 
sentative  ;  and  if  there  be  three  or  four  political 
organizations  in  those  towns,  and  if  the  plurality 
rule  prevails,  the  minorities  will  unite  and  vote 
not  to  send,  without  any  trial  at  all,  or  after  trying 
once  under  the  majority  system,  which  the  reso 
lutions  propose  to  retain.  I  say,  therefore,  to  the 
friends  of  the  plurality  system,  you  certainly 
gain  nothing  by  its  application  to  the  election  of 
representatives ;  nothing,  whatever.  You  may 
adopt  that  rule  if  you  please ;  but  you  cannot 
force  the  minorities  in  any  of  the  towns  of  this 
Commonwealth  to  elect  a  man  under  the  plurality 
rule.  Now,  adhere  to  the  majority  principle  in 
town  elections,  and  in  the  election  of  representa 
tives  ;  take  off  all  constitutional  restraints  ;  allow 
the  towns  to  adjourn  from,  day  to  day,  or  from 
one  day  to  another,  not  exceeding  six  days ;  to 
call  new  meetings  at  their  pleasure,  from  the  time 
the  annual  meeting  is  held  to  the  time  of  the 
meeting  of  the  legislature,  and  then,  if  there  be  a 
necessity,  there  will  be  a  union  of  men  in  those 
towns,  and  they  will  elect  representatives  ;  and 
in  my  judgment,  under  the  majority  system,  you 
will  secure  as  full  a  representation  from  the  towns 
in  this  Commonwealth  as  you  can  get  by  the 
plurality  rule,  because  you  cannot  take  from  the 
people  the  power  to  vote  not  to  send,  if  they 
choose  to  do  it,  under  the  plurality  rule.  They 
will  exercise  that  power.  Then  let  this  system 
stand  as  a  compromise. 

I  understand  that  this  was  the  position  of 
affairs  when  the  question  was  sent  to  the  Com 
mittee  the  second  time.  A  vote,  and  the  largest 
vote  taken  during  the  Convention,  was  that  upon 
the  State  officers,  by  which  it  was  required  that 
they  should  be  chosen  by  a  majority,  and  it  was 
also  agreed  by  the  same  vote  that  senators,  county 
and  district  officers,  should  be  elected  by  a  plu 
rality  ;  but  that  in  the  election  of  representatives 
and  town  officers,  a  majority  should  be  required. 
I  arn  ready  to  stand  by  that  vote,  as  a  compro 
mise.  But  I  do  not  like  this  present  Report. 
Gentlemen  tell  us  this  is  a  compromise.  What 
kind  of  a  compromise  is  it  ?  Why,  we  agree  that 
your  Constitution  shall  say  that  the  senators  shall 
be  elected  by  a  plurality ;  we  agree  to  elect  repre 


sentatives  on  the  second  trial,  and  all  the  town 
officers  on  the  second  trial  by  a  plurality.  Then 
we  have  abandoned  the  majority  rule  altogether, 
as  far  as  the  principle  is  concerned,  and  we  have 
simply  saved  the  principle  so  as  to  apply  it  to  six 
officers,  to  be  elected  by  the  people  of  the  whole 
State. 

The  gentleman  from  Salem,  (Mr.  Lord,)  told 
us  that  he  saw  through  this  plan.  That  gentle 
man  is  very  keen-sighted,  and  sees  all  that  is  to  be 
seen.  He  sees,  or  thinks  that  he  sees,  the  reason 
why  this  plan  is  made.  It  carries  on  the  face  of 
it  something  that  looks  very  much  like  an  arrange 
ment  for  party  ends.  But,  Sir,  let  us  have  the 
representatives  and  the  town  officers  elected  by 
the  majority  system.  The  election  of  these  offi 
cers  is  a  question  of  as  much  moment  and  im 
portance  as  any  other  question  that  the  people 
themselves  can  direct  and  control  in  their  own 
primary  meetings.  And  then  we  have  adopted  a 
system,  a  compromise  system,  and  one  which 
I  am  ready  and  willing  to  sustain.  But  if  we 
are  to  adopt  the  Report  of  the  Committee,  if  we 
are  to  elect  representatives  and  town  officers  by  a 
plurality  rule,  I  say  frankly  and  freely,  for  one, 
you  may  take  the  plurality  system  altogether ; — 
take  it,  and  let  it  have  free  course  and  be  glorified. 

Mr.  HOOPER,  of  Fall  River.  I  am  exceed 
ingly  surprised  at  the  remarks  of  the  gentleman 
from  Natick.  I  had  supposed  that  this  Report 
was  a  compromise,  and  had  made  up  my  mind 
to  stand  by  it  as  such.  It  is  well  known,  that  in 
the  first  instance,  I  was  in  favor  of  the  plurality 
system  throughout.  But  I  found  that  gentlemen 
differed  ;  and  I  was  willing,  as  I  could  not  get  the 
whole,  to  take  half  of  it  rather  than  have  none.  I 
supposed  that  the  Committee  thought  this  Report 
equitable,  and  I  came  to  the  conclusion  to  sup 
port  it.  I  confess  it  has  taken  me  altogether  by 
surprise,  that  the  gentleman  has  made  the  motion 
which  he  has.  The  class  of  officers  to  which  he 
alludes,  is  that  to  which  I  wish  to  have  the  plu 
rality  principle  apply.  I  prefer  that  it  should  be 
applied  in  the  first  instance ;  but  if  we  cannot 
have  it  in  the  first  instance,  let  us  have  it  at  the 
second  trial,  and  let  town  officers  be  elected  in 
the  same  manner.  The  greatest  complaint  in  the 
town  which  I  represent  is,  that  we  have  not 
been  able,  for  several  years,  to  elect  our  town 
officers  without  great  delay  and  inconvenience. 
Now,  we  want  this  remedy,  so  as  to  have  an  op 
portunity  to  elect  them  at  the  second  trial,  at 
least,  if  we  cannot  have  it  at  the  first.  I  was  in 
hopes  that  we  should  take  this  Report  as  a  com 
promise  on  which  we  could  all  stand  ;  so  that  we 
should  all  feel  that  we  have  succeeded  in  obtain 
ing  what  we  wish,  in  part,  at  least,  I  hope  that 


152 


ELECTIONS   BY   PLURALITY. 


[61st  day. 


Tuesday,] 


HOOPER  —  FRENCH  —  ABBOTT. 


[July  19th. 


the  gentleman  from  Natick  will  take  this  view  of 
the  matter,  and  that  we  shall  adopt  the  Report 
without  farther  amendment,  since  the  amend 
ment  of  the  gentleman  from  Freetown,  (Mr. 
Hathaway,)  has  been  rejected.  There  seems  to 
me  a  propriety  in  making  this  distinction,  if  you 
make  any ;  that  you  should  leave  those  officers 
who  are  to  be  voted  for  by  the  people  of  the 
State,  so  as  to  apply  the  majority  rule  to  them. 
It  has  been  said  here  that  the  judges  are  elected 
by  the  people,  because  they  are  appointed  by  a 
governor  who  is  elected  by  the  people.  In  the 
game  way,  we  may  say  that  these  officers  will  be 
elected  by  the  people,  because  they  will  be  elected 
by  a  legislature  which  is  elected  by  the  people. 
If  the  argument  is  good  in  one  case,  it  is  just  as  good 
in  the  other.  Now,  in  that  view,  as  long  as  we 
can  have  the  will  of  the  people  represented  in  the 
legislature,  it  is  only  at  second  hand  that  we  elect 
these  officers ;  and  I  think,  that  if  we  exclude 
any  from  this  rule,  these  officers  are  the  proper 
ones  to  be  excluded.  There  was  a  strong  reason 
why  the  senators  should  be  elected  by  plurality ; 
for  if  not  elected  at  the  first  trial  by  the  people, 
their  election  was  transferred  to  another  con 
stituency,  other  than  the  one  they  represent.  The 
people  in  the  small  towns  are  immediately  inter 
ested  to  have  this  pass,  because  without  it,  many 
of  them  will  fail  to  be  represented.  But  the 
gentleman  says,  we  shall  not  compel  them  to 
send  representatives,  because  they  may  vote  not 
to  send,  if  they  please.  That  is  true  ;  but  it  will 
seldom  take  place.  The  result  will  be,  that  when 
it  is  found  there  will  be  an  election,  men  will 
take  measures  to  see  that  the  right  candidates  are 
put  in  nomination,  and  they  will  attend  the  polls 
to  see  that  their  election  is  made  secure  ;  conse 
quently,  a  better  class  of  men  will  be  elected 
than  we  have  had  under  our  majority  system. 
I  hope  that  the  amendment  of  the  gentleman  will 
not  prevail,  but  that  the  Report  of  the  Committee 
"will  be  adopted  as  it  now  stands. 

Mr.  FRENCH,  of  Berkley.  Mr.  President :  I 
am  rather  astonished  at  the  gentleman  from  Fall 
River.  He  appears  to  want  a  plurality  to  elect 
town  officers,  and  I  know  that  they  have  been 
embarrassed  in  that  place  on  account  of  not 
being  able  to  elect  their  town  officers.  But  I 
cannot  hardly  understand  what  the  gentleman 
wants.  To  this  third  resolution  I  had  intended 
to  have  offered  an  amendment,  if  it  had  not  been 
done  by  the  gentleman  from  Natick  ;  because  I  do 
not  think  it  looks  proper,  as  it  now  stands.  At 
the  first  ballot  a  majority  is  to  elect ;  and  then  it 
is  provided  that  if  a  majority  fails,  an  election 
shall  be  had  by  a  plurality.  Well,  Sir,  what  do 
you  want  a  second  vote  for  ?  On  the  very  first  vote, 


you  have  a  plurality,  if  you  do  not  have  a  ma 
jority.  But  it  seems  to  me  to  be  proper  that  the 
people  should  not  come  together  upon  two  bases 
for  electing  representatives  and  town  officers ; 
that  they  should  try  one  at  a  time,  and  if  that 
did  not  succeed,  they  could  have  another  meeting 
and  time  to  take  breath,  and  take  a  sober  second 
thought.  Now  this  accomplishes  all  the  gentle 
man  asks  for ;  for  if  they  are  not  elected  by  a 
majority  on  the  first  ballot,  they  are  sure  to  be 
elected  by  a  plurality  at  the  second  meeting.  All 
the  difference  is  in  two  meetings.  That  is  all ; 
and  I  do  not  see  but  the  gentleman  may  be 
accommodated  under  this  amendment.  I  am  in 
favor  of  this  amendment,  and  I  believe  it  to  be 
right. 

Mr.  ABBOTT,  of  Lowell.  I  desire  to  say  a 
single  word  on  the  amendment  of  the  gentleman 
from  Natick,  and  I  am  free  to  say  that  unless 
that  amendment  prevails,  I,  for  one,  am  dis 
posed  to  put  myself  on  some  sort  of  principle.  I 
am  disposed  to  go  for  the  compromise,  or  else  for 
the  plurality,  or  else  for  the  majority.  [Laugh 
ter.]  But  as  the  matter  is,  at  this  present  time, 
as  it  seems  to  me,  I  am  going  for  neither  the  one 
or  the  other  ;  or,  to  use  a  more  common  expres 
sion,  the  scheme  presented  by  the  Committee  is 
"  neither  fish,  flesh,  nor  good  red  herring."  For 
my  part,  I  do  not  wonder  that  my  friend  from 
Fall  River  is  willing  to  go  for  what  he  calls  a 
compromise ;  but  I  ask  if  he  expects  those  who 
are  in  the  position  that  I  am,  those  who  believe 
in  the  majority  principle,  that  it  is  the  true  con 
servative  power  where  the  power  is  in  the  hands 
of  the  people,  who  believe  that  a  man  has  a  right 
to  shelter  himself,  and  his  conscience,  and  will, 
behind  the  heart  of  the  people ;  I  ask  if  he  believes 
gentleman  who  believe  that,  can  go  for  this  com 
promise  ?  A  compromise,  indeed  !  It  is  a  com 
promise  which  is  all  on  one  side.  I  want  to  know 
how  much  I,  as  a  majority  man,  get  here  by  this 
compromise  ? 

I  want  a  majority,  or  I  want  something  like  a 
majority  in  the  law-making  part  of  this  govern 
ment.  I  do  not  care  so  much  whether  it  be  a 
plurality  or  a  majority  in  the  little  petty  offices,  or 
the  great  offices,  if  you  please,  where  men  are 
chosen  every  year  merely  to  execute  and  carry 
out  the  laws  which  are  made  by  the  law-making 
part  of  the  government ;  but  I  want  a  majority  in 
the  law-making  part  of  the  government,  and  when 
I  am  called  upon  to  vote  for  the  men  who  are  to 
make  the  laws,  before  I  have  to  give  up  my  will 
and  my  way,  I  want  to  know,  and  I  think  I  have 
a  right  to  know,  that  the  majority  of  the  people  go 
for  that  particular  thing.  I  want  the  right  to  call 
upon  a  majority,  and  not  upon  less  than  a  majority, 


61st   day.] 


ELECTIONS    BY   PLURALITY. 


153 


Tuesday,] 


ABBOTT  —  GARDNER. 


[July  19th. 


or  upon  every  little  faction  that  may  come  up  and 
get  so  as  to  number  one  more  than  any  other 
faction  in  the  community.  Well,  Sir,  how  is  it 
in  this  compromise,  as  they  call  it  ?  You  are  to 
vote  for  your  governor,  attorney- general,  and 
some  other  officers — how  many  I  do  not  know,  and 
do  not  care — once,  and  if  you  do  not  choose  them 
by  a  majority,  they  are  to  be  chosen  by  whom,  I 
pray  you,  Sir  ?  They  are  to  be  chosen  by  two 
bodies,  who  are  to  be  elected  upon  the  plurality 
system,  and  the  worst  kind  of  plurality  that  can 
be  brought  into  this  House,  or  anywhere  else.  It 
is  something  that  gentlemen  cannot  wink  out  of 
sight,  or  keep  out  of  sight,  that  you  have  provided 
here  by  your  vote,  that  a  majority  of  the  House 
of  Representatives  may  be  chosen  by  one- third 
part  of  the  people  of  this  Commonwealth ;  and  now 
you  ask  gentlemen  to  allow  your  governor  and 
the  other  great  officers  to  be  elected  by  that  House 
so  chosen,  and  by  the  Senate,  who  are  elected  by 
pluralities.  I  do  not  regard  the  first  trial  by 
majority,  as  anything — that  is  merely  tentative ; 
it  is  merely  a  feeler,  as  my  friend  for  Manchester, 
has  told  us.  But,  on  the  next  election,  you  aban 
don  the  whole  ;  and  yet  you  talk  to  me  about  prin 
ciple,  when  you  have  given  up  all  principle,  and 
all  that  you  have  got  in  exchange,  is  something 
to  go  into  the  legislature  and  trade  upon.  Some 
body  else  besides  the  gentleman  from  Salem,  will 
come  to  the  same  conclusion,  and  see  the  same 
thing;  you  have  given  up  principle  and  got 
something  that  you  can  trade  upon  in  the  legisla 
ture.  That  is  so  apparent,  that  it  sticks  out  in 
evtry  direction  ;  the  lion's  skin  is  not  a  quarter 
large  enough  to  cover  something  that  I  will  not 
give  any  name  to.  Now,  Sir,  gentlemen  expect 
persons  who  believe  as  I  believe,  in  the  majority 
principle;  who  believe  that  it  is  the  true  con 
servative  doctrine,  that  a  democrat  should  put 
between  him  and  harm ;  that  the  great  will  of  the 
people,  the  great  heart  of  the  people,  is  seldom 
if  ever  wrong,  when  a  majority  are  suffered  to 
give  expression  to  their  views — they  expect  that 
we,  believing  all  this,  can  go  for  this  compromise 
where  we  give  up  everything,  and  gain  nothing 
that  will  do  us  any  good — gain  nothing  that  in  my 
humble  judgment  will  not  be  a  reproach  to  us  for 
ever  after.  I  say,  if  the  gentleman  from  Natick, 
would  take  the  Report  of  the  Committee  as  it  is,  I, 
for  one,  am  prepared  to  go  for  it,  and  accept  the 
plurality  system  to  that  extent.  While  this  is 
not  a  h'sh,  that  would  be,  although  I  agree  with 
him,  that  this  smells  mighty  fishy. 

Mr.  GARDNER,  of  Seekonk.  I  have  not 
detained  the  Convention  at  all  upon  this  question, 
although  I  have  listened  with  much  interest  to  the 
remarks  of  other  gentlemen  who  have  spoken 


upon  it ;  but,  before  the  question  is  taken,  I  wish 
to  express  my  views  in  short,  in  regard  to  it.  I 
must  say,  that  I  am  obliged  to  differ  with  my 
friend  from  Fall  River,  (Mr.  Hooper,)  and  many 
other  gentlemen  of  the  Convention,  who  have 
stated  here,  that  the  people  of  the  Commonwealth 
were  dissatisfied  with  the  present  system,  and  in 
favor  of  the  plurality  system.  I  think  that  I 
know  something  myself  of  the  views  and  feelings 
of  the  constituency  which  I  represent  here,  and 
the  people  of  that  part  of  the  State.  To  be  sure, 
I  am  from  the  same  county  with  my  friend  upon 
my  right,  (Mr.  Hooper)  ;  but,  Sir,  I  do  not  believe 
that  a  majority  of  the  people  of  the  county  of 
Bristol,  or  of  this  Common  wealth,  are  at  present 
prepared  for  the  plurality  system,  even  so  far  as 
we  have  already  adopted  it.  I  hope,  therefore, 
that  the  amendment  which  has  been  offered  by 
the  gentleman  from  Natick,  will  be  adopted.  I 
think  gentlemen  may,  perhaps,  make  up  their 
minds  for  themselves,  in  some  instances,  better 
than  they  can  for  their  constituents.  I  think  they 
are  mistaken  in  supposing  that  the  people  desire 
so  many  reforms  in  the  Constitution.  We  have 
made  some  which  are  salutary  and  democratic  in 
their  tendency,  which  are  well  conceived,  and 
which  I  have  no  doubt  will  be  adopted  by  the 
people  ;  but  I  doubt  very  much,  whether  we  have 
made  a  judicious  reform  in  the  manner  in  which 
we  have  settled  the  basis  of  the  Senate ;  I  should 
have  preferred  that  it  had  been  based  upon  legal 
voters.  In  regard  to  the  plurality  question,  I 
hope  the  amendment  of  the  gentleman  from 
Natick  will  prevail ;  and  if  it  should  not,  I  should 
like  to  move  an  amendment  to  the  third  resolution, 
which  would  be,  to  strike  out  all  after  the  word 
"  election."  I  should  prefer  that,  but  still  I  shall 
give  my  vote,  with  great  pleasure,  for  the  propo 
sition  which  has  been  made  by  the  gentleman 
from  Natick.  I  have  not,  upon  any  occasion,  de 
tained  the  Convention  with  any  very  protracted 
remarks  ;  nevertheless,  there  are  some  questions 
whicli  have  been  taken  here,  in  cases  where  the 
previous  question  has  been  unexpectedly  ordered, 
or  some  motion  has  been  made  that  the  question 
should  be  taken  at  a  specified  time,  so  that  the 
gentlemen,  who,  like  me,  happen  to  sit  in  the 
rear  of  the  hall — though  with  my  own  position  I 
am  well  pleased — have  not  had  an  opportunity  to 
express  their  views.  At  any  rate,  I  will  take 
the  liberty  to  say,  that  some  questions  have  been 
passed  upon,  in  a  manner  which,  in  my  judg 
ment,  needs  to  be  reviewed,  before  we  adjourn. 
Although  I  am  in  favor  of  bringing  the  doings  of 
the  Convention  to  a  close  as  speedily  as  possible, 
yet  I  hope,  that  what  we  do  will  be  done  for  the 
public  good ;  and  I  hope  that  this  question  will 


154 


ELECTIONS   BY  PLURALITY. 


[61st  day. 


Tuesday,] 


TKAIN. 


[July  19th. 


be  discussed,  if  need  be,  until  we  shall  vote  down 
the  propositions  contained  in  these  resolutions. 

Mr.  TRAIN,  of  Framingham.  I  am  very 
happy,  Mr.  President,  that  the  gentleman  from 
Natick  has  moved  this  amendment ;  because,  Sir, 
it  has  given  me  an  opportunity  to  know  that  that 
gentleman,  and  my  friend  from  Lowell,  (Mr. 
Abbott,)  have  been  brought  to  a  realizing  sense 
of  their  condition.  [Laughter.]  In  other  words, 
they  have  been  brought  to  appreciate  that  the 
Report  of  this  Committee  is  by  no  means  such  a 
proposition  as  this  Convention  should  go  for; 
that  it  is  an  attempt,  either  intentional  or  unin 
tentional,  to  place  the  chief  offices  in  the  Com 
monwealth  in  the  hands  of  a  legislature  who  may 
be  chosen  by  a  majority  or  not,  as  political  capi 
tal  upon  which  to  truck  and  dicker.  Now  I 
think,  that,  as  a  member  of  the  minority  of  this 
Convention,  in  relation  to  the  remarks  of  those 
gentlemen,  I  am  entitled  to  speak  right  out, 
without  keeping  anything  back.  We  have  been 
told,  by  the  member  for  Manchester,  by  the  mem 
ber  from  Natick,  and  by  the  member  from  Low 
ell,  all  leading  minds  in  this  Convention,  that 
that  is  the  result  of  this  Report ;  and  I  think 
that  I  am  assuming  nothing,  as  a  member  of  the 
Whig  party  in  this  Commonwealth,  when  I  say 
"Amen"  to  their  declaration.  We  are  called 
upon  to  vote  here  that  senators  and  councillors 
should  be  chosen  by  plurality ;  that  district  and 
county  officers  should  also  be  chosen  by  plurality  ; 
but  that  six  of  the  highest  officers  in  the  Com 
monwealth  should  be  chosen  by  a  majority,  and 
that  failing,  that  they  should  be  chosen  by  the 
legislature.  Now  I  should  like  to  have  some 
gentleman  who  has  astuteness  enough,  point  out 
the  principle  upon  which  this  distinction  is  made. 
I  have  been  unable  to  see  it.  I  agree  now,  as  I 
always  have  done,  to  the  general  doctrine,  that  if 
you  apply  the  plurality  principle  in  one  instance, 
you  are  bound  to  apply  it  in  the  whole.  I  need 
not  recapitulate  the  arguments  which  have  been 
gone  over  in  the  course  of  the  debate  upon  this 
subject,  because  it  is  well  understood,  and  I  think 
it  must  be  conceded  that  the  argument  of  neces 
sity  alone — if  it  is  an  argument — should  induce 
the  people  of  this  Commonwealth  to  adopt  the 
plurality  system ;  and  I  do  not  rise  for  the  pur 
pose  of  going  into  an  argument  generally  upon 
the  propriety  of  adopting  either  the  plurality  or 
the  majority  system,  but  for  the  purpose  of  ad 
dressing  myself  to  the  amendment  of  the  gentle 
man  from  Natick ;  and,  Sir,  having  been  born 
and  educated  in  one  of  the  country  towns  of 
Massachusetts,  I  know  of  nothing  that  would  be 
more  oppressive,  that  would  create  more  hardship, 
and  would  place  the  House  and  Senate  more  in  the 


hands  and  in  the  power  of  the  money  of  Massa 
chusetts,  than  this  amendment  which  has  been 
offered  by  the  gentleman  from  Natick.  The  prop 
osition,  as  I  understand  it,  is  that  if  a  majority 
fails  to  elect  at  the  first  ballot  in  any  of  the  towns, 
they  may  adjourn  from  day  to  day  for  the  purpose 
of  election,  provided,  that  that  adjournment  does 
not  extend  beyond  six  days.  Now,  Sir,  I  desire 
to  know  how  many  towns  thfcre  are  in  this  Com 
monwealth  where  a  majority  of  the  people  can 
afford  to  go  to  town  meeting  from  the  first  Mon 
day  in  November  until  the  snow  flies  ?  I  do  not 
know  of  any  such  towns.  In  my  town  we  have 
seven  hundred  voters,  and  there  may  be  one 
hundred  and  fifty  out  of  the  seven  hundred  who 
can  afford  to  go  to  town  meeting  from  the  first 
Monday  in  November,  until  the  legislature  meets, 
but  there  are  not  more  than  that.  At  the  first 
town  meeting  perhaps  there  will  be  five  hundred 
voters  out  of  the  seven  hundred,  and  you  can  get  a 
large  expression  of  the  people  of  the  town ;  but 
at  the  next  election  there  would  not  be  more  than 
half  of  the  whole  number  there,  and  after  that  there 
would  be  but  a  small  fraction.  These  men  find 
that  it  is  a  great  expense  of  time  and  money  to 
go  to  town  meeting  so  often ;  and  hence  the  op 
pression  of  the  amendment  of  my  friend  from 
Natick.  In  my  own  town  I  have  three  hundred 
constituents  who  work  by  the  day  in  the  cotton 
factory,  or  who  work  at  manufacturing  boots  and 
shoes  ;  and  every  day  that  they  go  to  town  meet 
ing  causes  them  a  loss  of  from  one  to  two  dollars 
each,  which  they  need  to  appropriate  to  the  sup 
port  of  their  families ;  and  are  we  to  be  told  now 
that  we  should  vote  from  day  to  day  from  the 
first  of  November,  until  the  legislature  meets,  for 
the  purpose  of  choosing  a  representative  by  ma 
jority  ?  I  put  it  to  members  from  the  country,  as 
a  matter  of  fairness  and  justice  to  those  who  are 
unable  to  go  to  town  meetings  from  day  to  day, 
if  they  should  be  dragooned  into  any  measure, 
which  will,  in  the  end,  put  the  power  of  adminis 
tering  political  affairs  into  the  hands  of  those  few 
who  can  thus  afford  to  go  when  the  others  cannot? 
That  is  the  whole  of  it.  Those  who  have  the 
most  money,  those  who  have  the  best  wind — to 
use  a  race- course  expression — and  the  most  bot 
tom,  will  choose  their  men  at  last ;  for  they  can 
attend  the  election  after  the  poor  man  has  been 
obliged  to  stay  at  home,  to  earn  bread  for  his  wife 
and  children.  That  is  what  I  understand  the 
proposition  to  be. 

Now,  I  do  not  know  to  which  party  I  belong 
here — whether  I  am  a  conservative  or  a  radical. 
I  thought  I  was  a  conservative — I  was  always 
taught  that  I  was  a  conservative — but  since  my 
friend  from  Lowell,  whom  I  have  known  so  long, 


61st  day.] 


ELECTIONS    BY   PLURALITY. 


155 


Tuesday,] 


TRAIN  —  DAVIS  —  BRIGGS. 


[July  19th. 


claims  to  be  a  conservative,  I  think  it  is  very  pos 
sible  that  I  have  been  driven  to  the  other  side. 
If  a  desire  that  my  fellow-citizens  should  be  al 
lowed  to  exercise  their  rights  and  to  be  represented, 
is  radical,  then  I  am  a  radical.  If  being  driven 
from  the  position  that  but  a  small  part  of  the 
seven  hundred  voters  in  my  town  should  be 
allowed  to  choose  a  representative  is  radical,  then 
I  am  a  radical  as  opposed  to  that  position.  Look 
at  the  last  election  in  the  district  in  which  I  live, 
or  in  any  of  the  congressional  districts  in  which 
there  were  elections  last  fall ;  and  I  say,  Sir, — I 
believe  that  I  cannot  be  mistaken, — that  the  rep 
resentatives  to  congress  who  were  chosen  by 
pluralities  at  that  election,  were  chosen  by  a  smaller 
vote  than  the  minority  candidate  had  at  the  first 
election.  I  believe  that  to  be  true  ;  I  am  not 
quite  so  sure  how  it  was  in  my  own  district,  where 
Mr.  Sabine  was  chosen ;  but  I  am  very  sure  that  it 
was  so  in  the  adjoining  district,  where  another 
gentleman  was  chosen  whom  I  will  not  name. 
Gentlemen  will  find  that  just  in  proportion  to  the 
number  of  elections,  just  in  that  ratio  does  the 
number  of  voters  diminish  ;  because  a  majority  of 
the  people  of  the  Commonwealth  who  exercise 
the  right  of  suffrage  cannot  afford  to  go  to  the  polls 
and  vote  day  after  day ;  and  that  is  the  reason 
why  I  oppose  the  amendment  of  my  friend  from 
Natick.  I  trust  that  no  such  amendment  will 
pass.  The  same  reason  which  he  urges  in 
favor  of  the  amendment,  as  it  seems  to  me,  ap 
plies  with  double  force  against  it.  He  says  that 
if  you  adopt  the  plurality  principle  in  these  towns, 
there  may  be  a  desire  to  concentrate  against  the 
plurality  candidate,  and  so  they  will  vote  not  to 
send.  I  say  it  is  better  that  they  should  have  no 
representative,  than  that,  because  they  are  unable 
to  send  a  man  to  represent  them  properly,  they 
shoxild  be  misrepresented  by  a  representative  upon 
this  floor.  These  are,  briefly,  the  views  which 
I  have  entertained  in  regard  to  this  matter.  I 
did  not  propose  to  occupy  the  time  of  the  Con 
vention  as  I  have  done  ;  but  I  have  a  very  strong 
feeling  and  belief,  that  the  principles  which  I 
have  enunciated  are  the  true  principles  which 
should  govern  the  elections  in  this  Common 
wealth. 

Mr.  DAVIS,  of  Plymouth.  I  am  very  glad, 
Sir,  that  the  gentleman  from  Natick  has  seen  fit 
to  move  any  amendment  which  will  shape,  or 
which  will  have  the  tendency  to  shape,  the 
Report  of  the  Committee.  I  agree  with  what 
has  been  said  by  the  gentleman  from  Lowell,  that 
I  see  no  rule — I  see  no  principle — I  see  no 
compromise  in  the  Report  of  the  Committee ; 
and  I  have  not  yet  seen  that  the  chairman 
of  the  Committee  which  made  that  Report, 


has  evinced  any  desire  to  recommend  it  farther 
than  by  thus  offering  it  to  this  Convention. 
He  has  not  defended  it,  nor  is  he  present  here 
to  take  charge  of  it ;  and  certainly,  if  the  Con 
vention  will  read  the  preface  to  the  Report,  I 
think  they  will  perceive  that  he  has  given  110 
reasons  there  which  will  recommend  it  to  this 
body.  I  am  glad,  Mr.  President,  that  this  amafld- 
ment  has  been  offered  by  the  gentleman  from 
Natick,  because  it  is,  in  some  degree,  like  that 
which  was  offered  in  Committee  of  the  Whole, 
yesterday,  by  myself ;  and  I  certainly  do  not  care 
which  amendment  prevails,  if  either  of  them  has 
any  tendency  to  prevent  the  election  of  town 
officers  by  plurality ;  because  I  regard  them  as 
substantially  the  same.  I  rise,  at  this  time,  to 
state  one  reason  why  the  plurality  system  should 
not  prevail  in  any  election — more  especially  in 
town  elections  and  in  the  elections  of  representa 
tives — and  it  is  a  reason  which  I  have  not  seen  or 
heard  stated.  It  is  more  particularly  applicable 
to  town  and  city  elections.  It  seems  to  me  that 
elections  by  plurality,  for  town  officers  and  town 
representatives,  would  be  the  means  of  introduc 
ing  a  political  demoralization  here,  which  the 
experience  of  other  States  has  shown  us  almost 
necessarily  follows  in  town  and  municipal  affairs. 
I  ask  gentlemen  of  this  Convention  whether  they 
believe  that  if  the  majority  system  had  prevailed 
in  the  city  of  New  York,  the  country  and  the 
world  would  have  seen  that  spectacle  of  corrup 
tion  in  the  aldermen  of  the  city  of  New  York, 
which  has  now  become  a  matter  of  history ! 

I  believe  that  plurality  in  elections  for  repre 
sentatives,  as  well  as  for  town  officers,  tends 
directly  to  that  end  ;  and  moreover,  that  if  any 
local  object  is  to  be  gained,  if  any  particular  pri 
vate  speculation  is  in  view,  in  a  town  or  city ;  if  a 
street  is  to  be  cut  in  a  certain  direction,  or  a  new 
one  laid  out  through  some  man's  land,  or  any 
other  particular  object  is  to  be  attained,  all  that 
they  have  to  do  is  to  get  a  caucus  ;  and  while  the 
more  silent,  honest,  but  careless  voters  are  slum 
bering  in  security  at  home,  or  are  divided  upon 
other  matters,  this  caucus  nomination  is  brought 
out  under  the  guise  of  party,  and  before  the  ma 
jority  of  the  citizens  are  aware,  by  the  vigilance 
and  activity  of  men  intent  upon  a  private  pur 
pose,  they  carry  their  election  under  the  plurality 
system.  It  was  for  that  reason,— a  reason  I  did 
not  state  before,  because  I  supposed  it  was  the 
sense  of  the  Convention  that,  without  debate, 
many  parts  of  the  Report  of  the  Committee 
would  be  rejected,— that  I  offered  this  amend 
ment. 

Mr.  BRIGGS,  of  Pittsfield.  It  has  been  said 
that  politics  makes  strange  bed-fellows,  and  I 


156 


ELECTIONS   BY   PLURALITY. 


[61st  day. 


Tuesday,] 


BKIGOS. 


[July   19th. 


believe  that  Conventions  do  also.  But  a  little 
while  ago  I  found  myself  voting  point  blank 
against  the  gentleman  from  Natick,  (Mr.  Wilson,) 
and,  I  believe,  the  gentleman  from  Lowell,  over 
the  way.  Now,  Sir,  I  find  myself  in  their  ranks, 
an  humble  supporter  of  the  proposition  of  the 
gentleman  from  Natick,  although  I  could  wish 
that  he  would  modify  it  a  little.  I  have  made 
inquiry,  a  great  many  times,  of  gentlemen  who, 
I  suppose,  would  know  something  about  it,  how 
it  happens  that  that  provision  came  into  the  Con 
stitution  that  the  towns  were  obliged  to  elect 
their  representatives  in  one  of  four  days, — first  on 
regular  election  day,  then  at  two  adjournments, 
and  then  on  the  fourth  Monday  in  November, — 
and  I  must  say  that  I  have  never  yet  had  a  suffi 
cient  reason  assigned.  The  gentleman  from  Fra- 
mingham  has  given,  perhaps,  as  good  a  reason  as 
can  be  given,  which  is,  that  it  is  not  advisable 
that  the  people  should  be  called  together  too  fre 
quently  for  the  purpose  of  voting.  That,  how 
ever,  is  not  a  satisfactory  reason  to  me.  I  should 
prefer  to  adopt  the  system  of  permitting  the 
people  to  hold  meetings  as  long  as  they  pleased 
for  election  purposes,  even  if  they  did  not  succeed, 
down  to  the  very  day  of  the  adjournment  of  the 
legislature.  I  would  carry  out  what  we  have 
carried  out  here.  I  see  before  me  the  respected 
gentleman  who  succeeds  ovir  lamented  colleague, 
whom  we  last  week  put  into  the  grave,  who 
takes  his  seat  on  the  second  day  of  the  week  dur 
ing  which  the  Convention  have  declared  that  we 
should  close  our  labors.  Is  there  any  objection 
to  that  ?  None  whatever.  Woxild  there  have 
been  any  objection  to  it  if  the  people  had  seen  tit 
to  have  voted  on  the  matter  ten  times  ?  None  what 
ever.  And,  Sir,  if  you  will  not  give  the  people 
such  a  Constitution  as  will  permit  them  to  elect 
their  officers  on  the  first  ballot,  what  earthly 
reason  can  be  assigned  why  they  should  not  be 
allowed  to  try  until  they  can  come  to  a  final  de 
termination,  and  elect  a  man  according  to  their 
own  mind?  I  would  not  provide  that  they 
should  not  adjourn  for  a  longer  period  than  six 
days.  I  see  no  necessity  for  any  provision  of 
that  kind.  Leave  the  matter  to  the  people  of  the 
towns.  Let  them  adjourn  for  as  short  a  time,  or 
as  long  a  time,  as  they  please.  Leave  it  to  them  ; 
and  then  I  would  adopt  a  provision  in  the  Con 
stitution  to  the  effect  that  the  towns  which  are 
entitled  to  representation,  and  which  have  not 
chosen  a  representative,  may  send  a  man  to  the 
legislature  any  day  previous  to  the  last  day  of 
the  session.  I  shall,  however,  vote  for  the  propo 
sition  as  it  is. 

One  word  more,  Mr.  President.     Gentlemen 
complain  of  the  Report  of  the  Committee.     Why 


in  the  world  should  they  ?  They  say  that  it  con 
tains  no  principle.  Why,  Sir,  does  it  not  contain 
all  principles  ?  [Laughter.]  Who  is  there  that 
ought  not  to  be  satisfied  with  it  ?  Do  you  want 
an  election  by  a  majority  ?  Governor,  lieutenant- 
governor,  treasurer,  attorney-general,  and  audi 
tor,  must  be  elected  by  the  good  old-fashioned 
method  of  a  majority*— of  what  ?  Why,  Sir,  they 
must  come  up  here  and  be  elected  by  representa 
tives  chosen  by  one-third  of  the  people.  [Laugh 
ter.]  Can  any  majority  man  be  dissatisfied  with 
that  ?  Do  you  want  a  plurality  ?  Your  plurality 
men — of  whom  I  have  the  honor  to  be  one — why, 
Sir,  your  senate  is  to  be  elected  by  a  clean  plu 
rality,  and  so  are  your  county  officers.  Do  you 
want  both  principles  ?  Look  at  your  town  rep 
resentatives,  and  your  municipal  elections.  Do 
you  want  a  majority  system  ?  There  you  have 
it,  and  if  you  cannot  elect  upon  that  system,  then 
you  have  the  privilege  of  trying  the  plurality 
plan ;  and  yet,  here  we  are,  grumbling  at  this  Re 
port — a  Report  which  furnishes  individuals  every 
thing  they  want  in  that  line,  as  far  as  it  goes. 
Now,  it  seems  to  me,  that  we  are  making  a  mis 
take.  I  say,  with  all  respect  to  the  Convention — 
I  know  we  have  no  right  to  talk  to  them,  but  I 
know,  also,  that  they  are  civil  gentlemen,  and 
they  will  bear  with  me — I  say,  I  believe  at  this 
moment,  that  the  great  people  of  the  State  of 
Massachusetts,  are  looking  up  to  this  House  for 
the  adoption  of  the  plurality  system.  I  may  be 
mistaken ;  if  I  am,  I  am  mistaken ;  but  that 
is  my  opinion.  As  to  the  majority  system, 
have  they  not  felt  the  inconvenience  of  it,  year 
after  year ;  and  have  not  members  of  differ 
ent  parties,  on  different  occasions,  advocated 
the  plurality  system  ?  And  are  there  not  num 
bers  of  gentlemen, — I  say  it  with  all  respect; 
I  do  not  intend  it,  as  my  friend  from  Boston, 
(Mr.  Hillard,)  would  say,  as  a  "fling," — are 
there  not  gentlemen,  whose  ears  listen  to  me,  that 
came  here  strong  plurality  men,  who  have  aban 
doned  that  notion,  and  has  it  not  been  assigned 
by  some,  as  a  reason  for  abandoning  it,  that  the 
Whigs  have  come  up  here  in  one  solid  phalanx 
in  favor  of  it  ?  And  is  that  a  sufficient  reason  ? 
Mr.  President :  with  some  gentlemen  I  have  no 
doubt  that  that  reason  is  all-sufficient.  If  the 
people  want  it,  is  there  any  danger  in  adopting  it  ? 
And,  if  they  do  not  want  it,  no  man  ought  to  go 
for  it ;  and,  as  far  as  I  know,  those  who  cooperate 
with  me  in  political  affairs  out  of  the  Convention, 
at  home,  and  who  have  expressed  their  opinions 
honestly,  have  entertained  this  opinion,  though 
they  may  have  changed  that  opinion,  as  all  honest 
men  will  do  when  they  see  sufficient  reason  for 
doing  so. 


61st  day.] 


ELECTIONS    BY   PLURALITY. 


157 


Tuesday,] 


BRIGGS  —  KEYES. 


[July  19th. 


I  say,  Sir,  without  occupying  more  of  the  time 
of  the  Convention,  that  I  seriously  wish  gentle 
men  would  attend  to  the  arguments  that  have 
been  presented  to  them,  not  on  this  side  of  the 
House,  but  from  their  own  friends.  I  wish  they 
would  come  forward  and  answer  the  arguments 
of  my  friend  for  Manchester,  (Mr.  Dana,)  on  this 
subject,  or  carry  out  those  principles  which  but 
three  hours  ago  were  so  strongly  shown  to  be  the 
sense  of  the  Convention.  This  is  certainly  an 
important  subject ;  one  which  strikes  deeply  at 
our  political  rights,  and  which  will  have  an  im 
portant  effect  upon  those  rights  for  years  to  come. 
I  would  wish  that  this  question  should  be  met 
and  decided  upon  its  merits,  and  that  we  should 
carry  out  fully  and  fairly,  and  clearly  and  plainly, 
what  I  believe  to  be  the  unmistakable  indications 
of  the  public  wish.  But,  Sir,  if  that  cannot  be 
done,  for  one  individual,  I  am  disposed  to  get  as 
near  to  it  as  I  can ;  and,  with  the  present  aspect 
of  the  proposition  before  the  House,  I  shall  sup 
port  most  cordially  the  proposition  of  the  gentle 
man  from  Natick,  (Mr.  Wilson,)  though  I  wish 
he  would  present  it  in  a  somewhat  modified  form. 

Mr.  KEYES,  for  Abington.  I  should  not  have 
risen  to  say  another  word  to  the  Convention,  on 
this  subject,  had  it  not  been  for  the  fact,  that  it 
has  been  mentioned,  several  times,  that  the  chair 
man  of  the  Committee  which  reported  these  res 
olutions,  is  absent,  and  that  absence  been  con 
strued  as  being  intentional  on  his  part.  And,  as 
I  had  as  much  to  do  with  that  Report  as  he  had, 
and  as  it  has  been  assailed  as  having  no  principle, 
and  it  having  been  asserted,  again  and  again,  that 
no  good  reasons  can  be  assigned  for  the  several 
points  it  embraces,  I  wish  to  say  a  word  or  two 
in  its  defence. 

The  gentleman  from  Plymouth  (Mr.  Davis)  is 
opposed  to  it,  because  he  regards  it  as  a  monster, 
without  character,  without  principle,  and  without 
everything  else  that,  in  the  remotest  degree,  could 
recommend  it.  But,  Sir,  I  immediately  saw  the 
reason  why  he  opposed  it.  He  had  offered  an 
amendment,  similar  in  its  provisions  to  that 
which  is  now  pending,  as  offered  by  the  gentle 
man  from  Natick,  (Mr.  Wilson,)  and  which  was 
rejected  by  the  Committee  of  the  Whole.  That 
is  a  sufficient  reason  for  his  opposition. 

Then,  the  gentleman  from  Lowell  (Mr.  Adams) 
is  similarly  situated.  He  made  a  very  proper 
speech,  in  favor  of  the  majority  system — and  I  am 
sorry  that  we  had  not  many  speeches  of  the  same 
kind — a  long  time  ago.  But  it  is  too  late  to  make 
them  now.  There  has  been  a  great  deal  said  here 
about  "  principle ;  "  but  it  strikes  me,  Mr.  Presi 
dent,  that  there  is  very  little  principle  in  the 
whole  matter.  Now,  Sir,  here  is  a  complete 


compromise ;  not  like  the  compromises  we  hear 
of  in  some  other  parts  of  the  country,  which  con 
tain  matter  which  nobody  can  adopt ;  and,  Sir, 
I  contend  that  there  is  a  good  reason  for  every 
one  of  these  propositions.  What  were  the  com 
plaints  before?  They  were  not  made  on  the 
ground  of  principle,  at  all.  There  is  not  a  man 
on  the  floor  of  this  hall,  who  would  wish  to  say, 
before  the  people,  that  the  majority  principle  is 
not  the  only  and  the  proper  principle  that  ought 
to  be  adopted ;  and  the  moment  you  depart  from 
it,  you  lessen  the  government,  and  degrade  it,  in 
every  sense  of  the  word.  And,  as  I  said  before, 
the  only  principle  about  it  is,  on  the  ground  of 
inconvenience,  and  its  only  eft'ect  to  destroy  one 
party  and  permit  another  party  to  rise  into 
power. 

Now,  Sir,  I  say  that  we  had  evidently  aban 
doned  the  idea  of  coming  to  any  decision  on  the 
ground  of  any  distinct  and  positive  principle ; 
and  that  was  the  reason  why  the  Committee  went 
out  to  see  if  we  could  not  devise  some  plan  on 
which  we  could  harmonize.  In  the  early  part  of 
the  day,  I  explained  briefly  some  of  the  reasons 
which  had  operated  upon  the  Committee,  and 
some  of  the  advantages  which  would  result  from 
the  adoption  of  the  Report.  In  regard  to  the 
town  system,  every-body  knows  that  it  extends 
the  privileges  of  the  people  to  give  them  more 
than  one  ballot.  Why  do  they  wish  it  r  It  is 
for  their  own  satisfaction  and  convenience.  When 
they  cannot  agree  upon  the  caucus  nominations, 
they  can  have  a  second  choice — a  choice  emphat 
ically  of  their  own,  without  the  intervention  of  a 
caucus ;  and  there  is,  therefore,  no  inconvenience 
in  the  arrangement,  so  far  as  it  regards  the  towns. 
If  they  say  :  "Let  us  decide  upon  the  matter  to 
day,"  they  will  do  so ;  and,  after  having  voted 
once  and  come  to  no  decision,  they  may  have 
twenty  candidates  if  they  please.  Here,  then,  in 
these  propositions,  there  is  a  fair  compromise  on 
both  sides. 

Now,  it  was  said  by  the  gentleman  from  Natick, 
that  if  the  people,  at  a  town  meeting,  could  not 
agree  on  a  candidate,  they  could  agree  to  adjourn ; 
and  that,  therefore,  the  majority  would  rule. 
But,  Sir,  it  is  not  so.  The  polls  are  open  at  nine 
o'clock,  and  there  are  no  majorities  there  to 
adjourn  on  this  system  ;  and  they  will  go  on  and 
take  a  vote,  and  after  they  have  made  a  count, 
and  decided  that  they  will  have  no  election,  then 
the  majority  rules. 

The  gentleman  from  Lowell,  said  that  the 
House  of  Representatives,  by  this  plan,  may  be 
elected  by  a  third  party,  in  Massachusetts.  Why, 
Sir,  the  moon  may  be  made  of  green  cheese, 
for  anything  I  know.  A  great  many  things,  may 


158 


ELECTIONS    BY   PLURALITY. 


[61st  day. 


Tuesday,] 


KEYES  —  SCHOULEB.  —  WILSON. 


[July  19th. 


be  ;  but  may  bees  do  not  fly  in  July  or  August. 
We  all  know  that  all  this  talk  about  inequalities 
in  representation,  is  humbug,  from  beginning  to 
end.  It  is  all  absurdity,  and  reminds  me  of  a 
conversation  I  had  with  a  gentleman  from  Bos 
ton,  the  other  day,  who  told  me,  with  a  long 
countenance,  that  this  inequality  was  perfectly 
awful.  I  asked  him  if  it  had  ever  occurred  to 
him,  that  during  the  last  ten  years,  he  had  exer 
cised  sixty- six  times  more  power  in  the  legislature 
than  I  had ;  and  that  while  that  was  the  case  he 
had  never  thought  there  was  any  necessity  for  a 
change  in  the  Constitution  ?  I  told  him  that  I 
lived  in  a  town  having  4,500  inhabitants,  electing 
one  representative  every  year ;  that  I  voted  for  one 
representative  every  year,  while  he  voted  for  forty- 
four  representatives  ;  that  he  elected  one  represen 
tative  for  every  3,100  of  the  population  of  Boston, 
and  I  one  for  4,500  ;  and  that  he  had  sixty-six  times 
mere  power  in  the  legislature,  than  I  had  ;  and 
yet  he  had  lived  under  the  system  for  ten  long 
years,  and  said  that  all  was  equal  enough,  and 
answered  every-body's  purpose  well  enough. 
There  was  no  ruin  and  destruction,  under  that 
system.  The  country  towns,  Sir,  are  to  be  op 
posed  to  each  other  always.  Why,  Sir,  if  you 
had  a  decent  party,  here  in  Boston,  one  half  of 
the  country  towns  would  go  for  you.  [Laugh 
ter.]  Therefore,  these  towns  are  divided  against 
eacb  other,  and  this  vast  accumulation  of  power 
in  the  country  is  just  as  much  for  the  benefit  of 
cities,  as  for  anybody  else,  and  they  can  calculate 
upon  it  if  they  only  behave  themselves. 

Now,  as  I  said  before,  I  felt  in  duty  bound  to 
go  for  the  Report,  because  I  thought  it  was  made 
to  meet  the  wishes  of  the  members  of  this  Con 
vention,  a  wish  expressed  by  a  previous  vote.  It 
has  not  given  everything  to  one  side,  and  kept 
everything  from  the  other,  but  has  divided  the 
spoils.  But  now  that  gentlemen  see  fit  not  to 
accept  of  it,  the  obligation  I  felt  under  to  support 
it,  is  removed  from  me.  I  do  not  care  whether 
any  more  of  it  be  adopted,  or  not ;  and  I  will 
simply  say,  in  defence  of  this  Report,  that  it 
answers  the  purpose  for  which  the  Committee 
were  sent  out  to  make  it.  It  answers  that  pur 
pose  as  completely  and  as  fully,  as  any  report, 
made  by  anybody  possibly  could.  It  is  a  compro 
mise,  and  a  fair  one,  giving  to  each  party  what 
belongs  to  each,  and  there  is  good  reason  for 
each  paragraph  in  it. 

Mr.  SCHOULER,  of  Boston.  The  gentleman 
from  Pittsfield,  (Mr.  Briggs,)  has  said  that  politics 
make  us  acquainted  with  strange  bed- fellows, 
but  that  is  not  half  so  strange  as  the  speech  just 
made  by  the  gentleman  who  represents  Abington, 
(Mr.  Keyes,)  for  there  is  no  man  in  this  State,  I 


might,  perhaps,  say  there  is  no  man  in  the  United 
States,  who  has  spoken  more  frequently,  and  more 
bitterly  against  all  kinds  of  compromise  than  that 
gentleman  ;  and  yet  he  comes  forward  here  in  this 
Convention,  finding  that  the  chairman  of  the 
Committee  shirks  from  the  responsibility,  and 
takes  upon  himself  the  responsibility  of  advocat 
ing  this  compromise  Report. 

Mr.  WILSON,  of  Natick.  Will  the  gentleman 
from  Boston  allow  me  a  word  of  explanation  ? 

Mr.  SCHOULER.     Most  certainly  I  will. 

Mr.  WILSON.  My  friend  from  Boston  has 
made  a  remark  which  I  am  sure  is  unjust,  and 
which  he  will  consider  so,  when  he  ascertains  the 
facts.  The  gentleman  from  Lowell,  (Mr.  Butler,) 
to  whom  he  referred  as  shirking  the  responsibility 
of  this  Report,  was  compelled,  by  death  in  his 
brother's  family,  to  be  absent  this  afternoon. 
Justice  to  him  requires  that  I  should  make  this 
explanation. 

Mr.  SCHOULER.  That  is  a  matter  which  I 
did  not  know.  But  the  gentleman  from  Lowell 
was  here  yesterday  all  day,  and  also  has  been 
here  to-day  during  the  whole  discussion  until 
this  afternoon,  and  he  has  not  put  forth  any 
defence  of  this  Report.  But  the  gentleman  for 
Abington,  (Mr.  Keyes,)  takes  up  the  gauntlet ;  a 
gentleman  who  has  been  opposed  to  all  kinds  of 
compromises — who  has  stood  upon  the  pinnacle  of 
principle,  has  become  the  advocate,  par  excellence, 
of  compromise.  And  what  has  he  made  out  of 
it  ?  He  said  it  was  the  compromise  for  which 
this  Committee  was  sent  out  of  the  Convention  to 
make.  Who  ordered  them  to  make  it  ?  Where 
was  it  made  ?  In  coffee-houses,  and  pot-houses. 

Mr.  KEYES.  I  desire  to  ask  the  gentleman 
whether,  from  his  own  experience  in  going  to 
coffee-houses  and  pot-houses  to  make  compro 
mises,  he  judges  that  this  Report  came  from  the 
same  place  ?  [Laughter.] 

Mr.  SCHOULER.  I  did  not  mean  anything 
personal  by  my  remarks,  and  I  am  sorry  that  the 
gentleman  should  suppose  I  did.  When  I  spoke 
of  coffee-house  and  pot-houses,  I  did  not  intend 
any  personal  reflections  upon  the  gentleman  who 
represents  Abington ;  but  I  have  heard,  and  other 
people  have  heard,  that  the  compromise  for  the 
basis  of  representation  which  was  brought  into 
this  House,  was  concocted  over  a  dinner-table 
down  near  a  certain  coffee-house.  That  the  gen 
tleman  will  not  deny,  because  if  he  does,  I  can 
prove  it.  [Laughter.] 

Mr.  KEYES.  I  do  not  know  how  far  my 
opinions  may  have  accorded  with  others  who 
have  considered  and  talked  over  this  matter, 
everywhere,  almost ;  but,  Sir,  this  entire  Report 
of  the  Committee,  with  the  exception  of  one  single 


61st  day.] 


ELECTIONS    BY   PLURALITY. 


159 


Tuesday,^ 


SCHOULES. 


[July  19th. 


paragraph,  was  prepared  by  myself  at  home,  and 
submitted  by  me  to  the  Committee.  I  have  not 
dined  in  any  coffee- house,  or  any  restaurant  dur 
ing  the  whole  session,  and  have  been  at  no  dinner, 
or  public  display  of  any  character,  except  once, 
and  then  I  spent  five  minutes  in  a  caucus,  where 
I  saw  nothing  but  a  lamp  upon  the  table. 
[Laughter.] 

Mr.  SCHOULER.  It  was  the  remark  of  an 
English  poet,  "  may  not  a  man  have  a  house  in 
his  own  inn."  I  supposed  that  the  gentleman  who 
signed  the  Report  was  the  concoctor  of  it,  and  he 
is  the  gentleman  who  represents  Lowell,  (Mr. 
Butler). 

Mr.  KEYES.  I  will  state  that  the  principles 
of  this  Report  were  adopted  mainly  during  the 
absence  of  that  gentleman.  Being  afterwards  sub 
mitted  to  him,  lie  agreed  to  them,  and  signed  his 
name  to  the  Report. 

Mr.  SCHOULER.  All  I  judged  from,  was 
the  signature  of  the  Report,  and  that  is  the  signa 
ture  of  the  gentleman  from  Lowell,  and  I  pre 
sumed  he  was  the  chairman  of  the  Committee, 
for  he  made  the  first  speech  to  explain  the  Report ; 
but  now  it  appears  that  the  gentleman  from 
Abington,  (Mr.  Keyes,)  is  not  only  the  defender 
of  the  compromise,  but  the  author  of  the  com 
promise.  He  has  brought  in  an  omnibus  bill,  and 
asks  us  to  go  for  it.  It  is  a  bill  which  he  cannot 
even  get  his  own  friends  to  support.  I  dislike 
omnibuses,  any  way.  It  was  said  yesterday,  it 
has  been  said  to-day,  and  it  will  be  said  hereafter, 
and  it  cannot  be  denied — and,  as  the  gentleman 
from  Lowell,  (Mr.  Abbott,)  who  spoke  this  after 
noon,  well  put  it,  it  cannot  be  winked  out  of 
sight,  and  it  wont  go  if  you  do  wink  it  out — that, 
by  this  basis  of  representation,  one- third  of  the 
people  of  Massachusetts,  can  have  a  majority  in 
this  Home.  That  is  the  point  which  the  gentle 
man  from  Lowell,  (Mr.  Abbott,)  put  to  the  Con 
vention  this  afternoon,  and  the  fact  cannot  be 
gainsayed,  however  much  we  may  talk  about 
compromises,  however  much  we  may  try  to  enlist 
the  sympathies  of  this  body  by  calling  this  a  com 
promise. 

I  am  opposed  to  the  amendment  proposed  by 
the  gentleman  from  Natick.  I  go  for  the  repre 
sentation  of  our  towns,  and  of  our  cities  ;  and  I 
go  for  that,  because  I  think  every  man,  woman, 
and  child  in  Massachusetts,  should  always  be 
represented  in  the  legislature ;  and  that  they 
should  be  the  makers  of  the  laws.  If  we  adopt 
the  amendment  proposed  by  the  gentleman  from 
Natick,  we  will  have  the  great  difficulty  and  the 
great  objection  which  lies  against  the  present 
Constitution,  for  it  leaves  the  Constitution,  in 
that  respect,  precisely  where  it  now  is. 


The  gentleman  from  North  Brookfield,  (Mr. 
Walker,)  in  speaking  yesterday,  said  it  is  no  great 
inconvenience  if  a  hundred  towns  are  left  out  of 
the  legislature.  Now,  Sir,  I  take  issue  with  him 
upon  that  point.  I  say,  there  is  an  inconvenience 
and  a  wrong  about  it,  which  no  compromise  and 
no  speech  can  overcome ;  because  these  people,  not 
represented  in  the  legislature,  are  still  bound  to 
obey  the  laws  which  other  people  make  for  them. 
It  was  to  get  rid  of  this  town  representation  of 
small  towns,  and  parts  of  the  Commonwealth, 
which  we  came  here  principally,  among  other 
things,  to  perform ;  and,  by  the  district  system, 
we  would  have  obviated  the  evils  to  which  I 
refer. 

The  gentleman  from  Natick,  and  others  who 
have  discussed  this  question,  have  not  looked  at  it 
outside  of  the  small  towns.  He  gives  the  small 
towns  the  right  to  vote  two  or  three  times  every 
day,  from  the  first  Monday  of  November  up  to 
the  time  of  the  assembling  of  the  legislature.  Al 
though  we  have  cut  down  the  representation  of 
the  cities  unequally  with  that  of  the  towns,  still 
this  makes  the  inequality  still  greater,  because  in 
the  cities  we  cannot  have  elections  every  day. 
When  we  once  get  together  for  that  purpose,  we 
have  to  remain,  for  the  mayor  and  aldermen  can 
not  adjourn  the  meetings  in  the  cities,  as  can  be 
done  in  the  towns.  You  may  vote  five  or  six 
times  in  the  small  towns,  but  you  cannot  do  it 
in  the  cities  ;  and,  as  the  Constitution  now  stands, 
I  do  not  see  how  we  can  obviate  it  at  all.  We 
can  have  but  two  elections — one,  the  annual  elec 
tion,  and  the  other  on  the  fourth  Monday  of  No 
vember.  I  say  this  is  not  fair ;  because  it  gives  to 
one  part  of  the  Commonwealth  the  right  to  try 
to  elect  a  number  of  times,  and  allows  the  cities 
to  try  only  twice. 

But,  the  farther  we  go  into  the  consideration  of 
this  matter,  the  more  we  see  the  difficulties. 
There  are  but  two  courses  to  pursue,  and,  as  long 
as  we  keep  to  the  principle  of  either,  we  keep  in 
a  straight  line.  I  can  see  why  some  should  travel 
in  one  line,  and  prefer  the  majority  rule,  and  why 
others  should  pursue  the  other,  and  prefer  the 
plurality  principle.  If  gentlemen  are  in  favor  of 
the  majority  rule,  say  so,  and  stick  to  it.  If  they 
are  in  favor  of  the  minority  principle,  stick  to 
that,  without  compromise,  and  then  we  shall 
have  a  Constitution  which  is  plain.  If  we  adopt 
either  the  one  course  or  the  other,  the  people  will 
know  what  it  is,  and  it  will  operate  equally 
throughout  the  State.  The  more  we  discuss  this 
matter,  the  greater  will  be  seen  to  be  the  difficulty 
of  any  attempt  to  compromise  a  principle ;  to  at 
tempt  to  put  into  the  fundamental  law  of  the 
Commonwealth,  a  provision  which  has  no  prin- 


160 


ELECTIONS    BY   PLURALITY. 


[61st  day. 


Tuesday,] 


HATHAWAY  —  HILLAIID. 


[July  19th. 


ciple  whatever  in  it,  and  never  was  intended  to 
have  any  principle  in  it.  I  trust,  that  as  the  rep 
resentatives  of  the  people,  we  shall  see  the  neces 
sity,  when  we  are  framing  an  organic  law,  of 
founding  it  upon  principle.  Unless  we  do  so,  it 
will  not  stand.  All  expediency,  all  compromise, 
seeks  something  beside  principle,  and  will  fall.  I 
trust  we  will  throw  overboard  this  whole  compro 
mise  platform,  upset  the  omnibus,  and  adopt  a 
principle,  and  stand  by  it  through  and  through. 

I  do  not  wish  to  consume  the  time  of  the  Con 
vention.  I  rose  merely  for  the  purpose  of  show 
ing  the  absurd  position  in  which  the  gentleman 
for  Abington  (Mr.  Keyes)  places  himself,  and 
from  which  I  do  not  see  that  he  will  be  able  to 
extricate  himself. 

Mr.  HATHAWAY,  of  Freetown.  I  am  al 
ways  extremely  anxious  to  know  precisely  what 
I  am  called  to  vote  upon,  and  I  ask  the  indul 
gence  of  the  Convention  for  a  moment,  upon  this 
matter.  In  this  part  of  the  House  there  are  various 
opinions  as  to  the  provision  of  the  amendment  of 
the  gentleman  from  Natick,  (Mr.  Wilson).  My 
friend  from  Boston,  (Mr.  Schouler,)  says  it  con 
tains  the  majority  principle,  and  so  I  understand 
the  gentleman  from  Natick  to  say ;  but  if  I  un 
derstand  the  proposition,  it  is  this,  and  nothing 
more :  That  upon  the  failure  of  an  election  of 
representatives,  town  meetings  may  be  adjourned, 
from  time  to  time,  until  an  election  shall  be  had. 
I  do  not  pretend  to  give  the  precise  language  of 
the  amendment,  but  that  is  the  substance  of  it. 
I  ask  the  gentleman  from  Natick  where,  in  his 
amendment,  he  finds  the  majority  of  all  the  voters 
in  an  election  required  to  eifect  an  election,  and 
wherein  does  it  differ  from  the  provisions  of  our 
present  Constitution  ?  Where  is  there  any  provis 
ion  in  his  amendment  to  prevent  the  legislature, 
the  very  first  day  of  their  session,  in  January  next, 
from  passing  a  law,  providing  that  thereafter  a 
plurality  may  or  shall  elect  ?  What  violation 
would  there  be  in  that,  of  any  principle  or  pro 
vision  which  he  has  incorporated  in  his  proposi 
tion  ?  If  I  am  wrong  in  reference  to  this  matter, 
I  should  like  to  be  now  corrected. 

In  consequence  of  the  Convention,  the  other 
day,  refusing  to  have  a  proposition  read  so  that 
the  Convention  might  understand  it,  and  believ 
ing  that  all  the  Convention  did  not  understand 
the  precise  proposition  contained  in  this  amend 
ment,  a  few  moments  since  I  went  to  the  Chair, 
and  ree'xamined  it,  and  I  found  my  impression 
true,  that  there  was  nothing  in  it  to  prevent  the 
legislature  from  saying  that  a  plurality  may  or 
shall  elect.  My  friend  from  Worcester,  (Mr.  Al 
len,)  suggests  to  me  there  is  nothing  in  the  present 
Constitution  which  requires  that  a  majority  of 


votes  shall  be  required  for  an  election  of  a  repre 
sentative.  I  agree  with  him,  and  I  can  find 
nothing  in  the  Constitution  which  would  have 
prevented,  in  times  past — from  1780  up  to  the 
present  moment — the  legislature  from  providing, 
by  law,  that  a  plurality  might  elect ;  and  the  same 
difficulty,  it  seems  to  me,  is  involved  in  the  prop 
osition  of  the  gentleman  from  Natick,  if  he  in 
tended  to  require  a  majority  of  all  the  electors  to 
eifect  an  election.  In  order  that  the  Convention 
may  understand  the  matter,  and  not  be  misled — 
which  I  do  not  believe  the  gentleman  from  Na 
tick  designed  should  be  the  case — I  call  for  the 
reading  of  the  amendment. 

Mr.  HILLARD,  of  Boston.  I  think  this  Re 
port,  when  we  take  it  in  connection  with  its  pa 
rents  and  its  pedigree,  is  rather  a  singular  docu 
ment.  In  this  Convention,  I,  in  common  with 
the  minority  party,  am  only  a  passenger  on  board 
ship,  not  responsible  for  the  course  of  naviga 
tion  ;  but,  from  some  symptoms  that  develop 
themselves,  there  seems  to  be  a  likelihood  of  a 
mutiny  in  the  forecastle,  in  which  case,  we  may 
be  able  to  get  a  look  at  the  log-book,  and  learn 
where  we  are,  and  where  we  are  going. 

As  to  the  majority  and  plurality  rules,  I  assent, 
substantially,  to  the  views  of  the  delegate  for 
Manchester,  (Mr.  Dana).  The  plurality  rule,  it 
seems  to  me,  ought  to  be  applied  to  the  election 
of  the  governor  and  all  officers  chosen  by  the  gen 
eral  action  of  the  whole  State,  but  not  to  the 
election  of  town  officers,  or  representatives.  This 
is  just  reversing  the  application  of  the  Report 
before  us.  That  document  reminds  me  of  the 
horse  advertised  for  a  show,  that  had  his  head 
where  his  tail  ought  to  be.  But  we  are  told  that 
as  we  cannot  have  the  whole  of  the  principle,  we 
must  be  content  with  what  we  can  get.  The 
gentleman  for  Abington  (Mr.  Keyes)  was,  in  my 
judgment,  right,  in  the  doctrines  he  just  now  laid 
down  and  defended,  with  his  usual  courage  and 
frankness.  He  said  the  Report  did  not  pretend 
to  push  one  principle  to  its  extreme,  but  that  it 
was  a  compromise ;  a  compromise  of  principles. 
So  far,  so  good.  But  I  never  expected  to  live  to 
see  the  day  when  the  gentleman  for  Abington, 
(Mr.  Keyes,)  and  the  gentleman  from  Natick,  (Mr. 
Wilson,)  would  talk  so  glibly  of  compromises. 
Especially  should  I  have. thought  that  the  word 
would  have  stuck  in  the  throat  of  the  latter  gen 
tleman,  like  Macbeth' s  "Amen."  Perhaps  he 
has  been  denouncing  compromises  so  long,  that 
he  has  learned  to  speak  the  word  easily.  It  is 
only  on  this  supposition,  that  I  can  account  for 
its  having  been  spoken  so  trippingly  on  the 
tongue,  as  it  was  just  now. 

I  am  one  of  those  unprincipled  men  who  be- 


61st  day.] 


ELECTIONS   BY   PLURALITY. 


161 


Tuesday,] 


HILLAKD  —  WHITXEY. 


[July    19th. 


lieve,  and  always  have  believed  in  the  necessity 
of  compromises.  My  household  consists  of  two 
persons,  and  I  find  I  cannot  govern  it  with 
out  daily  compromises ;  [laughter ;]  and  as  to 
undertaking  to  govern  a  community  of  a  million 
of  souls,  without  compromises,  it  is  just  as  im 
practicable  as  it  would  be  to  pass  from  one  point 
to  another  without  passing  through  the  interme 
diate  points.  I  go  for  compromise  in  this  matter  ; 
but,  as  I  said  before,  I  would  have  transposed 
the  rules,  adopting  that  of  plurality  for  the  gov 
ernor  and  other  State  officers ;  but  not  extending 
it  to  town  meetings. 

I  spoke  a  moment  or  two  ago  of  symptoms  of 
mutiny  in  the  forecastle.     So  far  as  we  can  learn 

from  what  we  can  hear  through  the  bulkheads 

Mr.  KEYES,  for  Abington,  (interrupting).  I 
am  not  very  particular,  generally,  about  what 
place  is  assigned  me  by  gentlemen ;  but  in  this 
instance,  I  beg  that  the  gentleman  from  Boston 
•will  say  cabin,  or  quarter-deck,  and  not  forecastle. 
Mr.  HILLARD,  (resuming).  Well,  Sir,  from 
whatever  part  of  the  ship  the  voice  comes,  we 
learn  from  it  that  the  Committee  were  moved  by 
the  wish  to  keep  political  power  in  the  hands  of 
the  party  which  now  enjoys  it.  The  line  of 
legitimate  succession  was  not  to  be  broken.  This 
is  a  legitimate  motive  for  political  conduct,  and  I 
think  the  better  of  the  gentleman  for  Abington 
for  his  frank  avowal  of  it.  We  all  feel  this  ;  we 
all  act  upon  it ;  but  we  do  not  often  speak  it  out 
so  openly.  There  are  but  two  houses  in  this 
world,  Sancho  Panza  says,  the  house  of  Have,  and 
the  house  of  Want.  Just  now,  it  is  my  house 
that  wants,  and  his  house  that  has.  I  profess  to 
be  a  party  man  ;  and  I  hold  that  the  preservation 
of  party  organization  and  the  maintenance  of 
party  ascendency  are  motives  upon  which  all  party 
men  must  of  necessity  act,  to  a  certain  extent. 

Now,  as  to  the  amendment  of  the  gentleman 
from  Natick,  (Mr.  Wilson,)  so  far  as  I  under 
stand  it,  I  am  ready  to  go  for  it.  But  I  admit 
that  I  have  no  claim  to  speak  upon  this  subject 
with  any  authority,  for  I  have  not  been  in  a  town 
meeting  since  I  was  twelve  or  fourteen  years  old. 
For  this  reason,  I  am  ready  to  admit  that  the  tes 
timony  of  the  gentleman  from  Framingham,  (Mr. 
Train,)  is  much  more  important  than  any  I, 
who  have  lived  in  a  city  all  my  life,  am  able 
to  bring.  But  so  far  as  I  am  able  to  judge, 
hold,  that  in  town  meetings,  the  rule  of  the 
majority  should  always  be  applied  strictly  and 
exclusively.  I  would  keep  out  of  the  town 
meetings  the  plurality  principle,  and  under  no 
circumstances,  nor  for  any  considerations,  would 
I  allow  it  to  intrude  here.  The  town  meeting  is 
a  pure  democracy ;  and  as  I  hold  to  the  govern- 

II3 


ment  of  the  majority,  so  far  as  it  is  practicable,  as 
an  essentially  democratic  principle — as  this  is  the 
very  breath  of  the  nostrils  of  democracy,  I  would 
not  introduce  any  principle  at  variance  with  it 
into  these  primitive  democracies.     And,  Sir,  I  do 
not  believe  that  in  the  long  run,  the  application  of 
the  majority  principle  here  will  occasion  any  seri 
ous  inconvenience ;  because,  the  elements  which 
make  the  application  of  the  plurality  rule  necessary 
in  many  cases,  cannot  apply  in  small  towns,  or 
in  towns  of  moderate  size,  because  I  assume  that 
you  cannot  have  three  parties  acting  separately — 
and  I  wish  to  be  understood  as  making  the  re 
mark  generally,  without  reference  to  the  present 
state  of  things.     I  say,  you  cannot  have  three 
parties  acting  separately,  unless  there  are  prizes 
or  objects  of  some  considerable  importance  to  be 
struggled  for ;  and  I  do  not  think  that  any  offices 
or  favors  that  are  to  be  distributed  or  given  out 
in  the  town  meeting,  are  of  sufficient  consequence 
to  produce  that  result.     The  natural  tendency  in 
our  communities  is  for  men  to  arrange  themselves 
under  the  banners  of  one  of  two  parties.     The 
worst  that  could  happen  would  be,  that  a  certain 
number  of  towns  would  go  unrepresented.     This 
would  be  no  public  or  general  misfortune.     It 
would  be  an  inconvenience  to  the  particular  con 
stituency  not  represented,  and  no  more.   In  plain 
English,  it  would  be  nobody's  business  but  theirs. 
Mr.  WHITNEY,  of  Con  way.     I  have  a  strong 
desire  to  say  a  few  words,  before  a  final  vote  is 
had  upon  this  subject.     Gentlemen  from  differ 
ent  sides  of  the  House  have  attacked  this  Report, 
it  seems  to  me,  without  a  reasonable  considera 
tion  of  its  merits.     Some  gentlemen  tell  us  there 
is  no  principle  involved  in  this  whole  matter ; 
that  we  are  only  discussing  the  adoption  of  a  rule 
for  governmental  action.     Others  urge  that  the 
embodiment  of  true  republican  principle  lies  in 
the  plurality  rule  alone ;  while  others  claim  that 
any  departure  from  a  positive  majority,  is  a  de- 
partiire  from  the  true  democratic  faith.     Now, 
Sir,  from  what  I  heard  in  our  previous  discus 
sions  upon  this  subject,  I  had  been  led  to  believe 
that  every  member  of  this  Convention  concurred 
in  the  opinion,  that  the  first  principle  upon  which 
all  our  civil  institutions  were  established,  was, 
that  a  majority  of  the  people  were  only  entitled 
to  rule ;  that  sovereignty  was  acknowledged  to 
reside  only  in  the  expressed  will  of  a  majority  of 
the  whole  people.     I  did  suppose  that  upon  this, 
as  a  principle,  we  were  all  agreed ;  that  we  had 
agreed  that  this  was  the  principle  upon  which  the 
Constitution  of  1780  was  founded;  and  that  this 
was  the  principle  upon  which  our  present  Con 
stitution  now  rested,  as  an  established  fundamen 
tal  doctrine ;  and  that  under  the  present  Consti- 


162 


ELECTIONS   BY   PLURALITY. 


[61st   day. 


Tuesday,] 


WHITNEY. 


[July  19th. 


tution,  this  idea  was  intended  to  be  carried  out 
in  all  our  elections ;  but  it  is  true,  in  the  present 
Constitution,  in  case  the  majority  of  the  people 
fail  to  elect  the  governor  of  the  Commonwealth, 
then  the  people  delegate  their  authority  to  their 
agents.  Let  us  see  what  the  Constitution  now 
says  :— 

"  But  if  no  person  shall  have  a  majority  of 
votes,  the  House  of  Representatives  shall,  by  bal 
lot,  elect  two  out  of  lour  persons  who  had  the 
highest  number  of  votes,  it  so  many  shall  have 
been  voted  for;  but,  if  otherwise,  out  of  the 
number  voted  for ;  and  make  return  to  the  Sen 
ate  of  the  two  persons  so  elected ;  on  which,  the 
Senate  shall  proceed,  by  ballot,  to  elect  one,  who 
shall  be  declared  governor." 

Gentlemen  speak  of  a  great  departure  in  this 
Report,  from  the  majority  principle,  as  recognized 
in  our  present  Constitution,  in  this  respect.  Why, 
Sir,  the  lleport  is  precisely  the  principle  of  the 
present  Constitution.  It  is  an  embodiment  of 
the  same  idea  precisely,  although  the  language  is 
somewhat  changed.  You  have  provided,  by  this 
lleport,  that  certain  officers  now  elected  by  the 
legislature  shall  be  elected  by  the  people,  if  they 
can  elect  them  by  a  majority  of  their  votes,  but 
if  they  cannot  so  elect  them,  then  you  provide  that 
they  shall  be  elected  by  the  legislature,  the  same 
as  under  the  present  Constitution.  Well,  Sir, 
no  evil  can  grow  out  of  this  amendment,  if  our 
present  Constitution  is  right,  certainly,  for  in  one 
case  these  officers  are  elected  by  a  majority  of  the 
people,  and  in  the  other  they  are  to  be  elected  by 
the  same  number,  or  otherwise  precisely  as  we 
now  elect  them ;  in  this  particular,  this  lleport 
coincides  precisely  with  the  method  recognized  in 
the  old  Constitution.  Now,  Sir,  is  that  principle 
a  correct  one,  as  it  stands  in  the  old  Constitu 
tion  ?  If  it  is,  then  that  upon  which  the  lleport 
of  your  Committee  rests  is  also  correct,  for  it  is 
identically  the  same  thing.  And  when  gentle 
men  object  to  the  Report  because  it  is  a  departure 
from  the  majority  principle,  they  object  to  our 
present  Constitution — which  in  the  minds  of 
some  gentlemen  is  perfect.  We  agree  that  it  is  a 
departure,  to  some  extent.  We  have  departed  in 
the  election  of  officers  to  be  voted  for  by  the 
whole  people  of  the  State,  only  so  far  as  has  been 
demonstrated  that  a  departure  was  necessary,  and 
no  farther.  We  abide  by  the  old  Constitution  in 
the  main,  in  the  election  of  State  officers. 

But  other  gentlemen  say  there  should  be  a 
departure,  in  toto — that  the  plurality  is  the  prin 
ciple.  Well,  Sir,  be  it  so,  for  the  purposes  of  the 
argument.  Suppose  it  is  the  principle,  have  we 
not  accommodated  these  gentlemen  in  this  lleport, 
in  a  measure  ?  Have  we  not  adopted  the  plural 


ity  in  every  case  where  a  political  necessity  can 
be  shown  to  exist  r  I  take  it  the  people  have  no 
attachment  to  the  rule  of  a  less  number  than  a 
majority,  as  a  principle.  They  consent  to  the 
rule  of  a  lesser  number  than  a  positive  majority, 
as  a  political  necessity,  growing  out  of  the  multi 
plicity  of  parties.  This  lleport  adopts  the  plural 
ity  system  of  the  election  of  all  the  officers  except 
those  which  are  now  elected  by  the  legislature. 
It  leaves  these  officers  to  be  elected  by  a  majority 
of  the  people,  if  a  majority  can  elect.  Now, 
where  is  the  great  departure  from  principle  in 
this  lleport,  which  gentlemen  talk  so  much  about, 
and  say  has  been  concocted  in  a  pot-house,  eating- 
house,  or  somewhere  else  ? 

But  the  gentleman  from  Natick,  (Mr.  Wilson,) 
objects  to  it,  because  it  gives  the  plurality  system 
in  the  choice  of  representatives  ;  and  says,  sooner 
than  choose  by  plurality,  towns  will  go  unrepre 
sented,  and  vote  not  to  send.  Now,  I  submit  to 
that  gentleman,  if  in  his  sober  judgment,  he 
believes  the  towns  will  be  less  likely  to  send  rep 
resentatives  under  this  third  resolution,  giving 
the  plurality  choice  upon  the  second  ballot,  than 
they  will  under  the  present  system  ?  I  put  it  to 
every  member  of  the  Convention,  if  the  towns 
will  not,  in  nine  cases  out  of  ten,  be  less  likely  to 
return  full  delegations  under  the  system  proposed 
by  the  gentleman  from  Natick,  than  under  that 
proposed  in  the  lleport  of  the  Committee  ?  It  is 
not  because  the  towns  do  not  want  to  be  repre 
sented,  that  they  do  not  send  their  full  quota  of 
representatives.  They  like  to  be  represented,  but 
every  man  is  attached  to  his  own  party,  and  dis 
likes  to  give  up  in  favor  of  another  party ;  they 
also  dislike  these  repeated  elections,  and  there 
fore  they  allow  themselves  to  go  unrepresented  ; 
and  perceiving  no  prospect  of  a  choice,  they  vote 
not  to  send.  I  think  there  is  no  weight  in  the 
objection  of  the  gentleman  from  Natick. 

The  gentleman  for  Abington,  (Mr.  Keyes,)  has 
well  answered  the  argument  of.  the  gentleman, 
that  a  third  part  of  the  people  of  the  Common 
wealth,  from  the  small  towns,  will  choose  the 
governor.  The  case  has  never  arisen,  and  never 
will  arise,  when  all  the  small  towns  will  array 
themselves  on  one  side,  and  all  the  large  towns 
upon  the  other.  There  always  will  be  some  of 
the  small  towns  which  will  sympathize  with  the 
large  o::es,  and  there  always  will  be  some  of  the 
large  towns  that  will  sympathize  with  the  other 
small  towns ;  and  the  case,  therefore,  will  never 
arise  where  a  portion  of  the  House  of  Represent 
atives,  representing  only  a  third  part  of  the  peo 
ple,  will  choose  the  governor.  Under  this  reso 
lution,  if  adopted  in  your  Constitution,  I  verily 
believe  you  will  always  have  your  governor 


61st  day.] 


ELECTIONS    BY    PLURALITY. 


163 


Tuesday,] 


WHITNEY. 


[July  19th. 


chosen ;  if  not  by  a  majority  of  the  people  them 
selves,  by  the  representatives  of  a  majority  of  the 
entire  people  of  the  Commonwealth.  And  how 
is  the  case  where  the  majority  rule  is  applied 
exclusively  ?  Why  your  governor  has  often  been 
chosen  by  a  minority  during  the  last  eight  years. 
Where  there  are  third  parties,  there  always  will 
be  vacancies  under  the  majority  rule.  And  under 
that  rule,  a  small  majority,  by  possibility,  may 
choose  your  governor.  And  I  therefore  think 
that  this  argument,  as  applied  to  the  Report  of  this 
Committee,  is  entitled  to  no  weight  at  all. 

The  gentleman  from  Framingham  (Mr.  Train) 
said  that  this  Report  would  furnish  an  opportunity 
for  "  truck  and  dicker."  Now,  Sir,  I  say  that  if 
there  be  any  such  opportunit)'  furnished  any 
where,  it  cannot  be  charged  upon  this  Report,  or 
upon  this  Convention,  should  it  adoj  t  this  Report ; 
because  in  these  particulars  it  copies  the  present 
Constitution  ;  and  therefore  the  majority  of  this 
Convention  can  in  no  sense  be  charged — by  those 
who  have  opposed  all  alterations  in  the  Constitu 
tion — when  they  leave  the  Constitution  as  it  is, 
with  having  furnished  opportunities  for  "  truck 
and  dicker."  It  is  chargeable  upon  the  present 
Constitution  entirely,  and  not  upon  the  Report 
now  before  us.  Your  present  Constitution  makes 
the  same  provision,  so  far  as  elections  by  the 
legislature  is  concerned ;  and  the  fault,  if  fault 
there  be,  rests  upon  that,  and  not  upon  us.  The 
people  have  not  complained,  so  far  as  I  know,  of 
the  present  mode  of  choosing  governor ;  they 
have  made  no  call  upon  us  to  change  the  present 
mode  of  choosing  their  State  officers.  In  fact,  I 
am  not  aware  that  any  fault  has  been  found  with 
it ;  and  therefore,  I  take  it  that  the  argument,  so 
far  as  relates  to  alterations  of  the  Constitution  for 
choice  by  the  legislature  in  case  of  failure  to  elect 
by  majority  our  State  officers,  is,  in  this  particular, 
groundless,  with  regard  to  the  election  of  repre 
sentatives,  and  other  officers  that  the  people  must 
elect,  if  elected  at  all. 

Every  gentleman  knows  the  effect  upon  com 
munities,  of  frequent  elections,  where  they  are 
continued  day  after  day ;  where  neighbor  is 
arrayed  against  neighbor,  and  friend  against 
friend ;  ill-feeling  is  often  engendered,  ill-blood 
is  produced,  discord  and  strife  provoked,  all  of 
which  tend  to  degrade  your  electors,  and  bring 
them  into  disrepute,  and  thus  drive  the  better 
portion  of  the  people  away  from  the  exercise  of  the 
sacred  right,  and  high  privilege  of  self-govern 
ment. 

Now,  Sir,  if  you  want  to  make  the  people  love 
and  respect  their  government,  let  the  people  have 
an  opportunity,  at  the  ballot-box,  to  elect  by  a 
practicable  number  of  their  votes ;  and  in  case  of 


their  failure  to  elect  by  a  majority,  let  a  plurality 
suffice,  in  the  election  of  members  of  the  legisla 
ture  ;  and  let  that  legislature  be  chosen  by  the 
people,  without  engendering  that  ill-feeling  and 
party  animosity  which  is  the  certain  result  of  fre 
quent  elections.  But  to  return  to  the  matter  of 
"  truck  and  dicker."  I  hold  that,  as  to  this  mat 
ter,  the  Report  of  the  Committee  leaves  it  pre 
cisely  where  the  present  Constitution  leaves  it, 
with  the  exception  that  where  the  present  Con 
stitution  allows  the  House  of  Representatives 
four  candidates  to  "truck  and  dicker"  upon,  four 
persons  to  be  voted  for,  this  Report  furnishes  only 
three  ;  therefore,  I  undertake  to  say  that  this 
Report  has  lessened  the  number  of  chances  to 
"  truck  and  dicker,"  and  to  that  extent  it  has 
removed  the  objection. 

Now,  Sir,  I  think  the  repeated  trials  to  elect, 
to  which  the  people  are  subjected  under  a  major 
ity  rule,  is  what  the  people  of  this  Common 
wealth  wish  to  change  in  the  Constitution.  They 
look  upon  the  plurality  rule  as  a  necessity  in 
some  cases  ;  and  they  wish  to  adopt  this  rule  only 
so  far  as  a  necessity  exists,  retaining  the  great 
principle  established  by  our  fathers  :  that  in  a 
majority,  the  only  acknowledged  sovereignty 
resides  in  an  organic  law,  wherever  it  can  be 
preserved  consistently  with  the  practical  conven 
ience  of  the  great  body  of  the  people.  And  I 
think  we  ought  to  transmit  to  our  posterity  this 
great  principle  in  our  constitutional  law. 

I  intend  to  vote  for  the  Report  of  that  Com 
mittee,  as  I  cannot  see  any  great  objection  to  it, 
or  that  departure  from  principle  which  gentlemen 
have  endeavored  to  make  out.  It  provides  that 
every  elective  officer,  excepting  such  as  are  elected 
by  the  legislature,  shall  be  elected  under  the  plu 
rality  rule.  If  the  gentleman  from  Boston,  (Mr. 
Schouler,)  favors  the  plurality  rule,  why  does  he 
not  favor  the  Report  of  this  Committee  ? 

Mr.  SCHOULER.  I  did  not  object  to  this 
part  of  the  Report,  but  the  other  portion  of  it. 

Mr.  WHITNEY.  I  beg  pardon  of  the  gentle 
man.  I  am  happy  to  hear  that  he  is  intending 
to  support  the  Report  of  the  Committee.  I  would 
much  prefer,  in  the  case  of  representatives  to  the 
general  court,  to  have  had  a  plurality  upon  the 
first  choice.  In  the  terms  of  the  Committee,  gen 
erally,  it  is  true,  there  is  an  opportunity  to  ballot 
twice  upon  the  same  day,  and  there  may  be  some 
thing  gained  by  a  second  ballot.  If  men  come 
together,  and  a  caucus  nomination  is  not  accepta 
ble  to  the  sober  judgment  of  the  people  of  the 
town,  they  will  repudiate  that  caucus  nomination 
on  the  second  ballot.  They  will  once  vote,  and 
thus  get  an  honest  expression  of  sentiment  upon 
the  first  ballot,  as  to  who  is  the  best  man  to  rep- 


164 


ELECTIONS    BY   PLURALITY. 


[61st   day. 


Tuesday,] 


WHITNEY  —  ALLEN  —  FKOTHINGHAM. 


[July   19th. 


resent  them,  and  after  having  obtained  that  ex 
pression  of  opinion  by  this  method,  the  Consti 
tution  will  allow  them  to  change  the  mode  of 
election,  if  they  fail  to  make  choice  by  majority, 
to  that  of  plurality.  I  think  that  such  a  plan  will 
not  work  any  great  inconvenience  to  the  people. 
I  go  for  the  majority  rule  as  a  principle  ;  but  I 
say  we  cannot  abide  by  it,  and  as  the  gentleman 
for  Manchester,  (Mr.  Dana,)  said,  in  another 
matter  the  other  day,  we  cannot  carry  theories 
always  into  practical  demonstration  in  our  gov 
ernment.  We  cannot  abide  strictly  and  legiti 
mately  by  theories,  and  the  theory  which  I  take 
to  be  right  here  is  the  government  of  the  majority. 
We  depart  from  it  in  this  case  only  so  far  as  our 
convenience  compels  us  to  do  so,  and  we  give 
the  people  the  opportunity  to  prevent  any  snap 
judgment,  as  the  gentleman  from  Pittsfield,  (Mr. 
Briggs,)  calls  it,  by  a  speedy  vote.  We  will  re 
quire  a  majority  the  first  time.  I  believe  the 
people  all  over  the  Commonwealth  are  looking  to 
this  Convention  to  lighten  their  burdens  in  refer 
ence  to  repeated  elections.  I  hope  this  Conven 
tion  will  stand  by  the  Heport  of  the  Committee, 
and,  for  one,  I  design  to  vote  against  the  amend 
ment  of  the  gentleman  from  Natick,  (Mr.  Wilson,) 
for  I  think  it  has  produced  confusion,  and  will,  if 
adopted,  leave  this  matter  in  a  worse  state  than 
it  was  before.  I  intend  to  vote  for  the  plurality 
in  every  case  where  the  people  are  liable  to  be 
called  together  the  second  time,  for  an  election  ; 
and  in  every  case  where  the  Constitution  provides 
that  they  shall  now  be  chosen  by  the  legislature, 
I  propose  to  let  the  Constitution  remain  as  it  is, 
only  giving  the  opportunity  to  the  people  to  elect 
by  majority,  if  they  will,  if  not,  let  State  officers 
remain  where  they  now  are  in  the  Constitution. 
By  so  doing,  I  see  no  great  departure  from  prin 
ciple.  I  think  that  upon  a  reexamination  of  the 
Report  of  the  Committee,  gentlemen  will  not  find 
it  such  a  monstrosity  as  it  has  here  been,  by 
some  gentlemen,  represented  to  be.  I  shall  abide 
by  the  Heport  of  the  Committee  exactly  as  it  came 
from  their  hands. 

The  qxiestion  was  then  taken  on  Mr.  Wilson's 
amendment,  and  there  were — ayes,  59  ;  noes,  145. 

So  the  amendment  was  rejected. 

Mr.  ALLEN,  of  Worcester.  I  move  to  amend 
by  striking  out  the  third  resolution  entirely.  I 
will  not  multiply  words  at  this  hour  of  the  day. 
Striking  out  the  third  resolve,  will  leave  the  Con 
stitution  where  we  fcmnd  it,  and  surely  that  must 
be  a  very  good  condition  of  things,  and  a  wise 
provision  of  the  present  Constitution,  when  gen 
tlemen,  upon  all  hands  find  it  so  difficult  to 
change  it.  Upon  this  question  of  plurality  or 
majority,  gentlemen  have  changed  their  opinions 


from  day  to  day  ;  not  only  single  individuals,  but 
bodies  of  men.  My  friend  from  Pittsfield,  (Mr. 
Briggs,)  and  those  with  whom  he  associates,  have 
acknowledged  the  changes  which  have  been 
wrought  in  their  minds,  and,  indeed,  so  rapidly 
have  they  been,  that  my  head  grows  dizzy  when 
I  think  about  them.  I  was  gratified  with  the 
course  of  the  conservative  members  of  this  Con 
vention  in  this  one  particular.  I  would  not  pre 
serve  the  rust  which  remains  in  the  Constitution  ; 
but,  as  there  is  great  diversity  of  opinion  in 
respect  to  any  modification  of  one  of  its  substan 
tial  propositions,  I  propose  that  we  leave  the  Con 
stitution,  in  regard  to  representation,  just  where 
we  found  it.  I  have  not  heard  any  great  com 
plaint,  only  in  respect  to  the  election  of  repre 
sentatives.  I  believe  that  the  practice  which  is 
allowed  for  the  purpose  of  a  choice,  three  days  in 
November,  and  one  in  December,  is  amply  suf 
ficient  on  all  ordinary  occasions.  I  believe  no 
serious  difficulty  has  been  found  in  this  matter  in 
the  towns  of  the  Commonwealth,  when  we  had 
two  parties,  and  none  even  when  the  Common 
wealth  has  been  divided  into  three.  It  was 
necessary  to  introduce  another  element,  but  I  ap 
prehend  it  will  soon  be  removed  from  the  political 
affairs  of  the  Commonwealth,  and  we  shall  find 
that  we  shall  go  on  hereafter,  as  we  have  hereto 
fore,  quite  comfortably  and  conveniently,  so  far 
as  respects  the  manner  of  choosing  representa 
tives,  and  the  principles  which  will  govern  them, 
under  the  Constitution  as  it  now  stands.  Differ 
ing  in  almost  everything  which  has  been  proposed, 
let  us  unite  in  this  matter,  and  retain  that  pro 
vision  of  the  Constitution  to  which  I  have  alluded, 
which  has  existed  so  long. 

Mr.  FROTH  IN  GUAM.  I  shall  go  for  as 
much  of  the  plurality  principle,  as  I  can  get ;  for 
I  believe  there  is  a  demand  upon  the  part  of  the 
people  for  it,  and  its  adoption  would  save  time 
and  expense,  and  certainly  party  feeling.  We 
have  taken  the  vote  upon  this  question  several 
times.  Yesterday,  the  gentleman  from  Plymouth, 
(Mr.  Davis,)  moved  an  amendment,  the  effect  of 
which  was  to  strike  out  this  plurality  rule  after 
the  first  choice.  Then,  this  afternoon  the  gentle 
man  from  Natick,  (Mr.  Wilson,)  to  my  great 
regret,  moved  an  amendment,  which  amounted  to 
the  same  thing.  Now,  we  have  another  amend 
ment  moved  by  the  gentleman  from  Worcester, 
(Mr.  Allen).  All  of  these  amendments  would 
have  the  tendency  of  destroying  the  plurality 
rule,  for  the  choice  of  representatives.  I  have 
nothing  more  to  say,  at  this  time,  but  I  appeal  to 
members  of  the  Convention  to  stand  fast  by  this 
rule,  for  the  election  of  members  to  the  House  of 
Representatives ;  for  it  will  be  sure,  notwithstand- 


61st    day.] 


ELECTIONS    BY   PLURALITY. 


165 


Tuesday,] 


FRENCH  —  HOPKINSON  —  HILLARD. 


[July  19th. 


ing  what  has  been  said  by  the  gentleman  from 
Natick,  to  cure  that  great  evil — non-representa 
tion. 

Mr.  STETSON.  I  move  the  previous  ques 
tion. 

Mr.  FRENCH,  of  Berkley.  I  hope  the  gen 
tleman  from  Braintree  will  withdraw  his  demand 
for  the  previous  question,  for  a  moment.  I  wish 
to  offer  the  following  amendment : — 

But  in  case  of  the  failure  of  an  election  on  such 
ballot,  then  at  a  subsequent  meeting,  called  for 
the  purpose,  the  person  having  the  highest  num 
ber  of  votes,  shall  be  deemed,  and  declared  to  be 
elected. 

I  have  said  a  word  in  regard  to  this  amend 
ment  before,  and  I  labored  under  an  entire  mis 
take,  when  I  supposed  that  the  amendment  offered 
by  the  gentleman  from  Natick,  had  for  its  object, 
the  same  effect. 

Mr.  STETSON.  I  rise  to  a  question  of  order, 
and  it  is  this :  I  moved  the  previous  question, 
and  I  would  like  to  know  if  debate  can  go  on  ? 

The  PRESIDENT.  It  is  not  in  order  for  the 
gentleman  from  Berkley  to  discuss  the  merits  of 
the  question. 

The  previous  question  was  seconded,  and  the 
main  question  ordered. 

The  PRESIDENT.  The  first  question  is  upon 
the  amendment  offered  by  the  gentleman  from 
Worcester,  (Mr.  Allen,)  to  strike  out  the  third 
section. 

The  question  was  taken  on  the  amendment, 
and  it  was  rejected. 

Mr.  HOPKINSON,  of  Boston.  I  rise  to  a 
question  of  order.  I  find  the  first  resolution  pro 
vides,  substantially,  that  the  governor,  among 
other  officers,  in  case  of  a  failure  of  an  election  by 
the  people,  shall  be  elected  in  a  particular  manner 
pointed  out,  to  wit :  that  a  certain  number  of 
candidates  shall  be  voted  for  by  tr-e  House  of 
Representatives,  that  they  shall  return  the  per 
sons  so  elected  to  the  Senate,  out  of  which  num 
ber  the  Senate  is  to  make  an  election.  I  find  by 
referring  to  the  record  of  the  30th  of  May  last, 
that  this  Convention,  by  a  very  large  vote,  passed 
upon  this  subject,  and  adopted  a  different  provi 
sion.  The  resolve  adopted  on  that  day,  reads 
as  follows  : — 

Resolved,  That  it  is  expedient  to  alter  and 
amend  the  Constitution,  so  as  to  provide  that  in 
case  of  the  failure  of  an  election  of  governor  by 
the  people,  he  shall  be  elected  by  the  Senate  and 
House  of  Representatives,  by  joint  ballot. 

I  suppose  it  is  a  general  parliamentary  rule, 
which,  if  it  has  not  been  applied  here,  has  been 
frequently  applied,  that  when  a  particular  matter 


has  been  finally  passed  upon,  a  reconsideration 
may  be  moved  within  a  certain  time  ;  but  if  that 
time  has  passed  by,  such  a  reconsideration  cannot 
be  moved.  It  appears  to  me  that  this  provision 
is  a  violation  of  the  rule,  as  it  makes  provision 
for  the  choice  of  governor,  by  another  method  than 
that  already  passed  upon  and  determined  by  the 
Convention. 

The  PRESIDENT.  The  suggestion  as  to  the 
question  of  order  amounts  to  this :  that  this  propo 
sition  is  inconsistent  with  another  proposition, 
which  has  been  assented  to  by  the  Convention. 
It,  therefore,  revolves  itself  into  a  question  of 
consistency,  and  that  is  a  matter  for  the  Conven 
tion  to  decide.  The  Chair  understands  the  general 
parliamentary  rule  to  be  that  where  a  subject  has 
been  disposed  of,  the  same  subject  cannot  be  pre 
sented  again.  But,  that  rule  is  not  invariably 
adhered  to,  under  the  general  parliamentary  law. 
It  is  also  provided  for  by  a  rule  of  legislative 
bodies,  as  by  our  House  of  Representatives,  that 
when  a  question  has  been  rejected,  that  question 
shall  not  be  presented  again.  But,  that  is  not  the 
case  in  this  instance. 

Mr.  BRIGGS.  I  would  like  to  have  the  reso 
lution  which  has  been  heretofore  adopted,  read. 

It  was  accordingly  read. 

The  PRESIDENT.  This  is,  in  the  judgment 
of  the  Chair,  a  question  of  consistency,  and  not 
of  order,  and  is  so  laid  down  in  Jefferson's  Man 
ual,  which  is  the  standard  authority. 

Mr.  HOPKINSON,  of  Boston.  I  would  in 
quire,  whether,  when  a  matter  has  been  acted  upon, 
it  can  be  taken  up  again  ? 

The  PRESIDENT.  The  Chair  cannot  reply 
to  a  question  of  that  general  character,  but  only 
with  reference  to  this  particular  case.  The  deci 
sion  of  the  Chair  is,  that  it  is  not  for  the  Chair 
to  decide,  whether  this  is  consistent  or  inconsist 
ent  ;  it  is  for  the  Convention  to  determine. 

Mr.  BRADBURY,  of  Newton.  I  would  ask 
the  Chair,  as  a  question  of  order,  would  not  this 
be  a  matter  for  discussion,  and  as  this  is  like  a 
question  of  order,  whether,  the  previous  ques 
tion  being  ordered,  it  will  cut  off  these  two  con 
tradictory  acts  of  the  Convention  ? 

The  PRESIDENT.  The  rule  is,  that  after  the 
previous  question  has  been  ordered,  the  main 
question  shall  be  taken  without  debate. 

Mr.  HILLARD,  of  Boston.  I  suppose  that 
the  previous  action  of  the  Convention  has  been 
limited  to  an  expression  of  opinion,  that  it  is  ex 
pedient  to  do  so  and  so  ;  and  I  take  it,  that  these 
expressions  of  opinion  will  be  put  into  definite 
shape,  and  come  up  for  the  action  of  the  Con 
vention ;  and  that  when  so  brought  before  the 
Convention,  and  the  inconsistencies  are  point- 


166 


GENERAL  LAWS  FOR  CORPORATIONS. 


[62d  day. 


Wednesday,] 


CUSHMAN  —  CHAPIN. 


[July  20th, 


ed  out,  instructions  can  be  given  so  as  to  obviate 
them. 

Mr.  GRAY,  of  Boston.  I  would  ask  for  a 
division  of  the  question,  so  far  as  relates  to  the 
first  resolution,  so  that  it  may  be  taken  upon  that 
separately. 

The  PRESIDENT.  The  question  will  be 
taken  on  ordering  the  first  resolution  to  a  second 
reading. 

The  question  being  taken,  there  were,  upon  a 
division — ayes,  HO  ;  noes,  90. 

So  the  resolution  was  ordered  to  a  second  read 
ing. 

The  question  was  then  taken  separately,  on 
ordering  the  second  resolution  to  a  second  reading, 
and  it  was  decided  in  the  affirmative. 

Mr.  H  ALLETT,  for  Wilbraham.  I  ask  for  the 
yeas  and  nays  on  ordering  the  third  resolve  to  a 
second  reading. 

The  yeas  and  nays  were  not  ordered,  and  the 
question  being  taken  on  ordering  the  third 
resolution  to  a  second  reading,  it  was  decided  in 
the  affirmative. 

The  question  was  taken  on  each  of  the  succeed 
ing  resolutions  separately,  and  they  were  ordered 
to  a  second  reading. 

On  motion  by  Mr.  DUNCAN,  of  Williams- 
town,  the  Convention  then  adjourned  until  nine 
o'clock,  to-morrow  morning. 


WEDNESDAY,  July  20,  1853. 

The  Convention  assembled  pursuant  to  ad 
journment,  and  was  called  to  order  by  the  Presi 
dent  at  nine  o'clock. 

Prayer  by  the  Chaplain. 

The  Journal  of  yesterday  was  read. 

Lieutenant-  Governor. 

On  motion  of  Mr.  CUSHMAN,  of  Bernardston, 
the  amended  resolves  on  the  subject  of  the  lieu 
tenant-governor  were  taken  from  the  table  and 
placed  upon  the  Orders  of  the  Day. 

Orders  of  the  Day. 

The  Convention  proceeded  to  the  consideration 
of  the  Orders  of  the  Day,  the  first  item  being  the 
motion  of  the  gentleman  from  Fall  lliver,  (Mr. 
Hooper,)  to  reconsider  the  vote  by  which  the 
resolves  relating  to  the  incorporation  of  new  towns 
had  been  indefinitely  postponed. 

On  motion  by  Mr.  THOMPSON,  of  Charles- 
town,  this  item  was  passed  over. 

The  resolves  on  the  subject  of  the  Judiciary,  and 
the  resolves  on  the  subject  of  Harvard  College 
were  also  passed  by. 


General  Laivsfor  Corporations. 

The  resolve  on  the  subject  of  General  Laws  for 
Corporations,  being  the  next  item  on  the  calendar, 
was  taken  up  for  consideration.  The  question 
being  upon  its  final  passage. 

The  resolve  was  read  as  follows  : — 

Resolved,  That  it  is  inexpedient  to  incorporate 
into  the  Constitution  a  provision  that  corporations 
shall  not  be  created  by  special  act,  when  the  object 
of  the  incorporation  shall  be  attainable  under 
general  laws. 

Mr.  CHAPIN,  of  Worcester.  I  voted  against 
the  resolution  as  amended,  when  it  was  before  us 
on  a  previous  occasion  ;  and  I  wish  to  give  some 
reason  why  I  did  so.  It  seems  to  me  there  is  a 
misapprehension  as  to  its  meaning  and  operation, 
because  I  find  that  gentlemen  voted  in  its  favor 
on  precisely  different  grounds.  Some  voted  for 
it  because  it  meant  nothing,  in  their  opinion  ;  and 
others,  because,  I  am  bound  to  suppose,  they 
expected  it  would  accomplish  something.  Now 
the  difficulty  which  I  have  in  regard  to  it,  is  this  : 
when  I  vote  for  a  resolution,  I  wish  to  vote  for 
one  which  is  intelligible  to  myself,  and  the  mean 
ing  of  which  I  can,  at  least,  think  I  understand. 
Now,  I  wish  to  make  one  proposition,  and  to  ask 
this  question  of  the  members  of  this  Convention  : 
Do  they  wish  to  adopt  in  the  Constitution  a  pro 
vision  which  will  forever  forbid  the  legislature 
granting  any  charter  for  a  railroad  ?  Some  would 
say  they  do,  and  others  that  they  do  not.  Now 
I  ask  if,  upon  that  resolution,  there  is  not  a  ques 
tion  whether  the  legislature  will  have  the  right  to 
grant  such  a  charter  ?  What  is  the  meaning  of 
the  clause  "  when  the  object  of  the  incorporation 
shall  be  attainable  under  general  laws."  If  it 
means  that  the  legislature  are  to  decide  whether 
it  is  attainable  or  not  under  general  laws  in  exist 
ence,  why  not  say  so  ?  If  it  means  an  incorpora 
tion,  the  object  of  which  is,  in  its  nature  capable 
of  being  attained  under  general  laws  which  may 
be  passed,  why  not  say  so  ?  There  is  an  uncer 
tainty  about  it  which  makes  it  difficult  for  me  to 
vote  for  it.  I  would  not  be  willing  to  vote  to 
give  to  the  legislature  power,  under  a  general  law 
to  charter  a  corporation  which  should  have  the 
right  to  make  a  railroad  or  a  turnpike  so  that  the 
company  might  exercise  the  right  of  eminent 
domain,  and  so  that  it  might  appropriate  your 
land  and  mine  at  its  election,  reserving  to  us  only 
the  right  to  have  compensation.  I  believe  that  it 
should  be  left  to  the  legislature  to  pass  special 
acts  for  corporations  of  this  kind.  I  am  not  an 
advocate  for  vested  rights,  but  I  am  an  advocate 
for  the  doctrine  of  good  faith  in  legislation.  If 
you  and  I,  Sir,  have  invested  our  money  in  a 


62d  day.] 


GENERAL   LAWS   FOR   CORPORATIONS. 


167 


Wednesday,] 


CHAPIN  —  SCHOULER. 


[July  20th. 


railroad  originally,  it  has  notheen  for  the  purpose 
of  making  money  by  the  investment,  but  for  the 
purpose  of  encouraging  the  enterprise.  Are  we 
to  make  it  necessary  for  the  legislature  to  pass  a 
general  law  on  the  subject,  so  that  this  question 
can  never  be  examined  by  the  legislature  as  each 
case  arises — and  so  that  A,  B  and  C  may  estab 
lish  railroads  where  they  please,  and  locate  them 
over  every  acre  of  the  Commonwealth  without 
any  special  legislation  upon  the  subject  ?  I  do 
not  say  that  this  resolution  necessarily  involves 
this  result,  but  I  do  say  that  it  leaves  it  in  vague 
ness  and  uncertainty,  and  I  am  unwilling  to 
adopt  a  resolution  which  contains  in  itself  the 
elements  of  uncertainty,  doubt,  and  consequent 
litigation. 

I  find,  on  looking  at  the  Constitution  of  New 
York,  there  is  a  provision  somewhat  like  this 
resolution ;  but  there  is  in  that  Constitution  an 
expression  like  this  :  "  when  in  the  judgment  of 
the  legislature  it  shall  be  expedient."  Now  sup 
pose  the  legislature  of  Massachusetts  should  grant 
a  special  charter  for  a  railroad,  this  resolution 
standing  as  a  part  of  the  Constitution.  You  go 
on  and  take  stock  in  that  road ;  and  by  and  by, 
for  some  reason,  you  refuse  to  pay  your  assessment. 
The  road  is  under  way,  the  money  has  been 
invested,  but  persons  who  have  taken  stock,  refuse 
to  pay  their  assessments.  Suppose  they  are  pro 
ceeded  against,  and  they  come  before  the  court 
and  say  that  the  legislature  has  no  constitutional 
right  to  grant  that  special  act.  Then  comes  the 
question  whether  it  was  constitutional.  It  may 
be  decided  that  this  resolution  means  that  no 
special  act  shall  be  passed  when  there  is  a  general 
law  upon  the  subject.  Well,  if  it  means  that,  it 
does  not  accomplish  what  is  intended  by  its  friends, 
because,  all  that  the  legislature  would  have  to  do 
would  be  to  repeal  the  general  law,  whenever  a 
special  act  should  be  required.  It  seems  to  me 
that  the  amendment  introduced  the  other  day  by 
the  gentleman  from  Oxford,  contains  the  true 
principle.  He  offered  an  amendment  that  certain 
corporations  for  certain  specified  purposes,  should 
not  be  chartered,  except  under  general  laws  ;  and 
he  specified  what  they  should  be.  They  were 
subjects  in  relation  to  which  the  principles  are 
well  settled,  and  which  are  well  understood  by 
the  community.  But  it  seems  to  me  that  there 
is  a  vagueness  about  this  resolution  which  will 
give  rise  to  litigation  hereafter,  and  this  in  the 
establishment  of  an  organic  law  of  the  Common 
wealth  we  should  carefully  avoid  ;  therefore,  un 
less  this  can  be  amended  so  as  to  make  it  certain 
as  to  what  we  are  doing,  I  feel  bound  to  vote 
against  it  as  I  did  before. 

Mr.  SCHOULER,  of  Boston.     After  the  very 


decided  vote,  in  favor  of  this  resolution  the  other 
day,  it  may  appear  like  hardihood  or  impudence, 
to  rise  in  the  Convention,  and  attempt  to  speak 
against  it.  But,  I  do  not  believe  that  the  Con 
vention  fairly  understood  the  whole  matter,  when 
they  voted  upon  it  before.  The  question  was 
taken  immediately,  after  a  very  able  and  eloquent 
speech  by  the  gentleman  from  Conway,  (Mr. 
Whitney,)  and  I  think  that  he  succeeded  in  pre 
senting  his  side  of  the  question  exceedingly  well, 
by  leaving  unsaid  certain  things  which  had  better 
been  said.  The  whole  strength  of  his  argument 
was,  that  we  should  have  a  general  system  of 
corporations.  To  that,  I  have  no  objections. 
We  have  now,  upon  our  statute  books,  a  general 
corporation  act,  for  manufacturing  and  mechani 
cal,  and  other  business  purposes  of  that  kind. 
We  have  also,  a  general  law  with  regard  to  banks. 
I  have  no  doubt  that  these  laws  will  stand  per 
manently,  upon  the  statute  books  of  this  Com 
monwealth.  But,  I  am  opposed  to  taking  from 
the  people  forever,  the  right  to  say,  whether  they 
shall  have  the  right,  under  any  circumstances 
whatever,  to  make  a  special  act,  for  any  special 
purpose.  I  desire  to  let  the  Constitution  remain, 
so  that  the  people  shall  have  the  power.  I  do  not 
wish,  for  instance,  that  the  people  of  1853,  shall 
bind  for  all  time  to  come,  the  people  of  other 
years.  I  wish  the  people  to  have  the  right  to  say 
through  their  representatives,  after  they  have 
heard  a  case,  whether  the  legislature  shall  act 
upon  it  or  not,  keeping  these  general  laws  all  the 
time  upon  the  statute  book,  so  that  whoever  wish 
to  form  themselves  into  corporations  under  these 
general  laws,  may  do  it. 

There  is  another  objection  to  this  resolution, 
and  one  which  the  gentleman  from  Conway, 
avoided  altogether ;  and  that  is  :  if  we  place  this 
provision  in  the  Constitution,  we  give  to  those 
special  corporations  now  in  existence — banking 
corporations — a  monopoly  for  the  next  twenty- 
five  years  at  least ;  for  their  charters  extend  until 
1780,  and  they  were  all  chartered  the  year  before 
last.  The  very  legislature  which  passed  this  gen 
eral  banking  law,  also  re-chartered  every  bank  in 
the  Commonwealth.  The  very  legislature  which 
passed  the  general  joint  stock  law,  also  incorpo 
rated  companies  for  mechanical  purposes,  so  that 
the  theory  and  argument  used  upon  that  occasion, 
was,  that  we  would  have  both  systems  in  opera 
tion  ;  that  is,  we  should  have  a  general  banking 
law  for  all  those  persons  who  think  a  general  bank 
ing  system  is  best,  and  wish  to  avail  themselves  of 
it,  and  also  with  regard  to  joint  stock  companies. 

The  proposition  before  us  is  to  deprive  the  leg 
islature  of  any  supervision  whatever  over  this 
great  question  of  corporations  and  I  think  the 


168 


GENERAL  LAWS  FOR  CORPORATIONS. 


[62d  day. 


Wednesday,] 


SCHOULEB  —  DAVIS. 


[July  20th. 


argument  put  forth  by  the  gentleman  from  Wor 
cester,  this  morning,  is,  of  itself,  conclusive,  that 
we  ought  not  thus  to  tie  up  the  hands  of  the  leg 
islature.  There  is  no  doubt  at  all  but  that  we 
can  pass  a  general  law  with  regard  to  railroads,  as 
well  as  with  regard  to  banks  ;  and  I  ask  whether 
it  is  the  best,  the  purest,  and  the  surest  policy  to 
allow  persons  to  form  themselves  into  corpora 
tions  for  railroad  purposes,  and  run  a  railroad 
through  our  land,  if  we  have  any,  to  any  point 
they  please ;  whether  the  effect  of  it  will  not  be 
to  depreciate  the  property  of  individuals  now  in 
corporations  of  that  kind,  and  whether  it  will  not 
bring  up  the  question  of  parallel  roads  ?  After 
men  have  invested  their  property  upon  a  pledge 
of  the  State,  in  building  railroads,  I  think  it  ought 
to  be  protected  in  some  degree,  upon  the  faith 
which  the  State  has  given. 

Now,  Sir,  I  think  the  argument  is  unanswera 
ble,  that  all  these  matters  ought  to  be  kept  in  the 
hands  of  the  people,  and  that  we  should  allow 
them  to  do  as  they  think  best  when  the  circum 
stances  come  up ;  and  that  is  all  that  I  desire.  I 
think  it  is  wrong  to  cramp  the  legislature  of  our 
State  in  this  way.  We  have  already  general  laws, 
and  I  trust  that  these  general  laws  will  remain  ; 
I  have  no  doubt  that  they  always  will  remain. 
There  was  no  attempt  last  year  to  repeal  them, 
and  there  will  be  no  attempt  to  repeal  them.  It 
seems  to  me  that  there  is  an  argument,  and  there 
is  a  strong  reason,  why  we  should  keep  this  great 
power  in  the  hands  of  the  people,  so  that  they  can 
act  upon  the  cases  as  they  come  up,  and  not  for 
ever  exclude  them  from  being  heard  here  through 
their  representatives.  I  trust  that  the  order  will 
be  defeated,  and  that  we  shall  leave  the  Constitu 
tion  precisely  as  it  now  stands. 

Mr.  DAVIS,  of  Worcester.  I  trust,  Mr.  Pres 
ident,  that  this  proposition  will  be  adopted  ;  and 
it  strikes  me  that  if  the  members  of  the  Conven 
tion  will  consider  the  matter,  it  would  be  adopt 
ed  almost  by  a  unanimous  vote,  if  they  are  desi 
rous  of  the  prosperity  and  happiness  of  the  good 
old  State  of  Massachusetts.  It  is  true  that  this  is 
an  important  question  ;  it  is  one  which  is  to  effect 
a  major  portion  of  the  wealth  of  Massachusetts; 
because,  by  the  last  valuation,  there  are  in  this 
State  about  six  hundred  millions  of  property,  and 
a  majority  of  all  this  property,  or  more  than 
three  hundred  millions,  is  now  tied  up  in  special 
acts  of  incorporation,  where  certain  individuals 
have  special  privileges  over  the  mass  of  the  people. 
This  has  been  done  substantially  and  mainly  dur 
ing  the  last  quarter  of  a  centuary.  With  general 
laws  upon  the  statute  book,  last  winter  there 
were  special  acts  of  incorporation  passed  by  our 
legislature,  to  the  amount  of  twenty-six  millions 


of  dollars  ;  notwithstanding  we  had  a  general 
banking  law  upon  the  statute  book,  banks  were 
incorporated  to  the  amount  of  ten  millions  of  dol 
lars,  when  there  was  not  specie  enough  in  Mas 
sachusetts,  by  the  bank  returns,  to  put  into  these 
new  banks  to  carry  them  into  operation.  Gen 
tlemen  know  what  the  law  is,  and  what  men 
have  to  swear  to,  in  order  to  get  these  banks  into 
operation ;  and  yet  in  the  face  and  eyes  of  the  re 
turns  of  these  banks  that  there  was  only  three 
millions  of  specie,  not  ten  cents  to  redeem  a  dol 
lar,  of  the  deposits  for  the  bills  in  circulation, 
ten  millions  of  dollars  of  capital  were  created  by 
these  special  acts  last  winter,  for  banks  ;  and  for 
other  business  corporations,  some  sixteen  millions 
more. 

Gentlemen  can  easily  see  the  whole  length 
and  breadth  of  this  question,  if  they  will  look 
at  the  volumes  of  our  special  laws.  Here  are 
eight  large  volumes  of  special  laws  for  the  few, 
arid  two  volumes  of  general  laws  for  the  many. 
This  will  show  that  there  has  been  a  system  of 
legislation  here  in  this  Commonwealth,  for  the 
last  quarter  of  a  century,  for  the  benefit  of  the 
few,  and  not  of  the  many.  Now,  the  prin 
ciple  of  the  proposition  is  to  bring  corpora 
tions,  whenever  practicable,  under  general  laws, 
so  as  to  legislate  for  all  the  people  of  the  Com 
monwealth.  The  objection  which  has  been  taken 
by  my  colleague,  (Mr.  Chapin,)  in  my  judgment, 
has  no  force  in  this  particular ;  because,  when  the 
application  comes  up  for  a  special  act,  it  is  for  the 
legislature  to  judge,  before  they  grant  it,  whether 
it  can  be  be  brought  under  the  general  law.  There 
may  be  cases,  and  I  have  no  doubt  but  that  there 
will  be  cases,  in  which  it  will  be  necessary  to 
grant  a  special  act ;  but,  whenever  they  can  be 
brought  under  general  laws,  they  should  be 
brought  under  general  laws  that  will  apply  to  the 
whole  subject,  and  operate  alike  upon  all  the 
people.  If  gentlemen  would  go  into  a  considera 
tion  of  this  matter — take  up  the  ponderous  vol 
umes  of  special  acts,  and  see  how  much  time  has 
been  spent  in  legislating  for  the  few — they  will 
perceive  that  hundreds  of  thousands  of  dollars 
will  be  saved,  in  the  mere  business  of  legislation, 
by  the  adoption  of  this  simple  principle  ;  for,  if 
they  will  look  over  the  work  of  last  winter,  they 
will  perceive  that  three- fifths  of  the  whole  time 
was  spent  upon  special  legislation.  Now,  the 
question  is — and  I  want  gentlemen  to  meet  it 
directly — is  it  right  to  legislate  for  the  few  or  for 
the  many  ?  Should  not  our  laws  operate  for  the 
benefit  of  the  whole  people  of  the  Commonwealth, 
and  not  for  the  few  ? 

In  my  judgment,  Mr.  President,  if  we  had  not 
been  trammelled  by  these  special  acts,  wlu'ch  are 


62d  day.] 


GENERAL   LAWS    FOR   CORPORATIONS. 


169 


Wednesday,] 


DAVIS  —  CHAPIN. 


[July  20th. 


calculated  to  cripple,  to  break  down  and  destroy 
individual  enterprise,  the  population  of  Massa 
chusetts,  instead  of  being  a  million,  would  have 
now  been  a  million  and  a  half;  and  instead  of 
the  property  of  the  Commonwealth  amounting  to 
six  hundred  millions,  it  would  have  amounted  to 
a  thousand  millions  of  dollars.  What  has  made 
fifty- five  thousand  of  the  native  citizens  of  Mas 
sachusetts  emigrate  into  the  State  of  New  York, 
where  they  can  live  under  general  laws,  and 
where  there  is  a  fair  competition  in  all  these 
branches  of  business  ? 

Yes,  Sir,  fifty- five  thousand  of  our  native-born 
citi/ens  have  gone  out  from  Massachusetts,  as  is 
shown  by  the  last  census ;  and  they  have  gone 
into  New  York  to  get  a  livelihood,  simply  because 
they  were  trammelled  here,  and  all  competition 
was  broken  down  by  these  corporations.  Take  an 
illustration.  At  first,  individuals  in  this  Com 
monwealth  set  up  establishments  for  the  manu 
facturing  of  railroad- cars,  and  they  did  well,  and 
were  prosperous.  By  and  by  it  was  discovered 
to  be  a  prosperous  business,  and  people  petitioned 
the  legislature,  and  got  an  act  of  incorporation. 
By  the  combination  of  capital  they  succeeded  in 
putting  down  prices,  and  they  endeavored  to 
crush  every  individual  who  was  in  the  business. 
They  accomplished  this,  and  failed  every  individ 
ual  in  the  Commonwealth  who  was  engaged  in 
this  business ;  and  in  the  effort  to  do  this,  they 
failed  themselves.  If  gentlemen  will  look  into 
the  history  of  these  special  corporations,  they  will 
perceive — for  it  is  obvious  011  the  face  of  it — what 
these  special  acts  are  desired  for.  It  is  because 
those  who  ask  for  them  want  special  privileges. 
What  are  these  special  privileges  for  ?  They  are 
to  enable  them  to  gain  an  advantage  over  the 
masses  of  the  people ;  that  is  all  the  reason  why 
they  come  to  the  legislature  for  these  special  acts. 
But,  says  the  gentleman,  this  is  to  open  the  door 
too  wide,  you  are  going  to  make  more  corporations, 
if  you  have  such  a  general  law.  But  when  this 
general  law  comes  before  the  legislature,  I  have 
confidence  enough  in  the  representatives  of  the 
people,  to  believe  that  a  general  law,  which  is  to 
affect  the  whole  people,  will  be  guarded,  so  that 
men  cannot  get,  under  a  general  law,'  what  they 
get  under  special  laws,  where  they  come  into  the 
legislature  and  have  hundreds  of  petitions  for 
special  acts  piled  up  on  the  table  of  the  House, 
and,  by  a  system  of  log-rolling,  secure  the  pas 
sage  of  an  act  giving  special  and  exclusive  privi 
leges. 

Mr.  CHAPIN.  I  wish  to  inquire  of  my  col 
league,  who  is  to  decide  whether  the  object  of  the 
corporation  can  be  attained  under  general  laws  or 
not. 


Mr.  DAVIS.  The  legislature  will  judge  as  to 
that  matter. 

Mr.  CHAPIN.  I  suppose  that  the  legislature, 
under  this  general  law,  could  pass  a  special  law, 
declaring  that,  in  their  opinion,  the  object  was 
not  attainable  under  general  laws,  and  should 
therefore  be  chartered.  I  will  also  ask  the  gen 
tleman  another  question :  whether,  in  his  opin 
ion,  the  legislature  can  pass  a  general  railroad 
corporation  act  ? 

Mr.  DAVIS.  There  are  general  laws  relative  to 
railroads.  I  admit  that  railroads  should  never  be 
permitted  without  some  action  on  the  part  of  the 
legislature ;  but  yet  there  may  be  general  laws 
that  will  affect  the  whole.  The  principle  is  sub 
stantially  that  which  has  been  adopted  in  other 
States.  It  has  been  adopted  in  the  State  of  New 
York,  and  it  has  operated  well  there.  If  gentle 
men  will  look  at  the  last  census,  and  see  the  tide 
of  population  which  has  gone  into  that  State,  they 
will  see  how  much  this  system  has  operated  for 
her  advancement,  and  they  will  see  one  of  the 
causes  which  has  driven  energetic  young  men 
from  this  State.  This  leaves  it  in  the  power  of 
the  legislature  to  determine  the  matter.  Take, 
for  instance,  the  banking  law  of  Massachusetts. 
The  general  banking  law  now  upon  the  statute 
book  is  much  more  stringent  than  these  special 
laws,  which  have  been  given  to  these  individuals  ; 
and  that  is  the  reason  that  the  bank  men  do  not 
like  it.  Under  the  present  system  they  can  issue 
any  amount  of  money  they  please,  without  any 
thing  to  redeem  it,  in  direct  violation  of  the  Con 
stitution  of  the  United  States,  in  my  judgment. 
The  Constitution  of  the  United  States  establishes 
the  fact  that  gold  and  silver  shall  be  the  standard 
by  which  we  are  to  estimate  the  value  of  our 
goods,  lands,  wares,  and  merchandise  ;  and  yet 
we  have  another  standard  here  in  Massachusetts. 
Ten  millions  of  bank  capital  are  created  in  a 
single  year,  and  everything  is  raised  in  value,  not 
comparing  it  by  the  gold  and  silver  standard,  but 
by  the  paper  standard,  which  is  not  a  representa 
tion  of  specie,  because,  by  the  last  returns  of  the 
banks  there  is  not  ten  cents  on  a  dollar  to  redeem 
their  circulation  and  deposits.  Why  are  all  these 
ups  and  downs  in  trade,  commerce,  and  manu 
factures,  except  from  the  constant  change  and 
variation  of  the  amount  of  this  paper  circulation  ? 
And  this  is  done  for  the  benefit  of  the  few,  who 
wring  their  thousands  from  the  masses.  But  if 
these  ten  millions  of  bank  capital  had  been  cre 
ated  under  a  general  law,  instead  of  being  created 
under  special  acts  last  winter,  it  would  have  had 
a  material  effect  upon  the  prosperity  of  this  whole 
Commonwealth.  The  man  who  sits  in  State 
Street  has  the  control  of  more  than  seventy  mil- 


170 


GENERAL  LAWS  FOR  CORPORATIONS. 


[62d  day. 


Wednesday,] 


DAVIS  —  GRAY. 


[July  20th. 


lions  of  dollars— the  control  of  all  the  paper  cir 
culation  in  New  England.  Every  gentleman 
knows  very  well  that  all  the  banks  pay  tribute 
there.  No  bank  can  go  into  operation  in  New 
England,  until  it  pays  tribute  to  State  Street ;  and 
whenever  they  see  fit  to  put  on  the  screws  there, 
and  to  make  money  scarce  by  curtailing  the  cir 
culation  ten  millions,  they  can  do  it,  and  what  is 
the  consequence?  The  farmer's  produce  falls, 
and  the  manufacturer's  produce  falls  in  value — 
all  the  products  of  labor  fall,  and  the  knowing 
ones  can  take  the  advantage  and  buy  up  what 
they  want.  The  screw  is  raised,  money  is  plenty, 
prices  increace,  and  the  knowing  ones  reap  the 
harvest ;  and  the  people  suffer,  and  are  defrauded 
in  that  way.  Their  honest  earnings  are  taken  up 
in  this  manner ;  whereas,  if  all  this  business  had 
been  entered  into  under  this  general  banking  law, 
which  stands  upon  your  statute  book,  they  could 
only  issue  so  far  as  they  have  the  money  to  re 
deem  their  paper  with,  and  every  bill-holder 
would  have  been  safe  with  his  bills.  But  no  ! 
they  go  on  passing  these  charters,  these  special  acts 
to  give  privileges  to  the  few  at  the  expense  of  the 
many.  I  think  there  is  a  sufficient  guard,  if  the 
legislature  should  pass  a  general  act,  for  they  will 
do  it  with  vastly  more  care  than  they  exercise  in 
granting  a  special  act.  It  is  impossible  for  them 
to  review  all  these  special  acts  with  much  care, 
as  numerous  as  they  are.  Nobody  knows  the 
law  with  regard  to  these  special  acts.  You  may 
ask  the  best  lawyer  in  this  Convention  about  any 
particular  charter,  and  he  could  not  tell  you  un 
less  he  had  happened  to  have  occasion  to  examine 
it,  and  thus  to  become  familiar  with  its  provis 
ions.  But  if  we  had  a  general  law,  every  lawyer 
would  understand  it.  Now,  the  simple  proposition 
is  to  bring  these  special  acts  under  a  general  law. 
Why,  Sir,  they  have  become  so  numerous  in  this 
Commonwealth,  that— as  gentlemen  will  see  if 
they  turn  to  document  No.  37 — it  takes  ninety 
pages,  to  enumerate  these  special  acts  !  Here  is  a 
return  made  by  the  Secretary  of  State,  filling 
ninety  pages,  just  to  name  these  special  acts. 
We  have  gone  to  the  extreme  of  any  State  in  the 
Union.  If  gentlemen  will  look  at  the  special  acts 
of  other  States,  they  will  find  nothing  to  be  com 
pared  with  it.  Now,  Sir,  I  ask  for  this  simple 
provision  ;  it  leaves  it  for  the  legislature  to  judge 
whether  these  corporations  require  a  special  act, 
as  each  case  presents  itself.  I  know,  that  under 
different  legislatures,  there  might  be  different  de 
cisions.  There  is  a  certain  set  of  gentlemen  who 
think  that  it  is  proper  to  legislate  for  the  few  at  the 
expense  of  the  many,  and  they  would  judge  that 
it  was  best  to  grant  a  special  act ;  but  whenever 
you  have  a  legislature  who  believe  that  they  ought 


to  legislate  for  the  many,  and  not  for  the  few, 
then  they  would  give  them  a  general  law. 

I  see  no  objection  to  it,  nor  do  I  see  why  it 
does  not  obviate  the  objection  of  the  gentleman 
from  Boston,  (Mr.  Schouler,)  entirely  ;  that  it 
leaves  it  with  the  legislature  to  determine ;  so  that 
either  a  railway,  or  other  corporation,  can  obtain 
full  privileges  to  carry  forward  any  needful  enter 
prise.  But  to  give  privileges  to  any  corporation, 
that  will  tend  to  crush  individual  enterprise ;  to 
all  that  class  of  corporations  I  am  opposed.  If 
they  are  placed  under  a  general  law,  then  there  is 
no  special  privilege,  and  they  will  do  no  harm. 

Mr.  GRAY,  of  Boston.  It  appears  to  me,  and 
I  think  it  will  so  appear  to  most  gentlemen,  who 
look  coolly  at  the  question,  that  there  are,  in  fact, 
two  questions  before  us  ;  and  I  certainly  think — 
with  all  respect  to  some  of  the  gentlemen  who 
have  preceded  me — that  these  two  questions  have 
been  confounded.  These  two  questions  are,  first, 
that  corporations — and,  I  will  add,  a  great  num 
ber  of  corporations — are  an  evil ;  that  it  is  an  evil 
to  have  this  system  of  carrying  on  business  by 
means  of  joint  stock  companies.  Then,  Sir,  the 
next  question  is — suppose  that  it  is  not  an  evil, 
but  a  benefit  upon  the  whole,  at  any  rate  a  thing 
not  to  be  prohibited — how  shall  these  corporations 
be  created  r  What  is  the  most  convenient  and 
proper  way  of  doing  it  ?  Now,  I  think,  that 
these  two  ideas  have  been  confounded  by  gentle 
men  in  their  arguments.  We  are  told  of  millions 
of  capital  being  locked  up  in  corporations ;  we 
are  told  that  the  legislature  favor  a  few  among  the 
many  ;  and  we  are  farther  told,  that  these  corpo 
rations  destroy  individual  competition.  That  is 
one  branch  of  the  question.  And  if  all  these 
arguments  are  true  to  the  extent  to  which  gentle 
men  have  maintained  them,  what  would  be  the 
course  which  we  ought  to  take  ?  Why,  Sir,  I 
think  that  an  unbiased  observer  would  naturally 
say  that  your  course  is  to  have  no  more  of  them, 
and  to  put  an  end,  as  far  as  you  can  legally,  to 
all  that  you  have  got — if  not  on  a  principle  of 
immediate  abolition,  at  least,  on  one  of  gradual 
abolition — of  these  joint  stock  companies.  But, 
Sir,  nothing  of  the  kind  is  proposed  here.  I  can 
admit  every  word  uttered  by  the  gentleman  from 
Worcester,  (Mr.  Davis,)  and  those  who  have 
taken  the  other  side  of  the  argument,  and  then  I 
would  ask  them,  what  do  you  intend  to  propose  ? 
Do  you  make  one  corporation  less  ?  Not  one. 
What  then  ?  Why,  you  give  them  a  different 
origin.  You  change  their  birth-place,  but  their 
nature  is  the  same. 

Now,  the  gentleman  talks  about  three  hundred 
millions  of  capital  being  locked  up  in  corpora 
tions,  and  says  that  in  this  you  have  been  legis- 


62d  day.] 


GENERAL   LAWS   FOR    CORPORATIONS. 


171 


Wednesday,] 


GRAY. 


[July  20th. 


lating  for  the  benefit  of  the  few,  to  the  disadvantage 
of  the  many ;  and  yet,  Sir,  if  these  corporations 
are  such  a  great  evil  as  gentlemen  would  fain 
make  the  people  believe,  they  would  open  the 
door,  and  let  every-body  come  in,  and  by  this 
process  increase  the  evil  to  an  indefinite  extent. 
I  tell  the  gentleman  from  Worcester,  that  by 
adopting  this  course,  he  will  legislate  for  the  few 
after  all,  for  these  three  hundred  millions  of 
property  are  held  not  by  a  very  few,  absolutely 
speaking  ;  but,  considering  that  those  engaged  in 
business  corporations  are  confined  to  a  few  spots, 
and  considering  that  the  great  masses  of  the  rural 
and  laboring  population — considering  that  these 
great  masses  are  not  owners  in  joint  stock  com 
panies,  and  cannot  well  be — you  still  leave  a  very 
large  majority  of  the  people  without  the  limits  of 
corporations. 

Now,  Sir,  I  have  no  objection  to  a  system  of 
joint  stock  companies,  always  bearing  in  mind 
that  I  reserve  a  control  over  them ;  I  have  no 
objection  in  that  sense  to  legislate  for  the  few, 
provided  we  benefit  the  few  without  injuring  the 
just  rights  of  the  many.  If  we  benefit  the  few 
directly,  and  the  many  more  than  they  were 
benefited  before ;  if  we  take  away  no  man's  priv 
ilege  by  giving  a  privilege  to  a  few  because  they 
want  such  privilege,  where  is  the  harm  ?  Gen 
tlemen  say  that  this  is  a  monopoly.  I  think  it  is 
not.  If  gentlemen  want  to  be  incorporated,  and 
they  come  to  the  legislature  for  such  purpose,  the 
legislature  having  investigated  the  matter,  and 
feeling  assured  that  no  party  is  to  be  injured  by 
such  grant  will,  as  a  matter  of  course,  as  it  is  a 
matter  of  duty,  give  them  a  special  act  of  incor 
poration.  But  if  they  do  not  want  to  be  incor 
porated,  if  the  people  generally  think  that  these 
corporations  are  a  great  and  crushing  evil,  then 
the  will  of  the  people  will  reach  the  legislature, 
and  the  legislature  will  take  pains  not  to  let  every 
body  be  incorporated,  but  will  endeavor  to  di 
minish  such  corporations  as  we  have. 

Sir,  the  distinction  which  the  gentleman  makes, 
reminds  me  of  a  law  formerly  existing  in  some  of 
the  petit  German  States,  and  which,  for  anything 
I  know,  may  exist  now.  In  England,  and  most 
other  countries  in  which  they  have  orders  of  no 
bility,  the  king  or  sovereign  ennobles  whom  he 
pleases ;  but  in  these  German  States,  baronies 
could  be  bought ;  every  man  might  have  a  barony 
who  could  pay  ten  thousand  dollars  for  it.  And 
was  it  any  less  an  order  of  nobility  because  a  man 
bought  it  himself  instead  of  its  being  conferred  by 
the  crown  ?  No  gentleman  will  say  that  it  was. 
An  order  of  nobility,  I  suppose  gentlemen  here 
would  consider  as  an  evil.  I  suppose  that  we 
would  all  think  so.  And  what  course  do  we  take 


in  this  respect  ?  Why,  Sir,  we  prevent  their 
existence  altogether.  But  my  friend,  who  con 
siders  corporations  an  evil,  and  would  prevent 
men  from  going  into  them  indiscriminately  and 
without  means,  yet  does  not  prevent  the  man 
with  ten  thousand  dollars  from  going  into  them. 
After  all,  it  seems  to  me  that  this  is  only  legislat 
ing  for  the  few ;  for  the  "  many,"  as  the  gentle 
man  calls  them,  stand  in  the  same  degree  by  the 
one  proposition  as  by  the  other. 

I  thought  the  argument  of  the  gentleman's 
colleague  very  conclusive,  but  it  seemed  to  me 
that  it  did  not  go  far  enough.  I  shall  be  obliged 
to  go  against  the  amendment,  and  also  against  the 
Report,  for  reasons  which  I  have  stated  before, 
and  which  I  will  not  now  repeat.  But  I  will  say 
a  word  or  two  in  addition  to  what  I  have  said, 
and  my  object  is  rather  to  direct  the  minds  of 
gentlemen  to  what  I  consider  the  true  state  of  the 
question — rather  to  lead  them  to  take  a  discrimi 
nating  view  of  the  issues  before  them,  and  I 
think  only  a  little  reflection  is  necessary  for  that 
— than  to  urge  any  other  argument. 

Now,  we  speak  of  creating  corporations  by 
special  acts ;  and  we  say  that  we  voted  to  create 
them  by  general  laws.  The  truth  is,  if  we 
would  be  precise,  that  I  think  our  system  is  a 
mixed  system.  Take  an  illustration.  Say  that 
a  manufacturing  company  comes  up,  or  that  you 
and  I  establish  a  milling  company  at  Lawrence. 
We  come  in  and  petition  for  an  incorporation, 
with  a  certain  amount  of  capital.  The  legislature 
grants  us  an  act  of  some  twenty  lines  ;  and  what 
is  the  provision  that  it  puts  in  ?  It  grants  a 
charter  with  all  the  powers,  and  subject  to  all  the 
liabilities  of  the  38th  chapter  of  the  Revised 
Statutes.  The  legislature  grants  this  incorpora 
tion  partly  by  general  act,  and  partly  by  special 
act,  covering  the  few  points  which,  from  the  na 
ture  of  the  case,  cannot  be  covered  by  a  general 
act.  They  retain  the  provision  of  allowing  per 
sons  to  incorporate  themselves  under  a  general 
law,  unless  they  see  some  objection  to  it.  Now, 
let  me  ask,  is  not  that  distinction  a  wise  one  ?  Are 
gentlemen  prepared  to  say  that  every-body  ought 
to  go  in  under  all  circumstances,  and  that  to  all 
future  time  ?  I  think  not.  Is  this  to  be  done 
in  regard  to  railroad  corporations,  canal  corpora 
tions,  and  the  like  ?  No,  Sir ;  because  you  would 
put  into  their  hands  the  power  of  eminent  do 
main.  By  a  construction  of  the  Constitution  not 
warranted  in  its  express  terms,— as  an  original 
question,  I  think  not  a  clear  one,  nevertheless 
highly  necessary  it  may  be, — we  give  them  a 
power  of  eminent  domain  ;  we  hand  over  to  them 
our  sceptre,  and  they  march  through  any  man's 
land  they  please  ;  and  they  give  him  such  remedy 


172 


GENERAL  LAWS  FOR  CORPORATIONS. 


[62d  day. 


Wednesday,] 


GRAY. 


[July  20th. 


—the  best  remedy,  perhaps,  that  can  be  had  ;  but 
how  near  it  is  to  perfect  remedy,  gentlemen  can 
pretty  well  judge— they  give  him  such  remedy  as 
he  can  find,  by  going  to  law  for  his  recompense ;  for 
it  does  happen,  that  these  corporations  are  some 
times  difficult  to  deal  with.  But  we  give  them  cer 
tain  powers  which  they  generally  take  care  to  ex 
ercise.  For  instance,  here  is  a  private  corporation  in 
some  business  or  other  with  which  the  public  inter 
est  is  connected,  say  a  railroad  company ;  or,  if  you 
choose,  take  another  class  of  corporations — those 
engaged  in  the  banking  business,  as  that  has  been 
so  specially  referred  to.  Well,  Sir,  these  corpo 
rations  are  connected  with  the  public  interest. 
They  are  not  mere  corporations  for  the  transac 
tion  of  business  benefiting  or  injuring  the  public  it 
may  be  by  their  relations  with  those  who  are  their 
customers,  or  who  transact  business  with  them  ; 
but  they  have  the  power  of  regulating  the  whole 
currency  of  the  State,  and  that  I  call  a  high 
public  power.  They  can  affect  the  prosperity  of 
those  who  can  least  afford  to  lose  any  anything, 
and  therefore,  I  think  that  these  are  corporations 
over  which  the  legislature  ought  to  exercise  some 
control.  They  ought  to  adopt  something  more 
than  a  general  act.  But  the  general  act  they  have 
now.  They  have  the  36th  chapter  of  the  Revised 
Statutes,  which,  after  all,  regulates  the  banks ;  a 
provision  enforcing  the  soundness  of  their  cur 
rency  ;  a  provision  which  enforces  their  keeping 
themselves  in  good  condition,  as  far  as  banking 
men  under  the  supervision  of  the  statute  can 
affect  it.  These,  and  other  provisions  of  import 
ance,  are  all  contained  in  the  general  act.  Well, 
but  my  friend  thinks  that  there  ought  to  be  other 
provisions — provisions  as  to  the  investment  of 
their  capital — provisions  like  that  existing  in  the 
New  York  system ;  establishing  a  different  basis 
of  currency,  a  better  system  than  ours.  Now, 
how  can  that  objection  be  met  ?  Why,  Sir, 
it  can  be  met  in  a  much  less  hazardous  way 
than  he  proposes  to  meet  it.  Let  him  go  into  the 
legislature  and  take  up  the  36th  chapter  of  the 
Revised  Statutes  and  persuade  the  legislature  to 
alter  it,  or  else  learn  a  lesson  which  we  all  have  to 
learn  even  here — that  is,  to  be  voted  down  when 
we  think  and  feel  that  we  are  right.  That  is  the 
course,  Sir. 

Now,  Sir,  I  will  state  what  I  think  has  had  great 
effect  upon  the  minds  of  gentlemen,  and  that  is  the 
mere  fact  of  the  saving  of  the  time  of  the  legislature. 
Gentlemen  meet  here,  and  they  sit  here — it  may 
be  for  a  hundred  and  twenty  days — they  come 
here  every  morning  with  a  most  determined  pur 
pose  to  end  the  session  at  the  earliest  hour  ;  but 
they  find,  somehow  or  other,  that  the  session  spins 
on,  and  issue  after  issue  arises,  and  time  after 


time  is  fixed  upon  for  adjourning,  and  one  branch 
fixes  a  time  and  the  other  branch  postpones  it,  as 
it  may  be ;  and,  after  all,  the  legislature,  like  all 
things  human,  does  at  sometime  come  to  an  end, 
at  a  time  which  nobody  anticipated  when  they 
commenced  their  labors — that  is,  at  a  later  day. 
Well,  Sir,  it  is  customary  to  ascribe  all  this  to  the 
immense  mass  of  "private  business,"  as  it  is 
called  ;  but,  Sir,  I  think  they  ascribe  too  much  to 
that  cause.  If  it  were  of  any  purpose  to  say 
much  about  it,  I  should  say  that  the  size  of  the 
House  had  something  to  do  with  it,  but  that  might 
be  a  disputed  point.  But  there  is  no  dispute  that 
the  gentlemen  of  the  House  of  Representatives  do 
sit  here  for  the  first  three  weeks,  appearing  to  those 
who  are  without  as  if  they  were  helping  each 
other  to  do  nothing,  while  they  are  quietly  prepar 
ing  their  business.  But  are  we  sure  that  this 
can  be  dispensed  with  ?  Take,  for  instance,  a 
railroad  corporation.  We  wish,  when  such  a  cor 
poration  is  going  to  march  through  the  land  of 
individuals,  to  know  something  about  the  line 
they  are  going  to  take  ;  we  wish  to  know  some 
thing,  not  only  about  the  practicability  of  the 
enterprise,  but  something,  also,  in  regard  to  the 
route  that  is  to  be  taken.  Is  not  this  necessary 
and  proper  ?  Are  we  prepared  to  say — as  my 
colleague  has  already  spoken  upon  that  point — 
that  any  company  of  men  may  come  in  and  or 
ganize,  under  a  general  act,  and  run  a  railroad 
where  they  please  ?  Sir,  how  can  we  say  so  ? 
There  might  be  a  difference  in  the  cases.  Ten 
years  ago,  if  we  had  authorized  a  railroad  to  run 
through  the  city  of  Lawrence,  or  had  we  author 
ized  gentlemen  to  build  a  railroad  where  they 
pleased,  they  might  have  run  a  road  through  that 
ground,  and  would  have  done  no  more  harm  than 
driving  a  railroad  through  the  centre  of  Africa. 
But  what  should  we  say  of  driving  a  railroad 
through  the  centre  of  Lawrence  now  ?  So  with 
banking  corporations.  Suppose  that  application 
should  be  made  for  a  bank  at  Lawrence,  with  a 
capital  of  two  millions.  The  legislature  would 
hesitate.  They  might  grant  it  to  a  company  in 
State  Street.  They  are  both  respectable  places, 
but  are  far  from  being  equal  in  the  control  of 
business. 

The  gentleman  talks  about  the  control  in  State 
Street.  Sir,  he  must  alter  something  else  than 
general  laws,  before  he  can  affect  anything  here. 
There  are  such  things  as  general  laws  of  trade, 
which  are  usually  above  the  statute  laws  of  any 
particular  place,  and  are  world- wide  in  their  ap 
plication  and  effect.  What  is  done  on  the  Lon 
don  exchange,  we  feel  here ;  and  twenty  declara 
tions  of  independence  would  not  exempt  us  from 
it.  But  suppose  the  gentleman  takes  a  general 


62d  day.] 


GENERAL   LAWS   FOR    CORPORATIONS. 


173 


Wednesday,] 


GKAT  —  FRENCH. 


[July  20th. 


act — what  is  to  prevent  the  owner  of  twenty 
millions  from  marching  into  State  Street  and  do 
ing  all  that  the  Suffolk,  or  any  other  bank,  does 
now  ?  Sir,  I  am  at  a  loss  to  see  it. 

Now,  Sir,  I  did  not  intend  to  trouble  the 
House  again  upon  this  subject,  and  I  should  not 
have  troubled  them  as  it  is,  if  I  thought  their 
minds  were  made  up  upon  the  subject.  I  did 
think  that  the  question  would  not  stand  the  worse 
for  a  little  farther  consideration.  But,  be  a  corpo 
ration  a  benefit,  or  be  it  an  evil,  they  will  be  incor 
porated,  and  it  is  assumed  that  they  will  be  incor 
porated  under  this  general  act ;  that  if  there  are 
any  provisions  that  ought  to  be  incorporated  in  a 
general  act,  they  can  be  inserted  in  the  thirty- 
sixth  chapter  of  the  Revised  Statutes  now,  and 
every  corporation  can,  by  its  charter,  be  referred 
to  that  statute,  and  to  the  forty-fourth  chapter, 
which  puts  them  all  under  the  control  of  the 
legislature.  I  say,  Sir,  that  I  humbly  conceive 
that  all  the  evils  which  result  from  corporations, 
will  result  from  them  whether  they  create  them 
selves,  or  whether  they  are  created  under  a 
general  act.  I  say  that  the  number  of  holders  of 
stock  in  joint  stock  companies  are  pretty  numer 
ous,  but  they  are  not  a  majority,  or  anything  like 
a  majority,  or  even  anything  like  a  respectable 
minority,  of  the  whole  population  of  the  State. 
But  whether  we  legislate  for  the  few  or  for  the 
many,  the  question  now  seems  to  be,  whether  we 
shall  legislate  for  them  by  general  act,  or  by  spe 
cial  act. 

But  I  go  back,  for  a  moment,  to  the  objection 
which  I  advanced  upon  a  former  occasion.  I  am 
ready  to  leave  this  matter  with,  and  I  think  it  is 
best  to  trust  this  matter  to,  the  legislature  ;  but  I 
would  also  say — and  if  I  ever  expected  to  be  a 
member  of  the  legislature,  I  would  say  the  same 
thing  there — I  think  it  desirable  to  work  by  general 
laws  as  far  as  we  can  conveniently  do  so.  I  can 
see  how  we  can  have  general  laws  for  insurance 
and  manufacturing  companies,  because  they  are 
companies  for  the  transaction  of  private  business. 
They  do  not  seem  to  come  in  contact  with  the 
public  generally,  but  only  with  their  own  cus 
tomers.  But  as  to  railroad  companies,  they  exer 
cise  the  right  of  eminent  domain,  and  come  in 
contact  with  many  people  who  have  nothing  to 
do  with  them  of  their  own  will,  and  never  want 
to  have.  I  say,  with  regard  to  banking  corpora 
tions,  that  a  state  of  things  may  arise  in  which 
the  legislature  may  properly  hesitate  as  to  grant 
ing  a  charter,  out  of  regard  to  what  they  think 
will  be  the  effect  upon  the  currency  of  the  State, 
and  in  which  effects  every  man,  woman,  and  child 
in  the  Commonwealth  are  interested,  and  by 
which  the  poor  are  affected  more  than  the  rich, 


because  they  have  their  all  to  lose  by  it,  and  less 
discretion  and  power  to  protect  themselves  from 
loss. 

One  word  only,  will  I  say  farther,  in  regard  to 
real  estate  corporations.  Shall  we  part  with  the 
power  of  discrimination  of,  and  control  over, 
them  ?  Real  estate  corporations  are  sometimes  a 
matter  of  necessity  ;  for  instance,  those  in  relation 
to  wharves  and  flats.  Ever  since  the  formation 
of  the  Constitution,  I  suppose,  such  corporations 
have  been  formed  by  law,  because  it  is  difficult  to 
manage  such  matters  in  any  other  way.  A  limit 
ed  partnership  is  so  impracticable  and  incon 
venient  in  regard  to  them,  as  to  prevent  the  adop 
tion  of  such  partnerships.  But  the  legislature 
might  well  hesitate  to  create  many  such  real 
estate  corporations  as  have  been  created  hereto 
fore,  and  may  hereafter  be  incorporated.  I  do 
think  that  whole  matter  had  better  be  left  in  the 
hands  of  the  legislature.  They  can,  if  they  see 
fit,  adopt  every  one  of  the  ideas  of  my  friend 
from  Worcester,  (Mr.  Davis,)  and  what  is  a  mat 
ter  of  some  consequence,  if  experience,  which 
may  throw  some  new  light  upon  their  minds, 
should  lead  them  to  vary  and  modify  their  course 
hereafter,  the  door  will  be  open,  to  enable  them 
to  do  so. 

Mr.  FRENCH,  of  Berkley.  I  am  in  favor, 
Mr.  President,  of  these  resolves,  and  particularly 
the  third  one.  I  never  was  very  friendly  to  cor 
porations.  I  was  Merer  fond  of  monopolized 
privileges,  for  I  always  supposed  that  corporations 
got  more  than  belonged  to  them. 

In  reference  to  banks,  let  us  look  at  the  matter, 
and  see  whether  or  not,  we  ought  to  have  a 
general  law  by  which  all  the  people  who  wish  to 
be  incorporated  into  such  institutions,  who  wish 
to  lay  aside  a  part  of  their  property,  and  be  in 
corporated  on  the  rest,  may  not  have  the  privilege. 
Banks  have  undertaken  to  furnish  the  country 
with  a  circulating  medium,  and  how  stands  the 
matter  now,  under  that  attempt  ?  Go  out  and 
make  inquiries  in  this  city,  and  the  people  will 
tell  you  that  they  are  greatly  embarrassed  every 
day  for  the  want  of  change  to  do  their  ordinary 
and  daily  business.  Undertaking  to  furnish  the 
country  with  a  circulating  medium,  they  do  not 
doit. 

Are  banks  incorporated  monopolies  ?  Is  there 
any  other  class  of  people  that  have  the  privileges 
which  pertain  to  banking  corporations  ?  I  wish 
some  one  would  show  me  any  other  class  of  the 
community,  who  are  drawing  interest  on  their 
own  indebtedness — on  their  own  promises  to  pay. 
Other  people  are  obliged  to  pay  interest  upon 
their  promises  to  pay,  but  banks  are  exempted 
from  that  rule. 


174 


GENERAL  LAWS  FOR  CORPORATIONS. 


[62d  day. 


Wednesday,] 


FRENCH  —  WATERS. 


[July  20th. 


There  is  another  consideration  connected  with 
this  matter.  There  never  was  a  State  bank  cre 
ated,  which  was  not  created  directly  in  violation 
of  the  Constitution  or  Federal  Compact.  Nothing 
in  that  instrument  was  more  perfectly  guarded 
than  the  regulation  of  the  currency.  Its  framers 
saw  at  a  single  glance,  that  the  regulation  and 
control  of  the  currency,  was  the  highest  preroga 
tive  of  sovereignty,  and  they  saw  that  they  could 
not  put  its  control  into  the  possession  of  any  body 
of  men,  or  corporation  of  men,  and  they  gave  it 
to  the  whole  people  of  the  United  States ;  to  my 
father  and  to  yours,  Mr.  President,  to  you  and  to 
me  as  their  descendants.  They  said  to  the  people, 
you  shall  have  the  control  of  the  currency.  The 
people  could  exercise  that  power  only  through 
their  representatives  in  congress.  The  Constitu 
tion  declared  that  congress  should  have  the  power 
to  coin  money,  and  to  regulate  the  value  thereof, 
and  of  foreign  coin.  But  how  is  that  matter 
regulated  now  ?  Who  coins  money  now  ?  That 
power  was  given  to  the  whole  people,  but  where 
is  it  now  ?  In  the  hands  and  possession  of  the 
banking  corporations.  Are  they  acting  for  the 
public  good,  or  for  their  own  private  benefit  ? 
This  power,  Sir,  has  been  stolen  from  the  people, 
and  they  do  not  know  it.  What  power  is  there 
in  congress  to  regulate  State  banking  ? 

Well,  it  was  said  by  the  gentleman  who  a  few 
moments  since  stood  where  I  now  do,  (Mr.  Gray,) 
that  they  control  not  only  the  currency  of  the 
country,  but  regulate  and  control  the  value  of  the 
whole  property  of  the  country.  Is  that  an  exclu 
sive  privilege,  or  is  it  not  ?  Is  it  an  exclusive 
privilege  to  diminish  the  value  of  any  man's 
property,  when  they  choose,  in  order  to  make  the 
most  of  it,  and  to  increase  the  value  of  that 
property  when  it  is  for  their  interest  to  do  so  ? 
Now,  when  the  people  come  forward  and  ask  for 
a  general  law,  and  ask  not  to  be  shut  out  from 
the  privileges  which  other  people  have,  the  favor 
ites  of  the  banking  system  come  up  and  make  a 
great  complaint,  and  say  that  it  would  be  very 
improper  to  do  so.  They  say  the  people  ought 
not  to  have  this  privilege,  and  that  it  does  riot 
belong  to  them. 

Banks  promise  to  pay,  and  they  give  their  notes 
promising  to  pay  on  demand.  How  is  their  cap 
ital  stock  made  up  ?  Is  it  made  up  of  specie  ;  or 
is  it  made  up  of  stock  notes  ?  Very  poor  property 
that,  with  which  to  pay  specie  upon  demand. 
Thus  it  is  improper,  very  improper  indeed,  that 
the  people  collectively  should  have  a  general  act 
giving  them  equal  privileges  with  others,  so  long 
a§  it  is  important  that  those  who  now  have  the 
power,  should  retain  it. 

I  hope,  Sir,  this  resolve  will  pass,  so  that  the 


people  shall  have  some  chance.  Now,  what  does 
this  power  of  incorporation  do  ?  It  gives  to  a 
certain  class  of  the  community  the  right  to  trade 
to  any  amount,  whilst  at  the  same  they  are  held 
responsible  to  pay  only  a  specified  amount.  Has 
any  other  class  of  people  that  privilege?  No. 
An  individual  is  h olden  to  pay  his  debts,  to  the 
last  farthing,  and  that  is  right.  I  hope,  Sir,  in 
order  to  remedy  this  great  complaint  which  is 
now  made  throughout  the  country,  that  the  next 
legislature  which  convenes,  will  pass  a  law  that 
no  bill  under  the  denomination  of  five  dollars, 
shall  be  passed  in  the  State  of  Massachusetts  ; 
and  if  they  do  that,  believe  me,  there  will  be  no 
complaint  of  a  want  of  change  to  do  business 
with.  I  submit  the  question  to  the  Convention, 
whether  or  not  Mr.  Webster  was  right,  when  he 
said  that  the  most  effectual  way  of  fertilizing 
the  rich  man's  field  by  the  sweat  of  the  poor 
man's  brow,  is  this  State  banking  system. 

Mr.  WATERS,  of  Millbury.  In  the  discus 
sion  of  this  subject,  frequent  allusions  have  been 
made  to  the  industrial  interests  of  Massachusetts, 
without  defining  what  they  are  ;  and,  by  way  of 
episode,  we  have  been  entertained,  occasionally, 
by  a  chapter  upon  free  trade.  I  propose  to  pre 
sent,  from  official  documents,  some  statistics,  to 
show  what  those  interests  are,  and  also  to  prove 
what  has  been  the  effect  produced  upon  them,  by 
the  repeal  of  the  protective  tariff  in  18  46 — that 
being  regarded  as  an  approximation  to  free 
trade. 

To  these  facts,  I  bespeak  the  candid  attention 
of  the  members,  as  business  men,  without  regard 
to  party  affiliations  or  favorite  theories  in  political 
economy,  for  they  involve  questions  vital  to  the 
growth  and  prosperity  of  our  ancient  Common 
wealth.  What  are  the  industrial  interests  of  Mas 
sachusetts  ? 

From  a  volume  of  statistics,  published  by  the 
Secretary  of  State  for  the  year  ending  April  1, 
1845,  the  annual  products  of  the  principal  branch 
es  of  industry,  were  as  follows : — 

I.      COTTON   MANUFACTURES. 

Cotton  Cloth,     ....         $12,193,449 

Calico 4,779,817 

Bleaching  and  Coloring,    .         .         .     2,166,000 

$19,139,266 

II.      BOOTS    AND    SHOES. 

Boots  and  Shoes,  .  .  .  $14,799,140 
Leather,  3,836,657 


$18,635,797 


62d  day.] 


GENERAL   LAWS    FOR   CORPORATIONS. 


175 


Wednesday, 


WATERS. 


[July  20th. 


III.       FISHERIES. 

Whale, $10,371,167 

Mackerel  and  Cod,          .         .         .         1,484,137 
Candles,  Sperm  and  Oils,  .         .         .     3,613,790 

$15,469,100 

IV.      AGRICULTURAL. 

Hay, $5,214,357 

Grain 2,228,229 

Potatoes, 1,309,030 

Butter, 1,116,709 


Wood,  Bark  and  Charcoal,  . 
Fruit,       .... 
Vegetables,  .... 

Cheese 

Wool 

Milk, 


1,088,656 
744,540 
515,082 
398,174 
365,136 
304,917 
Beef,  Brooms,  Honey,  Hops,  Poultry,  &c.,  917,787 


V.      WOOLLEN   MANUFACTURES. 


Woollen  Goods,  . 
Carpeting, 
Worsted  Goods,  . 
Hosiery  and  Yarn, 


t,202,6!7 


5,877,478 

834,322 

654,566 

94,892 

),461,258 


chiefly  upon  the  success  of  those  interests.  When 
they  are  prosperous,  the  whole  are  prosperous, 
embracing  all  other  interests ;  and  vice  versa. 
This  is  a  proposition  which  the  experience  of  the 
last  quarter  of  a  century  has  abundantly  estab 
lished. 

Of  these  interests,  the  leading  in  amount  of 
products  is  the  cotton,  which  amount  is  greatly 
understated  in  the  above  table,  from  the  fact  that 
some  large  establishments  refused  to  make  any 
return.  In  amount  of  capital  invested,  this  in 
terest  also  far  exceeds  either  of  the  others.  To 
manufacture  cotton  cloth  requires  a  large  invest 
ment  in  buildings,  motive  power,  fixtures,  ma 
chinery,  &c.,  but  in  many  kinds  of  business — the 
boot  and  shoe,  for  example — no  such  outlay  is 
necessary.  Indeed  in  most  kinds  of  business  the 
annual  products  largely  exceed  the  capital  invested, 
while  in  the  cotton  they  fall  below. 

What  has  proved  to  be  the  effect  upon  this  in 
terest  of  the  repeal  of  the  tariff  of  1842,  in  1846  ? 

I  am  prepared  to  prove,  from  official  documents, 
that  by  that  change  in  our  national  policy,  Mas 
sachusetts  has  been  set  back  one  hundred  millions 
of  dollars  in  her  valuation,  and  in  amount  of 
products  seventy- five  millions  annually,  amount 
ing,  in  the  six  ensuing  years,  to  four  hundred  and 
fifty  millions.  This  statement  will  doubtless  strike 


VI.      IRON. 

some  mmds  as  astounding  and.  incredible,  but  1 

Rolled  and  Slit,  and  Nails,  .         .         $2,738,300 

believe  I  am  fully  fortified  by  facts  to  sustain  it. 

Castings,           1,280,141 

The   following  table,   taken   from  the  Patent 

Machinery,  2,022,648 

Office  Report,  1851,  (Agricultural,)  exhibits  the 

Cars  and  Carriages,           .         .         .       1,343,576 

statistics  of  the  cotton  manufacture  in  different 

Anchors,  Cables,  &c.,           .         .         .      538,966 

States  :— 

Shovels,  275  212 

QrtlT-f-'U^i;.                                                                                                                                                                                            -I    -I    0      OOX 

Cutlery,  Axes,  and  Edge-tools,        .          242,616 

£>£ 

j_   C3   £ 

<, 

.5 

o     t> 

Engines  and  Steam  Boilers,  Ploughs, 

STATES. 

|3i 

-2  *j 

ill 

Tacks,  Tools,  &c.,       .         .          1,433,807 

|ol 

I* 

gss. 

$9,989,201 

1.  Massachusetts,     .    . 

213 

$28,455,630 

819,712,461 

2.  New  Hampshire,  .    . 

44 

10,950,500 

8,830,619 

vn.     PAPER,        ....            1,850,273 

3.  Khode  Island,  .    .    . 

158 

6,675,000 

6,447,120 

VIII.       STRAW  BONNETS  AND  PALM  LEAF 

HATS  1,649,496 

4.  Pennsylvania,  .    .    . 

208 

4,528.925 

5,322,262 

IX.       VESSELS,       ....                 1,172,147 

5.  Connecticut,     .    .    . 

128 

4,219,100 

4,257,522 

X.       GRANITE,           ....           1,065,599 

6.  New  York,  .... 

86 

4,176,920 

3,591,989 

12 

3,329,700 

2,596,356 

Addirg  to   the   above,  various   miscellaneous 

8.  Mary  'and,    .... 

24 

2,236,000 

2,120,504 

items,  the  aggregate  of  the  products  of  the  State 

27 

1,908,900 

1,486,384 

for  that  year,  is  $115,000,000. 
From  these  data,  it  is  obvious,  that  the  most 

35 

1,736,156 

2,135,044 

prominent  interests  of  Massachusetts  are  manu 

11.  New  Jersey,    .    .    . 

21 

1,483,500 

1,109,524 

facturing  and  mechanical,  whose  aggregate  annual 

12.  North  Carolina,  .    . 

28 

1,058,800 

831,342 

products  are  at  least  eighty  millions  out  of  one 

13.  South  Carolina,   .    . 

18 

857,200 

748,337 

li  vmclrccl.  cind  fifteen  millions  —  tliG  entire  "products 

2,884,700 

of  the   State.     Hence,  it  follows  as  a  necessary 

Total,     .... 

1,094 

$74,501,031 

$61,869,184 

corollary,  that  the  prosperity  of  the  State  depends 

176 


GENERAL  LAWS  FOR  CORPORATIONS. 


[62d  day. 


Wednesday,] 


WATERS. 


[July  20th. 


Of  the  capital  invested  in  New  Hampshire  and 
Maine,  it  is  estimated  that  two-thirds,  at  least, 
belong  to  people  of  Massachusetts,  which,  added 
to  the  amount  invested  in  this  State,  makes  an 
aggregate  of  $37,500,000  capital  owned  by  Mas 
sachusetts  in  the  cotton  manufacture — a  sum 
equal  to  fully  one-half  of  the  whole  capital  in 
vested  in  this  business  in  the  United  States. 

The  following  table,  taken  from  the  same  Re 
port,  exhibiting  the  number  of  bales  of  cotton 
manufactured  in  this  country,  from  1841  to  1850, 
will  show  how  the  cotton  business  was  affected 
by  the  tariff  of  1842,  and  also  by  its  repeal  in 
1846:— 

1841—267,850 

1842—325,714 

1843—346,744 

1844—389,000 

1845—422,597 

1846—427,627 

1847—531,772 

1848—518,039 

1849—487,769 

1850—404,108 

From  this  table  it  appears,  that  in  six  years, 
from  1841  to  1847,  under  the  influence  of  the  tariff 
of  1842,  the  cotton  manufacture  increased  in  this 
country  264,000  bales — an  expansion  equal  to 
100  per  cent.,  while,  in  three  years,  from  1847  to 
1850,  after  that  tariff  was  repealed,  it  actually 
receded  127,664  bales,  a  contraction  equal  to  22 
per  cent.  These  remarkable  results  are  to  be 
traced  directly  to  the  repeal  of  the  tariff  of  1842, 
and  no  other  cause  can  be  assigned. 

Let  us  now  glance,  for  a  moment,  at  the  con 
dition  and  prospects  of  the  cotton-growing  inter 
est  of  the  South.  The  following  table,  taken 
from  Patent  Office  Reports,  exhibits  the  annual 
number  of  bales  produced,  average  price  and  val 
ue  of  the  same  for  seven  years,  from  1846  to  1852 
inclusive : — 


1846 
1847 
1848 
1849 
1850 
1851 
1852 


1,778,651 
2,347,634 
2,728,596 
2,096,706 
2,355,257 
3,015,000 
3,400,000 


7.81 

10.34 

7.61 

6.4 

11.3 

12.11 


$42,767,341 

53,415,848 

61,998,294 

66,396,967 

71,984,616 

112,315,317 

136,000,000 


From  the  above,  it  appears,  that  since  1846,  the 
cotton  crop  has  increased,  in  bales,  1,600,000, — 
equal  to  one  hundred  per  cent,  nearly,  and  in 
value,  $93,000,000, — exceeding  two  hundred  per 
cent.  This  accounts  for  the  high  degree  of  pros 
perity  prevailing  at  the  South,  and  the  great  ad 
vance  in  the  price  of  slave  property.  In  the  face 


of  this  rapid  and  enormous  increase  of  crop,  the 
price  has  been  fully  sustained,  which  proves  that 
the  consumption  has  advanced  pari  passu,  with 
the  production.  Of  course  there  has  been  an 
increase  in  the  cotton  manufacture  in  the  same 
proportion.  The  positive  increase  of  the  crop,  is 
equal  to  four  times  the  number  of  bales  manu 
factured  in  this  country,  and  consequently  the 
increase  in  the  number  of  spindles,  must  be 
equal  to  four  times  the  whole  number  running  in 
this  country.  Where  has  this  extraordinary  in 
crease  of  manufacture  been  developed  ?  Not 
certainly,  in  Massachusetts,  nor  in  the  United 
States,  as  has  already  been  shown.  While  the  . 
cotton  growing  interest  of  the  South,  has  increased 
since  1846,  nearly  two  hundred  per  cent.,  the 
manufacturing  interest  of  the  North  has  remained 
stationary.  But  this  increase  of  manufacture, 
corresponding  to  the  increase  of  crop,  has  been 
developed  mostly  in  England.  The  newspapers 
contained  an  account  a  short  time  ago,  of  one  mill 
erected  by  Mr.  Titus,  of  Manchester,  England, 
covering  six  acres ;  and  many  other  similar  ac 
counts  of  increase  there,  have  been  published. 

Had  this  expansion  been  made  in  this  country, 
it  would  have  added  two  hundred  millions  of 
dollars  to  our  manufacturing  capital,  and  one 
hundred  and  fifty  millions  to  our  products  annu 
ally.  This  loss  of  business  is  fairly  chargeable  to  - 
the  advocates  of  free  trade.  What  the  country 
has  gained  by  way  of  compensation,  I  have  yet 
to  learn.  As  one-half  of  the  cotton  manufacture 
in  the  United  States,  belongs  to  Massachusetts,  it 
follows  that  one-half  of  this  loss  falls  to  her — 
that  is  to  say,  she  has  lost  in  her  valuation,  by 
the  repeal  of  the  tariff  in  1846,  one  hundred  mil- 
lions,  and  in  annual  products,  seventy-five  millions, 
amounting  in  six  years,  to  four  hundred  and  fifty 
millions  of  dollars.  This  is  not  a  matter  of  con 
jecture,  nor  of  prophecy,  nor  of  theoretic  specu 
lation,  but  it  is  a  matter  of  absolute  demonstration 
— a  result,  which  a  few  short  years  has  clearly 
proved.  No  other  cause  but  the  repeal  of  the  * 
tariff  in  1846,  can  be  assigned,  and  no  theory  of 
the  free  traders,  can  account  for  it.  Here  is 
experience  against  theory — practice  against  proph 
ecy.  If  to  any  member  these  facts  seem  to  be 
exaggerated,  I  would  say,  that  no  estimate  was 
made  for  collateral  interests,  such  as  building, 
machinery,  foundries,  rise  of  real  estate,  trade  of 
all  kinds,  &c.  &c.,  which,  when  made,  will  be 
found  to  far  outweigh  all  deductions  that  can  be 
justly  claimed  on  the  score  of  exaggeration.  If 
then,  such  disastrous  results  have  accrued  to  the 
leading  interests  of  Massachusetts,  from  an  ap 
proximation  to  free  trade,  what  are  we  to  expect 
from  its  full  realization,  which  some  gentlemen 


62d  day.] 


GENERAL   LAWS   FOR   CORPORATIONS. 


177 


Wednesday,] 


WATERS  —  HALLETT. 


[July  20th. 


on  this  floor,  have,  with  so  much  confidence 
predicted,  at  no  distant  day  ?  The  member  for 
Berlin,  (Mr.  Boutwell,)  in  some  remarks  which 
he  made  in  favor  of  this  doctrine,  was  so  sanguine 
of  its  early  adoption  by  the  people,  that  he  said 
he  would  venture  to  predict,  that  in  ten  years,  it 
would  be  the  prevailing  sentiment  of  the  North ; 
that  Boston  itself,  would  adopt  it,  and  that  at 
some  remote  period  hereafter,  a  Custom  House 
would  be  as  great  a  curiosity,  as  the  Coliseum  of 
Rome,  or  the  Temple  of  Carnac. 

Mr.  HALLETT,  for  Wilbraham.  I  rise  to  a 
question  of  order.  The  gentleman  from  Millbury 
is  discussing  the  tariff,  and  the  doctrine  of  free 
trade.  Now,  I  am  anxious  to  make  a  speech 
upon  that  subject  of  several  hours  in  length.  But 
if  it  is  to  come  in  here,  I  wish  to  know  whether 
the  subject  is  legitimately  before  the  Convention  ? 

Mr.  WATERS.  Whether  legitimately  before 
the  Convention  or  not,  I  did  not  introduce  the 
subject.  In  the  discussion  of  this  and  various 
other  questions,  we  have  had  several  speeches  in 
favor  of  free  trade,  and  no  member  was  called  to 
order.  Regarding  this  as  a  most  fallacious  and 
destructive  doctrine,  it  seemed  to  me  that  some 
remarks,  per  contra,,  would  not  be  ill-timed  nor 
out  of  order.  However,  I  do  not  wish  to  pursue 
the  matter  against  the  wishes  of  the  House. 

Cries  of  "  Go  on,"  "  Go  on." 

If  the  expansion  of  business  to  which  I  have 
referred  had  been  developed  in  this  country,  it 
would  have  enhanced  the  value  of  every  square 
inch  of  territory  in  Massachusetts  ;  added  thou 
sands  to  her  population,  and  opened  new  avenues 
of  wealth  and  employment.  The  programme  of 
those  gigantic  enterprises  at  Holyoke  and  Law 
rence  would  have  been  filled  up,  and  scarce  a  foot 
of  available  water  power  in  the  State  would  have 
remained  unoccupied.  Many  a  water-fall  now 
wasting  its  power  upon  the  desert  air,  would  have 
been  brought  into  requisition,  and  filled  the  sur 
rounding  region  with  the  music  of  prosperous 
industry.  In  short,  the  six  years  of  leanness  en 
suing  the  year  1846,  would  have  been  years  of 
plenty  and  prosperity.  It  has  been  a  common 
impression  in  the  country,  even  among  manufac 
turers  themselves,  that  under  the  tariff  of  18-12, 
this  interest  was  stimulated  to  an  unnatural 
growth,  and  was  in  danger  of  a  reaction,  from 
being  overdone.  But  the  foregoing  statistics 
prove  that  this  opinion  was  entirely  erroneous  ; 
that  rapid  as  was  the  expansion,  it  did  not  keep 
pace  with  the  growth  of  the  crop,  nor  the  con 
sumption  of  the  fabric,  but  fell  far  behind  both. 
Massachusetts  has  probably  never  known  a  period 
of  so  rapid  growth  and  development,  as  from 
1842  to  1847.  Before  this  period,  say  from  1836  to 

12' 


1842,  there  was  a  general  crash,  or  breaking  down 
of  all  kinds  of  business.  General  bankruptcy, 
and  universal  prostration  prevailed,  as  though  a 
tornado  had  swept  over  the  land,  until  the  pas 
sage  of  the  tariff  in  1842,  when  there  was  a  simul 
taneous  quickening  into  life  of  all  our  dead  and 
prostrate  interests ;  and  they  continued  to  grow 
in  an  accelerating  ratio,  until  that  Act  was  re 
pealed,  when  their  growth  was  arrested,  as  by  a 
sudden  frost.  Some  of  them  have  since  remained 
stationary — few  have  flourished — during  the  six 
famine  years,  being  sustained  chiefly  by  the 
strength  and  impetus  before  acquired,  to  the 
present  year,  which  fortunately  proves  to  be  a 
year  of  plenty  and  prosperity,  such  as  Massachu 
setts  has  not  seen  since  1845.  What  is  the  cause 
of  this  great  change,  this  universal  and  exuberenfc 
prosperity  ?  Not,  certainly,  that  there  ha£  been 
any  change  in  the  policy  of  our  government.  It 
was  formerly  thought  that  loyalty  on,  the  part  of 
the  citizen,  and  protection  of  person,  and  property  t 
on  the  part  of  government,  were  set-iprocal  duties  ; 
but  that  is  now  called  an  exploded  idea. 

This  change,  it  is  well  known,  has  been  brought 
about,  chiefly,  if  not  solely,  by  the  rise  of  labor 
in  Europe.  The  drain  of  laborers  from  the 
workshops  of  Europe,  to  the  gold  mines  of  Aus 
tralia  and  other  regions,  has  been  so  heavy  as  to 
cause  a  general  rise  in  the  prices  of  labor  and 
manufactured  products,  carrying  them  up  to  a 
grade  where  our  manufacturers  and  laborers  can 
thrive  and  prosper.  No  reason  can  be  assigned, 
why  we  cannot,  at  all  times,  manufacture  as 
cheap  as  in  Europe,  except  the  price  of  labor. 
If  capital  is  cheaper  there,  so  also  are  taxes  very 
much  higher.  To  obviate  this  difficulty — the 
higher  price  paid  here  for  labor,  and  also  to  pre 
pare  the  way  for  the  glorious  advent  of  free 
trade,  the  member  for  Berlin  (Mr.  Boutwell) 
proposes,  and  in  his  prophetic  vision  confidently 
predicts,  the  importation  of  large  numbers  of 
coolies  from  China.  In  this  direction  his  pro 
phetic  vision  even  discerns  an  antidote  for  the 
removal  of  slavery  itself ! 

Suppose  this  to  happen ;  what  is  to  become  of 
all  the  Yankee  boys  and  girls  who  now  operate 
the  machinery  of  our  mills,  and  who  are  thus 
under- bid  in  the  price  of  labor  ?  Are  they  to  be 
driven  out  from  their  native  land,  to  make  room 
for  a  horde  of  demi-barbarians  from  the  Celestial 
Empire  :  Is  that  a  wise  and  paternal  statesman 
ship,  looking  to  the  best  good  of  our  country  and 
our  race  ?  Besides,  is  the  gentleman  quite  sure 
that  these  impassive  Celestials,  in  wooden  shoes, 
and  with  pumpkin- vine  queues,  are  fitted  to  per 
form  the  labor  of  our  versatile  Yankees,  with  the 
same  tact  and  rapidity  ?  With  all  due  deference 


178 


GENERAL  LAWS  FOR  CORPORATIONS. 


[62d   day. 


Wednesday,] 


WATERS. 


[July  20th. 


to  that  gentleman,  I  must  say,  that  this  vision  of 
his  seems  to  me  more  like  a  creature  of  fancy, 
than  the  gift  of  prophecy. 

This  whole,  and  much  vexed  question  of  pro 
tection,  resolves  itself  into  a  question  of  labor. 
Capital,  in  this  country,  needs  no  protection. 
The  rate  of  interest  is  always  about  three  times 
as  much  as  it  is  in  England,  while  the  price  of 
labor  there,  averages  about  one-third  as  much  as 
is  paid  here.  Labor  can  never  be  so  cheap  under 
a  democracy  as  under  a  despotism.  The  former 
is  founded  upon  numbers,  and  makes  no  distinc 
tions  of  persons,  between  the  laborer  and  the  lord, 
the  mechanic  and  the  millionaire.  To  enable  the 
laborer  therefore,  to  maintain  the  dignity  of  his 
station,  it  is  necessary  that  he  should  be  able  to 
read  books,  take  newspapers,  educate  his  children, 
and  have  many  of  the  comforts  of  life  which  are 
unknown  to  the  boors  of  England,  the  serfs  of 
Russia,  or  the  coolies  of  China.  He  must  main 
tain  a  higher  and  more  expensive  style  of  living, 
and  ought  not,  therefore,  to  be  exposed  to  a  com 
petition  with  the  bone  soup,  and  pauper  labor  of 
Europe.  "  But,"  say  the  advocates  of  free  trade, 
«'  it  is  on  the  very  ground  of  sympathy  for  the 
poor  laboring  man,  that  we  advocate  this  doctrine. 
A  tariff  is  indirect  taxation,  and  operates  un 
equally.  In  the  article  of  sugar,  for  example, 
the  poor  man  consumes  six  times,  it  may  be,  as 
much  as  the  millionaire,  and  consequently  pays 
six  times  as  much  tax.  This  system  surrounds 
him  unseen,  like  the  atmosphere,  and  he  does 
not  know  how  he  is  abused"  Very  likely. 
Probably  he  never  will.  For  argument's  sake 
admit  all  this  to  be  true.  If  by  paying  one  cent 
a  day  extra,  on  sugar,  and  as  much  more  on  a 
few  other  articles,  he  gets,  instead  of  fifty  cents, 
from  a  dollar  and  a  half,  to  two  dollars  per  day 
more  for  his  labor,  is  he  not  the  gainer  ?  Where 
in  the  wide,  wide  world,  is  the  laborer  so  well 
paid,  as  in  this  country  ?  And  here,  especially 
in  New  England,  labor  is  never  in  so  great  de 
mand,  nor  so  high,  as  at  periods  when  the  manu 
facturing  interest  is  prosperous.  Witness  the 
present  year,  the  years  1844,  1845,  and  1846. 
For  the  reverse,  witness  the  years  from  1836  to 
1842— from  1846  to  1850. 

Who  are  the  great  sticklers  for  free  trade  in 
-  this  country  ?  Importers  of  foreign  merchandise, 
resident  agents  of  foreign  manufacturers,  bankers, 
and  brokers,  who  have  expended  vast  sums  of 
money  to  buy  up  and  subsidize  some  of  our  most 
influential  presses.  Much  the  largest  proportion 
of  the  press,  in  this  country,  is  concentrated  in 
cities  ;  and  of  that,  a  large  share  is  enlisted  in 
the  foreign  importing  business.  Hence,  the  gen 
eral  delusion  which  prevails  upon  this  subject. 


Another  class  of  very  obstreporous  free  traders, 
are  the  Southern  planters,  whose  laborers  are 
slaves.  "  Labor,"  say  they,  "  should  come  from 
that  quarter  where  it  can  be  obtained  cheapest." 
If  this  is  a  correct  doctrine,  we  should  expect 
that,  like  charity,  it  would  begin  at  home.  Let 
us  see  how  their  practice  conforms  to  their  teach 
ings.  The  great  interest  of  the  South,  is  the  slave 
interest.  The  raising  of  slaves  is  to  Virginia,  and 
the  older  slave  States,  what  the  raising  of  cattle 
is  to  Vermont — their  most  profitable  production. 
Now,  it  is  well  known,  that  slaves  can  be  import 
ed  from  Africa,  for  two  hundred  dollars,  which 
sell  at  the  South  readily,  for  eight  and  ten  hun 
dred — a  difference  of  from  three  to  five  hundred 
per  cent.  But,  be  it  remembered,  whoever  at 
tempts  to  import  this  kind  of  labor  is  hung  up  at 
the  yard  arm,  as  a  pirate !  There  is  protection 
for  you,  with  a  vengeance  !  It  is  perfectly  right 
and  proper  to  bring  the  free  labor  of  the  North 
into  competition  with  the  pauper  labor  of  Eu 
rope,  but  to  bring  the  slave  labor  of  the  South, 
into  competition  with  the  slave  labor  of  Africa, 
is  PIRACY  !  True,  the  laws  prohibiting  the  im 
portation  of  this  kind  of  labor,  profess  to  be 
founded  upon  motives  of  philanthropy ;  but,  on 
that  score,  what  is  the  difference  between  the 
foreign  and  domestic  slave-trade — whether  the 
planter  of  New  Orleans  imports  his  slaves  from 
Richmond,  Va.,  from  South  America,  or  from 
Africa  ?  If  ever  his  highness,  the  arch  prince  of 
darkness  may  be  supposed  to  grin  horribly  a 
ghastly  smile,  nay,  to  laugh  outright,  it  must  be 
when  he  hears  Southern  statesmen  advocate  the 
enforcement  of  these  laws  on  the  ground  of  hu 
manity  !  They  go  in  for  free  trade  for  the  free 
labor  of  the  North,  and  for  entire  prohibition, 
under  a  penalty  of  death,  for  the  slave  labor  of 
the  South.  Abolish  these  laws,  obtain  your 
slave  labor  where  it  could  be  obtained  cheapest, 
and  you  might  reduce  the  cost  of  raising  cotton 
fifty  per  cent.,  but  you  would  also  sink  the  whole 
valuation  of  the  South,  hundreds  of  millions. 
Let  congress  assume  this  ground,  and  we  should 
soon  witness  as  great  a  revolution  at  the  South  in 
regard  to  protection,  as  we  have,  recently,  in  regard 
to  the  doctrine  of  internal  improvements.  This 
doctrine  they  have  denounced,  until  it  has  been 
fairly  read  out  of  the  creed  of  all  parties  ;  and 
now,  after  the  North  has  made  all  her  own  im 
provements,  and  built  her  railroads,  the  South 
find  they  want  a  railroad  to  the  Pacific.  Presto, 
these  strict  constructionists  discover  that  there  is 
nothing  more  constitutional,  national,  and  patri 
otic  than  for  the  United  States  to  build  it  for 
them,  and  if  necessary,  to  take  another  slice  from 
Mexico,  to  eke  out  the  route. 


62d  day.] 


THE   JUDICIARY,   &c. 


179 


Wednesday,] 


WATERS  —  STETSON  —  WHITNEY  —  MORTON  —  KNOWLTON. 


[July  20th. 


One  word  more  upon  the  doctrine  of  free  trade, 
and  I  have  done.  This  doctrine,  in  theory  and 
on  paper,  appears  very  plausible ;  and  in  the 
great,  good  time  a  coming,  when  the  commerce  of 
the  world  will  be  unrestricted,  it  may,  perhaps, 
be  practicable  ;  but  at  present,  it  is  perfectly  sui 
cidal  to  our  best  interests,  especially  to  labor. 
Reason  teaches  it ;  experience  has  proved  it ; 
speculative  and  superficial  politicians  are  very 
apt  to  be  carried  away  by  it,  and  deluded,  like 
the  theorist  in  civil  engineering,  who  said  that 
railroads  over  our  prairies  ought  to  be  perfectly 
level.  When  he  came  to  reduce  his  theory  to 
practice,  he  found  that  the  Creator  had  made  the 
earth  round,  and  to  make  his  road  perfectly  level, 
he  must  run  it  into  the  air  or  into  the  ground. 

I  have  addressed  these  remarks  to  the  mem 
bers,  as  Massachusetts  men,  whose  first  duty  it  is 
to  look  after  our  own  home  interests.  The  bear 
ing  which  this  question  has  on  the  interests  of 
sister  States,  of  the  United  States,  and  especially 
on  the  finances  of  the  country,  opens  a  broad  and 
inviting  field,  into  which  I  have  not  time  to 
enter. 

The  fling  which  has  been  made  here,  xincler 
the  term  "cottonocracy,"  at  the  largest  industrial 
interest  of  the  State,  an  interest  which  probably 
employs  more  persons,  as  well  as  capital,  than 
any  other  in  the  State,  seemed  to  me  not  only  to 
be  in  bad  taste,  but  to  savor  more  of  demagogueism 
than  of  that  sound  statesmanship  which  embraces 
in  its  ample  and  comprehensive  scope,  the  whole 
interests  of  the  whole  Commonwealth. 

Mr.  STETSON,  of  Braintree.  I  desire  to 
inquire  if  the  previous  question  will  cut  off 
amendments  from  being  made  ? 

The  PRESIDENT.  The  Chair  will  remark  to 
the  gentleman  that  there  is  no  amendment  pend 
ing,  and  if  the  previous  question  is  ordered,  it 
will  be  simply  upon  the  main  question,  which  is 
upon  the  final  passage  of  the  resolve. 

Mr.  STETSON.  I  have  an  amendment  that 
I  desire  to  offer.  If  the  gentleman  from  Millbury 
will  withdraw  his  motion  for  the  previous  ques 
tion,  and  allow  me  the  floor  for  five  minutes,  I 
should  be  under  obligations  to  him. 

Mr.  WHITNEY,  of  Conway.  I  do  not  rise  to 
oppose  the  previous  question,  for  I  think  the  gen 
eral  question  has  been  sufficiently  discussed.  An 
amendment,  however,  has  been  offered,  which  I 
should  be  glad  to  have  explained,  and  that  is  one 
reason  why  the  previous  question  should  not  be 
put  now. 

The  PRESIDENT.  The  amendment  has  been 
withdrawn. 

Mr.  WHITNEY.  I  was  not  aware  of  that 
fact.  Then  I  am  ready  for  the  question. 


Mr.  MORTON,  of  Quincy.  I  have  noticed, 
for  the  last  hour  or  more,  that  gentlemen  who 
have  been  addressing  the  Convention  have  re 
ceived  very  little  attention.  Therefore,  from  the 
general  intelligence  of  the  Convention,  I  presume 
they  have  all  made  up  their  minds  how  to  vote 
upon  this  question,  and  I  hope  the  previous  ques 
tion  will  not  be  withdrawn. 

The  previous  question  was  seconded,  and  the 
main  question  ordered,  which  was  upon  the  final 
passage  of  the  resolution. 

The  question  was  then  taken,  and  the  resolu 
tion  was  passed,  there  being — ayes,  212;  noes,  76. 

On  motion  by  Mr.  KNO  WLTON,  of  Worces 
ter,  the  Convention  then  proceeded  to  the  consid 
eration  of  the  resolves  relating  to 

The  Judiciary. 

Mr.  KNO  WLTON  moved  to  substitute  for  the 
last  resolve — that  it  was  inexpedient  to  make  any 
changes  in  the  first,  second,  and  fifth  articles  of 
the  third  chapter  of  the  Constitution — the  fol 
lowing  : — 

Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution,  that  all  judicial  officers,  except  those 
concerning  whom  a  different  provision  shall  be 
made  in  the  Constitution,  shall  be  nominated  and 
appointed  by  the  Governor,  by  and  with  the  con 
sent  of  the  Senate,  for  the  term  of  seven  years ; 
that  they  may  be  reappointed  at  the  expiration  of 
such  term ;  and  that  all  such  nominations  shall 
be  made  at  least  seven  days  before  such  appoint 
ment. 

Mr.  PARKER,  of  Cambridge.  I  rise  to  a 
question  of  order,  that  this  proposition  cannot  be 
entertained,  the  subject  matter  having  already 
been  before  the  Convention  and  a  vote  taken 
upon  it. 

The  PRESIDENT,  pro  tern.  The  Chair  is  of 
the  opinion  that  the  motion  of  the  gentleman  from 
Worcester  is  in  order. 

Mr.  KNOWLTON.  I  do  not  propose  to 
revive  the  discussion  upon  this  subject.  The 
matter  of  the  judiciary  has  been  ably  and  thor 
oughly  discussed  by  the  Convention,  and  I  doubt 
not  that  the  whole  subject  is  thoroughly  under 
stood  by  every  delegate  upon  the  floor.  Two 
propositions  have  been  laid  before  the  Convention 
upon  this  subject.  One  of  them  was  a  proposi 
tion  containing  the  elective  principle,  providing 
that  all  judicial  officers  should  be  elected  by  the 
people.  That  proposition  has  been  rejected.  The 
other  proposition  was  for  the  appointment  of 
judges  for  a  period  of  ten  years.  That  proposition 
has  been  rejected  also  ;  so  that  the  Convention 
has  thrown  itself  back  upon  the  Constitution,  in 


180 


THE  JUDICIARY. 


[62d  day. 


Wednesday,] 


KXOWLTOX  —  ADAMS  —  DANA. 


[July  20th. 


respect  to  this  matter,  as  it  now  stands  and  has 
always  stood.  It  seems  to  me  that  the  Conven 
tion,  by  the  votes  taken,  has  reached  a  conclusion, 
which,  if  I  understand  public  opinion,  ought  not 
to  have  been  taken  ;  and  I  move  this  proposition 
with  a  view  of  deciding  whether  the  Convention 
lias  reached  a  conclusion  by  which  it  is  willing  to 
abide.  I  should  have  been  glad,  for  one,  if  we 
could  have  carried  the  elective  principle ;  for  I 
think  it  is  demanded  by  a  great  portion  of  the 
people.  Certainly  it  is  in  my  own  section  of  the 
State,  if  I  am  any  judge  of  the  public  opinion  of 
that  portion  of  the  Commonwealth  which  I  have 
the  honor,  in  part,  to  represent  upon  this  floor. 
If  I  cannot  carry  that  principle,  I  desire  to  ap 
proach  as  near  as  possible  to  it.  This  proposition 
varies  from  the  other  in  one  particular.  It  pro 
vides  for  the  appointment  of  judicial  officers,  but 
it  varies  from  the  other  in  the  limitation  of  the 
tenure,  and  in  the  confirmation  by  the  Senate. 
The  former  was  for  a  period  of  ten  years ;  this  is 
for  the  period  of  seven  years.  I  offer  it  as  a  com 
promise  between  the  two  sections  of  the  Conven 
tion — those  who  are  in  favor  of  the  election  of 
judges,  and  those  who  go  for  the  appointment  of 
judges  for  a  period  of  ten  years.  I  think  we  are 
in  duty  bound  to  present  some  proposition  upon 
this  subject  to  our  constituents,  upon  which  they 
can  act,  to  say  whether  they  desire  that  the  Consti 
tution  shall  remain  asit  is  in  regard  to  the  judiciary, 
or  whether  its  basis  shall  be  reorganized.  As  I 
said  in  the  beginning,  I  do  not  move  this  propo 
sition  with  a  view  of  reviving  discussion  upon 
this  subject,  but  simply  to  test  the  sense  of  the 
Convention  whether  they  are  willing  to  go  home 
to  their  constituents  and  leave  the  Constitution  as 
it  is  in  this  respect,  or  present  another  proposition 
for  their  consideration. 

Mr.  ADAMS,  of  Lowell.  I  move  that  when 
the  question  is  taken  upon  the  proposition  of  the 
gentleman  from  Worcester,  (Mr.  Knowlton,)  it 
be  taken  by  yeas  and  nays. 

The  yeas  and  nays  were  ordered. 

Mr.  DANA,  for  Manchester.  The  reason 
given  by  the  President  of  the  Convention  yester 
day,  for  his  casting  vote  upon  the  subject  of  the 
plurality  system,  struck  me  as  a  very  judicious 
one.  He  said,  that  it  was  not  expedient  to  submit 
to  the  people  of  Massachusetts  a  fundamental 
change,  which  could  be  carried  in  this  Convention 
only  by  a  casting  vote.  The  Convention  is  aware 
that  last  week  a  very  full  and  able  discussion 
upon  the  subject  of  the  elective  judiciary  was 
voted  down  by  a  majority  of  over  one  hundred. 
A  proposition  more  likely  to  be  carried  than  that 
of  the  gentleman  from  Worcester,  for  a  ten  years' 
term,  and  not  varying  from  it  in  principle,  was 


lost  by  a  majority  of  two  votes.  Every  gentleman 
must  be  aware,  that  whether  this  proposition  of 
the  gentleman  from  Worcester  be  lost  or  carried, 
it  must  be  by  a  small  vote,  with  great  difference 
of  opinion,  without  a  previous  public  demand, 
and  without  an  issue  raised  before  the  people.  I 
ask  if  it  is  well  for  us  to  submit  a  proposition  to 
the  people  under  such  auspices  ?  Besides,  if  the 
Convention  will  allow  me,  I  will  suggest,  as  a 
member  of  the  Committee  upon  the  Revision  of 
the  Constitution,  and  I  think — and  every  gentle 
man  in  the  Convention  will  agree  with  me  in  it — 
that  it  will  be  necessary  to  submit  our  Constitu 
tion  to  the  people  as  an  entirety.  We  desired,  if 
possible,  to  submit  it  to  the  people  in  parts,  in 
single  propositions  ;  but  the  farther  we  have  gone 
in  our  labors,  the  more  we  are  satisfied  that  it 
must  be  submitted  to  the  people  as  a  whole.  We 
have  the  Constitution  of  1780,  a  great  part  of 
which  is  already  inapplicable  to  the  present  state 
of  our  affairs.  We  have  the  amendments  of 
1820,  and  we  have  a  whole  series  of  amendments 
since  1820.  And  now  we  shall  have  some  twenty 
or  thirty  amendments  scattered  all  over  the  Con 
stitution,  striking  at  every  part  of  it,  which  are 
still  to  be  submitted.  The  result  will  be,  that 
you  will  have  the  smaller  Constitution  of  1780, 
with  a  series  of  amendments  running  through  the 
time  of  three  generations,  dangling  on  the  end  of 
it,  so  that  not  only  citizens  unaccustomed  to  legal 
investigations,  but  lawyers  themselves,  would  not 
be  able  to  understand  the  Constitution  without 
the  utmost  study.  You  will  have  amendments 
piled  upon  amendments.  And  then,  too,  when 
we  come  to  examine  the  resolves  which  you  pass 
here,  we  find  that  a  single  resolve  of  three  lines 
will  require  the  rewriting  of  the  Constitution  in 
several  places.  The  sixth  chapter,  for  instance, 
must  be  rewritten  in  almost  every  section,  and 
four  sections  must  be  stricken  out  entirely.  I 
fear  you  will  find  it  impossible  to  submit  such  a 
Constitution  to  the  people  in  any  other  way  than 
as  a  newly- arranged,  symmetrical  instrument,  to 
be  adopted  or  rejected  as  a  whole.  If  this  propo 
sition  of  the  gentleman  from  Worcester,  (Mr. 
Knowlton,)  is  adopted  here,  you  cannot  give  to 
the  people  of  Massachusetts  an  opportunity  to  vote 
upon  it,  but  it  must  go  to  the  people  with  all  the 
other  propositions,  and  I  submit  to  that  gentle 
man  as  a  matter  of  good  faith,  whether  it  is  proper 
to  cover  up  in  the  Constitution,  without  an  oppor 
tunity  to  vote  upon  it  separately,  a  fundamental 
change,  for  which  the  people  of  Massachusetts 
have  never  asked,  as  to  which  an  issue  has  never 
been  raised,  and  upon  which  the  Convention  is 
about  equally  divided  ?  Our  time  is  important  to 
us.  If  we  are  to  reconsider  propositions  passed 


62d  day.] 


THE   JUDICIARY. 


181 


Wednesday,]     DANA  —  BUTLER  —  LORD  —  ALLEN  —  EARLE  —  HUBBARD  —  HOOPER.      [July  20th. 


upon  here,  reexamine  and  reconsult,  bring  parties 
again  to  a  vote,  and  shift  the  balance  one  way  or 
the  other  by  measuring  casts,  we  shall  never  come 
to  a  vote.  I  am  willing  to  abide  by  the  decision 
of  any  question  of  which  I  am  in  favor,  when  it 
has  been  lost.  I  am  willing  to  abide  by  the  de 
cision  on  the  plurality  question,  and  not  to  trouble 
the  Convention  with  my  proposed  amendment, 
unless  I  find  a  general  disposition  to  open  the 
question  again.  I  therefore  move  to  lay  the  prop 
osition  of  the  gentleman  from  Worcester,  (Mr. 
Knowlton,)  upon  the  table. 

Mr.  BUTLER,  of  Lowell.  That  is  one  of  the 
matters  which  I  should  like  to  discuss,  and  I 
appeal  to  the  gentleman  for  Manchester,  if  he 
thinks  it  is  fair  to  make  that  motion  ?  If  he  will 
withdraw  the  motion,  I  will  renew  it. 

Mr.  DANA.  The  objection  will  be,  that  the 
gentleman  from  Lowell  would  discuss  the  merits 
of  this  proposition,  and  I  would  not. 

The  PRESIDENT.  The  Chair  would  suggest, 
that  the  motion  carries  the  resolution  and  amend 
ments,  all  together. 

Mr.  LORD,  of  Salem.  I  would  inquire  of  the 
Chair,  if  the  motion  made  by  the  gentleman  for 
Manchester,  to  lay  the  amendment  of  the  gentle 
man  from  Worcester  upon  the  table,  if  adopted, 
carries  anything  with  it  upon  the  table,  except 
the  resolution  which  is  to  be  amended  ? 

The  PRESIDENT.  The  Chair  understands, 
that  it  carries  with  it  the  fourth  resolution. 

Mr.  DANA.  I  understood  the  Chair  to  say, 
that  it  carried  the  whole.  Then,  if  it  only  carries 
the  fourth  resolution  with  it,  I  adhere  to  my 
motion. 

Mr.  ALLEN,  of  Worcester.  I  would  ask  the 
Chair,  if  a  single  resolution,  a  part  of  a  series, 
can  be  laid  upon  the  table,  without  laying  the 
whole  series  upon  the  table  ?  If  you  lay  one  por 
tion  of  a  resolve  upon  the  table  does  not  the  act 
of  necessity  carry  the  whole  there  ? 

The  PRESIDENT.  The  practice  in  consider 
ing  a  resolution  of  this  character,  is  to  take  it  up 
and  vote  upon  its  several  parts,  separately,  if  such 
a  desire  should  be  manifested  on  the  part  of  any 
member.  A  motion  is  made  to  amend  one  of  the 
series  of  resolves  upon  this  subject,  which  the  Chair 
does  not  understand,  has  any  connection  with  the 
rest ;  and  the  Chair  has  ruled  in  this  matter, 
according  to  the  practice  which  has  been  adopted 
here,  of  considering  resolutions  separately. 

Mr.  EARLE,  of  Worcester.  It  appears  to  me, 
according  to  the  recollection  I  have  of  legislative 
proceedings,  that  in  a  proposition  of  this  kind, 
you  cannot  lay  any  portion  of  a  report  or  bill 
upon  the  table,  without  laying  the  whole  upon  the 
table.  You  may  take  up  a  report  and  consider 


it  in  detail,  but  you  cannot  take  one  part  of  a 
proposition  and  lay  it  upon  the  table. 

Mr.  HUBBARD,  of  Boston.  I  rise  to  a  ques 
tion  of  order.  I  believe  the  only  motion  pending, 
is  to  lay  the  amendment  of  the  gentleman  from 
Worcester  upon  the  table,  which  I  understand  is 
not  a  debatable  motion.  The  Chair  has  ruled 
upon  the  question,  and  no  appeal  has  been  taken. 

Mr.  HOOPER,  of  Fall  River.  I  wish  to  make 
a  motion  to  amend  the  second  resolution,  which  I 
believe  will  take  precedence  of  the  motion  made 
by  the  gentleman  for  Manchester,  according  to  the 
decision  of  the  Chair  made  a  few  days  ago,  that 
a  motion  to  amend  a  previous  section  took  pre 
cedence  of  a  motion  to  amend  any  other  part  of 
a  resolve. 

The  PRESIDENT.  If  the  gentleman  will 
withdraw  his  motion  for  a  moment,  the  Chair 
will  state,  that  upon  reflection,  he  is  satisfied  that 
his  decision  is  not  correct.  When  the  gentleman 
for  Manchester  made  his  motion,  the  Chair  sup 
posed  it  would  necessarily  carry  with  it  the  whole 
question ;  but  the  suggestion  of  gentlemen,  that 
the  practice  has  been  to  consider  these  matters 
separately,  inclines  me  to  the  opinion  that  it  would 
only  carry  with  it  the  fourth  resolution.  But, 
no  motion  being  made  to  consider  them  separ 
ately,  the  Chair  rules  that  the  motion  to  lay  the 
amendment  on  the  table,  carries  the  whole  with  it. 

Mr.  DANA.  I  made  the  motion,  that  the 
question  be  taken  on  the  resolution  separately. 

Mr.  BUTLER.  I  rise  to  a  question  of  order. 
The  first  motion  of  the  gentleman  for  Manches 
ter,  was  to  lay  the  amendment  on  the  table; 
and  afterwards  asked  to  have  the  vote  taken, 
separately. 

Mr.  HOOPER.  I  would  inquire  whether  my 
motion,  being  for  an  amendment  of  the  second 
resolution,  does  not  take  precedence  ?  I  believe 
that  was  the  decision  yesterday. 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  it  does  not.  The  whole  of  the  resolutions, 
being  at  the  time  the  -motion  was  made  under 
consideration,  the  motion,  to  lay  on  the  table  carries 
the  whole  with  it.  The  simple  question  is,  on  the 
motion  to  lay  the  amendment  on  the  table. 

Mr.  DANA.  I  rise  for  information.  The  gen 
tleman  from  Worcester,  (Mr.  Knowlton,)  did  not 
move  an  amendment  to  all  the  resolutions ;  but 
he  moved  an  amendment  to  the  fourth  resolution. 
The  Chair  states,  that  if  I  move  to  lay  that  amend 
ment  on  the  table,  it  carries  the  whole  of  the 
resolutions  with  it.  That  must  be  on  the  suppo 
sition  that  the  amendment  of  the  gentleman  from 
Worcester,  applies  to  the  whole  subject.  I  then 
withdraw  my  motion  to  lay  the  amendment  on 
the  table,  and  move  for  a  division  of  the  subject, 


182 


THE   JUDICIARY. 


[62d  day. 


Wednesday,] 


DANA  —  BUTLER  —  GKAY. 


[July  20th. 


so  that  each  question  may  be  taken  separately, 
and  then  the  question  on  the  amendment  offered 
by  the  gentleman  from  Worcester,  must  wait  till 
we  come  to  the  fourth  resolution. 

The  PRESIDENT.  The  whole  question  was 
pending.  The  question  was  on  ordering  the 
whole  of  the  resolutions  to  their  final  passage. 
The  gentleman  from  Worcester  moved  to  amend, 
when  that  motion  was  pending,  and  the  gentle 
man  from  Manchester  moved  to  lay  the  motion 
to  amend  upon  the  table.  The  Chair  rules  that 
if  that  motion  be  carried,  it  carries  the  whole 
question,  and  lays  the  whole  subject  upon  the  table. 

Mr.  DANA.  I  have  withdrawn  my  motion 
to  lay  the  motion  to  amend  upon  the  table  ;  and  I 
call  for  a  division  of  the  subject,  so  that  the  ques 
tion  may  be  taken  separately. 

Mr.  BUTLER.  That  call,  of  course,  will  be 
heard  at  such  time  as  it  can  be  done,  by  parlia 
mentary  rule.  I  do  not  propose  to  speak  upon 
the  division  of  the  question.  Any  member  has 
a  right  to  call  for  a  division  of  the  question  when 
a  vote  is  about  to  be  taken. 

Mr.  GRAY,  of  Boston.  I  rise  to  a  question 
of  order.  I  understand  that  any  member  has  a 
right  to  call  for  a  division  of  the  question  at  any 
time.  I  understand  my  friend  for  Manchester 
has  called  for  it  now.  I  beg  the  gentleman  now 
speaking  to  understand  that  I  do  not  oppose  any 
latitude  being  given,  but  I  understand  they  are 
divided. 

The  PRESIDENT.  The  gentleman  for  Man 
chester  calls  for  a  division  of  the  question  now. 
Any  member  has  that  right ;  and  when  the  ques 
tion  is  put,  it  will  be  upon  the  first  resolution  ; 
but  the  whole  question,  and  all  the  resolutions 
are  open  for  discussion. 

Mr.  BUTLER.  That  was  precisely  the  way  I 
understood  the  matter ;  and  I  do  not  think  the 
judges  will  save  their  lives  by  parliamentary 
tricks  and  manoeuvres.  In  my  judgment,  if  the 
judiciary  of  Massachusetts  stands  on  no  firmer 
foundation  than  mere  parliamentary  rules,  the 
quicker  it  is  tipped  over  the  better.  I  propose 
that  this  question  shall  be  met  fairly,  and  on  its 
merits.  I  wish,  now,  to  disabuse  the  mind  of 
the  gentleman  for  Manchester,  of  one  or  two 
errors  which  he  put  forth,  and  in  which  he  seemed 
to  wish  to  carry  the  Convention  along  with  him. 
The  first  is,  that  that  vote  heretofore  given  shows 
any  result  like  that  which  he  stated.  He  says, 
we  must  not  touch  this  subject  now,  because  the 
President  said,  very  properly,  that  where  the 
votes  are  pretty  evenly  balanced,  it  is  well  not  to 
make  any  great  change  in  the  Constitution.  So 
I  agree,  and  so  I  would  agree,  in  the  application 
of  it  to  this  case,  if  the  premises  of  the  gentle 


man  were  correct.  But  I  know  of  many  men 
who  are  in  favor  of  an  elective  judiciary,  and 
who  are  in  favor  of  the  abolition  of  the  life  tenure, 
in  some  form,  who  voted  with  the  gentleman  for 
Manchester  the  other  day,  and  against  the  tenure 
for  ten  years.  And  why  ?  Because  they  thought 
it  not  enough.  I  can  put  my  eye  on  many  who 
voted  against  the  ten  years'  tenure,  because  they 
thought  it  was  not  all  they  wanted  ;  because  they 
thought  it  did  not  crack  the  old  shell  widely 
enough. 

But  this  proposition  of  the  gentleman  from 
Worcester,  commends  itself  to  my  judgment.  It 
has  two  elements  in  it  that  I  approve.  The  one 
is  an  appointment  for  a  given  term,  holding  the 
judges  responsible  to  the  people ;  and  the  other 
is,  that  the  appointment  shall  be  confirmed  by  the 
Senate,  and  the  Senate  is  to  be  elected  by  the  peo 
ple;  in  like  manner  the  Senate  of  the  United 
States  has  a  confirming  power.  Again,  the  ap 
pointment  has  to  lie  seven  days  before  it  is  con 
firmed,  so  that  we  can  know  who  is  nominated 
before  he  gets  into  an  office  for  life.  Aye,  Sir,  I 
know  judges,  and  I  could  call  names,  if  I  was 
provoked  to  it,  who,  if  their  nomination  had  lain 
over  seven  days  before  the  Senate,  would  have 
stood  as  much  chance  of  being  confirmed,  as  they 
would  of  being  elected,  if  the  question  had  gone 
to  the  people;  and  that  is  putting  it  strong  enough. 
But  the  difficulty  is,  they  are  appointed ;  it  is 
done  in  the  Council- Chamber,  and  I  do  not  pro 
pose  to  interfere  with  the  Council  now.  But  it 
is  done  in  the  Council- Chamber,  and  nobody 
knows  who  the  judge  is  to  be,  until  he  is  a  judge, 
and  there  is  an  end  of  it,  so  far  as  getting  at  him 
is  concerned,  except  by  impeachment.  And  if  he 
knows  just  enough  not  to  do  any  great  wrong,  or 
if  he  does  not  commit  any  flagrant  outrage,  he 
can  go  along,  and  nobody  can  interfere  with  him. 
I  have  had  my  attention  specially  called  to  this 
matter  by  an  article  which  I  find  quoted,  with  a 
great  deal  of  approbation,  in  a  leading  political 
newspaper,  which  goes  in  strong  for  the  life 
tenure  of  the  judges.  I  mean  the  Boston  Atlas, 
which  meets  the  approval  of  the  conservative 
portion  of  this  Convention.  And,  as  though 
that  was  not  enough,  it  is  copied  from  the  North 
Adams  Transtript,  which  I  commend  to  my 
friend  from  North  Adams,  (Mr.  Dawes,)  as  being 
under  his  particular  jurisdiction.  It  seems  that 
a  man  by  the  name  of  Howe,  has  been  appointed 
down  in  Haverhill,  for  a  judge  of  probate.  Now 
the  Whig  papers  defend  that  appointment.  What 
is  the  reason  ?  I  will  read  the  article,  as  it  is 
short : — 

"  N.  S.  Howe,  of  Haverhill,  a  member  of  the 


62d  day.] 


THE   JUDICIARY. 


183 


Wednesday,] 


BUTLER. 


[July  20th. 


State  Senate,  has  been  appointed,  by  the  Governor, 
a  Judge  of  Probate  for  Essex  County,  in  place  of 
Daniel  A.  White,  resigned.  This  appointment 
has  given  rise  to  some  dissatisfaction,  and  intima 
tions  are  thrown  out,  in  some  quarters,  that  it  is 
an  injudicious  one.  It  would  be  strange  if,  in 
every  instance,  the  governor  should  be  so  fortu 
nate  as  to  make  the  best  selection  that  could  be 
made.  But  in  this  instance,  we  have  no  hesita 
tion  in  saying  that  we  believe  he  has  made,  un 
der  all  the  circumstances,  the  best  appointment 
that  could  be  made  from  among  the  applicants." 

Now  comes  the  reason  : — 

"  Mr.  Howe  is  a  stirring,  active  young  Whig, 
and  we  believe  his  appointment,  (and  we  think  our 
sources  of  information  are  tolerably  good,)  will 
give  more  general  satisfaction  to  the  live,  moving 
Whigs  of  the  county,  than  that  of  any  other  man 
mentioned  for  the  office.  We  suspect  the  mourn 
ings,  if  traced  out,  will  be  found  to  come  from 
interested,  if  not  disappointed,  persons,  who,  until 
they  have  manliness  enough  to  back  up  their  in 
sinuations  by  something  tangible,  or  put  their 
hands  to  paper,  as  they  have  been  invited  to  do, 
had  better  say  less." 

Here  is  a  man  who  is  to  settle  the  estates  un 
der  the  beautiful  system  which  the  gentleman  for 
Manchester  is  so  anxious  to  retain ;  or  if  he  can 
not  remain  there  for  life  he  is  to  remain  till  he 
turns  old  fogy,  which  is  the  next  step  to  death. 

Mr.  DANA.  He  holds  his  office  only  three 
years. 

Mr.  BUTLER.  Aye,  but  it  would  be  for  life 
if  the  gentleman  could  have  his  way.  True,  we 
have  made  the  judges  of  probate  elective  once  in 
three  years.  Sir,  I  thank  God  we  have  got  a 
chance  at  that  young  Whig,  in  the  county  of 
Essex,  in  about  a  year.  This  is  the  life  system,  and 
these  are  the  reasons  given  when  there  is  dissatis 
faction  manifested,  when  the  men  of  the  county 
say  we  do  not  want  him.  How  is  the  appoint 
ment  defended  ?  On  the  ground  that  he  is  a  live, 
active  young  Whig.  And  that  is  endorsed  by  a 
newspaper  in  the  western  part  of  the  State,  which 
I  have  heard  is  edited  by  one  of  the  Executive 
Council,  and  then  reendorsed  by  the  Boston 
Atlas.  Is  this  right  ?  Suppose  we  had  put  that 
man  before  the  Senate.  What  would  have  been 
the  result  ?  Would  he  have  been  confirmed  for 
that  reason  ?  I  grant  that  we  must  go  to  appoint 
ments  ;  I  grant  that  is  the  best  which  can  be  done 
now ;  because,  I  am  sorry  to  say,  we  cannot  have 
an  elective  judiciary.  Let  there  be  five  more,  or 
ten  more — one  in  each  county — of  such  appoint 
ments,  and  that  would  settle  the  question.  But 
the  motion  of  the  gentleman  from  Worcester  ex 
actly  meets  my  difficulty.  We  have  by  that  an 
appointment  once  in  seven  years,  and  then  we 


have  the  nomination  lie  over  seven  days ;  and  if 
the  people  are  dissatisfied  they  can  go  to  the  Sen 
ate  and  have  an  understanding  upon  the  subject 
after  the  appointment  has  passed  the  ordeal  of  the 
Council. 

A  word  as  to  what  was  said  by  the  gentleman 
for  Manchester,  who,  although  he  said  he  did  not 
argue  the  question,  yet — with  an  adroitness  which 
does  him  honor  as  a  member  of  a  somewhat  adroit 
profession — still  put  forth  the  strongest  argument 
which  lay  in  his  mind.  He  says  we  cannot  put 
the  Constitution  to  the  people  by  piecemeal.  I 
agree  with  him  in  that ;  we  cannot  do  it.  I  was 
afraid  it  would  be  done.  For  there  is  very  much 
of  my  success  in  my  profession  depending  on  the 
adoption  of  this  Constitution,  because  I  do  not 
know  what  will  be  visited  upon  me  from  the 
judges,  because  I  have  laid  my  unhallowed  hand 
upon  the  judiciary.  But  I  am  willing  to  take  the 
risk,  for  I  have  been  among  the  people  since  this 
matter  came  before  the  Convention,  and  I  under 
stand  how  they  feel  since  I  have  seen  them,  and 
since  this  Convention  has  promulgated  the  idea 
that  the  people  were  not  to  be  trusted  with  the 
election  of  the  judges.  That  fell  upon  the  people 
of  the  Commonwealth  like  a  cloud,  and  no  man, 
of  all  those  I  have  met,  except  those  in  the  ranks 
of  conservatism,  but  what  said :  is  it  possible  that 
the  Convention  has  taken  such  a  step  ?  And  those 
steeped  in  conservatism  turned  up  their  eyes,  and 
said :  "  Well,  you  are  a  good  reformer,  but  you 
are  afraid  of  the  judiciary."  The  laymen  here 
know  whether  this  is  true  or  not.  We  could 
have  carried  that  question  of  the  election  of  the 
judges  if  the  lawyers  had  not  been  a  set  of  cow 
ards.  You  were  afraid  of  the  judges,  it  is  said, 
and  you  wanted  to  plaster  and  gloss  over  the 
matter.  That  is  the  way  they  speak  outside  of 
us.  But  I  want  it  understood  that  I  am  not 
afraid  of  the  judiciary.  I  am  not  very  anxious 
on  that  point ;  my  works  may  speak  for  me. 

Now,  we  come  to  the  people,  if  we  sustain  this 
amendment,  and  we  say  to  the  people,  your  judges 
shall  be  made  amenable  to  you,  once  in  seven 
years,  through  the  Governor  elected  by  you,  and 
through  the  confirmation  of  a  Senate  elected  by 
you.  I  ask  gentlemen  if  they  are  not  ready  to 
put  this  into  the  Constitution,  as  a  whole  ?  In  my 
judgment,  it  will  carry  with  it  three  or  four  other 
measures  which  have  not  quite  come  up  to  the 
expectations  of  the  people.  I  believe  in  the 
effect  of  the  popularity  of  this  measure.  I  may 
be  mistaken  ;  but  I  am  not  mistaken  about  the 
feeling  in  the  Convention.  The  feeling  here,  I 
have  no  doubt  is,  that  an  elective  judiciary  would 
be  best.  But  there  is  a  little  distrust  of  the 
people.  Let  us  lay  aside  this  distrust,  and  put 


184 


THE   JUDICIARY. 


[62d  day. 


Wednesday,] 


BUTLER  —  DANA. 


[July  20th. 


the  proposition  to  them,  and  when  we  do  it  we 
shall  get  the  response. 

There  is  one  thing  which  I  wish  to  state,  and  I 
challenge  contradiction  in  regard  to  it :  that  in 
every  instance  where  the  proposition  to  either 
elect  judges,  or  to  appoint  them  for  a  limited  time, 
has  been  submitted  to  the  people,  with  either 
proposition  as  a  separate  proposition ;  the  prop 
osition  to  elect  the  judges  has  received  more  votes 
than  any  other  which  was  put  to  the  people  at  the 
game  time. 

There  was  not  a  man  found  in  New  York  to 
stand  up  against  it  at  all.  Where  it  has  been 
put  separately,  even  in  the  conservative  State  of 
New  Hampshire — and  I  commend  that  to  my 
friend  from  Cambridge  especially — where  they 
have  been  subject  to  such  a  state  of  things  that  if 
any  State  could  have  been  wedded  to  the  life 
tenure,  it  should  have  been  that  State  ;  there,  the 
proposition  to  limit  the  term  of  the  judges,  and 
alter  their  tenure,  was  received  with  more  favor 
than  any  other  proposition,  being  put  separately. 

Sir,  I  have  listened  to  the  arguments  on  the 
one  side  and  on  the  other,  and  I  have  carefully 
weighed  them  in  my  own  mind ;  and  I  wish 
gentlemen  to  understand  that  when  I  voted 
against  the  ten  years'  tenure,  I  did  it  not  that  I 
loved  the  life  tenure  more,  but  that  I  loved  the 
ten  years'  tenure  less.  It  was  not  because  I  wanted 
a  ten  years'  tenure,  but  because  I  wanted  the  ten 
ure  of  seven  years. 

There  is  a  sort  of  magic  about  the  number  seven, 
if  I  may  be  permitted  to  say  so.  The  Jews  had  a 
jubilee  every  seven  years,  under  the  Mosaic  law, 
and  so  should  we  if  we  could  get  out  some  of  our 
judges.  [Laughter.]  I  could  tell  you  a  thou 
sand  reasons  in  favor  of  seven  years,  and  against 
ten  ;  but,  more  than  all  that,  it  is  the  shortest 
period.  I  will  take  occasion  to  repeat,  that  I  may 
disabuse  the  minds  of  members  of  the  Convention 
of  the  impression  which  might  be  created  by  the 
remarks  of  the  gentleman  for  Manchester,  that 
the  vote  indicated  the  state  of  feeling.  I  wonder 
if  in  this  he  included  me,  for  I  was  one  of  the  one 
hundred  and  sixty  gentlemen,  and  I  know  of 
several  members,  who,  if  they  would  speak  for 
themselves,  would  say  that  they  voted  the  same 
way,  because  they  thought  we  did  not  get  enough. 
They  wanted  more. 

And  as  the  gentleman  for  Manchester  has 
started  this  matter  of  parliamentary  tactics  and 
holding  us  to  the  rule,  I  propose,  before  we  get 
through,  to  hold  that  same  chalice  to  his  lips. 
If  we  carry  on  these  parliamentary  tactics,  as  well 
as  himself,  I  trust  he  will  not  complain. 

Mr.  DANA,  for  Manchester.  I  hope  that  so 
important  a  question  as  this,  affecting  ourselves 


and  our  posterity  in  Massachusetts  for  a  great 
many  years  to  come,  will  not  be  prejudiced  in 
this  Convention  by  any  consideration  of  the  man 
ner  in  which  the  question  arises.  When  the 
proposition  was  moved  by  the  gentleman  from 
Worcester,  it  seemed  to  me  that  there  were  cer 
tain  preliminary  considerations,  not  touching  the 
merits  of  this  case,  that  should  settle  it ;  and  there 
fore  I  proposed  to  get  the  sense  of  the  Convention 
at  once,  by  moving  to  lay  it  upon  the  table,  and 
let  the  Convention  decide  whether  it  ought  to  be 
voted  down.  Because,  if  the  motion  failed,  the 
whole  subject  was  up  for  discussion ;  and  if  it 
prevailed,  it  would  show  that  the  Convention  did 
not  want  to  entertain  the  proposition.  I  do  not 
consider  that  a  parliamentary  ruse ;  it  was  a  par 
liamentary  proposition,  and  if  there  were  any 
parliamentary  ruse  about  it,  the  ground  taken 
that  this  Convention  could  not  decide  upon  the 
preliminary  question  at  all,  but  that  the  whole 
question  must  be  decided  at  once,  had  much 
more  of  that  aspect. 

I  thought  the  preliminary  consideration 
should  settle  this  matter ;  that  it  was  not  worth 
while  now  to  enter  upon  the  discussion  of  the 
question  as  to  the  judiciary,  and  I  wished  the 
Convention  to  say  so ;  but  I  have  been  prevented, 
by  a  parliamentary  ruse,  from  getting  that  ques 
tion  before  this  body ;  and  now  we  cannot  avoid 
the  discussion  of  the  whole  question.  I  do 
not  mean  to  alarm  the  House  by  proposing  to 
discuss  the  merits  of  the  whole  question ;  but 
what  I  have  to  say  I  shall  say  as  briefly  as  may 
be.  And  I  will  remark,  in  the  outset,  that  I  pro 
pose  to  discuss  it  in  a  very  different  manner  from 
that  in  which  it  was  discussed  by  the  gentleman 
from  Lowell.  It  seems  that  the  gentleman  from 
Lowell  has  been  out  among  the  people,  and  he 
has  heard  it  said  that  he  was  afraid,  or  rather, 
that  the  lawyers,  here,  were  afraid,  and  did  not 
dare  to  come  up  to  the  work.  He  desires  to  show 
that  he  is  not  afraid.  But,  Sir,  it  is  not  necessary 
to  amend  the  Constitution  in  order  to  prove  that 
the  gentleman  from  Lowell  is  not  afraid.  I  think 
it  was  decided  by  the  legislature  last  year  that  he 
was  not  afraid  of  anything.  [Laughter.]  I  was 
not  here  at  the  time,  but  I  understand  that  such 
was  the  decision.  He  has  shown,  farthermore, 
that  he  is  not  afraid  by  bringing  this  forward  and 
making  his  speech.  He  has  exhibited  his  courage, 
and  no  man  here  doubts  it ;  and  it  was  not  nec 
essary  that  he  should  have  proclaimed  it  upon 
this  floor.  Another  thing,  which  I  wish  to  sug 
gest,  is,  that  this  question  ought  not  to  be 
decided  by  any  reference  to  special  cases  of  ap 
pointments.  It  seems  that  one  Mr.  Howe,  of 
Essex,  has  been  appointed  to  office,  and  it  seems 


62d  day.] 


THE  JUDICIARY. 


185 


Wednesday,] 


DANA. 


[July  20th. 


that  some  injudicious  newspaper  has  given  a  very 
wrong  and  a  very  bad  reason  for  the  appointment. 
Now  I  want  to  ask  the  Convention  whether  they 
will  decide  this  important  question  on  a  mere 
article  from  the  North  Adams  Transcript — per 
haps  as  good  as  any  other  paper — but  will  you 
decide  upon  one  paper  or  upon  all  the  papers  in 
Massachusetts  ?  Will  you  decide,  upon  the  case 
of  one  Mr.  Howe,  or  all  the  Mr.  Howes  in  Mas 
sachusetts  ?  Will  you  decide  it  by  one  judge  of 
probate,  or  all  the  judges  of  probate  in  the  Com 
monwealth  ?  I  trust  that  we  shall  put  out  of  the 
question  any  newspaper  paragraph,  or  any  man's 
courage,  or  want  of  courage.  I  hope  we  shall 
decide  this  matter  upon  general  principles. 
Besides,  if  Mr.  Howe's  appointment  was  an  im 
proper  one,  did  not  the  governor  nominate  him  ? 
Whom  does  the  gentleman  from  Lowell  propose 
shall  nominate  his  judge  ?  Why,  the  governor — 
the  same  officer  who  nominated  Mr.  Howe. 

Mr.  BUTLER,  (in  his  seat).  The  Senate  is 
to  confirm  him. 

Mr.  DANA.  The  gentleman  says  that  the 
Senate  is  to  confirm  him.  That  is  true ;  but  does 
he  suppose  that  a  Whig  Senate  will  not  confirm 
"an  ardent  young  Whig  "  like  Mr  Howe  ?  Does 
he  suppose  that  that  fact  would  be  any  objection 
to  him  in  a  Whig  Senate  ?  And  suppose  we  had 
a  Democratic  Governor  and  a  Democratic  Senate, 
is  it  not  perfectly  clear  that  we  should  have  some 
ardent  young  Democratic  lawyer  [laughter]  nom 
inated  for  judge  by  this  Democratic  Governor,  and 
confirmed  by  this  Democratic  Senate  ? 

Mr.  BUTLER,  (in  his  seat).     Not  for  life. 

Mr.  DANA.  It  would  be  done  every  year, 
and  that  is  110  better.  We  should  have  a  series 
of  ardent  young  Democrats,  and  there  would  be 
no  chance  for  any  of  them  to  grow  older  and 
wiser  in  office.  [Laughter.]  That  is  all  that  we 
should  gain  by  it. 

Then  it  seems  that  the  gentleman  is  supersti 
tious.  With  all  his  courage,  he  is  a  victim  of 
superstition.  He  voted  against  a  ten  years'  ten 
ure,  and  will  vote  for  a  seven  years'  tenure, 
because  seven  is  a  sacred  number  !  He  says 
that  the  Jews  had  a  jubilee  every  seven  years, 
and  therefore  he  wants  a  judge  of  the  supreme 
court  for  seven  years.  Now,  a  superstitious  man 
who  reasons  well  about  everything  else,  seldom 
reasons  well  about  superstition.  And  he  must 
remember,  when  he  quotes  the  Jews  for  authority 
as  having  a  jubilee  every  seven  years,  that  we 
also  read  that  they  had  seven  years  of  famine, 
while  they  were  in  Egypt.  [Great  laughter.] 

Mr.  BUTLER,  (in  his  seat).  That  was  a  curse 
upon  them. 

Mr.  DANA.     Well,  I  am  afraid  we  shall  have 


a  curse  upon  us,  if  we  follow  bad  examples.  Our 
ancestors  had  a  seven  years'  war,  which  turned 
out  well ;  but  does  anybody  want  a  repetition 
of  it  every  seven  years  ?  I  am  not  satisfied  with 
making  this  change  out  of  a  superstitious  venera 
tion  for  the  number  seven,  or  for  any  other  rea 
sons  which  have  been  given.  In  sitting  here  as  a 
deliberative  assembly  to  make  great  fundamental 
changes  in  the  Constitution,  let  us  consider  the 
matter  seriously,  and  in  a  manner  becoming  the 
great  questions  which  we  have  to  pass  upon. 
Let  me  repeat  what  I  said  when  I  moved  to  lay 
the  resolution  upon  the  table,  that  I  think  we  had 
better  drop  the  whole  subject.  The  gentleman 
from  Lowell  says,  that  the  vote  the  other  day 
was  not  a  test  vote,  for  there  was  a  majority  of 
two  against  the  proposition,  and  he  knows  of 
four  or  more  who  voted  for  special  reasons, 
because  they  could  get  seven,  and  could  not  get 
ten — persons  under  the  same  hallucination  about 
the  number  seven. 

Mr.  KNOWLTOX.  If  the  gentleman  will 
allow  me,  I  will  state  that  I  voted  for  their  election, 
and  voted  against  the  term  of  ten  years ;  and  I 
did  so  as  a  matter  of  compromise. 

Mr.  DANA.  It  seems  that  there  were  four 
then,  and  that  would  leave  just  two  in  favor  of 
the  proposition,  or  about  a  measuring  cast.  How 
many  gentlemen  there  may  be,  who  follow  in  the 
wake  of  the  gentleman  from  Lowell,  I  do  not  know, 
and  I  do  not  believe  that  he  can  tell  himself;  I 
do  not  believe  that  any  man  can  count  his  ad 
herents  in  this  body — he  says  he  knows  of  four  ; 
but  I  know  of  some  who  voted  for  the  proposition 
of  the  gentleman  from  Natick,  for  a  ten  years' 
tenure,  who  may  vote  against  the  whole  thing 
now,  upon  the  principle  which  I  relied  upon 
when  I  moved  to  lay  this  resolution  upon  the 
table ;  that  is,  to  let  bygones  be  bygones.  As  I 
said  before,  we  ought  to  do  so,  because  we  must 
submit  this  Constitution  to  the  people  as  an 
entirety.  I  will  satisfy  any  gentleman,  who  will 
go  into  the  Senate- Chamber  and  look  over  the 
work  which  I  had  the  honor  to  have  confided  to 
me  by  the  chairman  of  the  Committee,  in  making 
up  the  parts  of  this  Constitution,  that  this  is  inevi 
table.  The  gentleman  from  Lowell  says  he  is  of 
that  opinion  also.  Now,  I  ask  the  friends  of  this 
Convention,  who  must  be  responsible  for  the 
success  of  this  Constitution,  whether  they  think 
it  worth  while  to  peril  it  by  referring  this  ques 
tion,  or  by  altering  our  judiciary  system  ?  Sir,  I 
think  they  have  got  a  good  deal  to  do  to  carry  this 
Constitution.  There  will  be  a  good  deal  of  hos 
tility  to  some  of  the  essential  principles  which  we 
have  maintained  here  ;  and  if  in  addition  to  that, 
we  stir  up  all  the  feeling  in  this  Commonwealth 


186 


THE  JUDICIARY. 


[62d  day. 


Wednesday,] 


DANA. 


[July    20th. 


by  an  unadvised  change  in  the  judiciary  system, 
it  will  be  a  great  risk  to  run,  for  the  people  of  the 
Commonwealth  are  attached  to  the  judiciary  sys 
tem.  They  have  no  complaint  to  make  about  it. 
Some  lawyers  who  have  lost  cases  may  complain, 
and  may  think  they  have  been  ill-treated ;  but 
the  great  body  of  the  people  do  not  complain.  If 
you  attempt  to  reduce  the  tenure  of  the  judges  to 
seven  years,  you  will  find  a  good  deal  of  popular 
feeling  against  it. 

The  argument  of  the  gentleman  from  Lowell 
was  principally  based  on  opposition  to  the  ap 
pointing  power.  It  was  based  on  the  right  of 
the  people  to  choose  their  judges.  He  says  that 
we  have  indicated  to  the  people  of  the  State,  that 
we  think  they  are  not  capable  of  electing  their 
own  judges.  He  says  it  fell  like  a  cloud — I  am 
not  in  the  habit  of  seeing  clouds  fall  where  I 
live — it  fell  like  a  cloud  upon  the  people,  to  hear 
it  said  that  they  could  not  elect  their  judges. 
But,  Sir,  he  proposes  to  say  this  again,  that  the 
people  are  not  capable  of  electing  their  judges, 
and  that  it  must  be  left  to  the  Governor  and  the 
Senate,  for  he  voted  against  the  amendment  of  the 
gentleman  from  Fall  lliver.  Now  what  kind  of 
answer  is  that  to  the  popular  argument  ?  You 
cannot  get  up  any  popular  enthusiasm  in  favor  of 
the  seven  years'  appointing  power.  That  is  out 
of  the  question.  If  the  people  believe  that  they 
have  a  right  to  elect  their  judges,  you  cannot  get 
up  any  popular  enthusiasm  in  favor  of  increasing 
the  executive  power. 

Another  objection  which  you  will  have  to 
counteract,  when  your  Constitution  goes  out  to 
the  people,  is  this  :  that  you  will  be  adding  vastly 
to  the  executive  power  and  patronage.  I  ask  the 
gentleman  from  Natick,  and  those  gentlemen 
whose  names  are  signed  to  the  report  of  1851, 
saying  that  the  executive  power  in  this  State  had 
increased,  and  ought  to  be  diminished,  with  what 
face  they  can  go  out  to  the  people  and  say :  "  We 
have  increased  the  executive  power  seven-fold. 
Our  little  finger  shall  be  heavier  than  our  father's 
loins ;  for  the  governor  could  merely  appoint  a 
judge,  and,  after  he  had  appointed  him,  he  was 
entirely  out  of  his  power  for  life  ;  but  we  now 
propose  to  give  the  governor  power  to  appoint  a 
judge  once  in  about  ten  months?"  That  will  be 
the  result.  If  you  have  the  seven  years'  tenure, 
with  the  resignations  and  deaths  that  will  ordi 
narily  occur,  there  will  be  a  judge  to  be  appointed 
every  ten  months.  You  then  propose  to  add  to 
the  executive  power  and  patronage,  by  giving 
him  the  right  to  nominate  a  supreme  court  judge 
about  once  in  every  ten  months,  and  a  common 
pleas  judge  about  as  often — two  judges  every 
year  !  I  submit  to  gentlemen,  what  kind  of  ar 


gument  is  that  with  which  to  go  out  to  the  people, 
and  ask  them  to  support  your  Constitution,  when 
you  tell  them,  we  have  pretended  that  we  wanted 
to  diminish  the  executive  power,  but  we  have 
given  the  governor  the  power  to  appoint  one 
supreme  court  judge  and  one  common  pleas 
judge  in  the  course  of  every  year  ?  The  objec 
tion  will  be,  that  you  have  put  the  judiciary 
under  the  control  of  the  executive,  and  there 
will  be  no  escape  from  it.  Some  one  of  these 
judges  will,  every  year,  be  looking  towards  the 
Council- Chamber  for  his  fate.  No  gentleman  here 
can  have  a  case  come  before  the  supreme  court, 
without  knowing  that  some  one  of  those  judges 
is  looking  to  the  powers  that  be,  for  his  re- 
appointment.  Suppose  a  political  case  has  arisen 
— a  case  in  which  parties  have  got  mixed  up,  and 
suppose  the  suitor  has  incurred  party  odium, 
will  he  want  to  carry  his  case  before  such  a  court 
as  that  ?  Will  not  that  circumstance  be  a  strong 
objection  ?  Which  would  you  rather  do :  go 
before  a  judge  when  you  knew  his  reelection 
was  pending  before  a  million  of  people,  or  when 
his  reappointment  was  pending  in  that  Council- 
Chamber  ?  The  gentleman  from  Lowell  says,  he 
wants  to  have  a  chance  at  that  young  Whig 
judge  who  has  been  appointed  in  Essex  County. 
Well,  Sir,  he  does  not  propose  to  make  judges 
of  the  supreme  court  elective.  If  he  wants  to 
have  a  chance  at  one  of  the  judges  of  the  supreme 
court,  how  is  he  going  to  do  it  ?  He  must  reach 
him  through  the  executive  chamber,  if  at  all. 
That  will  be  the  result.  Whenever  the  gentle 
man  from  Lowell  wants  to  "  have  a  chance  at  a 
Whig  judge,"  or  whenever  some  Whig  wants  to 
have  a  chance  at  a  Democratic  judge,  he  must  do 
it  through  the  executive  chamber.  But  while 
this  is  going  on,  the  friends  of  that  judge  will  not 
be  idle.  They  will  not  submit  to  have  him  over 
ridden.  They  will  support  him  there,  and  if  we 
have  occasion  to  go  there  on  any  public  business, 
we  shall  find  the  ardent  young  Democrats  and 
ardent  young  Whigs  blocking  up  the  lobbies  of 
that  chamber,  all  the  while  that  the  nomination 
of  that  judge  is  pending.  Well,  Sir,  after  he 
gets  his  nomination,  he  must  go  to  the  Senate  to 
be  confirmed,  and  there  it  will  be  just  about  as 
bad.  The  same  spirit  will  prevail,  and  whether 
he  be  a  Whig  judge  or  a  Democratic  judge,  there 
will  be  the  lobbying  for  and  against  him,  and 
this  contest  will  be  kept  up  by  a  great  many  per 
sons,  and  the  influence  will  be  felt  throughout 
the  State. 

Now,  I  do  not  know  that  I  can  convince  gen 
tlemen  in  this  Convention  that  that  would  be  a 
bad  principle  ;  but  I  can  tell  them  that  there  will 
be  people  enough  in  the  State  who  will  think  it 


62d  day.] 


THE   JUDICIARY. 


187 


"Wednesday,] 


DANA  —  LORD. 


[July  20th. 


a  bad  principle  to  make  it  quite  worthy  of  their 
serious  consideration,  whether  they  will  put  it 
into  the  Constitution,  and  add  that  risk  to  the 
one  they  have  already  run  on  the  subject  of  the 
town  representation.  Now,  I  put  it  to  the  calm 
good  sense  of  gentlemen  who  do  not  feel  excited 
on  the  subject,  who  have  not  been  out  and  had 
their  courage  questioned,  and  got  excited ;  or  who 
have  not  read  newspaper  paragraphs  and  got  excit 
ed — I  put  it  to  calm-minded  gentlemen  in  this  as 
sembly,  whether  they  had  not  better  let  the  thing 
rest  where  it  rested  last  night.  If  you  want  issues 
before  the  people,  do  something  that  you  said  you 
•were  going  to  do  when  you  came  here.  Introduce 
the  plurality  system.  It  will  be  popular  in  the  end. 
Abolish  the  Council,  or  adopt  some  other  popular 
measure.  Do  something  which  you  proposed  to 
do,  and  not  something  which  the  people  never 
had  any  idea  you  intended  to  do  ;  something  that 
no  issue  has  been  raised  upon.  The  people  will 
not  feel  a  great  deal  of  interest  in  a  matter  which 
is  to  be  transacted  between  a  governor  and  a  judge, 
once  in  seven  years,  in  that  chamber.  The 
people  will  have  no  chance  here.  But  once  in 
seven  years,  the  judge,  by  himself,  or  his  friends, 
is  to  lay  his  case  before  the  governor,  and  his 
enemies  will  lay  their  case  before  the  governor 
also.  And  what  do  the  people  care  about  that  ? 
Why,  Sir,  the  people,  looking  carefully  to  their 
rights,  will  say  we  would  rather  have  no  such 
doings  between  the  judges  and  the  governor ; 
we  would  rather  have  a  judge  who  is  responsible 
only  to  us  by  impeachment  or  by  address.  As 
one  of  the  people  of  Massachusetts,  who  have 
more  interest  in  the  right  decision  of  cases  than  I 
have  as  counsel — because  as  counsel,  probably, 
I  should  gain  or  lose  one-half  of  my  cases,  for 
such  is  usually  the  fortune  of  life  ;  but  my  life, 
liberty,  property,  and  reputation,  may  rest  any 
moment  upon  the  decision  of  the  supreme  court 
— as  one  of  the  people,  I  would  rather  that  there 
should  not  be  a  private  transaction  once  in  seven 
years  between  the  judge  and  the  governor,  in 
volving  the  official  life  of  the  judge  before  whom 
I  have  causes  to  try,  and  on  whose  impartiality 
my  client's  all,  or  my  own,  may  depend. 

[The  gentleman's  half  hour  having  expired, 
the  hammer  fell.] 

Mr.  LORD,  of  Salem.  I  rise,  Sir,  not  for  the 
purpose  of  entering  into  a  lengthy  discussion  of 
this  question,  but  rather  for  two  purposes  :  one 
to  take  away  the  pretence  which  the  gentleman 
from  Lowell  has  laid  before  the  Convention  as  the 
reason  why  the  Convention  was  divided  so 
closely  on  the  vote  which  was  taken  last  Thurs 
day.  I  propose  to  take  away  that  pretence,  and 
to  show  that  every  proposition  which  has  been 


entertained  by  this  House,  or  which  has  been 
presented  before  us,  has  met  with  favor  only  in 
proportion  as  it  has  approximated  the  present 
state  of  things.  "When  it  was  proposed  to  make 
the  judiciary  elective  for  seven  years,  there  were 
more  than  a  hundred  and  twenty-five  majority 
against  it.  When  it  was  proposed  by  the  gentle 
man  from  Lowell  himself  to  have  them  appointed 
for  seven  years  against  ten  years,  there  was  a 
majority  of  ninety-six  against  it  in  this  House ; 
and  the  same  page  which  records  the  vote  of  two 
majority  against  the  ten  years'  tenure,  records  the 
vote  of  ninety-six  majority  against  the  tenure  for 
seven  years,  upon  the  motion  of  the  gentleman 
from  Lowell  himself,  for  he  moved  to  strike  out 
"  ten"  and  insert  "  seven  "  in  its  place  ;  and 
eighty- eight  gentlemen  only  voted  in  its  favor ; 
and  one  hundred  and  eighty-four  against  it,  as 
an  examination  of  the  record  shows  ;  which  ex 
amination  I  have  made  within  the  last  five 
minutes. 

Then,  Sir,  the  gentleman  says  that  this  is  a  new 
proposition,  because  it  is  now  proposed  that  these 
appointments  shall  be  submitted  to  the  Senate  for 
ratification.  Sir,  that  same  proposition  was  also 
made,  and  voted  down  without  a  count.  There 
was  not  a  minority  sufficient  in  favor  of  that 
proposition  to  divide  the  House  upon.  Now,  Sir, 
I  say  that  that  pretence  cannot  stand  here — that 
this  proposition  was  defeated  the  other  day  be 
cause  the  Convention  desired  a  seven  years'  pro 
position  instead  of  ten  years.  Every  vote  has 
shown  that  any  proposition  has  received  favor, 
just  in  proportion  as  it  has  approximated  to  the 
present  tenure. 

Now,  Sir,  I  said  that  I  was  not  going  to  dis 
cuss  this  matter  ;  and  I  only  desire  to  express  my 
preference  for  the  mode  of  the  gentleman  from 
Fall  River,  over  that  of  the  gentleman  from  Wor 
cester.  If  the  office  of  judge  is  to  be  made  a 
political  office,  let  the  people,  and  not  the  execu 
tive,  take  care  of  it.  I  am  willing  that  the  people 
should  elect  their  judges.  I  have  no  fault  to  find 
with  that.  It  is  only  the  tenure  that  I  want  to 
have  independent.  I  do  not  care  how  they  are 
appointed.  I  think  the  people  can  elect  them 
better  than  the  executive  can  appoint  them ;  but 
I  want  an  independent  tenure  when  they  are  put 
there ;  and  if  it  should  turn  out  that  either  the 
one  term  or  the  other  is  to  be  adopted,  if  a  judge 
is  to  be  appointed  every  four  months — which  will 
be  the  case  if  the  calculation  of  the  gentleman 
for  Manchester,  (Mr.  Dana,)  is  correct— I  prefer, 
infinitely,  that  the  people  should  make  such  new 
judge,  rather  than  the  executive.  The  gentle 
man  for  Manchester,  according  to  his  calculation, 
says  that  there  will  be,  at  least,  two  judges  to  be 


188 


THE   JUDICIARY. 


[62d  day. 


Wednesday,] 


LORD  —  HALLETT. 


[July  20th. 


appointed  every  ten  months — one  supreme  judge, 
and  one  common  pleas  judge — that  is,  at  least, 
one  judge  in  every  five  months. 

But,  Sir,  there  is  an  objection  to  the  resolution, 
which  I  wish  to  suggest  to  the  consideration  of 
the  gentleman  who  moved  it.  This  is  the  final 
stage  of  this  matter.  By  a  parliamentary  rule, 
which  cannot  be  avoided,  except  by  a  suspension 
of  it,  if  we  insert  that  resolution  as  it  is — and  the 
question  now  comes  up  upon  it — we  must  stand  by 
it.  There  is  no  mode  by  which  we  can  change 
seven  years  to  ten  or  fifteen  years,  or  to  any  other 
period.  Having  adopted  this,  and  there  being  no 
other  stage,  it  must  finally  stand  as  it  is  adopted. 
Gentlemen  should  remember  that  the  inconven 
ience  of  this  sort  of  thing  was  felt  at  the  close 
of  the  Convention  of  1820,  when  they  were 
obliged  to  suspend  the  rules  to  get  out  of  a  dif 
ficulty,  having  inserted  a  number  in  a  resolution 
in  which  the  number  should  have  been  left  blank. 
I  suppose  that  the  gentleman  from  Worcester 
would  accomplish  his  object,  if  he  left  the  period 
blank ;  it  would,  at  all  events,  be  quite  as  well  as 
to  fill  it  with  the  word  "  seven."  But,  still  I  do 
not  propose  to  offer  any  amendment  in  that  res 
pect  ;  because,  if  I  can  judge  at  all  of  the  charac 
ter  of  this  Convention,  inasmuch  as  by  a  majority 
not  of  TWO,  but  of  NINETY-SIX,  this  Convention 
has  already  determined  that  they  will  not  have  a 
seven  years'  tenure.  Unless  the  gentleman  from 
Lowell  knows  members  enough  who  will  turn 
round  with  him,  and  change  that  majority  of 
ninety-six,  his  majority  of  four  comes  to  nothing. 
His  little  matter  of  four  is  a  very  trifling  number 
in  this  respect,  because  we  are  dealing  with  a 
proposition  that  we  have  dealt  with  before — a 
proposition  for  a  seven  years'  tenure  ;  and  that 
proposition  the  Convention  has  voted,  by  a  major 
ity  of  ninety-six,  that  they  will  not  adopt;  and 
that  is  the  only  motion  which  can  be  submitted, 
according  to  the  proposition  of  the  gentleman 
from  Worcester,  and  having  been  thus  made,  it  be 
comes  unalterable. 

Now,  I  desire  only  to  make  another  observa 
tion,  so  that  I  may  stand  right,  and  it  is  this :  if 
the  gentleman  will  propose  such  a  tenure  of  office, 
so  as  to  make  it  an  object  for  suitable  persons  to 
take  upon  themselves  its  responsibilities,  and  will 
not  permit  them  at  all  to  be  candidates  for  reap- 
pointment,  then  I  will  go  with  him ;  but  I  am 
not  willing  to  make  the  office  of  judge  a  merely 
political  office,  so  that  when  they  decide,  as  one 
gentleman  said  the  other  day  they  decided  incor 
rectly  in  relation  to  the  fugitive  slave  law,  that 
caucus  resolutions  shall  say  that  that  decision  is 
wrong,  and  they  must  make  such  a  judge  as  will 
set  the  matter  right ;  I  am  not  willing  to  say  that 


the  great  party — perhaps  the  majority  party  in 
Massachusetts  to-day — shall  say :  "  We  have 
determined  that  the  law  for  the  suppression  of 
tippling-houses,  or  whatever  else  it  may  be,  is  a 
constitutional  law,  and  we  will  resolve  it  to  be 
constitutional  in  the  same  caucus  by  which  we 
nominate  our  judge,  who  must  '  accept  the  nomi 
nation,  with  the  resolutions  annexed,'  "  [laughter,] 
or  not  at  all— because  all  political  men,  when  they 
accept  office  now-a-days,  or  even  nominations  for 
office,  must  accept  with  "  resolutions  annexed," 
platform  and  all — [renewed  laughter].  I  say  I 
do  not  care  what  the  decisions  of  a  judge  may 
have  been,  when  a  party  caucus  shall  have  re 
solved  a  great  question  of  political  law  ;  then  the 
judge  who  is  to  receive  an  appointment  or  nomi 
nation  from  them,  is  a  judge  whose  opinions  are 
made  for  him  to  his  hand  before  he  goes  upon 
the  bench,  or  who  is  continued  upon  the  bench 
in  consequence  of  these  opinions.  Sir,  I  want  a 
judge  to  be  entirely  free  from  any  considerations 
of  this  kind.  How  that  is  to  be  accomplished,  I 
do  not  know ;  but  certainly,  to  make  the  tenure 
of  office  a  seven  years'  tenure,  will  not  make  him 
independent.  If  gentlemen  will  bring  their  minds 
to  bear  upon  that  proposition,  whenever  they  will 
show  me  a  mode  in  which  a  judge  shall  fear  no 
thing  but  God,  whenever  they  have  found  out 
that,  then  I  am  ready  to  go  with  them  and  vote. 
But  I  do  not  see  how  that  is  to  be,  if  he  is  to  be 
dependent  upon  any  political  organization, — be 
cause  if  the  governor  appoints  him  for  this  short 
tenure,  he  is  as  much  dependent  upon  political 
organization  as  any  officer  of  the  State  can  be, — 
I  say,  if  he  is  to  be  thus  made  dependent  upon 
any  political  organization,  the  system  which  pro 
poses  it  can  never  have  either  my  approval  or  my 
vote. 

Mr.  HALLETT,  for  Wilbraham.  This  sub 
ject  has  been  discussed  heretofore,  and  discussed 
mainly  upon  one  side  ;  there  are  nearly  equal 
differences  of  opinion  prevailing  here  upon  it. 
The  votes,  which  have  already  been  taken,  have 
shown  a  nearly  balanced  division  of  opinion.  I 
do  not  know  that  anything  that  I  can  say,  will 
affect  that  opinion,  one  way  or  the  other.  I  had 
an  opportunity,  the  other  day,  of  just  seven  min 
utes,  for  expressing,  rather  what  might  be  termed 
a  sentiment,  than  of  making  an  argument,  upon 
the  life  tenure  office.  I  desire  to  add  a  few  words, 
to-day,  and  leave  the  Convention  to  decide  upon 
this  matter,  as  to  them  may  seem  best.  To  me, 
this  is  not  in  any  sense  a  question  of  personal 
feeling,  or  private  griefs ;  but  a  question  of  prin 
ciple.  I  wish  it  to  be  considered  and  discussed 
without  any  possible  reference  to  existing  judicial 
officers.  Sir,  my  relations  to  all  the  judicial  offi- 


62d  day.] 


THE   JUDICIARY. 


189 


Wednesday,] 


HALLETT. 


[July  20th 


cers  of  the  Commonwealth — however  hard  I  may 
have  found  it  in  the  beginning — are  of  the  kind 
liest  character  ;  and  it  is  impossible  for  me  to  en 
tertain  any  feeling  of  disrespect  towards  any  of 
them.  1  think  they  sometimes  err  in  matters  of 
courtesy,  and  in  sauvity  to  counsellors  and  par 
ties  ;  and  from  my  long  experience  of  the  effects 
of  life  tenure  upon  the  personal  bearing  of  judges 
generally,  I  have  believed,  and  do  now,  that  they 
need  some  court  of  errors  to  stand  behind  them  ; 
either  the  elective  principle,  or  the  rule  of  periodi 
cal  appointment.  I,  therefore,  for  one,  feel  pret 
ty  certain  that  I  can  lift  myself  above  all  personal 
considerations  on  this  question.  Indeed,  if  I 
have  any  difficulty  at  all,  it  is  the  pain  I  feel— in 
common,  I  know,  with  other  gentlemen  of  the 
bar,  who  think  with  me — at  the  supposition,  in 
any  shape,  being  entertained,  anywhere,  that 
members  of  this  Convention,  or  any  lawyer  in  it, 
could  be  actuated  by  any  personal  feeling  towards 
any  judge  on  the  bench,  in  proposing  amend 
ments,  either  to  elect  judges,  or  to  limit,  in 
appointments  hereafter  to  be  made,  the  old  life 
tenure  to  a  term  of  years. 

When  this  question  first  came  up,  many  days 
ago,  I  said  I  was  not  in  favor  of  a  present  election 
of  judges,  but  I  was  in  favor  of  a  limited  term  for 
future  appointments  of  new  judges,  of  ten  years  ; 
and  this,  I  still  think,  is  the  only  ground  we  can 
strongly  stand  upon,  and  can  carry  before  the  peo 
ple.  I  have  no  question  that  the  election  rule  is 
the  true  one,  but  it  is  not  expedient  to  resort  to  it 
now.  The  member  from  New  Bedford,  (Mr. 
French,)  demonstrated,  that  in  the  present  state 
of  parties  in  this  Commonwealth,  it  would  be  un 
wise  to  run  the  risk  of  a  fusion  of  parties  who 
might  elect  judges  for  the  reason  he  wanted 
them  elected,  namely,  because  he  wanted  a  chance 
to  choose  a  judge  who  would  not  be  such  a  cow 
ard  as  to  regard  his  oath  to  support  the  fugitive 
slave  law  !  And  having  thus  alluded  to  that 
rather  extraordinary,  though  not  very  alarming 
outbreak  from  the  eccentric  member  from  New 
Bedford,  I  desire  to  say,  that  in  regard  to  the  ten 
ure  of  office  for  the  judges  of  the  Commonwealth, 
or  any  change  to  be  made  in  it,  I  have  not  the 
most  remote  idea  of  referring  to  any  decisions  of 
the  courts,  or  its  members,  as  affecting  this  ques 
tion  ;  because,  I  think  we  should  aim  at  princi 
ple  and  not  at  the  officers ;  and  hence  it  was,  that 
if  1  had  had,  for  a  moment,  any  doubt  in  my 
mind  as  to  the  propriety  of  now  providing  for 
electing  the  judges — which  I  believe,  in  principle, 
is  right,  though  I  cannot  deem  it  expedient  in  the 
present  state  of  things — my  mind  would  have  been 
brought  to  the  conclusion  that  it  was  not  expe 
dient  now  to  elect  judges,  by  the  remarkable  ar 


gument  used  by  that  delegate  from  New  Bedford, 
(Mr.  French,)  which  was,  in  direct  effect,  that  you 
must  appeal  to  the  people,  in  order  to  induce  them 
to  elect  judges  who  are  not  such  cowards  as  to 
adhere  to  their  oaths  to  support  the  Constitution 
and  laws  of  the  United  States,  which  include  the 
fugitive  slave  law  !  I  did  not  answer  that  re 
mark  then,  and  I  do  not  propose  to  answer  it  now  ; 
but  I  mean  plainly  to  meet  and  repel  that  princi 
ple,  or  rather  perversion  of  principle,  whenever 
it  arises,  in  this  Convention,  or  elsewhere.  And, 
while  I  do  so,  I  wish,  at  the  same  time,  to  express 
my  great  respect  for  gentlemen  differing  from  me 
in  regard  to  the  construction  of  some  particular 
law  of  the  United  States,  which  has  made  strong 
party  issues,  that  they  have  most  honorably,  wj£h 
very  few  exceptions — I  believe  the  delegate  from 
New  Bedford,  and,  perhaps  one  other,  is  the  only 
one — refrained  from  bringing  these  questions  into 
this  Convention.  And  with  the  like  regard  to 
the  harmony  and  good  results  of  this  Conven 
tion,  while  holding  very  decided  opinions  upon 
the  other  side,  I  have  refrained  from  alluding  to 
them,  unless  it  has  been  for  the  direct  purpose  of 
repelling  or  answering. 

Now,  Sir,  the  reason  why  I  think  a  great  pro 
portion  of  this  Convention  went  against  the  elec 
tive  doctrine  was,  because,  as  some  gentlemen 
put  it,  if  you  had  an  unpopular  law — the  fugitive 
slave  law  or  any  other  law — which  a  party  wanted 
the  judges  to  put  down,  and  which  they  refused 
to  disregard,  because  their  consciences  and  their 
oaths  would  not  let  them,  the  party  opposed  to 
the  law  could  go  to  the  people  and  stir  them  up 
to  a  partisan  heat,  in  order  that  they  might  elect 
judges  who  will  violate  their  oaths !  The  dele 
gate  from  New  Bedford,  (Mr.  French,)  or  any 
other  delegate,  who  would  use  such  an  argument, 
should  know,  not  only  that  it  is  dishonoring  the 
people,  but  that  the  laws  of  the  United  States  are 
the  supreme  law  of  the  Commonwealth  of  Massa 
chusetts,  and  that  all  her  judges  are  expressly 
sworn  to  regard  them  as  the  supreme  law  of  the 
land.  And,  hence,  if  they  are  applied  to,  to  set 
aside  a  law  of  the  United  States,  they  cannot  do 
it,  whatever  their  individual  opinions  may  be 
upon  the  subject.  Therefore,  I  say  that  such  a 
proposition,  to  elect  judges  who  would  violate 
their  oaths,  never  should  be  entertained  here,  and 
never  would  be  entertained  by  the  people ;  and 
moreover,  I  say,  in  relation  to  that  very  case,  and 
to  the  conduct  of  those  judges,  and  of  the  learned 
chief  justice  of  this  Commonwealth,  in  it,  that  the 
history  of  judicial  actions  does  not  present  an  in 
stance  of  more  calm,  dignified,  prudent,  deliberate, 
and  judicious  conduct  or  decision,  than  was  shown 
in  that  case ;  and  there  I  leave  it. 


190 


THE   JUDICIARY. 


[62d  day. 


Wednesday,] 


HALLETT  —  DAW  A. 


[July  20th. 


Now,  upon  another  suggestion  in  regard  to  this 
amendment  of  a  term  for  seven  years,  which  is 
proposed  by  the  gentleman  from  Worcester,  (Mr. 
Knowlton,)  and  which  is  so  much  opposed  by  the 
gentleman  for  Manchester,  (Mr.  Dana).  I  desire 
most  explicitly,  to  enter  my  protest  against  an 
intimation  made  by  the  latter  gentleman,  as  if  to 
conclude  the  question  beforehand,  and  that  is, 
that  we  should  be  obliged  to  take  this  Constitution 
as  a  whole,  and  put  it  before  the  people  as  such. 
I  happen  to  be  on  the  same  Committee  with  that 
gentleman  upon  the  mode  of  sending  the  Consti 
tution  to  the  people,  and  he  has  no  right  to  make 
that  assertion.  The  Committee  have  come  to  no 
conclusion,  and  have  made  no  such  recommenda 
tion,  and  there  has  been  no  legitimate  action  upon 
the  subject. 

Mr.  DANA.  If  the  gentleman  will  permit 
me,  I  will  say,  that  I  spoke  entirely  for  myself. 
I  have  had  no  conference  with  any  one,  and  the 
Committee  have  not  acted  upon  the  subject.  I 
suppose  I  stated  that  I  am  satisfied,  for  myself, 
that  no  such  course  can  be  pursued. 

Mr.  HALLETT.  That  explanation  is  satisfac 
tory  ;  but  I  would  say,  if  the  gentleman  cannot 
frame  such  a  report,  I  think  I  can,  for  I  have  tried 
it,  and  if  found  necessary,  it  can  be  done.  The 
only  question  of  difficulty  is  arrangement  and 
expediency.  If  he  fails,  he  has  only  to  transfer  it 
to  other  hands,  and  they  will  see  that  it  is  done,  if 
found,  on  the  whole,  to  be  necessary  and  proper. 
The  idea  that  we  have  got  to  submit  this  whole 
matter  to  the  people  in  the  lump  with  no  reserva 
tions,  is  advanced  by  that  gentleman  in  this 
debate,  I  apprehend,  for  the  purpose  of  affecting 
this  decision.  The  impression,  that  we  cannot 
put  to  the  people  any  proposition  upon  a  doubtful 
matter,  for  fear  that  we  shall  lose  the  whole  of 
our  labors,  has  deterred  this  Convention  from 
doing  many  things  which  they  believe  ought  to 
be  done.  Why,  Sir,  when  we  get  through,  I  fear 
most  that  the  people  will  ask  us  not  why  we  did  so 
much,  but  why  we  did  no  more.  And,  I  want 
to  send  some  propositions  to  the  people,  which 
will  show,  that  we  have  done  something  besides 
sitting  here  and  voting  against  propositions.  If 
there  is  any  fear  of  this  proposition,  let  it  be  sub 
mitted  to  the  people  as  one  of  the  separate  propo 
sitions  which  must  be  selected  out  of  the  whole 
Constitution. 

Now,  a  few  words  upon  the  merits  of  the  sub 
ject.  We  have  had  arguments  here  from  two  of 
the  most  distinguished  gentlemen — do  I  say  in  this 
Commonwealth  ?  No,  Sir.  Do  I  say  in  the  United 
States  ?  No,  Sir ;  but  two  of  the  most  distin 
guished  gentlemen  to  be  found  anywhere — one  of 
them  the  most  fervid,  eloquent,  and  forcible  among 


the  living  orators  of  the  world,  (Mr.  Choate)  ;  the 
other,  one  of  the  most  distinguished  and  profound 
legal  professors,  whose  jurisprudence  has  ever 
given  distinction  to  any  legal  institution  in  the 
world,  (Prof.  Greenleaf).  We  have  also  had  an 
able  argument  for  the  life  tenure,  from  one  of  the 
most  eminent  judges  of  this  Commonwealth,  who 
himself  sat  for  fifteen  years  upon  the  bench  of  the 
supreme  court,  (Judge  Morton).  Around  these 
three  great  legal  lights  have  gathered — I  hope  I 
may  be  excused  for  saying  it — the  lesser  satellites 
of  the  bar,  who  have  come  to  their  support.  This 
doctrine  of  a  tenure  for  life  for  judicial  officers,  is 
sustained  by  these  gentlemen  ;  by  distinguished 
professors  ;  by  distinguished  advocates  at  the  bar  ; 
who  are  in  all  possible  favor  with  the  judiciary,  and 
whose  personal  influence  is  often  exceedingly  effec 
tive  in  turning  the  balance  of  the  scale  where  the 
argument  is  doubtful.  But,  while  the  bar  and  the 
bench  thus  say  give  the  judges  a  life  tenure,  what 
say  the  people  here  ?  When  has  a  prominent 
member  risen  who  has  supported  the  life  tenure 
of  judges  who  has  not  been,  or  might  have  been, 
or  is  not  himself,  in  some  way  in  the  line  of  suc 
cession?  Now  these  learned  gentlemen  have 
attempted  to  terrify  this  Commonwealth,  and  the 
members  of  the  Convention,  by  depicting  the 
awful  consequences  of  destroying  this  life  tenure. 
England  had  it  for  a  great  while,  before  we  took 
it.  We  have  had  it  for  a  long  time,  and  gentle 
men  say,  we  must  continue  to  have  it,  or  property 
and  person  will  110  longer  be  safe  !  Well,  Sir, 
I  respect,  but  cannot  sympathise  with  their  fears. 
When  they  so  solemnly  deprecate  this  idea  of  a 
change  of  the  tenure  of  judicial  office,  and  depict 
the  awful  consequences  which  are  to  follow,  it 
reminds  me  of  the  similar  and  equally  sincere 
apprehensions  of  poor,  unhappy  George  III.,  when 
on  the  5th  of  December,  1782,  he  signed  that 
famous  message  of  his  to  parliament,  acknowl 
edging  the  independence  of  America.  That  very 
pious  gentleman  said  upon  that  occasion  :  "I 
make  it  my  humble  prayer  to  Almighty  God,  that 
America  may  be  free  from  those  calamities  which 
have  proved  how  essential  MONARCHY  is  to  the 
enjoyment  of  constitutional  liberty ! "  When 
Burke  was  commenting  upon  that  message  in  par 
liament,  and  came  to  that  passage,  he  threw  the 
whole  House  into  a  roar  of  laughter  by  one  of  his 
dashes  of  ridicule,  in  which  he  described  the  king 
"  in  this  marvellous  exhibition  of  piety,  falling 
upon  his  knees  to  deprecate  the  awful  conse 
quences  likely  to  result  to  America  from  the  want 
of  monarchy ;"  and  he  might  have  added,  such  a 
monarch  for  life  as  George  III. 

Now,  I  think  we  are  in  about  the  same  con 
dition  here,  seventy  years  after  that  event,  touch- 


62d  day.] 


THE   JUDICIARY. 


191 


Wednesday,] 


HALLETT. 


[July  20th. 


ing  judicial  life  tenures.  The  wisdom  and  fore 
sight  of  pious  George  III.,  must  be  still  living 
among  us,  when  wise  men  stand  up  here  in  the 
last  half  of  the  nineteenth  century,  and  pray 
Almighty  God  to  save  Massachusetts  from  the 
awful  consequences  which  will  follow,  if  she  does 
not  have  a  life  tenure  for  her  judges  !  There  is 
just  as  much  reason  and  common  sense  in  the  one 
as  in  the  other  apprehension,  and  the  progress  of 
the  age  has  already  shown  just  as  much  truth  in 
these  modern  fears  about  the  judiciary,  as  there 
was  in  the  lamentations  of  George  III.,  about 
America  and  monarchy,  and  constitutional  liberty. 
Sir,  as  to  this  matter  of  taking  our  lessons  of 
government  from  England,  or  of  what  England 
has  given  us — for  it  seems  that  there  are  gentle 
men  here,  as  well  as  elsewhere,  who  think  we 
cannot  have  anything  which  England  has  not 
given  us — I  say  England  has  given  us  nothing 
good  that  we  have  not  improved,  and  I  say,  as  to 
the  life  tenure  of  judicial  officers,  which  we  de 
rived  from  England,  there  was  some  reason  for  it 
there,  where  the  sole  power  is  in  the  hands  of  the 
king ;  but  there  is  no  good  reason  for  it  here,  where 
the  power  is  in  the  hands  of  the  people.  The 
courts  there,  may,  by  being  independent  of  the 
king,  protect  the  people,  but  they  would  do  all 
that  a  great  deal  better,  if  elected  by  the  people,  in 
spite  of  the  king.  With  us  we  want  judges  to 
protect  the  people  against  the  legislature  and  the 
executive,  and  not  against  the  sovereign  power. 
The  gentleman  for  Marshfield,  (Mr,  Sumner,) 
said  the  other  day,  upon  another  topic,  that  Eng 
land  had  given  us  five  great  institutions,  and  he 
went  on  and  enumerated  them.  One,  was  the 
doctrine  that  the  atmosphere  of  Great  Britain 
could  not  be  breathed  by  a  slave  !  England  give 
us  that  doctrine  ?  No,  Sir.  England  gave  us 
exactly  the  opposite  doctrine.  England  gave  us 
slavery,  and  fastened  it  upon  us.  I  will  tell  that 
gentleman  what  five  institutions  England  has 
given  to  us. 

England  gave  us  religious  persecution.  Well,  I 
thank  her  for  that,  for  it  planted  our  colonies. 

England  gave  us  taxation  without  representation. 
I  thank  her  for  that,  for  it  achieved  our  indepen 
dence. 

England  gave  us  insult  to  the  new  States,  and 
sought  to  crush  them,  by  commercial  restrictions. 
I  thank  her  for  that,  too,  for  it  gave  us  our 
glorious  UNION. 

England  gave  us  search  on  the  hiyh  seas,  and 
impressed  our  seamen.  I  thank  her  for  that  also, 
for  it  forced  us  into  the  war  for  a  second  indepen 
dence,  a  moral,  intellectual,  commercial  and  man 
ufacturing  independence,  as  important  as  any  we 
had  achieved  over  the  mother  country. 


Lastly,  England  gave  us  the  institution  of 
slavery,  and  for  that,  I  do  not  thank  her.  Instead 
of  an  atmosphere  in  which  a  slave  could  not 
breathe,  she  poisoned  the  atmosphere  of  the  colo 
nies,  by  importing  slaves,  compelled  to  breathe  it. 
And,  Sir,  but  for  England,  with  her  cupidity  and 
her  slave-trade,  we  never  would  have  had  this 
question  raised  and  agitated  here  as  a  discordant 
element  in  free  institutions. 

Let  not  the  gentleman  for  Marshfield,  (Mr. 
Sumner,)  come  here  with  eulogies  upon  England 
and  English  aristocracy,  which  are  to  go  back  to 
that  country,  the  great  oppressor  of  labor,  to  be 
taken  up  by  those  who  frequent  the  house  of 
"My  Lady  Sutherland,"  to  abuse  America,  and 
superciliously  thank  God  they  are  not  like  these 
publicans  !  I  want  no  such  sympathy  from 
England.  These  very  philanthropic  individuals, 
these  high  lords  and  ladies,  who  take  hold  of  this 
sore  that  they  think  exists  under  the  general  Con 
stitution  of  our  country,  do  it  for  what  r  Not 
that  they  love  America,  but  because  they  would 
inwardly  exult  to  see  anything  festering  in  the 
heart  of  America,  which  they  think — but,  thank 
God,  falsely  believe — will  impair,  if  not  destroy, 
its  free  Constitution ;  I  have  no  faith  in  such 
sympathy  from  England  for  America.  I  look  for 
true  sympathy  from  her  masses,  her  great  com 
moners,  and  not  from  her  sickly  aristocracy. 

Then,  Sir,  as  it  regards  this  question  of  the  life 
tenure  of  the  judges,  which  we  have  derived  from 
England,  what  do  we  propose  ?  Why,  we  pro 
pose  that  we  shall  no  longer  follow  the  principles 
or  practice  of  England,  upon  this  single  question, 
just  as  we  long  ago  ceased  to  follow  her  doctrine, 
that  the  executive  office  should  be  held  for  life. 
I  do  not  know  of  an  argument  in  favor  of  a  ju 
dicial  tenure  for  life,  which  is  not  equally  strong 
in  favor  of  an  executive  tenure  for  life.  Now, 
Sir,  I  am  not  going  to  England  for  any  such 
institutions.  I  will  take  her  common  law  doc 
trines,  as  far  as  they  go,  and  improve  upon  them ; 
but,  Sir,  I  would  prevent  the  judges  in  this 
country,  whenever  I  have  any  power  of  doing  so, 
from  having  that  sort  of  independent  life  tenure 
which  the  twelve  judges  of  England  had,  when, 
on  one  occasion,  they  were  used  to  carry  out,  for 
the  government,  the  doctrine  of  constructive 
treason.  There  was  a  law  in  England,  as  there 
is  in  this  country,  that  there  must  be  two  wit 
nesses  to  the  same  overt  act  of  treason,  in  order 
to  convict  a  citizen  of  that  crime.  The  simplest 
proposition  in  the  world,  because  otherwise  there 
is  the  oath  of  allegiance  in  the  person  charged 
with  the  crime  on  the  one  side,  and  the  oath  of  a 
single  man  that  he  has  violated  it  on  the  other. 
What  did  these  twelve  judges,  holding  their  tenure 


192 


THE   JUDICIARY. 


[62d  day. 


Wednesday,] 


HALLETT  —  DANA. 


[July  20th. 


for  life,  do  ?  The  king  wanted  to  convict  certain 
subjects  of  treason,  but  the  law  was  in  his  way. 
The  king  called  together  the  twelve  judges  of 
England,  and  submitted  this  proposition  to  them ; 
and  I  ask  the  attention  of  the  learned  professor 
from  Cambridge,  (Mr.  Greenleaf,)  to  it:  "If  J. 
S.  buy  a  knife  to  kill  the  king,  and  it  be  proved 
by  one  witness  that  he  bought  a  knife  for  that 
purpose,  and  another  comes  and  proves  he  bought 
such  a  knife,  are  they  two  witnesses  to  one  overt 
act  sufficient  to  prove  high-treason  ?"  And  the 
learned  judges  all  said  "  yes,"  in  presence  of  all 
the  king's  counsel !  Now  tell  me  not  of  judicial 
independence,  and  judicial  impartiality,  when  it 
comes  in  contact  with  political  power  in  England  ! 
Their  Holts,  and  Scroggs,  and  their  Jeffreys,  and 
Norburys,  were  judges  for  life,  and  the  bloodiest 
annals  that  stain  the  pages  of  history,  mark  the 
track  of  the  judicial  decisions  of  English  judges 
of  life  tenure. 

Those  were  decisions  in  the  courts  of  common 
law,  where  all  the  judges  are  appointed  for  life. 
But  let  us  look  into  the  court  of  chancery,  the 
great  equity  tribunal  of  England.  Have  gentle 
men  thought  it  worth  while  to  tell  us  by  what 
tenure  the  Lord  Chancellor  holds  his  office  ?  No. 
Did  the  gentleman  from  Boston,  (Mr.  Choate,) 
ever  think  of  it  ?  If  so,  why  did  he  not  inform 
us  how  long  the  Lord  Chancellor  of  England 
holds  his  office  ?  Just  as  long  as  the  ministry 
themselves,  and  no  longer.  He  is  appointed  upon 
every  change  of  the  ministry,  and  changes  with 
every  political  change  in  the  administration.  And 
yet,  more  property  rights,  and  more  great  ques 
tions  between  parties,  involving  the  guardianship 
of  all  wards  and  minors,  and  the  settlement  of 
trust  estates,  passes  through  the  court  of  the 
chancellor,  than  through  all  the  other  courts  of 
England. 

Mr.  DANA,  for  Manchester.  If  the  gentleman 
will  permit  me  to  interrupt  him,  I  wish  to  say 
that  England  has  felt  the  importance  of  no  longer 
having  the  Lord  Chancellor  a  political  judge,  and 
they  have  already  passed,  or  are  about  to  pass,  a 
bill  to  give  him  a  life  tenure. 

Mr.  HALLETT.  They  are  just  about  doing 
that  the  gentleman  informs  us,  and  I  inform  him 
that  we  are  just  about  going  the  other  way.  That 
is  just  the  difference  in  progress  and  freedom,  be 
tween  the  old  and  the  new  world.  All  the  old 
world  has  gone  back  to  utter  despotism.  The 
heel  of  the  tyrant  is  on  every  neck  in  Europe, 
and  England  is  about  to  follow  in  the  same  course  ; 
and  we  are  asked  to  retain  the  life  tenure  of 
judges,  because  England  may,  possibly,  apply  it 
to  the  only  judge  she  has  without  it.  No,  Sir ; 
that  is  no  argument,  but  the  reverse,  for  the 


United  States  of  America.  "Where  is  Hungary, 
and  her  free  Constitution  ?  Trampled  down  in 
the  dust  of  the  earth,  and  trampled  down,  too,  by 
this  dogma  of  life  tenure  of  kings,  and  lords,  and 
judges,  and  other  officers  and  instruments  of 
despotic  power.  It  is  time  we  had  done  looking 
in  this  new  world,  to  the  old,  for  examples  to 
guide  us  in  government.  We  have  good  prece 
dents  in  our  own  country,  and  we  need  not  go  to 
Europe  for  them.  Let  us  rather  take  such  as  we 
have  here,  and  see  how  they  stand.  There  are 
fourteen  States  in  this  Union  in  which  the  judges 
are  elected  by  the  people  ;  ten  States  in  which 
they  are  appointed ;  and  but  seven  States  in 
which  they  hold  a  life  tenure.  And  which  are 
those  seven  States  ?  New  Hampshire,  who  has 
never  changed  her  Constitution  ;  Massachusetts, 
who  is  about  to  change  hers,  I  trust,  in  this  mat 
ter  ;  Connecticut,  who  has  not  changed  hers  since 
1818  ;  North  Carolina  and  South  Carolina,  with 
their  old  colonial  Constitutions ;  Delaware,  the 
least  considerable  State  in  the  Union  ;  and  Ala 
bama,  in  her  Constitution  of  1819,  the  only  new 
State  that  has  fallen  into  this  old  usage  of  mo 
narchical  government.  In  twenty- four  States  of 
this  Union,  there  is  a  limited  judicial  tenure, 
averaging  in  the  whole  but  six  years.  The  four 
largest  States  elect  their  judges — Pennsylvania  for 
fifteen  years  ;  New  York  and  Virginia  for  eight 
years,  and  Ohio  for  five.  Massachusetts  may 
safely  stand  on  ten  years,  where  I  hope  to  see  it 
placed,  at  this  time.  Now,  Sir,  is  there  any 
danger  in  following  these  examples  in  future 
appointments  of  judges  ? 

Let  me  hasten  to  say,  in  conclusion — for  my 
time  is  just  running  out — that  while  I  would 
divest  myself  of  every  personal  consideration  in 
this  matter,  all  I  desire  is,  that  in  conformity  with 
every  fundamental  principle  of  popular  govern 
ment,  the  j  udges  shall  be  made  accountable.  Give 
me  accountability  for  the  judges  of  all  our  courts 
to  somebody,  at  some  stated  time,  in  some  way, 
and  I  shall  be  content.  I  prefer  to  begin  with 
the  limitation  of  ten  years,  but  I  must  take  the 
seven,  if  it  is  that  or  no  limitation.  The  cry  of 
the  people  everywhere,  concerning  their  judges 
and  rulers  is,  give  us  accountability  ! 

Sir,  accountability  is  the  great  moral  gravita 
tion,  without  which  heaven  and  earth  would  fall 
asunder  !  Wherever  there  are  human  agencies, 
wherever  there  are  intellectual  beings,  there  must 
be  accountability.  Without  accountability  to  his 
God,  man  is  but  a  beast ;  without  accountability 
to  the  public  will,  the  ruler  is  but  a  despot ;  and 
without  accountability  to  the  people,  the  judge, 
with  his  life  tenure  on  the  bench,  is  but  a  modified 
tyrant. 


62d  day.] 


THE   JUDICIARY. 


193 


Wednesday,] 


FRENCH. 


[July  20th. 


[Here  the  hammer  fell,  at  the  close  of  the  half 
hour,  as  the  speaker  took  his  seat.] 

Mr.  FRENCH,  of  New  Bedford.  Mr.  Presi 
dent  :  I  have  been  much  interested  in  this  discus 
sion,  and  from  what  I  have  heard,  I  am  satisfied 
that,  since  the  subject  was  up  before,  there  has 
been  quite  a  change  of  opinion  among  the  mem 
bers  of  the  Convention.  I  have  no  doubt  that  if 
this  discussion  were  to  continue  a  little  longer, 
•we  should  have  a  majority  in  favor  of  the  amend 
ment  of  the  gentleman  from  Worcester ;  and  if 
the  question  could  be  postponed,  and  come  up  a 
few  days  later,  I  presume  we  should  even  have  a 
majority  in  favor  of  electing  judges  by  the  people. 
Sir,  what  is  the  reason  of  this  change  of  opinion  r 
Since  the  subject  was  discussed  before,  gentlemen 
have  been  home  to  their  constituents,  and  they 
have  come  back  with  new  light  as  to  the  opinions 
of  the  people,  upon  this  subject.  If  they  would  rise 
in  their  places,  and  testify  what  they  have  seen 
and  heard,  many  of  them  would  tell  us  that  their 
constituents  have  said  to  them,  "  Give  us  an 
elective  judiciary." 

Sir,  as  I  said  on  a  former  occasion,  I  am  for  a 
system  that  shall  bring  the  judges  a  little  more  in 
sympathy  with  the  people.  We  were  told  here 
the  other  day,  by  the  distinguished  member  from 
Boston,  (Mr.  Choate,)  of  the  purity  of  the  judges 
of  this  country,  and  Lord  Mansfield,  and  the 
common  law  of  England,  were  not  only  alluded 
to,  but  eulogized.  Sir,  have  we  Mansfields  upon 
the  bench  of  our  supreme  court  ?  Have  we  even 
apologies  for  Mansfields  there  ?  If  we  had,  how 
would  human  rights  stand  affected  by  the  change  ? 
It  will  be  remembered,  that  Lord  Mansfield  lib 
erated  Somerset,  and  caused  the  shackles  to  fall 
from  the  limbs  of  every  slave  in  Great  Britain, 
against  the  influence  of  the  government  of  Eng 
land,  and  in  favor  of  the  impulses  of  the  people. 
If  we  had  the  common  law  of  England,  and 
Mansfields  to  administer  it,  how  long  should  we 
be  compelled  to  look  upon  human  slavery  in  this 
country  ? 

There  was  a  case  a  few  days  ago  in  this  city, 
illustrative  of  this  point :  A  man  appeared  in 
this  harbor,  on  board  the  brig  Florence,  from 
Wilmington,  N.  C.,  just  escaped  from  the  land 
of  whips  and  chains,  panting  for  liberty,  which 
he  had  perilled  his  all,  yes,  even  his  life,  to  obtain, 
and  when  he  was  just  about  to  touch  our  soil,  and 
was  in  imminent  danger  of  being  seized,  and  sent 
back,  could  his  friends  obtain  from  the  justices  of 
your  supreme  court,  a  writ  of  habeas  corpus  to 
prevent  his  being  returned  into  slavery,  "  without 
due  process  of  law  :  "  No,  Sir ;  but  they  took 
out  a  writ  of  habeas  corpus  from  the  people,  and 
a  writ  which  put  him  in  possession  of  his  rights. 

13s 


While  the  captain,  after  nailing  him  up  in  a 
box,  was  looking  round  after  your  commissioners, 
your  marshals,  and  the  officers  of  the  govern 
ment,  to  seize  him  and  bind  him,  and  carry  him 
back  to  slavery,  he  took  an  appeal  to  the  people. 
They  granted  a  writ  of  habeas  corpus  upon  which 
he  was  taken  ashore,  and  set  at  liberty.  He  is 
now,  I  hope,  in  Queen  Victoria's  dominions,  re 
joicing,  not  as  the  gentleman  for  Manchester,  (Mr. 
Dana,)  said  the  other  day,  that  he  had  been  tried1 
before  a  court  of  independent  judges — as  indepen 
dent  and  impartial  as  the  lot  of  humanity  will 
admit.  No,  Sir ;  but  that  he  had  obtained  a  writ 
of  habeas  corpus  from  the  people,  by  virtue- 
of  which,  he  was  beyond  the  reach  of  his  oppres 
sors. 

Sir,  I  regretted  exceedingly,  to  hear  it  said  the 
other  day,  by  a  gentleman  in  this  Convention, 
the  learned  gentleman  from  Cambridge,  (Mr. 
Parker,)  in  whom  so  much  confidence  is  re 
posed,  in  matters  of  law,  that  while  the  fugitive 
slave  law  was  upon  our  statute  books,  it  was  the 
law  of  the  land,  and  it  must  be  obeyed.  Oh ! 
how  it  thrilled  through  my  bosom.  Where  i» 
the  man  in  this  Convention,  who,  if  he  had  stood 
xipon  the  shores  of  our  harbor  when  that  poor 
panting  fugitive  landed,  to  whom  I  have  referred, 
if  the  officers  of  your  government  had  been  there, 
ready,  but  unable  to  subdue  him,  and  called  upon 
him  to  assist  in  seizir.g  him,  would  have  done  it? 

Sir,  1  put  it  to  every  gentleman  in  this  Con 
vention  ;  the  gentleman  from  Cambridge,  and  the 
gentleman  for  Wilbraham,  in  particular  :  would 
you  have  assisted  the  marshal,  had  he  needed, 
and  commanded  your  services,  to  have  dragged 
that  fugitive  before  a  ten- dollar  commissioner, 
(Mr.  Curtis,)  who  would  have  doomed  him  to 
the  chains  of  slavery  : — "  one  hour  of  which,  t> 
fraught  with  more  misery  than  ages  of  that  which 
our  fathers  rose  in  rebellion  to  oppose"  I  ask  any 
man  who  believes  in  the  doctrine  that  a  law  must 
be  observed,  because  it  is  spread  out  upon  your 
statute  book,  whether  he  would  have  helped  to 
have  sent  that  man  back  to  slavery  ?  Will  any 
man  rise  in  his  place  and  say,  yes  ?  I  pause  for  a 
reply.  No,  Sir  ;  no  one  will  do  that,  because  that- 
man  is  not  in  this  Convention,  and  I  thank  God 
that  he  is  not. 

Now,  Sir,  I  have  not  a  word  to  say  against  the 
judges  of  our  supreme  court.  I  do  not  believe, 
as  I  was  represented  by  the  gentleman  for  Wil 
braham,  to  intimate,  the  other  day,  that  judges  of 
the  supreme  court  should  violate  their  oaths.  I 
do  not  wish  to  elect  judges  who  will  violate  their 
oaths.  Oh  no,  Sir ;  but  I  do  want  to  elect  judge* 
who  shall  be  near  enough  to  the  people,  to  re 
member,  and  realize,  too,  that  men  have 


194 


THE   JUDICIARY. 


[62d  day. 


Wednesday,] 


FRENCH. 


[July  20th. 


able  rights,  and  who,  when  a  man  conies  before 
them,  and  applies  for  his  liberty — when  he  comes 
and  asks  for  his  rights,  to  which  he  is  entitled 
under  the  Declaration  of  Independence,  the  Con 
stitution  of  the  United  States,  and  the  Bill  of 
Rights,  and  laws  of  the  Commonwealth  of  Mas 
sachusetts — will  grant  them  to  him,  and  not  turn 
their  backs  upon  him,  without  making  any  reply. 
I  want  supreme  judges  who  can  remember  that 
the  Constitution  of  the  United  States,  says  this: — 

"No  person  held  to  service  or  labor  in  one 
State,  under  the  laws  thereof,  escaping  into  an 
other,  shall  in  consequence  of  any  law,  or  regu 
lation  therein,  be  discharged  from  such  service  or 
labor,  but  shall  be  delivered  up,  on  claim  of  the 
party  to  whom  such  service  or  labor  shall  be  due." 

No  person  shall  be  "deprived  of  life,  liberty,  or 
property,  without  due  process  of  law."  Which 
means  trial  by  jury.  And,  farther  : — 

"  In  suits  at  common  law,  where  the  value  in 
controversy  shall  exceed  twenty  dollars,  the  right 
of  trial  by  jury  shall  be  preserved." 

I  want  them  to  remember  that  before  such  per- 
ecm  can  be  sent  back  into  slavery,  it  must  be  shown 
that  such  service  or  labor  was  due  to  the  party 
claiming  it,  under  the  laws  of  the  State  from  which 
he  comes.  Here,  is  where  I  claim  the  Constitu 
tion  of  the  United  States  is  violated  in  its  most 
essential  provision.  I  want  it  to  be  shown,  that 
the  service  or  labor  of  a  slave,  is  due  to  the  party 
claiming  him,  by  the  laws  of  the  State  from 
whence  he  has  escaped.  It  cannot  be  done.  There 
is  not  a  single  State  in  the  Union  that  has  upon 
its  statute  book  a  law  making  any  man  or  woman 
a  slave.  And  when  they  come  to  the  State  of 
Massachusetts  and  claim  the  right  to  take  a  man 
from  our  soil,  they  must  first  show,  according  to 
the  Constitution  of  the  United  States,  that  he 
owes  service  or  labor,  under  the  law  of  the  State 
from  whence  he  has  escaped.  This  must  be  done, 
too,  by  "  due  process  of  law."  No  grab  game, 
No  snap- judgment.  They  know  they  cannot 
show  it;  and,  therefore,  it  is  that  your  odious, 
abominable,  detestable,  unrighteous,  inhuman, 
heathenish,  barbarous,  heaven -daring,  man-de 
basing,  woman-kill' ng,  demon- pleasing,  uncon 
stitutional  fugitive  slave  law  was  made,  [laughter,] 
which  is  no  law,  and  should  be  trampled  un 
der  foot  by  every  freeman  in  the  land.  Lord 
Brougham  has  said : — 

"  There  is  a  law  above  all  the  enactments  of 
human  codes,  the  same  throughout  the  world ; 
the  same  in  all  times ;  such  as  it  was  before  the 
daring  genius  of  Columbus  pierced  the  night  of 
ages,  and  opened  to  one  world  the  sources  of 
power,  wealth,  and  knowledge,  and  to  another 


all  unutterable  woes  ;  and  such  as  it  is  this  day. 
It  is  the  law  written  by  the  finger  of  God  on 
the  heart  of  man ;  and  by  that  law,  unchangea 
ble  and  eternal,  while  men  despise  fraud,  and 
loathe  rapine,  and  abhor  blood,  they  shall  reject 
with  indignation  the  wild  and  guilty  fantasy  that 
man  can  hold  property  in  man." 

Sir,  when  congress  passed  that  law,  those  men 
who  voted  for  it  knew  it  would  be  no  law.  They 
knew  it  was  in  violation  of  the  Constitution  of 
the  United  States.  They  knew  all  this.  Will 
any  man  stand  up  here  and  deny  it  ?  Why  did 
they  make  it  at  all  ?  Because  they — the  slavehold 
ers—knew  they  could  not  come  to  Massachusetts, 
and  other  free  States,  and  take  a  fugitive  slave 
under  constitutional  law,  for  constitutional  law 
required  them,  in  the  first  place,  to  show  that 
the  fugitive  owed  service  or  labor,  under  the  law 
of  the  State  from  whence  he  had  escaped,  and 
they  could  not  show  that,  because  no  State  has 
enacted  any  such  law.  Therefore  it  became  neces 
sary  to  pass  a  law  in  violation  of  the  Constitu 
tion  of  the  United  States,  in  order  to  allow  them 
to  come  North  and  take  up  fugitives,  and  carry 
them  back  to  slavery.  It  could  only  be  done  in 
violation  of  the  Constitution  of  the  United  States, 
in  violation  of  the  Bill  of  Rights,  and  of  the  Con 
stitution  of  the  Commonwealth  of  Massachusetts, 
and  of  every  free  State  in  the  Union. 

Sir,  how  was  it  in  the  case  of  Sims?  The 
learned  gentleman  for  Manchester  tells  us  he  was 
one  of  his  (Sims')  counsel  in  that  case.  The 
Constitution  of  the  United  States  and  the  laws  of 
this  Commonwealth  were  disregarded  entirely. 

A  member  (interrupting)  here  asked  what  was 
the  question  before  the  Convention.  [Laughter.] 

The  President  said  it  was  upon  the  amendment 
of  the  gentleman  from  Worcester. 

Mr.  FRENCH,  (resuming).  And  the  gentle 
man  for  Manchester  remarked,  although  he  lost 
that  case,  yet  he  rejoiced  that  it  was  brought  be 
fore  a  court  of  independent  judges— as  indepen 
dent  and  impartial  as  the  "  lot  of  humanity  would 
admit."  Now,  I  ask  that  gentleman,  supposing 
he  were  to  change  sides  for  a  moment,  and  Sims 
were  the  lawyer,  and  the  learned  gentleman 
for  Manchester  the  client,  would  his  rejoicing, 
think  you,  have  been  the  same  ?  If  it  would, 
then  when  he  arrived  upon  the  rice  plantation, 
down  in  Georgia,  he  would  have  lifted  up  his 
prayer,  morning  and  evening,  thanking  God  that 
although  he  was  condemned  to  slavery,  he  had 
been  fairly  tried  and  condemned  by  a  judge  who 
was  as  independent  and  impartial  as  the  "  lot  of 
humanity  would  admit."  [Great  laughter.]  If 
he  would  have  done  that,  he  would  certainly 
have  exhibited  more  of  the  Christian  spirit  than 


62d  day.] 


THE   JUDICIARY. 


195 


Wednesday,] 


FRENCH. 


[July  20th. 


it  has  been  my  lot  to  fall  in  with  yet.  No,  Sir  ; 
I  tell  you  he  would  have  offered  up  an  entirely 
different  prayer.  If  he  had  had  any  thanksgiv 
ings  to  render  up,  they  would  have  been  of  an 
entirely  different  character.  I  think  he  would 
have  been  apt  to  have  repeated  the  109th  Psalm 
and  8th  verse  :  "  Let  his  days  be  few,  and  let 
another  take  his  office." 

Sir,  there  is  not  a  man  in  this  Convention  to 
day  who  can  deny  that  Sims  was  not  entitled  to 
the  same  privileges  of  life  and  liberty  that  we 
are. 

A  poor  trembling  fugitive  came  to  my  door  the 
other  day,  having  been  five  long  weeks  under 
the  forecastle  floor  of  a  schooner,  in  close  con 
finement,  in  coming  from  that  land  of  sighs  and 
groans ;  and  while  the  gentleman  for  Manchester 
was  offering  up  his  thanksgiving  for  independent 
judges,  and  praying  that  they  might  continue  to 
be  appointed  for  life,  instead  of  appealing  to  them, 
that  same  writ  of  habeas  corpus  was  applied  for 
and  issued  by  the  people,  who  took  him  safely 
off,  and  he  is  now,  I  trust,  in  Canada. 

Who  does  not  rejoice  at  it  ?  Does  any  one  wish 
to  help  catch  him  r  The  aforesaid  fugitive  slave 
law  must  be  enforced,  must  it  ?  I  desire  to  bring 
the  case  nearer  home.  The  way  to  test  a  princi 
ple  and  gentlemen's  professions  here  is  to  take  an 
extreme  case.  While  I  am  speaking,  for  instance, 
suppose  a  poor  fugitive  woman,  with  her  little 
one  in  her  arms,  enters  yonder  door,  rushes  down 
that  aisle,  and  undertakes  to  crawl  in  behind  your 
chair,  Mr.  President,  for  protection,  followed  by 
her  husband,  and  at  the  other  door  in  come  the 
officers  of  the  law  in  pursuit.  The  marshal  of 
the  United  States,  with  his  insignia  indicating  his 
office,  comes  down  near  your  desk,  while  the 
husband  of  the  poor  woman  stands  between  her 
and  that  officer.  You  all  sit  here,  and  of  course, 
I  stop  speaking,  while  that  husband  stands  up  in 
all  his  manhood,  and  says  to  the  officer  and  posse, 
thus  far  you  shall  come,  and  no  farther,  upon 
your  peril ;  and  he  produces  his  weapons  of  de 
fence,  which  convinces  the  officer  that  he  is  too 
much  for  him.  The  officer  calls  upon  you,  gen 
tlemen,  in  this  Convention,  by  virtue  of,  and  in 
obedience  to  the  fugitive  slave  law,  in  the  name 
of  the  United  States  of  America,  to  assist  him  in 
seizing,  binding  these  fugitives,  and  taking  them 
before  a  commissioner.  Would  you  do  it  ?  That 
is  the  question.  No  !  not  a  man  here  would  lift 
his  hand  to  assist  that  officer,  notwithstanding  that 
aforesaid  fugitive  slave  law  commands  all  good 
citizens  to  assist  in  its  execution.  Then  away  with 
the  idea  that  whilst  it  is  upon  the  statute  book, 
it  must  be  obeyed  and  enforced.  Spit  upon  it — 
trample  upon  it,  rather  than  obey  and  enforce  it 


The  attempt  never  would  have  been  made  to  exe 
cute  the  law  in  Massachusetts,  had  it  not  been  for 
a  particular  political  purpose,  and  I  do  not  believe 
it  will  be  attempted  again  very  soon  by  the  au 
thorities  of  the  city  of  Boston,  or  if  attempted, 
that  it  will  be  backed  up  by  a  corps  of  fifteen 
hundred  of  her  most  wealthy  and  influential 
merchants. 

I  wish  to  say  one  word  more  in  reply  to  what 
was  said  of  Lord  Mansfield.  He  struck  the  fet 
ters  from  every  slave  in  Great  Britain,  and  all  we 
want  here  is  judges  like  Mansfield.  Had  we  one 
or  two  Mansfields  on  the  bench  of  the  supreme 
court  of  the  United  States,  then,  when  men 
brought  their  fugitive  slave  cases  before  that  court, 
they  would  set  the  slaves  free.  I  remember 
reading  that  there  was  a  judge  once,  who,  the 
first  time  the  question  was  brought  before  him, 
set  the  slave  free,  and  with  him  every  slave  in 
this  Commonwealth.  He  was  a  little  nearer  the 
pattern  of  Lord  Mansfield  than  any  judge  you 
find  now  a  days.  There  was  a  judge  in  Vermont, 
who,  when  a  similar  case  was  brought  before 
him,  required  a  bill  of  sale  from  the  court  of 
Heaven,  to  prove  one  man's  title  to  another. 
Although  we  did  take  our  common  law  from 
England,  and  with  it  our  slavery,  still  let  me  say 
to  gentlemen  that  England  has  set  us  a  glorious 
example  in  the  application  of  that  law,  by  the 
manumission  of  her  slaves,  worthy  of  our  swift 
est  imitation,  and  the  imitation  of  every  republic 
and  government  on  earth.  It  makes  me  feel  sad 
for  my  country  to  hear  men  talk  about  liberty, 
while  I  remember  that  there  are  so  many  millions 
of  poor  creatures  in  slavery  down  South.  Gen 
tlemen  can  sympathize  with  Hungary,  but  they 
cannot  sympathize  with  three  and  a  half  millions  of 
human  beings,  crushed  in  slavery  at  home,  denied 
the  privilege  of  the  marriage  institution,  worked 
without  pay,  scourged  without  mercy,  sold  upon 
the  auction-block,  maimed  with  impunity,  and 
thousands  of  them  hunted  with  blood-hounds, 
and  shot  as  outlaws.  Every-body  admits  that 
slaves  are  human  beings.  How  long  shall  these 
things  continue  ? 

In  discussing  this  question  the  other  day,  the 
gentleman  from  Boston,  (Mr.  Choate,)  in  regard 
to  the  matter  of  the  great  expense  of  collecting 
debts,— and  let  me  here  say  that  I  thank  the  gen 
tleman  for  his  kindness, — used  this  language: 
"  I  would  recommend  the  gentleman  from  New 
Bedford  to  advise  his  friend  to  change  his  law 
yer."  I  knew  a  man  once  to  do  that,  and  he  not 
only  had  to  pay  the  new  one  for  doing  the  busi 
ness,  but  he  had  to  pay  the  old  one  to  keep  him 
still.  [Laughter.]  The  gentleman  said  that 
business  would  be  delayed,  because  there  would 


196 


THE   JUDICIARY,   &c. 


[62d    day. 


Wednesday,] 


FRENCH  —  CUSHMAN  —  HOOPEB. 


[July  20th. 


not  be  judges  enough  to  do  the  business.  I  hap 
pened  to  step  into  the  police  court  room,  in  this 
city,  the  other  morning,  to  see  a  gentleman  I  was 
told  could  be  found  there,  and  while  waiting,  the 
justice  disposed  of  some  twenty  cases  in  about  as 
many  minutes.  And  this  was  all  done  by  a 
single  police  judge. 

What  a  great  blessing  it  would  be,  when  cases 
come  into  the  court  of  common  pleas,  and  the 
supreme  court,  if  they  were  put  through  the  same 
or  even  with  appropriate  speed.  It  seems  to  me  if 
judges  wereelected  by  the  people,  that  there  would 
be  more  promptness  and  dispatch  in  the  decision 
of  cases,  because  the  people  would  demand  that 
such  should  be  the  order  of  things.  In  that  case, 
there  would  be  no  two  or  three  years'  delay  to 
find  out  whether  a  man's  fence  was  two  or  three 
feet  over  the  line  of  another  man's  ground  or 
swamp  pasture,  which  was  not  worth  two  dol 
lars  an  acre,  the  decision  of  which  would  cost 
hundreds  of  dollars.  [Laughter.] 

I  am  in  favor  of  the  amendment  of  the  gentle 
man  from  Worcester,  (Mr.  Knowlton,)  because 
as  the  gentleman  from  Lowell,  (Mr.  Butler,)  said, 
it  is  tetter  than  anything  now  before  us.  I  will 
take  it  as  far  as  it  goes.  I  wish  it  was  one  or 
two  stages  farther  off,  because  by  the  time  it 
came  to  its  final  passage,  I  think  that  we  might 
get  a  vote  for  electing  judges  by  the  people.  I 
support  this  amendment,  because  if  nominations 
have  to  go  before  the  Senate,  our  governors  would 
be  a  little  careful  to  make  the  very  best  nomina 
tions,  with  some  other  recommendations  beside 
the  fact  that  they  were  "  live,  young,  and  active 
Whigs."  If  the  governor  had  to  nominate  them 
to  the  Senate,  he  would  endeavor,  I  think,  to 
select  men  who  have  character,  standing,  and 
something  else  besides  ability  to  serve  party  pur 
poses.  When  this  question  is  taken,  I  feel  per 
fectly  confident,  and  I  earnestly  desire  that  this 
amendment  will  prevail. 

The  usual  hour  of  adjournment  having  arrived, 
Mr.  French  gave  way,  and  on  motion,  the  Con 
vention  adjourned  until  three  o'clock,  P.  M. 


AFTERNOON  SESSION. 
The  Convention  reassembled  at  three  o'clock. 

Leave  of  Absence. 

Leave  of  absence  was  granted  to  Mr.  Morton, 
of  Tisbury,  for  the  remainder  of  the  session. 

Justices  of  the  Peace. 

Mr.  CUSHMAN,  of  Bernardston,  offered  the 
following  substitute  for  the  first  resolve  reported 
by  the  Committee  on  the  subject  of  Justices  of 


the  Peace,  which,  on  his  motion,  was  laid  on  the 
table  and  ordered  to  be  printed. 

Resolved,  That  it  is  expedient  to  amend  the 
Constitution  as  follows  : — 

There  shall  be  two  classes  of  Justices  of  the 
Peace,  vi/. : — 

1st.  Trial  Justices,  who  shall  be  elected  by  the 
legal  voters  of  the  several  towns  for  a  term  of 
three  years.  There  shall  be  one  in  each  town, 
and  one  additional  for  every  two  thousand  inhab 
itants.  They  shall  have  the  same  jurisdiction, 
powers  and  duties  that  are  now  exercised  by 
justices  of  the  peace,  justices  of  the  quorum,  and 
commissioners  to  qualify  civil  officers  ;  and  such 
other  powers  as  may  be  given  them  by  the  legis 
lature. 

2d.  Justices  of  the  Peace,  who  shall  be  ap 
pointed  by  the  Governor  and  Council  for  a  term  of 
seven  years  ;  and  those  who  now  hold  that  office 
shall  continue  as  such,  according  to  the  tenure  of 
their  respective  commissions  :  provided,  that  the 
jurisdiction  of  justices  of  the  peace  shall  extend 
only  to  the  acknowledgment  of  deeds ;  the  ad 
ministration  of  oaths ;  the  issuing  of  subpoenas, 
and  solemnization  of  marriages. 

3d.  The  offices  of  Justices  of  the  Quorum, 
and  Commissioners  to  qualify  civil  officers,  are 
hereby  abolished. 

The  Judiciary. 

The  Convention  renewed  the  consideration  of 
the  unfinished  business  of  the  morning,  viz. :  the 
resolves  on  the  subject  of  the  Judiciary,  the  pend 
ing  question  being  on  the  amendment  moved  by 
the  gentleman  from  Worcester,  (Mr.  Knowlton). 

Mr.  HOOPER,  of  Fall  River.  I  move  to 
amend  the  proposition  before  you,  by  striking 
out  all  after  the  word  "  Constitution,"  in  the 
first  line,  and  inserting  the  following  : — 

Resolved,  That  it  is  expedient  so  to  revise  the 
Constitution  that  all  vacancies  occasioned  by 
death,  resignation,  or  other  cause,  among  the 
judges  of  the  supreme  judicial  court,  shall  be 
filled  by  an  election  at  large  throughout  the  State, 

for  a  term  of years,  so  arranged  that  two 

shall  not  be  elected  at  the  same  time  for  the  same 
term  of  years. 

Resolved,  That  it  is  expedient  so  to  revise  the 
Constitution  as  to  require  that  provision  shall  be 
made,  by  law,  for  the  election  of  all  the  judges 
and  justices  of  inferior  courts,  in  districts,  for  a 
term  of  years ;  and  that  so  long  as  the  court  of 
common  pleas  shall  continue  as  at  present  consti 
tuted,  the  judges  thereof  shall  be  elected  in  dis 
tricts  for  a  term  of years,  so  arranged  that 

only  one  shall  be  elected  in  any  one  year,  unless 
it  shall  be  to  fill  a  vacancy  in  an  unexpired  term, 
and  the  judge  whose  term  of  service  is  first  to 
expire,  shall  be  the  chief  justice  of  said  court, 
till  such  expiration,  so  that  each  shall  in  turn  be, 
successively,  the  chief  justice. 

Mr.  HOOPER.    The  effect  of  this  proposition 


62d  day.] 


THE   JUDICIARY. 


197 


Wednesday,] 


HOOPER. 


[July  20th. 


is  to  fill  the  vacancies  upon  the  bench  by  election, 
instead  of  by  appointment.  The  object  of  it  is, 
first:  not  to  disturb  the  present  tenure.  It  does 
not  meddle  with  the  court  as  now  constituted, 
but  it  enables  you  to  glide  into  an  elective  sys 
tem  without  any  shock  or  disturbance  of  those 
who  are  at  present  there.  The  term  for  which 
they  are  to  be  elected  is  left  blank,  that  it  may  be 
filled  afterwards.  The  object  is  simply  to  present 
the  question  whether  we  will  have  an  elective  or 
an  appointed  judiciary. 

I  do  not  propose  to  discuss  this  question  at  any 
length,  because  it  seems  to  me  that  all  that  has 
been  said  in  favor  of  a  limited  tenure  goes  in  favor 
of  an  elective  judiciary ;  and  I  appeal  to  gentle 
men  who  are  responsible  for  the  result  of  this 
Convention,  whether  it  will  not  be  better  for 
them,  and  safer,  to  put  this  question  of  an  elect 
ive  judiciary  to  the  people,  than  simply  to  propose 
a  half-way  measure  of  limiting  the  tenure.  The 
gentleman  from  Taunton,  (Mr.  Morton,)  the 
other  day,  in  arguing  this  matter,  put  the  ques 
tion  to  us  whether,  if  we  had  a  house  to  construct, 
if  we  had  not  better  employ  an  architect ;  or  a 
house  to  build,  if  we  had  not  better  employ  a 
carpenter  ;  or  any  other  piece  of  work  we  wanted 
done,  we  had  not  better  employ  some  one  who 
had  served  an  apprenticeship  to  his  business,  and 
understood  it,  rather  than  undertake  to  do  it  our 
selves.  I  suppose  he  applied  that  to  the  appoint 
ing  power.  But,  I  would  like  to  ask,  when  did 
the  appointing  power  ever  serve  an  apprenticeship 
in  appointing  ?  Are  not  the  people  as  capable  of 
selecting  the  judge  as  the  governor  can  be,  who 
but  yesterday  was  one  of  them  ?  It  would  seem 
that  the  gentleman  supposed  that  the  governor 
had  some  talent,  or  skill,  which  other  people 
could  not  exercise  in  the  selection  of  these  officers. 
When,  or  where  did  he  serve  his  apprenticeship, 
or  where  did  he  get  his  patent  that  confers  upon 
him  such  superior  qualifications  for  the  business  ? 
The  gentleman  for  Manchester,  (Mr.  Dana,)  has 
asked  us  why  we  do  not  put  out  the  questions 
we  were  sent  here  to  put  out  to  the  people,  and 
let  other  things  .alone  ?  I  was  not  aware  that  the 
question  of  plurality  was  one  that  we  were  sent 
here  to  put  out,  any  more  than  this.  The  very 
document  to  which  the  gentleman  has  alluded, 
expressly  leaves  this  matter  for  the  Convention 
to  do  as  they  please.  The  Committee  who  drew 
up  that  document  say,  expressly,  they  leave  it  for 
the  discretion  of  the  Convention  which  is  to  as- 
eeinble.  Therefore  it  is  supposed  that  the  decis 
ion  of  this  question  of  an  elective  judiciary  is  im 
posed  upon  us  by  the  very  terms  of  the  document 
in  question,  and  this  is  one  of  the  issues  on  which 
we  are  sent  here  to  act. 


Now,  the  argument  in  favor  of  appointing  for 
a  limited  term,  instead  of  electing  the  judges,  is, 
to  my  mind,  an  argument  which  is  wholly  in  the 
other  direction.  If  a  judge  hopes  to  be  reflected, 
he  would  be  very  likely  to  devote  himself  to  his 
duties ;  and  if  he  is  learned  and  impartial,  he  can 
rely  with  great  certainty  on  a  reelection.  Such 
a  man,  in  opposition  to  a  man  of  whom  the  peo 
ple  know  but  little,  would  have  an  incomparable 
advantage,  and  would  succeed  in  nine  cases  out 
of  ten.  But  what  would  be  the  effect  in  case  the 
judges  are  appointed  r  Suppose  a  term  is  about 
to  expire,  and  here  is  a  man  in  the  office  who 
combines  in  his  character  all  the  requisites  of  a 
good  judge — learned,  courteous,  able,  and  impar 
tial — but  a  political  contest  ensues,  and  some  am 
bitious  young  gentleman,  perhaps,  gets  his  eye 
upon  that  judge's  place,  and  becomes  all  at  once 
very  patriotic,  and  attends  all  the  primary  meet 
ings — is  sent  as  a  delegate  to  the  State  Conven 
tion,  and  manages  to  get  his  friend  nominated  for 
a  governor;  and  then,  by  great  exertion,  and 
spending  time  and  money,  succeeds  in  getting  his 
friend  elected  for  governor.  Then  how  will  the 
case  stand  ?  He  demands  the  place  of  the  judge 
whose  term  expires.  The  judge  happens  to  be 
long  to  another  party,  and,  although  he  is  impar 
tial  as  a  man  can  be,  or  as  any  man  in  the  com 
munity,  and  has  given  good  satisfaction,  would 
you  often  find  a  man  in  the  place  of  that  governor 
who  would  resist  the  claim  of  the  man  who  had 
put  him  in  his  position  r  I  fear  not,  Sir.  It 
would  be  demanded  of  the  governor  as  the  price 
of  his  office ;  and  few,  under  such  circumstances, 
would  have  the  independence  and  manliness  to 
refuse  such  a  claim.  Whereas,  if  the  judge  held 
his  seat  by  the  voice  of  the  people,  there  would 
be  no  question  how  they  would  decide,  when  the 
matter  should  be  referred  to  them.  They  would 
retain  the  man  whom  they  knew  to  be  able  and 
impartial,  in  preference  to  one  of  whom  they 
knew  little  or  nothing.  And,  for  this  reason,  I 
am  in  favor  of  making  the  office  elective,  instead 
of  continuing  it  by  appointment  for  a  term  of 
years  ;  and  I  hope  this  Convention  will  come  to 
this  conclusion. 

I  offer  this  amendment,  because  I  have  been 
solicited  to  do  it  by  a  number  of  gentlemen,  who 
stated  that  they  voted  against  it  when  the  propo 
sition  was  up  before,  and  who  desire  to  change 
their  vote.  If  this  Convention  are  wise,  in  my 
opinion  they  will  adopt  this  measure,  and  give 
it  to  the  people.  It  is  a  proposition  which  I  be 
lieve  the  people  will  hail  with  acclamation.  I 
believe  they  will  give  to  it  a  more  hearty  support 
than  to  any  other  proposition  which  we  shall  put 
to  them.  I  maintain  that  no  such  proposition 


198 


THE   JUDICIARY. 


[62d  day. 


Wednesday,] 


FHENCII. 


[July  20th, 


has  ever  been  put  to  the  people  of  any  State, 
which  was  rejected  by  them.  To  be  sure  it  was 
not  adopted  in  New  Hampshire,  because  a  two- 
thirds'  vote  was  required  ;  but  it  received  a  large 
majority  of  the  votes,  and  more  than  any  other 
proposition  submitted  to  them.  Such  a  proposi 
tion  has  never  been  rejected  by  a  majority  of  the 
people  of  any  State,  and  I  hope  it  never  will  be. 
I  hope  this  will  be  accepted. 

[Mr.  French,  of  New  Bedford,  who  was  inter 
rupted  by  the  adjournment  of  the  morning 
session,  now  took  the  floor  and  concluded  his  re 
marks.] 

Mr.  FRENCH,  of  New  Bedford.  I  have 
been  significantly  reminded  that  it  is  not  dem 
ocratic,  and  I  know  it  is  rather  startling  to 
many  persons,  when  the  idea  is  advanced  that 
law  is  to  be  disregarded.  Therefore,  I  beg  leave 
to  reply  to  that  insinuation  here.  The  gentleman 
for  Wilbraham  (Mr.  Hallett)  told  us  the  laws  of 
the  United  States  were  the  supreme  laws  of  the 
land.  I  agree  with  him  that  they  are  so,  but 
only  when  those  laws  are  in  accordance  with  the 
Constitution  of  the  United  States.  In  regard  to 
the  law  to  which  the  gentleman  for  Wilbraham 
referred  upon  a  former  occasion,  I  wish  to  intro 
duce  a  little  proof  of  its  unconstitutionally — 
that  it  is  no  law,  and  should  not  be  regarded  as 
such,  and  cannot  be,  to  much  extent,  enforced. 
It  was  the  opinion  of  John  C.  Calhoun,  that 
great  statesman  from  the  Palmetto  State,  that  the 
fugitive  slave  law  was  unconstitutional ;  and  such 
was  the  opinion  of  Honorable  Mr.  Khett,  his 
successor,  who  pronounced  upon  the  floor  of  the 
United  States  Senate,  these  remarkable  words  : — 

"  This  government  has  it  not  in  its  power  to 
enforce  this  law,  so  as  to  make  it  eflicacious.  I 
believe  that  by  the  action  of  States  alone  the 
rights  of  the  South  can  be  maintained  and  en 
forced."  Again  he  says:  "The  delivery  of  a 
fugitive  from  labor  is  an  affair  between  two  States. 
The  fugitive  is  to  be  delivered  up.  To  be  de 
livered  up,  he  must  be  seized.  He  must  be  in 
the  possession  of  those  who  are  to  deliver  him 
up.  No  authority  within  a  State  can  seize  a 
criminal  against  the  laws  of  any  other  State,  but 
the  authority  of  the  State  itself  to  which  he  has 
fled.  This  is  the  law  of  the  nations.  Look  at 
the  CONSTITUTION.  Is  there  one  word  in  it  re 
ferring  to  fugitive  criminals  and  fugitive  slaves, 
conferring  any  power  on  congress  to  legislate 
upon  these  subjects  ?  No  power  whatever  is 
given  to  congress  ;  congress  is  not  mentioned  in 
that  connection.  What  is  the  inevitable  infer 
ence?  Why,  that  congress  has  110  such  power." 

I  regret  that  my  learned  friend  for  Wilbraham, 
(Mr.  Hallett,)  is  not  in  his  seat,  that  he  might 
put  me  right  if  I  have  wrongly  quoted  these  dis 


tinguished  gentlemen.  I  will  go  as  far  as  any  man 
for  maintaining  law ;  but  it  comes  with  a  very 
ill  grace  from  the  gentleman  for  Wilbraham  to 
talk  to  us,  and  give  us  lessons  upon  this  subject, 
after  what  he  has  said  upon  the  very  point  in 
question.  It  will  be  remembered  that  about  a 
year  ago,  there  was  a  certain  convention  held  in 
Baltimore,  arid  that  a  certain  gentleman  went 
down  there  from  the  State  of  Massachusetts,  who 
participated  in  that  convention.  In  laying  down 
their  national  platform  in  that  conventior ,  they 
laid  down  and  asserted  the  old  resolves  of  1798 — the 
resolves  of  Madison  and  Jefferson.  The  gentle 
man  for  Wilbraham  claims  to  be  a  Jefferaonum 
Democrat,  and  so  do  I ;  and  I  wish  he  was  here 
to  explain  and  show  how  he  stands  upon  this 
matter. 

It  is  well  known  that  these  resolutions,  which 
declared  certain  statutes  to  be  no  laws,  were  in 
corporated,  in  1852,  as  a  part  of  the  Democratic 
platform.  I  believe  that  if  those  resolutions  had 
been  read  at  the  time,  they  would  never  have 
formed  a  part  of  that  platform.  I  beg  leave  to 
read  one  or  two  extracts  from  those  drawn  up  by 
Thomas  Jefferson,  which  are  very  short : — 

[From  Resolve  the  First.] 
"  Wheresoever  the  general  government  as 
sumes  undelegated  power,  its  acts  are  unauthori- 
tative,  void,  and  of  no  force ;  that  to  this  com 
pact  each  State  acceded  as  a  State,  and  as  an 
integral  party ;  that  this  government,  created  by 
this  compact,  was  not  made  the  exclusive  or  final 
judge  of  the  extent  of  the  powers  delegated  to 
itself;  since  that  would  have  made  its  discretion, 
and  not  the  Constitution,  the  measure  of  its 
powers  ;  but  that,  as  in  all  other  cases  of  compact 
among  parties  having  no  common  judge,  each 
party  has  an  equal  right  to  judge  for  itself,  as  well 
of  infractions  as  of  the  mode  and  measure  of 
redress." 

[From  the  Second  Resolve.] 

"  The  same  act  of  congress  passed  on  the  14th 
day  of  July,  1798,  and  entitled  '  An  act  in  addi 
tion  to  the  act  entitled  an  act  for  the  punishment 
of  certain  crimes  against  the  United  States  ; '  as 
also  the  act  passed  by  them  on  the  27th  day  of 
June,  1798,  entitled  'An  act  to  punish  frauds 
committed  on  the  bank  of  the  United  States ; ' 
and  all  other  their  acts  which  assume  to  create, 
define,  or  punish  crimes  other  than  those  enumer 
ated  in  the  Constitution,  are  altogether  void,  and 
of  no  force,  and  that  the  power  to  create,  define, 
and  punish  such  other  crimes  is  reserved,  and  of 
right  appertains,  solely  and  exclusively,  to  the 
respective  States,  each  within  its  own  territory." 

[From  Resolve  the  Third.] 
"That,  therefore,  the  act  of  congress  of  the 
United  States,  passed  on  the  14th  of  July,  1798, 
entitled  '  An  act  in  addition  to  the  act  entitled 


62d  day.] 


THE   JUDICIARY. 


199 


Wednesday,] 


FRENCH  —  GILES. 


[July   20th. 


An  act  for  the  punishment  of  certain  crimes 
against  the  United  States,'  which  does  abridge 
the  freedom  of  the  press,  is  not  law,  but  is  alto 
gether  void,  and  of  no  effect.1' 

[From  Resolve  the  Fourth.] 

"The  act  of  congress  of  the  United  States, 
passed  the  22d  day  of  June,  1798,  entitled,  «  An 
act  concerning  aliens,'  which  assumes  power 
over  alien  friends  not  delegated  by  the  Constitu 
tion,  is  not  law,  but  is  altogether  void,  and  of  no 
force." 

[From  Resolve  the  Ninth.] 
"  The  Commonwealth  is  determined,  as  it  doubts 
not  its  co- States  are,  not  tamely  to  submit  to  un- 
delegated,  and,  consequently,  unlimited  powers, 
in  no  man,  or  body  of  men,  on  earth." 

That  is  the  doctrine  of  the  gentleman  for  Wil- 
braham,  as  put  forth  at  the  Democratic  Conven 
tion  iu  Baltimore,  in  1852.  Now,  I  sumbit 
whether  it  becomes  the  gentleman  to  read  us  lec 
tures,  because  we  are  opposed  to  the  fugitive  slave 
law,  and  because,  as  there  is  not  a  particle  of 
authority  given  to  congress  to  pass  it,  we  say  it  is 
void,  and  of  no  effect. 

The  gentleman,  in  the  course  of  the  discussion, 
made  an  allusion  to  Hungary.  When  that  Demo 
crat  of  all  Democrats,  Kossuth,  was  here,  he  made 
a  short  tour  in  the  South  ;  and  while  there,  it 
may  be  well  supposed,  that  the  question  came  up 
about  the  application  of  his  doctrines  to  the  pecu 
liar  institution.  Upon  one  occasion,  when  two 
gentlemen  were  discussing  the  matter,  one  says  to 
the  other :  "  What  shall  we  do  with  Kossuth  ? 
The  doctrine  he  puts  forth  is  in  direct  opposition 
to  the  peculiar  institution,  and,  if  carried  out, 
would  give  liberty  to  every  slave  in  the  South." 
The  reply  was  :  "  It's  no  use  talking  about  it — we 
must  go  in  for  liberty  in  Hungary." 

It  is  very  convenient  for  some  gentlemen  to  go 
for  liberty  in  Hungary,  but  not  so  convenient  to 
go  for  it  nearer  home.  An  attempt  has  been 
made  to  carry  out  this  fugitive  slave  law  in 
various  places,  but  it  has  been  trampled  under 
foot ;  and  I  shall  continue  to  rejoice  so  long  as 
such  is  the  fact.  How  was  it  at  Syracuse,  in  the 
State  of  New  York?  The  officers  of  the  United 
States  government  did  not  dare  to  put  their  hands 
upon  the  man  who  rescued  Jerry.  It  was  there, 
that  Gerrit  Smith  said  to  the  officers  of  the  law : 
I  am  the  man  who  rescued  Jerry.  I  am  account 
able.  Let  the  sledge-hammer  of  your  fugitive 
slave  law  fall  upon  me  as  soon  as  you  please.  He 
remained  in  Syracuse  three  long  days,  to  give 
them  time  to  deliberate  as  to  what  course  they 
should  pursue.  The  officers  of  the  general  gov 
ernment  in  the  Empire  State,  did  not  dare  to  put 
their  hands  upon  Gerrit  Smith,  although  he  stood 


up  and  boldly  told  them  to  their  faces  :  "  I  rescued 
Jerry,  I  am  responsible,  execute  your  law  as  soon 
as  you  please."  Thank  God,  that  man  is  elected 
to  congress,  and  he  will  stand  up  there  like  a 
man,  in  the  face  of  this  slave- holding  nation,  and 
preach  truth  which  will  make  many  a  man  free. 
What  has  he  said  :  He  has  declared  that  there 
is  not  a  single  slave  in  his  chains  at  the  South, 
that  has  not  a  perfect  God- given  right  to  liberty, 
and  advised  all  the  slaves  in  this  republic  to  take 
it  immediately.  So  much  for  the  constitution 
ality  of  the  fugitive  slave  law,  and  the  ability 
of  the  government  to  enforce  it.  Mr.  Rhett  was 
a  truer  prophet  than  the  Massachusetts  senator, 
Mr.  Webster. 

One  word  in  relation  to  the  amendment  of  the 
gentleman  from  Fall  River,  (Mr.  Hooper,)  just 
now  read,  which  provides  for  electing  judges  by 
the  people. 

I  can  most  cheerfully  give  it  my  support,  and 
hope  it  may  find  favor,  and  be  adopted,  confident, 
Sir,  that  the  tendency  of  such  a  provision  in  the 
Constitution  will  be  appreciated  by  the  people, 
and  be  calculated  to  improve  our  judiciary  sys 
tem. 

Let  our  judges  be  elected  by  the  people,  and 
you  will  never  be  told  that  they  crawl  under 
chains  to  reach  their  benches,  or  turn  their  backs 
upon  an  application  for  a  writ  of  habeas  corpus  in 
behalf  of  a  poor  colored  man,  equally  with  us  en 
titled  to  life  and  liberty,  who  shall  be  kidnapped 
in  the  streets  of  Boston,  locked  up  in  an  upper 
chamber  of  your  chained-up  court  house,  guarded 
by  fifteen  hundred  wealthy  merchants,  "  gentle 
men  of  property  and  standing,"  finally,  in  the 
"gray  of  the  morning,"  marched  in  a  hollow 
square  of  the  armed  police  of  this  city,  over  the 
very  spot,  of  revolutionary  memory,  which  was 
moistened  by  the  blood  of  Attucks,  and  put  on 
board  brig  "  Acorn,"  bound  South,  whilst  the 
soldiery  shall  be  sleeping  upon  their  arms  in 
Faneuil  Hall. 

Mr.  GILES,  of  Boston.  I  wish  to  speak  about 
ten  minutes  on  this  subject,  in  justification  of  the 
vote  which  I  shall  give,  as  the  yeas  and  nays 
have  been  ordered  upon  it.  I  wish  my  friend 
from  Worcester  would  modify  his  resolution  by 
leaving  out  the  number  seven,  and  let  us  take 
the  question  upon  the  simple  idea  of  a  limited 
term.  If  that  be  carried,  we  can  put  in  such  a 
term  as  the  Convention  please.  I  think  there  are 
many  who  would  vote  for  the  proposition  to 
limit  the  term  to  seven  years  ;  but  I  should  like 
the  privilege  of  voting  simply  upon  the  question 
of  a  limited  term.  The  proposition  has  been  dis 
cussed  in  reference  to  two  things :  the  first  an 
elective  judiciary,  and  the  second  a  judiciary  for 


200 


THE   JUDICIARY. 


[62d  day. 


Wednesday,] 


GILES. 


[July  20th. 


a  limited  term.  I  am  opposed  to  an  elective 
judiciary  system,  but  not  because  the  people  are 
not  competent  to  elect  a  good  bench.  I  believe 
they  are.  And  I  am  not  opposed  to  it  because 
it  has  not  precedent  in  its  favor.  It  has  prece 
dent,  and  American  precedent,  and  Massachusetts 
precedent.  The  first  court  that  we  had  was 
elective.  I  have  here  "  The  coppie  of  the  liber- 
•ties  of  the  Massachusetts  Coloiiie  in  New  Eng 
land,"  and  this  was  the  first  code  of  laws  ever 
established  in  New  England ;  and  by  that  code 
the  court  was  an  elective  court,  and  that  annual 
ly.  There  are  two  simple  provisions  relating  to 

it 

The  fiftieth  article  is  as  follows : — 

"All  Jurors  shall  be  chosen  continuallie  by 
the  freemen  of  the  Townes  where  they  dwell." 

There  you  have  part  of  your  court.  The  fifty- 
first  article  is  this  : — 

"  All  associates  selected  at  any  time  to  Assist 
•the  Assistants  in  Interior  Courts,  shall  be  nomi 
nated  by  the  Townes  belonging  to  that  Court,  by 
orderly  agreement  among  themselves." 

And,  by  the  Colony  Charter  of  1628,  these 
assistants  who  were  to  be  assisted,  were  chosen 
annually,  by  the  freemen,  according  to  the  fun 
damental  law  of  the  Colony.  Therefore,  we 
began,  here  in  Massachusetts,  with  an  elective 
judiciary,  elected  by  the  freemen  annually,  in 
cluding  jurors  and  judges.  That  was  tried,  and 
they  abandoned  it,  and  the  court  appointed  by 
the  executive,  was  substituted  in  its  stead. 

Now  there  are  two  practical  objections  to  elect 
ing  judges,  which  are  decisive  in  my  judgment : 
First,  it  is  not  enough  that  a  judge  should  be  a 
great  lawyer ;  it  is  not  enough  that  he  should  be 
uniformly  and  universally  known  to  the  people, 
but  he  must  have  a  mind  and  a  body  constituted 
for  judicial  duty ;  and  that  body  and  that  mind 
are  personal,  and  generally  known  to  the  public 
only  to  a  limited  extent,  and  to  be  found  out  by 
the  executive  on  inquiry.  I  have  always  under 
stood,  that  the  greatest  lawyer  we  ever  had  in 
this  country,  now  among  the  honored  dead,  ever 
discouraged  the  wish  of  some  to  place  him  upon 
the  bench,  though  it  were  the  highest  office  of 
that  character  in  the  Union,  because,  although 
every-body  conceded  that  he  understood  the  Con 
stitution  of  the  country  better  than  any  other 
man  in  it,  and  he  had  earned  the  reputation  of 
the  "  Defender  of  the  Constitution  ;"  yet  he  said 
he  knew  the  constitution  of  his  own  body  and 
mind  too  well  to  accept  that  station.  And  the 
greatest  living  lawyer  we  have  among  us,  his 
friend  and  successor,  who  has  electrified  this  body 


with  his  eloquence,  and  carried  everything  before 
him  except  truth,  that  nobody  can  overcome, 
knows  himself  too  well  ever  to  accept  a  seat  upon 
the  bench. 

Then,  I  say,  that  for  a  good  judge,  something 
more  is  required  than  popularity,  and  extended 
fame,  and  great  legal  attainments,  and  great  pow 
ers  of  eloquence  in  the  advocacy  of  a  cause  ;  and 
that  something  more  must  be  found  out  by  one 
man,  whose  duty  it  is  to  inquire  and  ask  advice 
of  his  Council. 

If  we  look  to  the  character  of  a  judge,  I  know 
of  no  place  where  it  is  better  described  than  in 
the  Book  of  Moses,  who  was  the  first  and  the 
greatest  judge  whose  name  is  recorded  in  history. 
Jethro,  his  father-in-law,  advised  him  to  select 
men  to  help  him  to  judge  the  causes  of  the 
people,  because  it  was  too  hard  for  him,  and  he 
advised  him  to  select  men  who  feared  God,  men 
of  truth,  men  who  hated  covetousness ;  and 
Moses  did  select  able  men,  known  to  all  the 
tribes ;  and  he  made  a  court,  whose  decisions,  so 
far  as  they  are  on  record,  are  good  authority  to 
this  day,  notwithstanding  the  fling  at  the  Con 
necticut  Blue  Laws.  I  have  those  laws,  and  the 
fling  is  unjustifiable ;  for  they  founded  a  court 
who  obeyed  the  laws,  and  in  default  of  there  be 
ing  any  statute  law,  they  were  bound  by  the  law 
of  Moses  and  the  Word  of  God.  That  is  good 
doctrine  now. 

But,  Sir,  there  is  another  reason,  equally  as 
decisive  to  my  mind,  upon  this  question,  as  it 
was  on  another,  a  short  time  ago.  I  do  not  wish 
to  put  the  election  of  the  judges  to  the  people,  to 
have  them  voted  for  or  against ;  I  do  not  wish 
the  people  to  take  sides  for  or  against  a  judge. 
The  gentleman  to  whom  I  have  alluded,  set  forth 
graphically  and  truly  the  effect  of  popular  elec 
tions  upon  the  bench  and  the  bar,  and  said  that 
it  would  subject  the  bench  to  suspicion,  that  it 
would  incite  the  bar  to  opposition,  and  that  jus 
tice  would  suffer  in  her  sworn  temples,  among 
her  sworn  officers.  But,  Sir,  he  did  not,  as  I 
expected  and  hoped  he  would,  go  farther,  and 
say  that  it  would  demoralize  the  people  in  regard 
to  the  bench,  and  divide  them  in  reference  to 
their  own  bench.  I  would  never  put  the  election, 
of  the  judge  to  the  people  in  such  a  way  that 
they  should  say,  I  am  for  him,  and  I  am  against 
him.  Never;  for  a  reason  that  I  will  state 
directly. 

What  is  the  danger  to  our  judicial  system,  that 
calls  for  any  action  ?  I  admit,  with  my  friends, 
that  our  court  is  a  good  one.  Who  can  read 
Judge  Kent's  Treatise  upon  the  Judicial  System 
of  England  and  of  America,  and  not  feel  grateful 
to  his  Maker  for  the  institution  that  has  put  so 


62d  day.] 


THE   JUDICIARY. 


201 


"Wednesday,] 


GILES  —  HOOPER. 


[July  20th. 


much  of  human  reason  into  law,  and  so  much  of 
human  conscience  into  judicial  decisions?  No 
one.  There  is  no  tribunal  so  well  deserving  of 
the  admiration  of  any  man  who  is  a  friend  of  hu 
manity,  and  who  is  a  part  of  humanity,  as  our 
judicial  system  ;  and  the  strongest  argument 
against  any  change  is,  that  our  court,  as  now 
constituted,  is  good  enough.  Let  well  enough 
alone.  But  there  is  a  danger,  and  that  danger  I 
wish  to  avert.  If  the  court  is  good,  and  if  the 
danger  is  great,  I  am  ready  to  vote  for  the  limited 
tenure,  which  is  proposed  by  my  friend. 

Sir,  the  tenure  of  our  judiciary  at  this  moment, 
in  Massachusetts,  in  this  land  of  liberty,  is  a  free 
hold.  Yes,  Sir ;  a  freehold  at  common  law,  be 
cause  it  is  during  good  behavior,  of  uncertain 
length  and  breadth — a  freehold,  a  base  freehold, 
I  grant  you,  Sir — compared  with  certain  titles  to 
real  estate,  but  still  a  freehold.  Now,  Sir,  look 
at  the  judicial  history  of  this  country,  at  this 
moment,  and  what  is  it  ?  You  see  the  people 
going  from  one  extreme  to  the  other — going  from 
an  appointive  judiciary,  with  a  life  office,  a  free 
hold  office,  to  an  elective  judiciary,  for  a  short 
term — some  terms  as  short  as  one  year.  The 
truth  is,  Mr.  President,  that  a  freehold  office, 
with  a  life  tenure,  is  repugnant  to  American  lib 
erty.  I  might  say  it  is  abhorrent  to  American 
liberty,  but  I  will  only  say,  that  it  is  abhorrent 
to  my  own  heart ;  and,  Sir,  against  that  tenure 
of  our  judiciary,  the  great  popular  heart  of  Amer 
ican  liberty  beats — beats — beats — and  mine  beats 
in  sympathy  with  it.  And  that,  Sir,  has  swept 
away,  and  is  sweeping  away,  and  will  sweep 
away,  that  foundation  stone  of  our  liberty,  unless 
that  objection  be  removed.  Now,  Sir,  I  would 
propose  this  remedy  :  I  would  substitute,  for  the 
English  foundation  of  your  court,  the  American 
foundation.  I  would  substitute  for  "  independence 
of  the  crown,"  the  "support  of  the  people."  I 
would  take  your  court  up  bodily  from  that  mo 
narchical  basis,  and  place  it  bodily  upon  the  basis 
of  liberty,  viz.  :  instead  of  independence  of  the 
crown,  I  would  have  the  support  of  the  people. 
I  would  so  arrange  your  fundamental  law  that 
the  people  as  a  whole,  and  as  a  body,  should  al 
ways  be  in  favor  of  the  court.  Hence,  I  would 
not  put  it  to  them  so  as  to  compel  them  to  divide 
for  and  against  it ;  and  hence,  I  am  opposed  to 
an  elective  judiciary.  I  want  to  take  away  this 
popular  feeling — call  it  prejudice,  or  what  you 
will ;  but  it  is  a  fact,  and  a  stubborn  fact.  I 
want  to  take  it  away,  and  let  your  whole  people 
come  up  to  the  support  of  the  court  with  a  warm 
heart,  and  with  strong  hands.  Now,  Sir,  what 
is  the  English  system  ?  The  English  system  was 
established  by  the  act  of  settlement  in  12th  and 


13th  of  King  William  III.,  in  1700.  There  you 
have  it,  verbatim  et  literatim ;  and  we  have  it  in 
our  Constitution,  almost  bodily,  in  chapter  third, 
article  first,  and  the  subsequent  article  of  another 
chapter.  The  object  in  view  in  the  English  sys 
tem,  was  to  prevent  the  crown  from  making  a 
court  to  try  its  own  cases  against  the  people. 
The  judges  holding  office  at  the  will  of  the  crown, 
when  the  crown  wished  to  try  a  case  of  privilege 
against  liberty,  it  could,  and  it  frequently  did, 
make  a  court  to  try  its  own  case.  That  act  pro 
vided  that,  after  it  took  effect,  the  judges  or  pen 
sioners — for  they  were  classed  with  pensioners — 
under  the  crown,  should  not  hold  a  seat  in  the 
House  of  Commons,  and  their  commissions  should 
run,  in  the  Latin  words  of  the  writ,  quamdiu  bene 
se  ffesscrint — while  they  carry  themselves  well,  or 
while  they  behave  well.  And  another  article  in 
that  same  law,  prevented  the  pardon  of  the  crown 
being  pleadable  in  bar  of  the  judgment  of  the 
court.  There  was  the  system,  and  here  it  is  in 
this  article  of  the  Constitution.  But  the  Ameri 
can  system  is  in  article  third,  which  the  gentle 
man  from  Fall  River  read,  and  I  was  glad  to 
hear  it.  Our  fathers  had  both  systems  before 
them,  and  they  put  them  both  into  the  Constitu 
tion,  side  by  side.  The  American  system  is  as 
follows  : — 

"  In  order  that  the  people  may  not  suffer  from 
the  long  continuance  in  place  of  any  justice  of 
the  peace  who  shall  fail  of  discharging  the  impor 
tant  duties  of  his  office,  with  ability  and  fidelity, 
all  commissions  of  justices  of  the  peace  shall  ex 
pire,  and  become  void,  in  the  term  of  seven  years 
from  their  respective  dates  ;  and  upon  the  expira 
tion  of  any  commission,  the  same  may,  if  neces 
sary,  be  renewed,  or  another  person  appointed,  as 
shall  most  conduce  to  the  well-being  of  the  Com 
monwealth." 

That  is  the  American  system — known  by  our 
fathers,  approved  by  our  fathers,  put  into  the 
Constitution  by  our  fathers,  right  after  the  Eng 
lish  system.  In  regard  to  the  number  of  years, 
we  differ  ;  that  is  a  matter  of  judgment ;  but  in 
regard  to  limiting  the  tenure  of  office,  so  that  it 
shall  not  be  a  freehold,  that  is  a  matter  of  principle. 
I  shall  vote  for  a  limited  tenure. 

Mr.  HOOPER,  of  Fall  River.  Is  not  a  prop 
osition  now  pending  before  the  Convention  to 
change  what  the  gentleman  calls  the  American 
system,  and  make  the  judges  elective? 

Mr.  GILES.  I  am  not  able  to  answer  that. 
The  gentleman  refers  to  another  proposition  ;  as 
to  justices  of  the  peace,  I  am  not  able  to  say. 
While  we  are  upon  the  subject  of  justices  of  the 
peace,  let  me  ask,  what  governor  turns  out  jus 
tices  of  the  peace  when  he  comes  into  the  execu- 


202 


THE   JUDICIARY. 


[62d  day. 


Wednesday, 


GILES  —  ADAMS  —  LORD  —  ALLEN. 


[July  20th. 


live  chair,  whatever  may  be  his  politics,  if  the 
justice  of  the  peace  is  a  popular  officer  ?  Does 
not  every  gentleman,  who  comes  into  the  exec 
utive  chair,  renew  their  commissions,  without 
being  asked  to  do  so?  I  have  seen  gentlemen 
show  commissions  sent  to  them  by  a  political 
opponent,  without  being  asked ;  they  did  not 
know  that  their  commissions  had  expired,  until 
they  received  a  renewal  from  a  political  opponent. 

Now,  as  to  tenure,  I  should  prefer  fifteen  years. 
I  would  not  say  that  the  judge  should  not  be 
reappointed,  because  that  might  take  away  the 
inducement  to  good  conduct,  and  to  study  faith 
fully  his  duty ;  but,  as  gentlemen  know,  if  the 
tenure  was  fifteen  years,  he  would  seldom,  if  ever, 
be  reappointed ;  and  all  the  objections  so  forcibly 
put  by  gentlemen  upon  the  other  side,  as  to  the 
effect  of  reappoiiitment  upon  the  existing  judge, 
would  be  removed.  Let  me  say,  that  in  seven 
years,  or  in  ten  years,  or  in  fifteen  years,  a  proper 
man  will  acquire  a  judicial  character  that  no 
political  party  can  afford  to  sacrifice  upon  political 
grounds  merely.  I  wish  to  vote  distinctly  upon 
a  limited  tenure  of  office,  as  a  matter  of  princi 
ple — of  American  liberty  and  policy ;  but  the 
number  of  years  is  a  question  upon  which  I,  with 
others,  must  assent  to  the  decision  of  the  ma 
jority.  In  answer  to  what  gentlemen  so  forcibly 
put,  as  to  what  is  called  the  popular  idea  of 
liberty,  as  it  may  bear  against  the  court,  when  I 
say  it  is  beating  against  the  bulwarks  of  the  ju 
diciary,  I  will  refer  to  the  speech  of  the  gentle 
man  from  New  Bedford,  this  morning,  and  the 
effect  which  it  had  upon  their  own  minds.  I  say 
that  the  judge  should  be  no  man's  man — the 
judge  should  be  no  party's  man ;  and  when  I  say 
that,  I  say,  with  equal  emphasis,  the  judge  should 
be  the  people's  man— he  should  be  the  State's 
man — he  should  be  the  law's  man  ;  and,  agreeing 
with  the  approving  nod  of  my  friend  for  Wilbra- 
ham,  I  will  say,  with  all  the  emphasis  of  my  mind 
and  heart,  that  he  should  be  the  Constitution's 
man.  Give  me  a  man  like  that,  and  he  is  my 
judge  for  any  human  tribunal.  I  am  opposed  to 
the  elective  principle,  but  I  am  in  favor  of  a 
limited  tenure,  and,  although  I  may  differ  from 
others  to  whose  judgment  I  defer,  I  shall  give  my 
vote  upon  the  convictions  of  my  mind  and  con 
science  ;  and  I  believe  that  this  will  be  right. 

In  conclusion,  as  I  must  omit  many  things  in 
my  mind,  to  conclude  within  my  time,  I  will  say, 
that  a  judge  should  be  no  man's  man  ;  he  should 
be  no  party's  man  ;  but  he  should  be  the  people's 
man — he  should  be  the  State's  man — he  should 
be  the  law's  man,  and— I  say  it  with  all  the 
emphasis  of  my  mind  and  heart — he  should  be 
the  Constitution's  man. 


Mr.  ADAMS,  of  Lowell.  I  have  not  occupied 
the  attention  of  the  Convention  for  one  moment 
upon  this  question,  and  I  do  not  propose  to  do 
so,  if  I  can  get  an  opportunity  to  vote.  This  dis 
cussion  has  run  through  several  days  already,  and 
I  submit  that,  if  we  should  sit  here  and  discuss  the 
question  a  day  or  two  longer,  there  would  not, 
probably  be  anything  new  said  upon  it,  either  for 
or  against.  It  is  extremely  desirous  that  the  vote 
should  be  taken  before  the  adjournment  of  the 
Convention  to-night ;  and,  as  the  yeas  and  nays 
are  ordered  upon  this  amendment,  and  as  there 
may  be  one  or  two  other  amendments  on  which 
the  yeas  and  nays  may  be  ordered,  I  think,  under 
the  circumstances,  it  is  proper  that  I  should  move 
the  previous  question,  which  I  now  do. 

Mr.  SUMNER,  of  Otis.  I  have  a  very  few 
words  which  I  should  like  to  say,  if  the  gentle 
man  will  have  the  goodness  to  withdraw  his  mo 
tion  for  a  moment. 

Mr.  ADAMS.  If  it  is  the  wish  of  the  Con 
vention  to  hear  the  question  discussed  farther,  I 
will  withdraw  the  motion  ;  but  I  am  desirous  of 
having  the  question  taken  this  afternoon.  I 
would  yield  to  my  friend  who  has  just  taken  his 
seat,  as  quick  as  I  would  to  any  other  man  living, 
but  I  think  it  is  the  general  desire  of  the  Conven 
tion  that  the  question  should  be  taken. 
[Cries  of  "  Question  !  "  "  Question  !  "  ] 
Mr.  LORD,  of  Salem.  I  am  very  sorry,  Mr. 
President,  that  the  chair  happens  to  be  occupied 
as  it  is  now,  (Mr.  Wilson  in  the  chair,)  because 
if  it  were  occupied  by  the  President  of  the 
Convention,  I  should  call  upon  the  gentleman 
from  Natick  to  spring  to  his  feet,  as  he  did  yes 
terday,  in  opposition  to  that  adroit  movement  by 
which,  just  upon  the  heel  of  a  speech  of  a  gentle 
man  who  made  just  such  a  speech  as  if  he  ex 
pected  that  the  previous  question  was  to  be 
moved  ;— I  say  that  I  regret  that  the  chair  hap 
pens  to  be  so  occupied,  because  we  cannot  now  have 
the  benefit  of  those  suggestions.  I  know  that  we 
shall,  in  a  moment,  have  my  learned  friend  from 
Worcester,  whom  I  see  right  before  me,  (Mr. 
Allen,)  and  who  yesterday  followed  the  gentle 
man  from  Natick  against  this  motion,  to  put  an 
end  to  the  debate  upon  a  subject  that  had  not 
occupied  the  attention  of  the  Convention  more 
than  four  or  five  times  as  long  as  this  has,  and 
which  was  not  more  than  a  hundred  times  as 
important  as  this  is.  I  think  he  certainly  will 

spring  to  his  feet 

Mr.  ALLEN.  In  every  instance,  hitherto, 
where  I  have  spoken  or  acted  upon  the  subject, 
it  has  been  in  favor  of  allowing  to  the  gentleman 
from  Salem,  and  his  friends,  an  opportunity  of 
discussion  ;  and  therefore  I  am  at  a  loss  to  know 


62d  day.] 


THE   JUDICIARY. 


203 


Wednesday,] 


LOUD  —  ALLEN  —  WHITNEY. 


[July  20th. 


why  an  allusion  has  been  made  to  me  in  relation 
to  this  matter.  My  influence  has  been  uniformly 
in  favor  of  the  freedom  of  debate. 

Mr.  LORD.  I  will  certainly  apologize  to  the 
gentleman  from  Worcester,  if  I  have  done  him 
any  injustice.  I  am  very  happy  indeed  now  to 
learn  that  he  is  opposed  to  the  previous  question. 
I  am  very  happy  to  learn  that  he  does  not  now 
desire  that  this  motion  shall  prevail.  And,  Sir, 
I  have  observed  that  it  is  not  those  gentlemen 
who  have  been  most  prominent  in  this  discussion, 
upon  whom  the  lot  always  happens  to  fall  to 
move  the  previous  question.  The  gentleman 
from  Lowell,  whom  I  see  directly  before  me, 
(Mr.  Butler,)  did  not  move  the  previous  question 
this  afternoon  directly ;  it  was  his  colleague  who 
made  the  motion ;  and  I  say  it  so  happens  that 
those  gentlemen  who,  in  the  matter  of  political 
preferment,  stand  the  best  chance,  are  not  the 
ones  upon  whom  the  lot  ordinarily  falls  to  move 
the  previous  question.  If,  Sir,  it  would  be  at  all 
proper  to  allude  to  a  fable  which  is  now  fresh  in 
my  mind,  and  which  I  know  the  Convention  will 
not  want  me  refer  to,  because  every  gentleman 
has  it  in  his  own  mind, — I  hear  it  whispered  all 
around  me, — that  would  be  a  good  illustration  ; 
but  I  will  not  name  it. 

Now,  Sir,  we  all  agreed  yesterday,  on  both 
sides  of  the  House,  that  the  best  mode  to  close 
debate  was  to  allow  those  gentlemen  who  had 
anything  to  say  upon  the  subject  to  say  it ;  and 
when  they  had  said  it,  to  take  the  question.  We 
all  agreed  to  that.  And,  as  I  said,  if  I  did 
any  injustice  to  the  gentleman  from  Worcester, 
(Mr.  Allen,) — and  I  do  not  know  that  I  did, 
because  he  says  he  is  always  opposed  to  this 
previous  question ;  but  I  confess  I  had  a  sort  of 
lingering  reminiscence, — probably  it  was  a  mere 
delusion  in  my  own  mind, — but  there  was  there 
a  flickering  recollection  that  not  very  late  in  the 
session,  on  a  matter  that  had  not  been  wholly 
exhausted,  the  gentleman  from  Worcester  did 
move  the  previous  question, — although,  I  say, 
that  such  is  my  recollection  ;  and  although  gen 
tlemen  around  me  aver  that  my  memory  is  not 
at  fault,  yet  I  am  bound  by  the  declaration  the 
gentleman  has  just  made,  to  believe  that  I  am 
laboring  under  a  mistake  in  this  matter,  and  that 
the  gentleman  did  not  move  the  previous  ques 
tion.  If,  therefore,  I  have  done  him  wrong,  he 
will  accept  this  as  my  apology. 

Mr.  ALLEN",  of  Worcester.  Mr.  President :  I 
do  not  know  that  I  ought  to  notice  an  attempt  to 
introduce  a  personal  question  with  me — for  what 
purpose  I  know  not,  having  had  little  to  do  with 
the  gentleman  from  Salem,  either  now  or  form 
erly  ;  I  say,  why  he  should  seek  a  personal  con 


troversy  with  me,  or  refer  to  me  in  the  manner 
in  which  he  has  just  done,  I  am  wholly  at  a  loss 
to  say.  I  do  not  know  to  what  cause  I  am  in 
debted  for  this  particular  honor.  If,  however, 
he  chooses  to  honor  me  with  his  remarks,  and  to 
quote  either  my  words  or  my  acts,  as  uttered  and 
done  in  this  Convention,  I  would  be  obliged  to 
him,  if  he  would  qiiote  them  correctly.  I  said 
that  my  uniform  action  had  been  in  favor  of 
granting  the  right  of  debate  to  the  fullest  extent ; 
and,  I  believe,  that  on  one  occasion,  when  that 
gentleman  was  desirous  of  addressing  the  Con 
vention,  and  by  the  rules  of  the  Convention  he 
was  precluded  therefrom,  I  obtained  the  liberty 
for  him,  and  under  similar  circumstances  I  ob 
tained  leave  for  other  gentlemen  of  his  party  to 
address  the  Convention ;  and,  I  believe  that  I  can 
safely  say,  that,  if  the  course  of  any  one  in  this 
body,  towards  that  gentleman  and  his  friends, 
has  been  marked  with  liberality  from  the  begin 
ning,  it  has  been  mine.  But,  Sir,  I  repeat,  that 
perhaps  I  may  have  done  wrong  in  noticing  this 
attack,  which  the  gentlemen  has  seen  fit  to  make 
upon  me.  I  do  not  know  to  what  cause  I  am  to 
attribute  the  honor.  Certainly  not  to  any  rela 
tions  that  have  subsisted  between  us,  friendly  or 
unfriendly,  or  to  any  movement  of  mine  by  which 
I  have  come  in  contact  with  him. 

Mr.  LORD.  [Mr.  Allen  having  left  his  seat  and 
walked  up  the  aisle,  towards  the  door.]  Mr. 
President : — 

"  He  that  fights  and  runs  away, 
May  live  to  fight  another  day." 

[Much  laughter,  and  Mr.  Allen  returned  to  his 
seat.]  I  have  no  desire  to  say,  either,  that  there 
have  been  any  relations  between  the  gentleman 
from  Worcester  and  myself.  I  am  quite  indiffer 
ent  in  that  respect.  I  have  made  no  attacks  xipon 
him.  Anything  I  have  said  cannot  be  tortured 
into  an  attack  upon  him.  I  said  that  I  was 
happy  to  see  the  gentleman  from  Worcester  in 
his  place,  because  I  should  expect  him  to  take 
the  same  ground  to-day  that  he  took  yesterday. 
Unless  he  is  one  of  those  gentlemen  who  cannot 
keep  the  same  thought  over  night,  I  think 

Mr.  WHITNEY,  of  Conway.  I  rise  to  a  ques 
tion  of  order. 

The  PRESIDENT.  The  gentleman  from  Con- 
way  will  state  his  point  of  order. 

Mr.  WHITNEY.  The  gentleman  does  not 
discuss  the  question  before  the  Convention.  The 
Chair  will  be  good  enough  to  state  what  the  ques 
tion  is. 

The  PRESIDENT.  In  the  opinion  of  the  Chair, 
the  gentleman  from  Salem  was  not  adhering  closely 
to  the  question  before  the  Convention .  The  ques- 


204 


THE   JUDICIARY. 


[62d  day. 


LORD  —  WHITNEY  —  BUTLER. 


[July  20th. 


tion  was  on  the  call  for  the  previous  question. 
A  certain  line  of  remark,  however,  had  been  pre 
viously  indulged  in,  and  the  Chair  did  not  feel 
called  upon  to  interfere  of  his  own  accord. 

Mr.  LORD.  The  only  remark  I  have  to  make 
is  this  :  while  I  had  the  floor,  and  was  discussing 
the  question,  the  gentleman  from  Worcester,  (Mr. 
Allen,)  rose  and  made  some  allusions 

Mr.  WHITNEY.  Did  the  Chair  decide  the 
question  of  order.  Did  he  rule  that  the  gentle 
man  was  speaking  to  the  question  ?  I  rose  to  a 
question  of  order.  I  think  the  gentleman  is  not 
speaking  to  the  question  before  the  House.  If 
the  gentleman  is  not  discussing  the  question,  I 
desire  that  the  Chair  will  hold  him  to  the  rule. 

The  PRESIDENT.  If  the  Chair  is  called 
upon  to  decide  the  matter,  he  must  say  that  the 
gentleman  is  not  strictly  in  order.  The  gentle 
man  from  Salem  will  confine  himself  to  the  ques 
tion. 

Mr.  LORD.  If  it  is  not  in  order  to  apologize 
to  the  Convention  for  being  out  of  order,  then  I 
must  go  on.  [Laughter.]  Now,  Sir,  I  desire  to 
bring  myself  precisely  within  the  rule  of  order,  if 
I  can  do  so  ;  and  I  think  I  can  do  so,  and  at  the 
same  time  reply  to  the  gentleman  from  Worces 
ter. 

I  say,  Sir,  that  yesterday,  when  the  motion  was 
made  for  the  previous  question,  the  gentlemen 
who  are  in  the  majority  in  this  House,  rose  in 
every  quarter  of  the  House,  protesting  against  it. 
It  was  upon  a  subject  which  had  been  discussed 
much  more  than  this  subject  has  been.  It  was 
upon  a  subject  much  less  important  than  this — a 
subject  on  which  every  gentleman  had  spoken,  as 
it  turned  out  afterwards,  who  desired  to  speak — 
because,  although  the  gentleman  from  Natick, 
(Mr.  Wilson,)  and  the  gentleman  from  Worces 
ter,  (Mr.  Allen,)  and  others,  rose  to  oppose  the 
demand  for  the  previous  question,  yet  an  inter 
mission  of  two  hours,  (from  one  o'clock  till  three,) 
answered  just  as  well,  and  in  the  afternoon  no 
person  spoke  upon  the  subject.  I  say,  therefore, 
that  these  gentlemen  are  committed  to  a  position 
upon  the  previous  question,  on  a  matter  of  this 
importance,  that  has  not  been  discussed  any  more 
than  this  matter  has.  And  I  am  opposed  to  the 
previous  question,  at  this  time,  for  other  reasons. 
I  am  opposed  to  it  because  I  myself,  through  the 
— perhaps  I  ought  to  say,  because  I  was  more 
active  than  some  other  gentlemen,  and  have  had 
an  opportunity  to  address  the  Convention,  though 
not  at  any  great  length,  for  I  believe  the  President 
told  me  afterwards  that  I  was  only  upon  the  floor 
about  eleven  minutes — I  say  that  I  am  opposed  to 
the  previous  question,  because  other  gentlemen 
desire  to  speak — not  I.  The  gentleman  for  Man 


chester,  (Mr.  Dana,)  made  a  brief  address  on  the 
other  side  of  the  question,  which  is  now  in  its 
last  stage,  and  those  followed  one  after  another 
on  the  majority  side,  and  nothing  has  been  said 
at  all  except  by  those  who  are  in  favor  of  the 
proposition.  The  gentleman  for  Manchester  made 
a  brief  speech  in  the  morning,  and  I  made  a  few 
remarks — and  but  a  very  few — but  not  on  the 
general  subject.  I  did  not  propose  to  discuss  it. 
It  has  been  discussed  by  others,  and  it  is  now  in 
its  last  stage,  in  a  condition  in  which  it  cannot  be 
amended  ;  because,  I  understand  the  rule  to  be, 
that  if  we  adopt  this  resolution,  it  must  stand  just 
as  it  is,  as  part  of  the  Constitution  ;  and,  inasmuch 
as  gentlemen  wish  to  propose  amendments,  it 
seems  to  me,  that  of  all  occasions  when  the  pre 
vious  question  might  be  moved,  this  is  the  most 
unseasonable  time  to  sustain  it.  But,  Sir,  I  do 
not  make  these  remarks  from  any  personal  feeling 
in  regard  to  myself.  I  have  had  my  day.  I  have 
said  what  I  design  to  say,  and  therefore  I  speak 
from  no  personal  considerations.  I  speak  in  be 
half  of  others,  towards  whom  I  am  democratic 
enough  to  believe  that  they  ought  to  have  as  free 
an  opportunity  to  speak  as  I  have  had,  and  for 
the  freedom  of  debate. 

Mr.  BUTLER,  of  Lowell.  I  will  detain  the 
Convention  only  with  a  single  word.  "  Out  of 
the  abundance  of  the  heart,  the  mouth  speaketh." 
I  have  observed  that  the  gentleman  from  Salem, 
on  this  call  for  the  previous  question,  thought  it 
was  quite  pertinent  to  the  subject  of  debate,  to  say 
that  I  have  moved  the  previous  question  indirectly. 

Mr.  LORD.  If  the  gentleman  from  Lowell 
will  pardon  me,  I  said  no  such  thing.  I  said  that 
the  gentleman  did  not  move  the  previous  ques 
tion  directly. 

Mr.  BUTLER.  Oh,  yes  ;  no  doubt.  And  the 
gentleman  has  not  now  even  the  virtue  of  honesty. 
[Cries  of  "  order,"  "  order."]  Every-body  under 
stood  him,  Sir,  because  every- body  knew  that  he 
meant  to  intimate  that  I  did  move  it  indirectly  ; 
and  I  must  say  that  when  a  man  manifests  so 
much  malignity 

[Renewed  cries  of  "  order,"  "  order."] 

Mr.  LORD.  I  rise  to  a  question  of  order. 
[Laughter.] 

The  PRESIDENT.  The  gentleman  from  Sa 
lem  will  state  his  point  of  order. 

Mr.  LORD.  My  point  of  order  is  this : 
whether  the  gentleman's  remarks  are  to  the  ques 
tion  ;  whether  "  the  main  question  shall  be  now 
put?"  [Laughter.]  I  withdraw  my  point  of 
order  if  I  may  be  allowed  the  opportunity  of  re 
plying. 

The  PRESIDENT.  The  gentleman  from 
Lowell  will  proceed  in  order. 


62d    day.] 


THE   JUDICIARY. 


205 


Wednesday,] 


BUTLER  —  HILLARD  —  KEYES. 


[July  20th. 


Mr.  BUTLER.  I  say  that  one  of  the  gentle 
man's  arguments  why  the  previous  question 
should  not  be  put,  was  that  I  had  made  the  call 
for  it  indirectly.  Sir,  I  had  the  honor  to  ask  my 
colleague  to  withdraw  it  in  favor  of  my  friend 
from  Otis,  but  he  would  not,  and  certainly  had  a 
right  to  exercise  his  own  judgment. 

Now,  I  have  seen  men,  in  my  time,  who  had 
malignity  enough  to  make  an  attack,  and  not 
manliness  enough  to  stand  by  it ;  and,  Sir,  I  have 
seen  the  gentleman  from  Salem,  now  complaining 
of  the  freedom  of  debate,  and  he  says  that  the 
main  question  ought  not  to  be  put,  because  it 
will  cut  off  the  freedom  of  debate.  I  remember, 
Sir, — in  order  to  show  that  it  is  parliamentary 
usage  to  stop  debate  whenever  the  majority  think 
proper, — the  first  time  that  I  had  the  honor  of 
rising  in  a  deliberative  assembly.  It  was  in  this 
House,  on  a  joint  meeting  of  the  Senate  and 
House  of  Representatives ;  the  president  of  the 
Senate  in  the  chair.  In  the  remarks  I  made, 
being  ignorant  of  parliamentary  rule,  I  had  the 
misfortune  to  wander  from  the  question,  and  the 
gentleman  representing  the  city  of  Salem — called 
the  city  of  peace,  I  suppose,  because  there  is  no 
peace  in  it— rose  and  called  me  to  order ;  and 
when  I  attempted  to  go  on  he  moved  the  House 
that  I  be  prevented  from  going  on,  and  he  got  one 
hundred  and  thirty- eight  men  to  stop  me ;  but 
that  was  not  quite  men  enough  to  stop  me,  and 
I  was  permitted  to  proceed.  And  this  is  the  man 
who  talks  about  the  freedom  of  debate  ! 

Mr.  LORD.  Is  all  this  pertinent  to  the  motion 
for  the  previous  question  ? 

The  PRESIDENT.  The  gentleman  from 
Lowell  will  proceed  in  order. 

Mr.  BUTLER.  I  think  the  time  has  come 
when  the  question  should  be  taken,  and  I  hope 
it  will  be  taken.  I  only  thought  I  should  like  to 
call  back  this  reminiscence.  I  grant  that  I  was 
not  stopped,  but  it  was  not  on  account  of  any 
good- will  in  this  quarter. 

Now,  I  think  we  have  said  enough  on  this 
matter,  and  I  hope  the  previous  question  will  be 
sustained. 

Mr.  HILLARD,  of  Boston.  I  am  not  one  of 
those,  who,  at  all  times,  and  on  principle,  am 
opposed  to  the  previous  question.  I  think  it  is  a 
right  which  the  majority  may  use,  and  sometimes 
must  use,  but  I  think,  also,  that  it  is  an  extreme 
medicine  of  a  deliberative  assembly,  and  not  its 
daily  food.  And  I  submit  it,  if  the  gentlemen 
who  are  charged  with  the  responsibility  of  this 
body — the  majority — are  not  now  administering 
this  extreme  medicine  when  we  only  want  a  little 
more  of  the  daily  bread.  What  attitude  are  we 
in  ?  Here  is  a  question  which  we  supposed  was 


settled  some  days  ago.  This  morning,  between 
ten  and  eleven  o'clock,  the  subject  revives  again, 
upon  the  proposition  for  a  tenure  for  a  term  of 
years,  and  this  afternoon  it  takes  another  aspect : 
that  of  making  judges  elective.  I  submit  that 
these  two  questions  are  not  only  more  important, 
but  they  are  at  least  four  times  more  important — 
if  you  can  thus  guage  such  things — than  any 
other  one  question  that  has  come  before  this 
body.  And  what  has  been  the  course  of  debate 
to-day  ?  We  have  had  a  speech  from  the  gentle 
man  representing  Manchester,  (Mr.  Dana,)  and 
another  from  the  gentleman  from  Salem,  (Mr. 
Lord,)  neither  of  them  cutting  into  the  pith  of 
the  question,  but  only  suggesting  certain  grounds 
of  expediency,  irrespective  of  their  merits,  why 
they  should  not  be  pressed  at  this  time.  Follow 
ing  them,  we  certainly  have  had  some  noticeable 
speeches,  such  as  the  very  effective  speech  of  the 
gentleman  for  Wilbraham,  (Mr.  Hallett,)  and  the 
remarkable  conflagration  of  the  gentleman  from 
New  Bedford,  (Mr.  French,)  and  this  afternoon 
a  brief  speech  from  the  gentleman  representing 
Fall  River,  (Mr.  Hooper,)  and  one  who  has 
startled  friend  and  foe,  from  the  valued  friend  of 
twenty-six  years,  whom  I  see  before  me,  (Mr. 
Giles,)  who  spoke  with  the  voice  of  Jacob  though 
the  hands  were  the  hands  of  E.sau ;  and,  yet, 
upon  the  tail  of  all  this,  when  the  minority  feel 
that  this  is  a  paramount  question,  in  which  our 
constituents  are  most  deeply  interested,  is  the 
great  axe  to  fall,  cutting  off  from  the  minority 
the  power  of  answering  one  of  the  new  argu 
ments  which  have  been  made  to-day  r 

Now  I  submit  to  the  majority,  that  the  minor 
ity  are  in  a  position  not  to  ask  favors,  but  to 
claim  rights,  because  we  have  not  turned  towards 
them  a  factious  countenance.  We  have  adhered 
to  the  legitimate  functions  of  a  minority,  and  no 
more.  We  have  thrown  no  factious  or  captious 
obstructions  in  the  path  of  business  here  ;  and 
we  are,  therefore,  not  reduced  to  ask  favors. 
We  claim  it  as  a  right,  to  be  allowed  to  answer 
some  of  the  new  arguments  which  have  been 
made  to-day ;  and,  if  we  are  denied  that  right,  I 
hope  we  shall  forever  after  hold  our  peace,  and 
appeal  from  this  body  to  the  people  in  November 
next. 

Mr.  KEYES,  for  Abington.  I  do  not  rise 
because  I  am  in  favor  of  the  previous  question  at 
this  or  at  any  other  time,  but  because,  if  the  pre 
vious  question  should  be  adopted,  there  would 
go  out,  as  the  discussion  now  stands,  a  false  im 
pression—if  any  impression  at  all— in  reference 
to  the  facts  of  the  case.  I  should  suppose,  by  the 
course  the  argument  has  taken,  that  one  party 
here,  called  the  minority  party— by  which,  I  sup- 


206 


THE   JUDICIARY. 


[62d    day. 


Wednesday,] 


KEYES  —  SCHOULER  —  TRAIN. 


[July  20th. 


pose,  is  meant  the  Whig  party— had  been  very 
much  oppressed,  and  had  npt  had  an  opportunity 
to  be  heard,  while  all  the  speeches  made,  had 
been  against  the  position  taken  by  its  members. 
I  do  not  know  that  I  am  a  very  good  judge,  not 
having  been  here  all  the  time,  but  I  think  that 
the  gentleman  from  Fall  River,  (Mr.  Hooper,) 
and  myself,  are  almost  all  who  have  said  a  single 
word  in  favor  of  the  election  of  judges  by  the 
people.  We  knew  that  there  were  here  a  hun 
dred  friends  of  that  measure,  who  feared  the  peo 
ple  too  much  to  advocate  the  measure,  but  I  have 
heard  few  make  speeches  upon  that  side  of  the 
question ;  whereas,  all  the  power  of  the  Whig 
party,  and,  if  I  may  say  it  without  disrespect — 
all  the  cowardice,  and  that  is  much,  of  all  the 
parties — have  been  exerted  upon  the  side  in  favor 
of  appointment  and  the  life  tenure. 

Now,  Sir,  I  should  be  glad  to  have  this  debate 
continued,  because  I  feel  stronger  and  stronger, 
every  day,  in  support  of  the  policy  of  the  election 
of  judges  by  the  people.  I  do  not  guess  at  it, 
but  I  know  that  if  this  debate  continues,  that 
view  of  the  question  will  accumulate  strength 
every  hour.  I  am  satisfied,  that  however  much 
talent  may  be  left  in  the  quarter  against  such  a 
proposition,  that  some  of  the  best  has  already 
been  expended  in  opposition  to  such  a  scheme, 
and  those  efforts  cannot  be  outdone.  But,  I  wish 
to  say,  if  ever  there  was  a  time  when  a  party,  or 
the  friends  of  a  particular  measure,  could  with 
propriety  move  the  previous  question,  this  is  the 
time ;  because  it  is  a  time  when  the  side  moving 
it,  have  had  but  two  or  three  speeches  upon  the 
subject ;  while  a  large  portion  of  the  talent  of  the 
opponents  of  an  elective  judiciary,  has  been 
poured  out  in  defence  of  their  side  of  the  ques 
tion,  and  my  impression  is — though  I  by  no 
means  wish  to  make  a  comparison  of  one  part  of 
the  members  of  this  Convention  with  another — 
my  impression  is,  that  no  argument  upon  that 
side  could  strengthen  it,  but  that  debate  would 
have  a  tendency,  in  a  body  like  this,  to  do  away 
with  the  bugbears  which  always  have  existed  in 
the  community  in  regard  to  it.  If  we  could  strip 
this  subject  of  that  influence  which  is  born  with 
us,  and  which  has  existed  in  the  atmosphere 
about  us  as  long  as  we  have  lived,  a  large  portion 
of  what  are  called  the  most  able  arguments  put 
forth  would  seem  absurd.  The  idea  that  you 
must  strip  the  governor  of  all  his  appointing 
power,  because  he  is  not  fit  to  be  trusted  with 
the  selection  of  even  the  least  important  agents, 
and  yet,  that  he  is  the  only  power  competent  to 
be  trusted  with  the  appointment  of  judges,  is 
absurd. 

Mr.   SCHOULER,  of  Boston.    I    rise    to  a 


question  of  order.  The  question  before  the  Con 
vention  is  on  the  call  for  the  previous  question, 
but  the  gentleman  is  discussing  the  main  ques 
tion,  and  therefore  is  out  of  order. 

The  PRESIDENT.  The  point  of  order  is 
well  taken,  and  the  gentleman  for  Abington 
will  confine  his  remarks  to  the  question  before 
the  Convention. 

Mr.  KEYES.  I  beg  pardon  of  the  Chair.  I 
forgot  myself  for  the  moment,  inasmuch  as 
others  did  not  talk  about  the  question.  But,  to 
confine  myself  to  the  point,  I  certainly  shall  not 
vote  for  the  previous  question — I  do  not  know  as 
I  ever  did — so  long  as  persons  wished  to  discuss. 
Our  side  has  not  been  discussed,  while  the  time 
and  talent  of  the  opposition  has  been  poured  out 
in  full  measure. 

Mr.  TRAIN,  of  Framingham.  I  do  not  desire 
to  occupy  the  time  of  the  Convention,  although  I 
know  they  would  listen  to  me  with  pleasure, 
because  they  know  me  to  be  a  good-natured  man, 
and  one  who  never  does  anything  simply  for  the 
sake  of  irritating  somebody— exactly  as  my 
friend  from  Worcester  says,  I  never  say  anything 
maliciously — but  I  speak  out  of  the  fulness  of  my 
heart.  Well,  Sir,  I  had  the  misfortune,  yester 
day,  to  move  the  previous  question  out  of  that 
fulness,  and  I  am  sorry  to  confess  to-day,  that  I 
did  a  very  foolish  thing ;  and  I  am  afraid  my 
friend  over  the  way  (Mr.  Adams)  has  done  an 
other  very  foolish  thing,  because  it  is  perfectly 
obvious  to-day,  that  there  are  those  who  wish  to 
address  the  Convention  upon  the  main  question, 
though  it  was  perfectly  evident  yesterday  that 
there  was  nobody  who  wished  it.  But,  times 
change,  and  men  change.  That  we  cannot  help  ; 
we  are  all  in  the  same  boat,  and  we  will  sail  along 
as  well  as  we  can. 

I  am  delighted,  on  the  whole,  that  this  matter* 
has  arisen,  because  it  verifies  the  old  maxim  that 
"what  is  sauce  for  the  goose  is  sauce  for  the 
gander,"  and  it  is  no  matter  which  is  the  goose, 
as  long  as  the  gander  is  on  the  other  side. 
[Laughter.]  I  hope  the  previous  question  will 
not  be  ordered  at  this  time.  Certainly,  no  elo 
quence  of  mine  is  needed,  to  convince  this  Con 
vention  that  this  is  the  most  important  question  we 
shall  be  called  to  pass  upon  here.  Every- body 
concedes  that.  If  this  is  the  vital  question,  let 
us  talk  it  out,  and  my  word  for  it,  the  people 
will  not  care  whether  we  spend  a  hundred  dol 
lars  more  or  less,  provided  we  settle  this  question 
with  a  degree  of  unanimity  which  will  be  satis 
factory  to  all  the  people  of  the  Commonwealth. 
I  desire  to  mete  out  to  my  friends  upon  both 
sides  of  the  question,  the  same  sort  of  consider 
ation  which  I  received  yesterday.  As  there  seems 


62d  day.] 


THE   JUDICIARY. 


207 


Wednesday,] 


HOOD  —  BARTLETT  —  DANA. 


[July  20th. 


to  be  a  disposition  to  press  the  call  for  the  previ 
ous  question,  I  move  that  when  the  question  is 
taken  it  be  taken  by  yeas  and  nays. 

Mr.  HOOD,  of  Lynn.  I  desire  to  give  a  few 
reasons  why  the  previous  question  should  be  sus 
tained.  This  Convention  have  voted  to  adjourn 
on  Saturday  next,  [laughter] ;  they  voted  to 
accept  the  Report  of  the  Committee  on  adjoiirn- 
ment,  which  was  that  we  could  bring  our  labors 
to  a  close  at  that  time.  There  comes  up  here  from 
the  people  of  the  Commonwealth  the  expression 
of  a  general  desire  that  this  Convention  should 
finish  their  labors  and  adjourn  without  day. 
There  comes  up  through  the  reform  press  of  the 
State,  the  same  expression.  On  the  other  hand, 
there  comes  from  the  press  of  the  party  to  which 
the  gentleman  from  Salem,  (Mr.  Lord,)  belongs, 
a  denunciation  of  this  Convention  for  lengthening 
out  its  session.  I  submit  to  the  Convention  that 
is  sufficient  reason  to  induce  us  to  proceed  as 
rapidly  with  our  business  as  can  be  done  consist 
ently  with  a  proper  regard  for  the  public  interest. 
I  submit  that  this  question  has  been  thoroughly 
discussed,  and  pretty  much  on  the  side  of  gentle 
men  opposed  to  taking  the  previous  question.  I 
should  be  glad  to  occupy  some  time  in  the  dis 
cussion  of  the  subject,  myself,  but  I  am  willing 
to  concede  my  right  to  the  floor  upon  this  ques 
tion,  at  this  time,  and  I  trust  other  gentlemen  are 
willing  to  do  the  same  thing.  We  have  a  large 
number  of  subjects  upon  the  Orders  of  the  Day, 
which  have  to  be  disposed  of;  I  presume  every 
member  here  has  made  up  his  mind  how  he 
shall  vote  upon  the  question,  and  I  think  the 
time  has  come  for  it  to  be  taken. 

The  gentleman  from  Boston,  (Mr.  Hillard,) 
says  that  the  minority,  to  which  he  belongs,  has 
not  endeavored  to  delay  the  business  of  the  Con 
vention.  I  do  not  propose  to  make  any  charge  of 
that  kind  against  them,  but  from  the  commence 
ment  of  this  Convention,  there  has  been  a  constant 
and  continued  opposition  to  any  attempt  to  hasten 
our  business.  I  believe  it  was  on  the  second 
week  of  the  session  that  I  moved  the  appointment 
of  a  Committee  to  consider  the  question  whether 
it  was  possible  for  the  Convention  to  finish  its 
labors  before  the  fourth  of  July.  When  the 
question  was  brought  up,  who  opposed  it  ?  And 
whenever  a  motion  has  been  made  to  shorten 
debate  upon  any  question,  gentlemen  have  risen 
in  their  places  and  come  out  strongly  in  favor  of 
free  discussion.  I  am  in  favor  of  free  discussion  ; 
but,  Sir,  I  remember  the  promises  made  to  the 
people,  before  the  Convention  assembled,  that  the 
Convention  would  finish  its  labors  within  seventy- 
five  days.  I  have  a  printed  document  before  me, 
to  which  I  would  call  the  attention  of  gentlemen, 


for  it  has  been  customary  to  refer  to  the  pro 
gramme  laid  down  by  the  committee.  In  this 
document  they  declare  that  the  Convention  could 
be  brought  to  a  close  in  seventy-five  days.  If 
we  are  to  confine  ourselves  to  the  rule  which  has 
been  laid  down,  I  ask  gentlemen  to  apply  it  in 
this  case.  But  the  rule  has  been  departed  from 
in  one  respect,  for  in  this  document  I  see  it  is 
said  that  the  pay  of  members  of  the  Convention 
shall  be  the  same  as  that  of  members  of  the  legis 
lature. 

The  PRESIDENT.  The  Chair  must  remind 
the  gentleman  from  Lynn,  that  the  main  question 
is  not  under  discussion. 

Mr.  HOOD.  I  hope,  therefore,  the  question 
will  be  taken,  and  that  the  Convention  will  then 
proceed  to  consider  the  subjects  upon  the  Orders 
of  the  Day,  and  finish  its  business  by  Saturday 
next,  according  to  the  expectation  of  the  people. 

Mr.  BARTLETT,  of  Boston.  I  have  had  the 
misfortune  to  be  absent  while  this  debate  has 
been  in  progress,  and  I  should  have  been  very 
glad,  if  not  to  have  participated,  at  least  to  have  a 
chance  to  review  the  entire  ground.  That  indi 
cates,  of  course,  my  desire  that  the  previous  ques 
tion  be  not  now  sustained.  Probably,  Sir,  all 
that  could  be  fairly  said,  has  been  exhausted  upon 
the  subject.  But  there  are  some  few  questions 
which,  at  some  proper  period,  I  desire  to  put  to 
the  gentleman  who  introduced  the  project.  I 
suppose  if  the  question  should  be  decided  to  be 
taken,  that  the  explanations  elicited  by  those  ques 
tions  will  be  lost,  and  I  will  now,  if  it  is  in  order, 
put  the  interrogatories. 

The  PRESIDENT.  The  gentleman  can  pro 
ceed,  if  there  be  no  objection. 

Mr.  BUTLER,  of  Lowell.     I  object. 

Mr.  BARTLETT.  Thanking  the  Convention 
for  being  permitted  to  proceed  thus  far,  I  will 
trouble  them  no  longer. 

Mr.  DANA,  for  Manchester.  I  have  an  ob 
jection  to  urge  against  putting  the  previous  ques 
tion.  I  am  one  of  those  who  usually  remain 
here  until  there  is  no  quorum,  at  night,  when 
those  gentlemen  who  are  very  desirous  of  termi 
nating  debate,  and  hurrying  business,  are  not 
here.  I  agree,  that  the  main  questions  have  been 
pretty  thoroughly  discussed ;  that  is,  the  ques 
tion  of  an  elective  judiciary,  and  the  tenure  of 
office,  and  perhaps  as  far  as  gentlemen  wish  to 
discuss  them,  and  I  think  if  no  attempt  is  made 
to  put  the  question,  the  Convention  will  not  be 
troubled  by  farther  debate  upon  those  points. 
But  there  is  something  peculiar  in  the  proposi 
tion  of  the  gentleman  from  Worcester,  which  has 
never  been  discussed,  and  that  js,  the  subject  of 
confirmation  by  the  Senate.  There  are  some 


208 


THE    JUDICIARY. 


[62d  day. 


"Wednesday,] 


DANA  —  GKAY  —  STRONG  —  EARLE. 


[July  20th. 


serious  questions  which  arise  out  of  that  subject, 
which  I  intended  to  have  spoken  of,  but  was  pre 
vented,  by  being  cut  off  by  the  half  hour  rule. 

The  PRESIDENT.  The  Chair  would  remind 
the  gentleman  that  the  only  question  before  the 
Convention,  is  the  call  for  the  previous  question. 

Mr.  DANA.  I  wish  to  state  the  reasons  why 
the  previous  question  should  not  be  put.  It  has 
been  argued  here,  that  the  main  question  has 
been  thoroughly  discussed ;  and  am  I  not  in  or 
der  in  saying  that,  though  the  main  question  has 
been  discussed,  yet  there  are  other  questions  con 
nected  with  it,  which  have  not  been  r 

The  PRESIDENT.  The  gentleman  is  in  order. 

Mr.  DANA.  Then  I  wish  to  say,  that  there 
arise  serious  questions  out  of  this  matter  of  con 
firmation  by  the  Senate ;  and,  if  I  am  not  mis 
taken,  the  gentleman  from  Worcester  has  an 
amendment  to  that  very  point,  which  he  will  be 
cut  off  from  offering,  if  the  previous  question  is 
adopted.  I  ask  him  if  he  has  not  an  amendment, 
which  provides  that  the  government  may  fill  a 
vacancy  in  the  court  during  the  nine  months 
when  there  is  no  legislature  in  session  ? 

Another  thing :  the  gentleman's  resolution,  as 
it  now  stands,  would  remove  all  the  present 
judges,  all  of  them  ;  and  the  governor,  in  1854, 
would  have  to  appoint  a  complete  set  of  judges, 
of  both  courts.  I  would  ask  if  the  gentleman 
has  not  some  amendment  relating  to  that  point  ? 
These  questions  are  important,  and  they  have 
not  been  discussed  at  all. 

Mr.  GRAY,  of  Boston.  I  would  ask  upon 
what  principle  it  is  that  we  allow  of  more  than 
one  stage  in  the  progress  of  a  bill  ?  I  take  it, 
that  it  is  to  throw  the  whole  ground  open  more 
than  once ;  and  it  is  by  virtue  of  that  very  proper 
principle  that  these  amendments  are  offered.  It 
seems  to  me  that,  by  parity  of  reasoning,  the 
conclusion  is  irresistible,  that  if  there  is  an  oppor 
tunity  of  offering  amendments,  there  should  be 
an  opportunity  of  reasonable  discussion  upon 
them.  I  stand  upon  a  ground  where  I  stood 
yesterday,  and  standing  upon  which,  I  opposed 
some  of  my  friends.  I  said  then,  and  I  say  now, 
that  I  have  yet  to  hear  the  first  speech  of  any 
length  made  against  time.  I  say,  Sir,  though  it 
may  not  be  in  order  to  reflect  upon  the  past,  that 
these  attempts  to  cut  off  debate  are  lowering  the 
dignity  of  the  Convention  in  the  eyes  of  the  peo 
ple,  and  I  think  it  ought  to  lower  the  Conven 
tion  in  its  own  eyes.  I  say,  also,  that  not  one 
moment  is  gained  by  this  course.  Now,  Sir,  I 
want  the  question  taken  this  afternoon,  because 
we  have  a  very  full  house,  and  I  believe  we 
should  have  reached  it,  and,  what  is  more,  I  be 
lieve  we  shall  still  reach  it,  without  any  attempt 


to  force  the  question.  I  suppose  gentlemen  can 
recall  an  old  tale  in  verse,  which  was  one  of  the 
first  things  I  ever  learned,  and  of  which  I  will 
only  repeat  a  couple  of  lines.  A  soldier  came 
into  a  lunatic  asylum,  with  his  sword  by  his  side. 
One  of  the  inmates  of  the  asylum  asked  him 
why  he  carried  the  sword.  "  Why,"  said  he, 
"  to  kill  my  enemies."  I  thought  there  was  good 
sense,  as  well  as  good  feeling,  in  the  reply  of 
the  lunatic  : — 

"  Sure  that's  a  thought  I  'd  not  own, 
They  '11  die  of  themselves,  if  you  let  them  alone." 

If  gentlemen  will  let  this  debate  alone,  it  will 
die  of  itself.  And  I  really  think  there  are  ques 
tions  connected  with  the  subject,  which  ought 
not  to  be  forced  under  the  previous  question. 

Mr.  STRONG,  of  Easthampton.  I  am  op 
posed  to  putting  the  previous  question  at  this 
time,  for  two  reasons.  In  the  first  place,  I  think 
if  this  subject  is  debated  until  some  time  in  the 
forenoon  to-morrow,  we  shall  be  able  to  get  a 
majority  of  the  Convention  to  vote  in  favor  of  the 
amendment  of  the  gentleman  from  Fall  River, 
(Mr.  Hooper,)  which,  if  I  mistake  not,  is  to  ap 
ply  the  elective  principle  to  the  judiciary.  And 
if  we  can  carry  that  proposition  through  the  Con 
vention,  and  submit  it  to  the  people,  it  will  be  the 
only  thing  which  I  can  imagine  that  will  save  the 
life  of  the  Constitution  which  you  will  submit 
to  them.  I  cannot  think  of  anything  else  which 
we  can  do  that  will  have  the  effect  of  redeeming 
the  other  acts  which  we  have  passed. 

But  I  oppose  tliis  motion  at  this  time  for  another 
reason.  There  are  gentlemen  in  the  hall  who 
have  not  yet  had  an  opportunity  of  speaking 
upon  this  subject,  who,  I  understand,  desire  to 
speak  upon  the  propriety  of  making  the  judges  elec 
tive  by  the  people.  For  these  reasons,  therefore, 
and  especially  for  the  last  reason,  I  hope  the 
previous  question  will  not  now  be  sustained. 

Mr.  EARLE,  of  Worcester.  I  was  about  to 
say  that  I  hope  the  motion  for  the  previous  ques 
tion  will  not  be  sustained  at  this  time.  And  I 
rather  hope  my  friend  from  Lowell,  (Mr.  Adams,) 
will  withdraw  it.  It  is  very  evident,  from  the 
state  and  temper  of  the  Convention  at  this  time, 
that  if  the  previous  question  is  sustained  and 
enforced,  it  will  be  no  saving  of  time  whatever  ; 
because  under  the  existing  circumstances,  these 
amendments  having  been  recently  introduced, 
and  having  too  been  not  very  fully  discussed  upon 
this  occasion,  there  is  a  disposition  manifested 
upon  the  part  of  some  gentlemen  to  discuss  them 
farther.  And  if  they  are  not  discussed  now, 
undoubtedly  there  will  be  a  reconsideration,  and 
the  discussion  will  then  take  place.  I  think  it  is 


62d  day.] 


THE  JUDICIARY. 


209 


Wednesday," 


BRADBURY  —  LORD  —  BUTLER. 


[July  20th. 


better,  when  a  subject  is  directly  before  the  Con 
vention,  to  allow  it  to  be  fully  discussed,  and  for 
it  to  be  finally  disposed  of,  rather  than  to  have  the 
discussion  come  up  upon  a  motion  to  reconsider ;  a 
motion  which,  of  itself,  opens  the  whole  subject 
again  to  discussion.  I  hope,  therefore,  my  friend 
from  Lowell  will  be  induced  to  withdraw  his 
motion  for  the  previous  question ;  and  if  he  is 
not,  I  shall  be  constrained  to  vote  against  it ;  and 
if  the  motion  is  lost,  it  cannot  be  made  again. 

Mr.  BRADBURY,  of  Newton.  I  never 
moved  a  previous  question  in  my  life,  and  never 
voted  for  such  a  motion.  I  should,  however, 
have  voted  for  the  motion  yesterday,  if  the  ques 
tion  had  been  taken.  But  I  am  surprised  that 
gentlemen  should  confound  that  motion  with  the 
one  which  the  gentleman  from  Lowell  (Mr. 
Adams)  now  makes.  Any  one  who  knows  any 
thing  of  parliamentary  law,  or  who  understands 
anything  of  the  mode  of  proceeding,  must  see 
that  there  can  be  no  comparison  between  the  two 
motions.  The  gentleman  from  Framinghan  (Mr. 
Train)  moved  the  previous  question,  upon  a 
motion  to  reconsider  a  particular  vote.  His 
motion  did  not  open  the  whole  subject  to  discus 
sion  at  all.  But  if  the  reconsideration  had  taken 
place,  it  would  have  opened  the  whole  subject  to 
discussion.  If  ever  I  could  be  in  favor  of  a 
motion  for  the  previous  question,  therefore,  I 
should  have  been  in  favor  of  it  then,  because  its 
effect  would  have  been  to  have  extended  the  dis 
cussion  rather  than  to  limit  it.  The  effect  of  the 
motion  of  the  gentleman  from  Framingham  was 
to  enlarge  the  rights  of  members,  so  far  as  dis 
cussion  is  concerned,  and  not  to  curtail  it.  In  the 
case  now  before  us,  however,  the  effect  is  exactly 
the  reverse.  The  motion  is  retaliatory  in  its  char 
acter.  Its  effect  is  not  to  enlarge  debate,  but  to 
curtail  it.  It  is  not  to  open  a  wider  range  of  de 
bate,  but  to  close  it  upon  the  final  disposal  of  one 
of  the  most  important  subjects  before  the  Con 
vention.  I  hope,  therefore,  the  previous  question 
will  not  be  sustained. 

Mr.  LORD,  of  Salem,  claimed  the  floor. 

The  PRESIDENT.  By  the  rules  of  the  Con 
vention,  the  gentleman  from  Salem  having  spoken 
once  upon  this  motion,  cannot  again  take  the 
floor  until  the  question  is  disposed  of. 

Mr.  LORD.  If  the  Chair  had  understood  my 
purpose  in  rising,  he  would  not  have  been  under 
the  necessity  of  calling  me  to  order.  I  am  aware 
that,  by  the  rules  of  the  Convention,  I  am  not 
entitled  to  the  floor  again  upon  this  motion.  I 
was,  however,  about  to  say,  that,  inasmuch  as 
the  gentleman  from  Lowell  has  introduced  here 
a  matter  connected  with  a  past  proceeding  in  the 
legislature,  which  is  personal  between  himself 

14' 


and  me,  I  desire  the  leave  of  the  Convention  to 
give  my  version  of  it. 

The  PRESIDENT.  The  gentleman  will  pro 
ceed,  by  general  consent,  if  no  one  objects. 

Objection  was  made. 

Mr.  LORD.  I  then  move  that  I  may  be  per 
mitted  to  speak  again  upon  the  subject,  that  I 
may  reply  to  the  gentleman  from  Lowell. 

The  motion  was  agreed  to. 

Mr.  LORD.  I  desire  to  return  my  thanks  to 
the  Convention  for  giving  me  this  opportunity 
for  personal  explanation.  I  knew  that  I  had  no 
right  to  speak.  I  threw  myself  upon  their  ind.J- 
gence,  and  they  have  treated  me  with  great  kind 
ness. 

The  gentlemen  from  Lowell  (Mr.  Butler)  in 
troduced  here,  before  the  Convention,  a  scene 
which  was  enacted  in  the  House  of  Representa 
tives  during  the  last  session  of  the  legislature,  in 
which  he  said  that  he  and  I  were  the  actors.  I 
propose,  Mr.  President,  to  give  my  version  of  that 
scene — and  those  gentlemen  who  are  members  of 
both  bodies,  will  judge  between  us. 

The  two  branches  of  the  legislature — the  Sen 
ate  and  the  House  of  Representatives — met  in 
convention ;  the  president  of  the  Senate  in  the 
chair.  The  gentleman  from  Lowell  addressed  the 
convention,  and  was  called  to  order.  He  was 
called  to  order  once,  and  he  was  called  to  order 
twice — he  was  called  to  order  three  times,  and 
more  than  three  times,  by  members — when  the 
president  called  him  to  order.  Every-body  who 
was  in  that  House  remembers  how  the  gentleman 
from  Lowell  then  addressed  the  president,  and 
said,  "  Who  made  you  a  dictator  ? " 

Mr.  BUTLER,  of  Lowell.  I  rise  to  correct  a 
personal  matter.  The  gentleman  says  this  oc 
curred  on  one  day.  Now,  Sir,  there  was  nothing 
said  against  debate  on  the  first  day,  nor  on  the 
second.  It  was  not  till  the  third  day,  that  the 
occurrence  of  which  the  gentleman  speaks,  took 
place. 

Mr.  LORD.  I  am  giving  my  version  of  the 
affair ;  but  I  am  very  happy  to  hear  that  the 
gentleman  acknowledges  it  to  be  the  true  version. 
When  the  gentleman  from  Lowell  was  called  to 
order  by  the  presiding  officer,  he  rose  and  said, 
"Who  made  you  a  dictator?"  That  was  the 
position  of  things.  The  gentleman  proceeded, 
and  proceeded,  until  there  was  very  great  irregu 
larity.  The  difference  in  days,  of  which  he 
speaks,  is  of  very  little  consequence.  The  gen 
tleman  proceeded  upon  that  occasion  until  it  was 
apparent  to  every-body  that  he  was,  in  truth, 
"  inexperienced  "  in  parliamentary  matters — that 
he  did  not  even  know  the  rules  and  proprieties  of 
the  place.  It  was  then,  after  he  had  been  called 


210 


THE  JUDICIARY. 


[62d  day. 


Wednesday,] 


LORD  —  FROTIIIXGHAM. 


[July  20th. 


to  order  over  and  over  again,  that  I  rose  to  a 
question  of  order,  and  my  question  of  order  was 
this :  When  a  gentleman  speaking  is  called  to 
order  by  the  presiding  officer,  or  by  any  other 
member,  he  shall  sit  down.  I  have  tried,  myself, 
to  follow  that  rule.  I  complied  with  it  two  or 
three  times  this  afternoon,  when  I  was  called  to 
order  by  the  gentleman  from  Conway,  (Mr. 
Whitney).  Well,  Sir,  upon  that  occasion,  I 
raised  a  question  of  order,  whether,  a  point  of 
order  being  made,  and  being  sustained  by  the 
presiding  officer,  the  member  decided  to  be  out  of 
order  could  proceed  without  leave  of  the  House  ? 
The  Chair  sustained  me,  and  a  motion  was  made, 
that  the  gentleman  from  Lowell  have  leave  to 
proceed.  Now,  will  the  gentleman  from  Lowell 
tell  how  I  voted  upon  that  motion?  Will  he 
undertake  to  say,  that  I  voted  against  his  having 
leave  to  proceed  ?  That  is  the  question.  When 
he  had  been  called  to  order — when  he  had  been 
decided  to  be  out  of  order,  by  the  presiding  offi 
cer,  and  when  he  had  demanded  of  the  presiding 
officer  to  know  "who  made  him  a  dictator" — 
even  then,  did  the  gentleman  find  me  voting 
against  his  having  permission  to  speak  ?  No,  Sir. 
No,  Sir.  '  But  when  he  was  decided  to  be  out  of 
order,  I  suggested  that  permission  be  granted  for 
him  to  proceed  in  order.  The  gentleman  knows 
that  I  never  objected  to  his  debating,  IN  ORDER,. 
It  is  not  for  him,  therefore,  to  get  up  here  and 

Mr.  UNDERWOOD,  of  Milford.  I  rise  to  a 
question  of  order.  I  want  to  know  what  is  be 
fore  the  Convention  ? 

The  PRESIDENT.  The  Convention  have 
granted  the  gentleman  from  Salem  leave  to  make 
a  personal  explanation,  and  the  gentleman  is  pro 
ceeding  with  his  explanation. 

Mr.  LORD.  I  will  not  trouble  the  Conven 
tion  very  much  more.  I  merely  wanted  to  make 
this  explanation,  that  when  the  gentleman  from 
Lowell  was  in  the  position  which  I  have  stated,  I 
suggested  that  he  be  permitted  to  proceed  in 
order.  Now,  if  the  gentleman  from  Lowell,  or 
anybody  else,  ever  find  me,  upon  a  question 
where  the  decision  is  to  be  final,  undertaking  to 
stop  debate,  they  will  find  me  in  a  position  in 
which  I  have  not  been  heretofore.  I  do  not  mean 
to  say  that  I  have  not,  in  the  legislature,  voted 
for  a  motion  of  the  previous  question.  I  have 
done  it  a  hundred  times.  I  have,  myself,  moved 
it  fifty  times,  but  I  have  moved  it  upon  motions 
to  reconsider,  and  upon  questions  which  would 
open  the  whole  subject  again  for  consideration. 
I  have  moved  it  where  no  action  was  proposed, 
and  upon  questions  from  which  no  harm  could 
come.  But,  in  cases  where  important  action 
was  taken,  and  where  the  decision  was  to  be  final, 


I  have  not  only  never  moved  the  previous  ques 
tion,  but  I  have  never  voted  to  sustain  it.  And 
this  is  the  distinction  which  I  think  should  be 
made  just  now.  And  again,  gentlemen  will  do 
well  to  bear  in  mind  that  this  is  not  a  legislative 
assembly,  where  our  acts  will  not  only  be  subject 
to  revision  every  year,  but  have  the  ordeal  of  two 
other  branches  to  pass ;  but  ours  is  a  final  de 
cision,  which  is  not  subject  to  revision  by  any 
legislative  body.  And  in  reference  to  this  par 
ticular  case,  the  vote  to  be  taken  is  the  final 
vote. 

Mr.  HOOD,  of  Lynn.  I  rise  to  a  question  of 
order.  The  gentleman  is  not  making  a  personal 
explanation.  He  is  discussing  the  question. 

Mr.  FROTHINGHAM,  of  Charlestown.  It 
seems  to  me,  that  in  the  present  temper  of  the 
Convention,  it  will  not  be  the  wish  of  the  major 
ity  to  take  this  question  at  the  present  time.  I 
rise,  therefore,  not  for  the  purpose  of  making  any 
argument  upon  the  expediency  or  the  non-expe 
diency  of  the  previous  question  at  this  time,  but 
to  suggest  that,  by  a  general  arrangement,  it  may 
be  the  understanding  that  the  taking  of  the  ques 
tion  be  postponed  until  to-morrow  at  eleven  o'clock, 
and  that,  in  the  meantime  the  discussion  may  be 
allowed  to  go  on. 

For  that  purpose,  and  with  that  understanding, 
I  will  venture  to  ask  the  gentleman  from  Lowell, 
(Mr.  Adams,)  to  withdraw  his  motion  for  the 
previous  question. 

Mr.  ABBOTT,  of  Lowell.  I  certainly  am  in 
favor  of  the  suggestion  of  the  gentleman  from 
Charlestown 

Mr.  LORD,  of  Salem.  I  rise  to  a  question  of 
order.  I  desire  to  inquire  if  the  President  has 
decided  the  question  of  order  made  by  the  gentle 
man  from  Lynn,  (Mr.  Hood)  ? 

The  PRESIDENT.  The  gentleman  front 
Lynn  rose  to  a  question  of  order,  when  the  gen 
tleman  from  Salem  took  his  seat,  and  the  Chair 
supposed  he  had  concluded  what  he  had  to  say. 

Mr.  LORD.  I  supposed  it  was  my  duty  to 
take  my  seat  when  I  was  called  to  order. 

The  PRESIDENT.  The  gentleman  from  Salem 
was  speaking  out  of  order.  He  had  made  his 
personal  explanation,  and  was  discussing  the 
question,  when  the  gentleman  from  Lynn,  (Mr. 
Hood,)  called  him  to  order.  The  gentleman  from 
Salem  then  took  his  seat,  and  made  no  subsequent 
attempt  to  go  on.  The  Chair  supposed,  therefore, 
that  the  gentleman  had  finished  his  explanation, 
and  yielded  to  the  point  of  order,  that  he  was  dis 
cussing  the  question,  which  he  had  no  right 
to  do. 

Mr.  LORD.  I  have  no  wish  to  say  anything 
more  upon  this  subject.  I  had  supposed  that  any- 


62d  day.] 


THE  JUDICIARY. 


211 


Wednesday,]          ABBOTT  —  UPTON  —  HOOPER  —  ADAMS  —  BRIGGS  —  GARDNER. 


[July  20th. 


thing  I  was  saying  was  not  without  the  leave  of 
the  Convention,  and  that  as  long  as  I  conducted 
myself  with  propriety,  I  had  the  leave  of  the 
Convention  to  proceed.  But,  Sir,  it  is  my  custom 
to  sit  down  when  I  ana  called  to  order,  and  having 
got  a  little  used  to  it,  it  becomes  natural  for  me 
to  sit  down  as  soon  as  I  see  certain  gentlemen 
get  up.  [Laughter.] 

Mr.  ABBOTT,  of  Lowell.  I  was  about  to  say, 
when  I  was  interrupted  by  the  gentleman  from 
Salem,  that  if,  by  general  consent,  it  can  be  un 
derstood  that  the  question  shall  be  taken  at  ten 
or  eleven  o'clock  to-morrow,  I  am  quite  content 
that  that  arrangement  should  be  made ;  and  I 
think  that  with  this  arrangement  my  colleague, 
(Mr.  Adams,)  will  withdraw  his  motion  for  the 
previous  question.  But,  Sir,  the  responsibility 
of  this  Convention  is  upon  the  majority,  and  if 
we  cannot  have  the  general  consent  to  fix  some 
time,  at  no  very  distant  period,  for  taking  the 
question,  I  shall  go  for  exercising  the  power  of 
the  majority,  and  for  enforcing  the  previous  ques 
tion  now. 

Mr.  UPTON,  of  Boston.  The  minority  of  this 
Convention  have  had  some  lectures  read  to  them, 
and,  perhaps,  the  majority  would  not  take  it  amiss, 
if  an  humble  member  of  the  minority  should  read 
a  lecture  to  them.  I  can  see  around  me  members 
of  this  Convention,  certainly  more  than  one  gen 
tleman,  who  had  the  honor  some  ten  or  twelve 
years  ago,  of  holding  seats  in  the  legislature,  in 
another  part  of  this  building.  If  I  recollect 
aright,  the  division  of  parties  then  was  as  eighteen 
to  twenty-two.  I  happened  to  be  a  member  of 
the  dominant  party,  and  I  will  say  in  regard  to 
that  minority  of  eighteen,  that  they  were  a  set  of 
men  who  were  incessantly  talking,  much  worse,  if 
anything,  than  even  the  minority  of  this  Con 
vention  ;  and  it  was  necessary  in  some  way  to  check 
debate,  and  bring  our  labors  to  a  speedy  conclu 
sion.  Being  a  member  of  the  majority,  I  pro 
posed  what  I  considered  a  very  simple  way  to  dis 
pose  of  the  whole  thing,  and  that  was,  to  let  the 
minority  go  on  and  talk,  without  any  hinderance 
on  the  part  of  the  majority.  Well,  they  did  go 
on  and  talk,  and  after  they  had  made  five  or  ten 
speeches  upon  their  side,  and  spoken  all  they 
wanted  to,  we  would  then  take  the  question,  and 
vote  them  down.  I  propose  that  the  majority  in 
this  case  should  allow  us  the  minority  to  go  on 
and  talk.  If  they  are  right  in  their  propositions, 
for  Heaven's  sake,  give  us  a  feeble  chance  to  use 
the  few  arguments  which  we  may  have.  If  they 
are  good  for  nothing,  no  harm  can  come,  and  the 
majority  can  at  all  events  vote  us  down. 

Mr.  HOOPER,  of  Fall  River.  I  happened  to 
be  one  of  those  to  whom  the  gentleman  from 


Boston,  (Mr.  Upton,)  alludes,  as  I  was  a  member 
of  the  Senate  at  that  time.  I  would  remind  the 
gentleman,  that  it  was  under  different  circum 
stances  from  those  in  which  we  are  placed  here, 
that  that  course  was  pursued.  In  a  body  of  only 
forty-four,  a  majority  of  twenty-three  could  very 
easily  come  to  an  understanding  and  settle  such  a 
matter  ;  but  it  would  be  a  very  difficult  matter  to 
decide  this  question  by  a  lobby  understanding, 
and  then  come  in  here  and  be  prepared  to  vote 
down  the  minority. 

The  PRESIDENT.  The  Chair  must  remind 
the  gentleman  that  the  question  is  upon  ordering 
the  main  question. 

Mr.  HOOPER.  I  stand  corrected,  but  I  was 
only  following  in  the  track  of  other  gentlemen. 

Mr.  ADAMS,  of  Lowell.  Notwithstanding 
the  insinuations  made  by  the  gentleman  from 
Salem,  (Mr.  Lord,)  I  made  the  motion  for  the 
previous  question  upon  my  responsibility  as  a 
delegate  to  this  Convention.  I  made  that  motion, 
because  I  believed  then,  as  I  do  now,  that  it  was 
the  desire  of  the  Convention,  that  debate  should 
cease  ;  but  as  it  seems  that  a  motion  for  the  pre 
vious  question  involves  the  history  of  the  last 
legislature,  and  the  character  of  the  gentleman 
from  Salem,  (Mr.  Lord,)  and  that  a  discussion  of 
these  subjects  would  probably  engross  more  time 
than  the  question  of  the  judiciary,  which  has  been 
before  us  for  several  days,  I  rise  for  the  purpose 
of  withdrawing  that  motion,  and  make  a  motion 
to  lay  the  Orders  of  the  Day  on  the  table,  so  that 
the  gentleman  from  Charlestown,  (Mr.  Frothing  - 
ham,)  may  make  a  motion  for  an  assignment  of 
a  particular  hour  when  the  question  shall  be 
taken.  I  therefore  withdraw  the  motion  for  the 
previous  question,  and  move  that  the  Orders  of 
the  Day  lie  upon  the  table. 

Mr.  BRIGGS,  of  Pittsfield.  It  seems  to  me, 
that  this  course  is  hardly  necessary,  for  I  believe, 
judging  from  my  own  feelings,  however,  that  the 
unanimous  voice  of  the  Convention  will  be  given 
to  such  a  proposition,  liberal  as  I  consider  it  to  be. 
If  the  Chair  will  submit  the  question,  whether  it 
is  the  unanimous  voice  of  the  Convention,  that 
the  question  upon  this  subject  shall  be  taken  to 
morrow  at  eleven  o'clock,  it  is  the  strongest 
expression  which  we  can  have,  and  no  one  can 
rise  with  a  good  grace,  hereafter,  and  interpose  any 
objection. 

Mr.  GARDNER,  of  Boston.  I  rise  to  a  ques 
tion  of  order.  I  presume  the  gentleman  from 
Lowell,  (Mr.  Adams,)  has  no  right  to  withdraw 
the  demand  for  the  previous  question,  when  the 
yeas  and  nays  have  been  ordered.  If  the  Con 
vention  give  unanimous  consent  to  the  gentleman 
from  Lowell,  that  he  may  withdraw  his  motion, 


212 


THE   JUDICIARY. 


[62d  day. 


Wednesday,] 


FROTHINGHAM  —  HILLAKD. 


[July  20th. 


they  may  be  understood  as  tacitly  assenting  to  an 
arrangement  to  take  the  vote  to-morrow  at  eleven 
o'clock. 

The  question  was  then  taken  upon  Mr.  Adams's 
motion,  that  the  Orders  of  the  Day  lie  upon  the 
table,  and  it  was  decided  in  the  affirmative. 

So  the  Orders  of  the  Day  were  laid  upon  the 
table. 

Mr.  FROTHINGHAM,  of  Charlestown.  I 
move  that  the  question  in  relation  to  the  Judiciary 
be  taken  to-morrow,  at  eleven  o'clock. 

The  motion  was  agreed  to. 

On  motion  of  Mr.  FROTHINGHAM,  the  Con 
vention  then  proceeded  to  the  consideration  of 
the  Orders  of  the  Day. 

The  PRESIDENT.  The  question  pending,  is 
upon  the  amendment  of  the  gentleman  from  Fall 
River,  (Mr.  Hooper,)  and  the  gentleman  from 
Lynn  has  moved  that  when  the  question  be  taken, 
it  be  taken  by  yeas  and  nays. 

The  yeas  and  nays  were  ordered. 

Mr.  HILLARD,  of  Boston.  I  would  ask  if 
the  amendment  of  the  gentleman  from  Fall  River, 
(Mr.  Hooper,)  will  not  open  the  whole  subject 
for  discussion  ? 

The  PRESIDENT.  The  Chair  rules  that  the 
whole  subject  is  open  for  discussion. 

Mr.  HILLARD.  Whatever  be  our  shades  of 
opinion,  and  to  whatever  party  we  belong,  we  all 
agree  in  one  thing — in  a  habit  of  exaggeration 
and  over- statement  in  debate.  We  all  magnify 
the  evils  of  a  system  we  deprecate,  and  the  bene 
fits  of  that  to  which  we  wish  to  cling.  While 
opposing  the  amendment  offered  by  the  gentleman 
from  Worcester,  (Mr.  Knowlton,)  to  which  I 
shall  confine  my  remarks,  I  wish  at  the  outset  to 
make  the  magnanimous  concession  that  I  do  not 
believe  that  chaos  will  come  again  if  we  do  adopt 
that  amendment  in  Massachusetts.  I  concede 
that  life,  liberty,  and  property,  and  rights,  will 
still  be  secure  in  Massachusetts.  The  elements 
that  have  given  us  a  good  judiciary  hitherto,  will 
operate  to  give  us  a  good  one  still,  whatever  may 
be  the  tenure  of  office,  and  whether  judges  be 
elected  or  appointed ;  and  those  elements  reside  in 
an  enlightened  state  of  public  opinion,  in  a  learned 
and  upright  bar,  and  in  the  liberal  compensation 
which  we  give  to  the  judges  ;  and  therefore  I 
would  admit  that  we  have  before  us  now,  sub 
stantially,  a  comparison  of  advantages  and  not  of 
disadvantages.  I  am  willing  to  go  a  little  far 
ther,  and  admit  that  there  may  be  some  pos 
sible  advantage  secured  to  us  by  adopting  the 
amendment  of  the  gentleman  from  Worcester. 
I  admit,  if  there  be  a  tendency  in  a  judge  to  dis 
courtesy  of  manner  or  habits  of  indolence  and 
procrastination,  that  periodical  accountability  may 


serve  to  correct  those  tendencies  ;  but  I  think  that 
those  advantages,  if  they  be  advantages,  are  more 
than  counterbalanced  by  the  consideration  that  if 
you  apply  the  limited  tenure  you  will  have,  in 
the  first  place,  to  choose  your  judges  from  a  region 
of  the  bar  inferior  to  that  from  which  you  now 
can  select  them  ;  and  that  in  the  second  place,  you 
impair  the  independence  of  the  judiciary.  In 
regard  to  both  of  these  positions  I  think  there 
can  be  no  doubt.  Take  the  case  of  a  leader 
at  the  bar,  who  is  considering  the  question  of  a 
seat  upon  the  bench.  He  understands  that  he 
must  sacrifice  one-half  of  his  income,  at  least,  by 
so  doing  ;  but  he  reflects  that  the  function  of  a 
judge  is  higher  than  that  of  an  advocate — that  the 
office  is  honorable  and  useful,  dignified  and  secure. 
He  therefore  consents,  in  consideration  of  these 
equivalents,  to  a  pecuniary  sacrifice.  But  take 
away  the  life  tenure,  make  the  seat  insecure,  and 
you  deprive  it  of  one  of  its  primal  attractions. 
The  same  class  of  men  will  no  longer  ever  think 
of  going  upon  the  bench ;  and  you  will,  therefore, 
be  compelled  to  extract  your  judges  from  an  infe 
rior  stratum  of  the  bar.  As  to  the  second  position 
which  I  laid  down,  that  the  independence  of  a  judge 
must  be,  and  will  be,  impaired  by  the  consideration 
that  at  the  end  of  a  certain  period  his  claim  to  a  re- 
appointment  must  be  submitted  to  the  pleasure  of 
the  executive,  it  needs  not  to  be  maintained  by  any 
course  of  reasoning.  He  who  has  not  come  to 
this  conclusion  from  his  own  self-consciousness, 
and  from  his  observation  of  humanity,  cannot  be 
led  to  it  by  argument.  There  is  no  security  for 
judicial  independence  but  that  furnished  by  the 
tenure  during  good  behavior.  My  friend  and 
colleague,  (Mr.  Giles,)  objects  to  the  judicial  ten 
ure  in  Massachusetts  because  it  is  a  freehold.  I 
thank  him  for  that  word.  I  rejoice  that  judges 
in  Massachusetts  have  their  seats  by  a  freehold, 
and  not  a  slave' s-hold.  Where  you  have  depend 
ence,  you  have  some  slight  taint  of  slavery.  I 
use  this  word  in  no  offensive  sense.  As  inde 
pendence  and  freedom  are  correlative  terms,  so 
are  dependence  and  slavery.  That  is  what  I 
mean  by  the  expression.  I  admired  the  adroit 
ness  of  my  colleague,  (Mr.  Giles,)  in  his  choice 
of  language.  In  speaking  of  the  judges,  he  con 
trasted  their  independence  of  the  crown  in  Eng 
land,  which  he  approved,  with  the  support  of  the 
people  in  America,  which  he  said  the  judges  need 
ed.  I  admired  his  adroitness  in  avoiding  the 
words  dependence  on  the  people.  In  my  judg 
ment,  as  judges  ought  to  be  independent  of  the 
crown  in  England,  so  they  ought  to  be  independ 
ent  of  the  people  here.  It  is  no  answer  to  these 
considerations  to  say  that  in  point  of  fact,  as  a 
general  rule,  the  executive,  in  obedience  to  the 


62  d  day.] 


THE   JUDICIARY. 


213 


Wednesday,] 


HlLLARD. 


[July  20th. 


popular  will,  will  reappoint  a  good  judge.  This 
may  or  may  not  be  true,  and  the  question  is  :  what 
effect  will  the  element  of  contingency,  however 
slight,  have  upon  the  judge  himself?  This  will 
depend  upon  his  temperament.  Will  any  one 
give  bonds  that  a  faithful  discharge  of  duty  will 
secure  a  reappointment  ?  If  not,  his  future  will 
be  darkened  with  doubt ;  and  so  long  as  the  mind 
of  the  judge  is  like  a  pendulum,  alternating  be 
tween  hope  and  fear,  his  independence,  and  con 
sequently  his  value  as  a  magistrate,  must  be 
impaired. 

The  gentleman  for  Wilbraham,  (Mr.  Hallett,) 
wishes  to  make  the  bench  accountable  and  respon 
sible  to  the  executive,  and  through  him  to  the 
people.  As  I  understand  these  words,  I  deny 
their  application  to  the  relation  between  the  bench 
and  the  people.  One  man  is  responsible  or 
accountable  to  another,  when  the  latter  has  the 
right  to  call  the  former  to  account,  or  make  him 
respond.  Such  is  the  relation  between  master 
and  servant,  and  principal  and  agent.  A  judge 
is  responsible  to  the  legislature,  because  he  may 
be  impeached  or  removed  by  address.  He  is 
accountable  to  God  and  his  conscience,  as  all  men 
are.  He  is  amenable  to  public  opinion,  as  are  all 
men  clothed  with  public  trusts.  But  that  he  is, 
or  ought  to  be,  directly  or  idirectly  responsible  to 
the  people  as  such,  I  respectfully  deny.  For 
what  purpose  is  a  judge  put  upon  the  bench?  Is 
it  to  do  the  will  of  the  people  ?  By  no  means  : 
it  is  to  do  justice  between  man  and  man.  In 
doing  this  he  may  be  called  upon  to  act  in  direct 
opposition  to  the  will  of  the  people.  And  can  he 
be,  ought  he  to  be,  removed  for  that  ?  And  if 
not,  how  can  he  be  said  to  be  responsible  to  the 
people.  It  is  said  that  if  you  appoint  judges  for 
life,  why  not  choose  the  executive  for  life  ?  The 
answer  is  found  in  the  different  functions  of  the 
two  departments.  'The  executive  is  chosen  to 
execute  the  will  of  the  people.  The  moment  he 
ceases  to  do  that  he  ceases  to  stand  in  a  proper 
relation  to  them.  He  is,  therefore,  chosen  often 
enough  to  reflect  the  popular  mind  in  all  its 
changing  moods.  The  gentleman  from  New 
Bedford,  (Mr.  French,)  who  took  part  in  this 
discussion,  laid  down  some  positions  from  which 
I  presume  the  gentleman  for  Wilbraham,  (Mr. 
Hallett,)  would  recoil.  But  I  submit  that  the 
difference  between  them  is  merely  in  degree  and 
not  in  kind.  The  former  gentleman  pushes  to  its 
extreme  that  principle  of  popular  accountability 
which  the  latter  laid  down  as  a  cardinal  point  in 
his  creed.  One  travels  seven  stages  upon  the  road, 
and  the  other  to  the  end. 

There  have  been  cases  in  the  history  of  this 
country,  where,  I  think,  we  can  see  that  the  ten 


ure  for  years  would  have  worked  injuriously,  or 
at  least,  it  might  have  done  so.  In  the  early  part 
of  this  century,  there  occurred  at  Richmond, 
Virginia,  a  memorable  trial,  which  some  of  the 
elder  members  of  this  Convention  will  remember, 
the  trial  of  Aaron  Burr,  for  high-treason.  I  sup 
pose  it  is  no  injustice  to  the  eminent  person  who 
then  occupied  the  executive  chair  of  the  United 
States,  to  say  that  his  feelings,  both  as  a  man,  and 
as  a  political  leader,  were  strongly  interested  in 
the  result  of  that  trial,  and  that  his  influence  was 
given,  so  far  as  it  was  consistent  with  the  deco 
rum  of  his  high  office,  towards  procuring  the 
conviction  of  that  distinguished  offender,  if  I  may 
so  call  him.  The  presiding  judge  at  that  trial, 
was  John  Marshall,  a  man,  who  then  and  there, 
as  in  his  whole  judicial  life,  presented  the  living 
image  of  that  ideal  and  perfect  judge,  so  beauti 
fully  drawn  by  my  distinguished  colleague,  the 
attorney- gen  oral,  (Mr.  Choate).  John  Marshall 
was  incarnate  justice,  embodied  reason, — and  not 
to  speak  it  profanely, — conscience  made  flesh. 
Now  had  the  judges  of  the  supreme  court  of  the 
United  States  been  appointed  for  years  instead  of 
for  life,  in  the  first  place,  would  such  a  man  as  Mar 
shall  have  been  likely  to  have  been  on  that  bench  ? 
And  in  the  next  place,  would  an  average  man,  such 
as  the  tenure  for  years  would  probably  have  se- 
cxired,  with  his  mind  alternating  between  hope  and 
fear,  as  to  his  reappointment,  have  held  the  scales  of 
justice  with  so  firm  a  hand  as  did  that  great  man  ? 
Would  he  have  resisted  all  external  pressure,  as 
well  ?  Let  those  who  can  estimate  the  infirmities 
of  humanity,  answer  these  questions  for  them 
selves. 

That  eminent  man  passed  through  a  long  and 
illustrious  judicial  life,  and  towards  the  close  of 
it,  he  was  a  member  of  the  Constitutional  Con 
vention  of  the  State  of  Virginia,  and  when  he 
was  there  this  question  of  the  tenure  of  the 
judges  came  up,  and  I  will  ask  the  attention  of 
the  Convention  to  listen  for  a  moment  to  the 
words  of  wisdom  and  truth  which  he  then  and 
there  spoke  : — 

"  The  argument  of  the  gentleman,"  he  said, 
"goes  to  prove,  not  only  that  there  is  no  such  thing 
as  judicial  independence,  but  that  there  ought  to 
be  no  such  thing — that  it  is  unwise  and  improvi 
dent  to  make  the  tenure  of  the  judge's  office  to 
continue  during  good  behavior.  I  have  grown 
old  in  the  opinion  that  there  is  nothing  more  dear 
to  Virginia,  or  ought  to  be  more  dear  to  her 
statesmen,  and  that  the  best  interests  of  our 
country  are  secured  by  it.  Advert,  Sir,  to  the 
duties  of  a  judge.  He  has  to  pass  between  the 
government  and  the  ;nan  whom  that  government  is 
prosecuting,  between  t".  e  most  powerful  individ 
ual  in  the  commuritr;  a  ad  the  poorest  and  most 
unpopular.  It  is  ol  v,  2  last  importance,  that  in 


214 


THE  JUDICIARY. 


[62d  day. 


Wednesday,] 


BOUTWELL. 


[July  20th. 


the  performance  of  these  duties,  he  should  observe 
the  utmost  fairness.  Need  I  press  the  necessity 
of  this  ?  Does  not  every  man  feel  that  his  own 
personal  security,  and  the  security  of  his  prop 
erty,  depends  upon  that  fairness  ? 

"  The  judicial  department  comes  home  in  its 
effects  to  every  man's  fireside — it  passes  on  his 
property,  his  reputation,  his  life,  his  all.  Is  it 
not  to  the  last  degree  important,  that  he  should  be 
rendered  perfectly  and  completely  independent, 
•with  nothing  to  control  him  but  God  and  his 
conscience  ? "  "I  acknowledge,  that  in  my  judg 
ment,  the  whole  good  which  may  grow  out  of 
this  Convention,  be  it  what  it  may,  will  never 
compensate  for  the  evil  of  changing  the  judicial 
tenure  of  office."  "  I  have  always  thought  from 
my  earliest  youth  till  now,  that  the  greatest 
scourge  an  angry  Heaven  ever  inflicted  upon  an 
ungrateful  and  a  sinning  people,  was  an  ignorant, 
a  corrupt,  or  a  dependent  judiciary." 

Mr.  President :  I  had  other  considerations  to 
urge,  but  the  Convention  does  not  seem  to  be  in 
a  mood  to  listen,  and  therefore  I  obtrude  myself 
no  farther  upon  their  patience. 

Mr.  BOUTWELL,  for  Berlin.  It  seems  to  me, 
Mr.  President,  that  there  are  three  main  points  in 
the  proposition  of  the  gentleman  from  Worces 
ter.  I  am  opposed  to  the  amendment  submitted 
by  the  gentleman  from  Fall  lliver,  (Mr.  Hooper,) 
and  every  proposition  for  an  elective  judiciary, 
which  contemplates  the  reelection  of  the  same 
individual. 

I  think  it  worth  while  to  consider  how  far  our 
law  tribunals  should  be  independent,  notwith 
standing  what  has  been  said  of  the  importance  of 
the  absolute  independence  of  the  judiciary.  I 
would  have  the  judiciary  independent,  so  far  as 
this,  that  they  may  always  feel  at  liberty,  and 
under  the  strongest  inducements  to  do  right ;  but 
a  proposition  which  places  the  judges  under  any 
motive,  or  gives  them  any  other  than  such  oppor 
tunities  for  independence  of  the  people  as  are 
absolutely  incident  to  the  system,  is  certainly 
wrong.  By  that,  I  mean  to  say,  I  go  for  an 
independent  judiciary  so  far  as  this  :  that  they 
may  always  be  at  liberty  to  give,  and  be  protected 
in  giving,  just  decisions  between  man  and  man. 
But  an  independence  which  leaves  the  judiciary 
at  liberty  to  be  indolent  in  the  discharge  of  their 
duties,  to  be  regardless  of  the  rights  of  individu 
als, — and  they  are  human  as  well  as  other  men, 
and  they  may,  under  some  circumstances,  be  left 
to  disregard  the  rights  of  individuals, — or  even  an 
independence  which  goes  no  farther  than  this, 
to  leave  the  judges  at  liberty  to  be  bad-mannered 
to  the  bar, — though  I  suppose  the  bar  are  able  to 
to  take  care  of  themselves, — is,  in  my  judgment, 
wrong,  and  I  wish  the  judges  to  be  so  dependent 
that  they  shall  always  lespect  parties  and  per 


sons  in  court — the  witnesses  and  jurors  especial- 

iy- 

Now,  how  does  the  proposition  of  the  gentle 
man  from  Worcester  affect  the  appointing  power  ? 
If  it  prevail,  will  the  appointing  power  be  as  able 
to  select  proper  judges  as  now  ?  I  take  it,  that 
so  far  as  the  nomination  is  concerned,  it  does  not 
affect  it,  and  therefore  the  appointing  power  re 
mains  the  same.  Another  tribunal — the  Senate — 
is,  however,  the  confirmatory  body.  Now  it  is 
the  Council.  If  the  amendment  of  the  gentleman 
from  Worcester  prevails,  the  Senate  will  be  the 
confirming  power.  I  have  no  great  choice  to 
which  of  these  tribunals  these  nominations  are 
sent.  If  the  Council  is  made  a  popular  body  it 
will  represent  the  people  of  the  Commonwealth, 
but  it  will  not  be  quite  so  much  a  popular  body 
as  the  Senate,  inasmuch  as  each  member  of  the 
Council  will  represent  a  larger  constituency. 
But  it  does  not  appear  to  me  that  any  essential 
difference  will  result  from  sending  the  nomination 
to  one  body  rather  than  the  other ;  therefore  no 
great  objection  can  be  made  on  that  head.  Nor 
will  it  happen,  as  suggested  by  the  gentleman  for 
Manchester,  (Mr.  Dana,)  that  these  appointments 
will  be  much  more  frequent  under  the  seven 
years'  tenure  than  now.  The  judges  of  the  court 
of  common  pleas,  on  an  average,  according  to  the 
statistics — and  they  never  lie — hold  their  offices 
five  years,  and  the  judges  of  the  supreme  court 
hold  theirs  thirteen  years ;  therefore  it  will  hap 
pen  that  there  will  be  about  as  many  opportuni 
ties  for  the  exercise  of  the  appointing  power 
under  the  existing  as  under  the  proposed  system  ; 
and  consequently,  so  far  as  regards  the  appointing 
power,  the  new  system  is  substantially  the  same 
as  the  old  one. 

I  come,  now,  to  the  next  consideration — that  of 
the  character  of  the  men  who  will  be  appointed 
under  the  new  system,  as  compared  with  the 
character  of  those  appointed  under  the  existing 
system — whether  the  judicial  standard  will  be 
lower  than  heretofore.  Gentlemen  say  you  will 
not  get  men  of  the  same  standing  as  lawyers  as 
the  men  that  you  get  now,  that  gentlemen  have 
already  been  known  to  decline  seats  upon  one  or 
the  other  of  the  benches  of  the  Commonwealth. 
It  may  be  so,  it  is  true ;  but  so  far  as  I  know,  the 
cases  of  declination  are  not  of  a  nature  to  be 
affected  by  the  proposed  change.  E very-body 
sees,  that  if  a  man  goes  upon  the  bench,  and  it 
proves  an  unfortunate  appointment,  and  he  finds 
it  to  be  his  duty  to  resign,  his  position  in  society 
will  be  thereby  affected,  and  his  means  of  acquir 
ing  a  livelihood  will  be  affected  also.  It  is  like 
wise  true  that  a  public  position  anywhere,  in 
the  House  of  Representatives  of  Massachusetts, 


62d   day.] 


THE  JUDICIARY. 


215 


"Wednesday,] 


BOUTWELL. 


[July  20th. 


in  the  Senate,  or  in  Congress,  as  well  as  upon  the 
bench,  does  affect  unfavorably  a  man's  position 
as  to  the  means  of  acquiring  a  subsistence  in 
other  and  different  pursuits.  There  is  no  doubt 
aboiit  that ;  but  then  it  happens,  notwithstanding 
all  these  considerations,  that  men  take  these  va 
rious  places.  My  friend  from  Salem,  (Mr.  Lord,) 
has  come  to  the  general  court  for  several  years, 
at  a  great  pecuniary  sacrifice,  I  have  no  doubt. 
Other  gentlemen  do  the  same  thing,  knowing 
that  the  moment  they  enter  upon  public  life  their 
means  of  livelihood  will  be  unfavorably  affected. 
Men  do  not  decline  these  places.  I  do  not  believe 
that  one  in  ten  of  the  cases  of  declination  of  a  seat, 
either  upon  the  bench  of  the  court  of  common 
pleas,  or  that  of  the  supreme  court,  has  been  on 
account  of  the  character  of  the  office.  Nor  do  I 
believe  that  the  declinations  would  have  increased 
if  the  tenure  had  been  seven  years,  or  ten  years, 
instead  of  a  life  tenure.  These  declinations  do 
not  come  from  the  character  of  the  office,  but  are 
in  consequence  of  the  fact  that  it  is  an  office  where 
the  salary  is  limited,  and  that  it  takes  a  man  out 
of  his  accustomed  pursuits,  for  which  he  has 
more  taste  than  for  judicial  life. 

I  believe  it  will  happen  that  men  of  the  same 
character  will  go  upon  the  bench  under  a  seven 
years'  tenure  as  under  a  life  tenure  ;  men  who  are 
inclined  to  these  offices  will  accept  them,  and  men 
who  are  not  inclined,  who  prefer  to  remain  advo 
cates  at  the  bar,  will  not  go  upon  the  bench, 
whatever  may  be  the  tenure  or  salary — that  is, 
whatever  salary  the  Commonwealth  will  be  likely 
to  establish. 

Therefore,  I  come  to  the  conclusion,  on  the 
second  point,  that  the  standard  of  judicial  charac 
ter,  will  be  as  high  under  the  proposed,  as  under 
the  existing  system. 

I  come  now  to  another  point,  and  that  is, 
whether,  in  consequence  of  the  limited  tenure  of 
the  office  to  seven  or  ten  years,  the  character  of 
the  judges  will  be  affected  ;  that  is,  whether  they 
will  be  independent  so  far  that  they  will  render 
just  decisions  and  interpret  the  law  correctly  be 
tween  man  and  man  in  court.  I  proceed  first  on 
the  common  and  well-known  principle  that  hon 
esty  is  the  best  policy,  and  that  if  a  man  desires 
a  reappointment  ever  so  much,  he  will  see  that 
from  mere  motives  of  policy  he  should  do  the  very 
best  that  he  can.  In  the  first  place,  the  appoint 
ing  power  possess  a  degree  of  intelligence,  I  take 
it,  when  it  is  confided  to  forty-one  men,  selected 
from  the  Commonwealth,  which  will  save  it  from 
those  influences  which  are  merely  popular  in  their 
nature.  And  secondly,  there  will  ever  be  in 
Massachusetts,  in  the  executive  department,  and 
in  the  Senate,  an  amount  of  intelligence  which 


will  enable  these  two  departments  of  the  govern 
ment  to  discriminate  between  that  opposition 
which  is  popular,  transitory,  and  unfounded,  some 
times  existing  against  upright  persons,  and  that 
opposition  which  is  really  and  substantially  based 
in  the  incompetency  of  the  man.  And  if  that  is 
not  so,  if  it  be  true  that  these  two  departments  of 
the  government  will  be  unable  to  determine 
whether  the  opposition  which  may  exist  against  a 
reappointment  is  a  well  or  ill-founded  opposition, 
I  take  it  that  our  government,  for  all  purposes  of 
good,  is  substantially  at  an  end. 

Now,  with  this  view,  believing  in»the  first  place 
that  the  appointing  power  will  be  equally  compe 
tent;  that  secondly,  the  judicial  standard  will  be 
as  high;  and  in  the  third  place,  that  the  judicial 
character  will  be  as  pure,  I  come  to  the  conclu 
sion  that  the  proposition  submitted  by  the  gentle 
man  from  Worcester,  is  altogether  safe. 

Now,  what  are  its  advantages  ?  I  have  only 
one  thought  to  submit  in  reference  to  the  advan 
tages  to  be  derived  from  a  limited  tenure.  It  has 
happened  in  Massachusetts,  it  has  happened  in 
every  State  in  this  Union,  that  men  have  been 
appointed  to  seats  on  the  bench  who  were  unfit 
for  the  places.  Some  of  them  were  known,  per 
haps,  by  those  who  were  intimate  with  them,  to 
be  unfit  when  appointed,  but  all  the  facts  were 
not  before  the  appointing  power.  It  has  also 
happened  that  some  men,  very  well  fitted  for  ad 
vocates  at  the  bar,  fail  altogether  upon  the  bench. 
Now,  it  is  a  great  public  calamity  that  a  man 
should  be  appointed  under  a  life  tenure  to  a  seat 
on  either  bench  in  this  Commonwealth,  who 
proves  incompetent  to  the  discharge  of  its  duties. 
And  I  think  that  if  there  were  hardships,  if  there 
were  even  evils  growing  out  of  the  proposed 
change,  very  many  of  them  would  be  fully  com 
pensated  by  this  consideration ;  that  under  this 
limited  tenure,  you  have  an  opportunity  to  get 
rid  of  a  bad  judge.  A  judge  may  be  very  bad — I 
do  not  know  much  about  courts,  but  I  know 
something  of  human  nature — and  a  judge  may  be 
very  bad,  and  yet  keep  himself  so  far  within  the 
line  of  duty  that  he  is  not  subject  to  removal  by 
address  or  impeachment.  I  think  that  the  limited 
tenure  will  operate  well.  Our  good  judges  will 
be  continued.  There  is  a  conservative  feeling  in 
Massachusetts,  and  if  a  judge  during  seven  years 
shall  sit  impartially,  shall  hold  the  scales  of  justice 
even  between  man  and  man,  whatever  may  be 
his  political  opinions,  I  say  there  never  has  been 
an  administration  strong  enough  to  resist  that 
popular  voice  which  will  demand  his  reappoint 
ment.  And  on  the  other  hand,  if  it  shall  happen, 
as  it  has  happened,  and  must  happen,  that  occa 
sionally  you  get  a  judge  unfit  for  the  duties  he  is 


216 


THE  JUDICIARY. 


[62d  day. 


Wednesday,] 


GRAY. 


[July  20th. 


called  to  perform,  this  is  the  best  way,  without 
public  action  or  general  effort,  to  remove  him. 
Now,  then,  trusting  to  the  people,  the  executive 
and  legislative  departments  as  the  representatives 
of  the  people,  and  wishing  to  have  a  conservative 
and  just  influence  which  will  ever  protect  a  man 
in  Massachusetts,  in  the  faithful  discharge  of  his 
duties  as  a  judge,  I  am  ready,  for  one,  to  vote  for 
the  proposition  submitted  by  the  gentleman  from 
Worcester. 

Mr.  GRAY,  of  Boston.  As  this  question  has 
been  so  long  and  so  ably  discussed,  and  most  of 
the  arguments  which  could  be  adduced  upon  it, 
are  exhausted,  I  trust  that  the  Convention  will 
do  me  the  justice  not  to  expect  that  I  can  offer 
much  that  is  new  or  unknown,  and  I  shall  en 
deavor  not  to  offer  much  in  quantity,  but  confine 
myself  simply  to  a  few  suggestions  which  have 
occurred  to  my  mind.  I  should  not  perhaps 
have  done  this,  was  there  not  an  important  point 
in  this  question,  which  has  been  ignored,  and 
overlooked  in  the  discussion  of  this  subject,  and 
especially  by  those  gentlemen  who  have  spoken 
upon  the  opposite  side.  From  their  remarks,  it 
would  seem  as  if  we  based  this  proposition  to  con 
tinue  the  tenure  of  the  judicial  office  as  it  is,  on 
English  experience.  Now,  Sir,  I  throw  aside  all 
the  experience  of  England.  When  the  Conven 
tion  of  1780  assembled,  they  had  none  but  En 
glish  experience  to  enlighten  them  in  their  legis 
lations  upon  this  subject ;  and  the  same  argu 
ments  which  have,  during  this  debate  been  urged 
against  the  existing  tenure,  would  have  been 
exceedingly  appropriate  at  that  day.  But  I  am 
guided  by  the  experience  of  America,  by  the 
experience  of  more  than  three  score  years  and 
ten  ;  and  what  has  it  been  ?  Let  gentlemen  open 
with  me  the  volume  of  the  history  of  Massachu 
setts,  and  I  submit  to  them  and  to  you,  Sir,  if 
there  is  a  prouder  page  in  it,  than  that  which 
records  the  history  of  its  judiciary  ?  We  have 
had  judges  for  the  last  seventy  years  ;  they  must 
have  been  somewhat  numerous  in  the  course  of 
that  time,  and  yet  has  there  ever  occurred  a  single 
instance  where  a  judge  has  been  accused  of  hold 
ing  the  scales  of  justice  in  an  unequal  and  partial 
manner,  upon  the  bench  he  occupied  ?  We  have 
had  at  times,  it  is  true,  judges  who  have  been 
obnoxious  to  large  portions  of  the  community,  on 
account  of  their  extra  judicial  conduct,  so  to 
speak ;  who  have  been  held  up  as  politicians  by 
one  party,  and  of  course  zealously  opposed  by  the 
other ;  subjected  to  the  attacks  of  their  adversaries 
who,  in  Oie  depth  of  their  animosity,  would 
gladly  have  seized  upon  any  charge  of  partiality 
or  injustice  of  the  bench,  had  it  been  vulnerable 
upon  that  point,  as  the  strongest  argument  that 


could  be  brought  to  bear  against  them.  But, 
notwithstanding  these  animosities,  never,  to  my 
knowledge,  has  a  judge  sat  upon  any  bench  in 
our  State,  who  has  ever  been,  or  ever  could  be, 
accused  in  the  slightest  degree,  of  soiling  his 
ermine,  or  who  has  not  been  honored  for  the 
uprightness,  the  ability,  and  impartiality  with 
which  he  has  discharged  the  duties  of  his  office. 
I  would  ask,  then,  is  it  any  ultra  conservatism  ;  is 
it  any  blind  reverence  for  what  is  old  ;  is  it,  to  use 
a  more  popular  than  elegant  expression,  any  old 
fogyism,  that  makes  gentlemen  hesitate  in  depart 
ing  from  a  system  which  has  been  productive  of 
so  many  beneficial  results,  and  brought  forth  so 
many  good  fruits  ?  For  one,  I  am  not  disposed 
to  change  at  all,  certainly  so  long  as  the  maxim 
of  old  holds  good  :  that  by  their  fruits  we  shall 
know  them  ;  which  has  both  reason  and  Scripture 
for  its  foundation. 

My  friend  for  Berlin  asks  the  question  whether 
we  are  in  any  danger  of  lowering  the  judicial 
character  ?  and  here  is  where,  in  my  opinion,  the 
whole  merits  of  the  question  rest ;  and  it  is  here 
that  I  take  issue  with  him.  Everything  else  is 
comparatively  unimportant.  Now,  there  is  one 
argument  upon  this  point  to  which  I  think  allu 
sion  has  not  been  made — or  if  so,  it  has  been  in 
an  indirect  manner — which  is  this  :  under  our 
present  judicial  system,  when  a  judge  is  ap 
pointed,  he  knows  that  he  can  occupy  his  situa 
tion  so  long  as  he  behaves  himself  with  ability 
and  integrity;  and  that  there  are  only  two  pro 
cesses  of  removal,  one  of  which  is  by  impeach 
ment,  and  the  other  by  an  address  of  the  legisla 
ture.  He  feels  that  he  is  not  to  be  brought  up  as 
a  candidate  for  reelection  every  seven  years,  sub 
ject  to  all  the  vicissitudes  of  change  in  party  or 
sentiment,  but  is  to  retain  his  office  in  peace  and 
quietness  during  his  life ;  in  a  word  that  he  i's 
provided  for.  And  what  is  the  consequence  ? 
He  may  be  called  by  the  people  to  occupy  a 
higher  position  in  the  arena  of  life,  or  some  extra 
ordinary  event  of  the  kind  may  occur ;  or  it  may 
please  Divine  Providence  to  remove  him  by  death 
at  an  early  day ;  but  aside  from  these  contingen 
cies,  he  considers  himself  fixed,  stationary  for 
life,  and  he  gives  his  whole  attenion,  Ms  heart  to 
the  duties  before  him  !  His  soul  is  in  his  work  ! 
I  utter  these  words  with  emphasis,  because  they 
are  significant,  and  in  the  present  instance  have 
more  than  an  ordinary  meaning.  With  his  fam 
ily  around  him,  and  provided  for,  he  feels  no 
solicitude  in  regard  to  what  he  shall  do  for  them 
seven  years  hence  ;  he  feels  that  he  will  not  be 
compelled,  at  the  expiration  of  his  term  of  office, 
to  prepare  himself  once  more,  and  enter  the  field 
with  younger  competitors,  when  he  has  not  had 


62d  day.] 


THE   JUDICIARY. 


217 


Wednesday,] 


OKAY. 


[July  20th. 


an  opportunity  to  make  himself  capable  of  meet 
ing  them  in  that  capacity. 

Sir,  the  work  of  a  judge,  as  gentlemen  well 
know,  is  very  different  from  that  of  an  advocate, 
requiring  great  judgment  and  discretion,  and  the 
highest  order  of  talent,  from  the  fact  that  he  is 
compelled  to  cope  with  the  greatest  genius  of  the 
land.  I  do  not  mean  that  every  judge  must  have 
the  intellectual  capacity  of  a  William  Wirt,  or  a 
Daniel  Webster ;  there  could  be  few  candidates 
for  such  an  office,  if  we  exacted  that ;  but  he  is  to 
meet  the  shrewdest  men  in  the  land,  sift  their 
arguments,  guard  against  their  sophistry,  and 
regard  the  case  in  question  fairly  and  clearly, 
when  the  ingenuity  of  the  ablest  men  in  the 
community  is  engaged  in  throwing  a  false  light 
upon  it ;  he  has  to  do  justice  between  party  and 
party  in  the  matter  of  property ;  and  not  unfre- 
quently  has  he  to  administer  justice  and  mercy 
to  the  poor  criminal  who  stands  before  him  plead 
ing  for  life  and  liberty.  In  a  word,  we  commit 
to  him  the  highest  power ;  I  mean  the  power  of 
fixing  the  sentences  of  criminals  brought  before 
him,  for  any  period  from  one  day  in  the  House 
of  Correction,  to  imprisonment  for  life  in  the 
State  Prison. 

But  the  question  has  been  asked,  does  it  not 
make  them  too  independent,  to  allow  them  to 
retain  their  office  for  an  unlimited  time?  I  reply, 
as  I  have  before  stated,  that  for  any  positive  fault 
or  misdemeanor,  they  are  liable  to  be  removed  by 
either  one  of  two  processes :  first,  by  impeach 
ment  ;  and  next,  by  an  address  of  the  legislature. 
Will  not  this  satisfy  gentlemen  ?  Here  is  the 
legislature,  the  most  important  of  any  of  the 
departments  of  government,  the  branch  that  make 
our  laws  ;  and  that  body  can,  with  the  concur 
rence  of  the  governor  and  by  a  simple  majority 
only,  remove  any  person  holding  judicial  author 
ity,  against  whom  the  charge  of  misdemeanor  can 
be  satisfactorily  sustained. 

There  is  another  point  to  which  I  think  allu 
sion  has  not  been  made :  In  my  own  political 
experience,  which  has  been  neither  the  longest 
nor  the  shortest  of  many  in  this  body,  I  have  seen 
governors  of  all  parties,  those  who  have  been 
opposed  to  what  has  been  my  constant  political 
creed,  as  well  as  those  in  favor  of  it,  appoint 
judges  for  life ;  and  in  all  cases  of  that  kind, 
without  a  single  exception  in  my  knowledge,  they 
have  felt  the  weight  and  responsibility  which 
rested  upon  them  in  the  discharge  of  that  duty, 
and  acted  accordingly.  It  may  be  that  they  have 
appointed  gentlemen  of  their  own  particular  way 
of  thinking  upon  political  subjects,  but  they  have 
ever  been  able,  competent,  and  upright  men; 
who,  while  they  have  occupied  the  bench — 

15 3 


whether  like  the  present  attorney- general  of  the 
United  States,  for  a  few  months  ;  or  whether,  like 
the  late  lamented  chief  justice  Pai'ker,  who  occu 
pied  it  for  more  than  fifteen  years — have  con 
ducted  themselves  with  discretion  and  ability. 
If,  however,  it  should  be  found  that  a  judge  was 
not  competent  to  discharge  the  duties  of  his  office, 
he  would  be  glad  enough  to  vacate  the  bench,  to 
save  himself  from  the  disgrace  and  mortification 
which  would  be  consequent,  without  being  com 
pelled  to  do  so  by  a  peremptory  removal.  But 
my  friend  for  Berlin  says  that  the  governor  will 
reappoint  them.  I  wish  there  might  be  such  a 
state  of  things.  I  wish  there  might  be  such  a 
state  of  things  as  Thomas  Jefferson  prayed  for, 
but  which  has  never  come  to  pass,  when  the  only 
question  to  be  asked  in  such  cases,  would  be  : 
"  Is  he  honest  ?  Is  he  capable  ?  Is  he  attached 
to  the  Constitution?"  But  Thomas  Jefferson, 
when  he  asked  that  question,  went  contrary  to 
its  doctrine  :  for  he  said  the  state  of  things  did  not 
permit  his  following  that  rule.  I  have  nothing 
to  do  with  his  conduct  in  that  case,  and  make  no 
comment,  favorable  or  unfavorable,  in  regard  to 
it.  But,  Sir,  will  it  not  always  be  so  ?  How  is 
it  in  the  United  States  government,  and  what  is 
the  course  of  a  new  president  when  he  comes 
into  office,  especially  Avhen  a  new  and  important 
officer  is  to  be  appointed  ?  Does  he  not  turn  out 
men  acknowledged  to  be  able  and  competent, 
that  he  may  fill  their  place  with  others  ?  All 
new  presidents  pursue  this  course.  And  it  is  a 
nmeh  easier,  a  much  less  irksome  and  trying 
process,  to  avoid  reappointing  men,  than  it  is  to 
turn  them  out. 

The  question  asked,  is  not  merely  upon  the 
capability  of  men,  but  also  upon  their  political 
principles.  It  is  expected  that  the  president  will 
reward  his  friends,  not  those  who  are  dishonest, 
but  those  who  are  qualified  to  discharge  the 
duties  of  their  office;  and  others  who  perhaps  are 
just  as  capable,  but  belonging  to  the  opposite 
party,  aie  accordingly  removed,  to  make  way  for 
them. 

I  should  be  very  glad  to  agree  with  my  friend 
for  Berlin,  who  differs  with  me,  could  I  do  so 
consistently  with  the  views  which  I  at  present 
entertain  ;  and  I  assure  him  that  I  would  never 
more  willingly  be  found  wrong  than  in  the 
present  instance.  I  do  admit  that  if  we  limit  the 
tenure  of  the  judicial  office  to  seven  years,  that 
that  there  may  be  a  \vay  of  keeping  up  the  dig 
nity  and  character  of  the  judiciary ;  but  it  is  a 
way  which,  if  it  be  advisable,  is  certainly  imprac 
ticable.  The  judge  who  takes  the  office  for  seven 
years  only,  will  demand  a  great  remuneration  for 
the  sacrifice  of  the  large  income  of  his  profession 


218 


THE  JUDICIARY. 


[62d  day. 


Wednesday,] 


GRAT. 


[July  20th. 


which  would  cesult  from  the  total  interruption  of 
his  business,  for  such  would  be  the  case.  He 
would  require  a  salary  of  perhaps  five,  six,  or 
seven  thousand  dollars  a  year;  or  you  would 
have  to  select  some  other  person,  perhaps,  not 
half  so  competent.  The  people,  too,  would  be 
opposed  to  raising  the  salaries  to  such  an  extent 
as  would  necessarily  be  required.  But  how  is  it 
that  men  are  induced  to  accept  the  office  under 
the  present  circumstances  ?  My  friend  says  that 
there  are  but  few  declinations.  I  do  not  dispute 
his  word ;  he  has  been  in  a  situation  to  know 
more  upon  than  subject  than  myself;  but  I  ven 
ture  to  say  that  there  have  been  more  persons 
who  have  declined  to  take  the  judicial  office  than 
either  that  gentleman  or  myself  may  be  aware  of. 
He  alluded  also  to  the  great  sacrifice  made  by 
some  gentlemen  who  were  members  of  the  legis 
lature.  I  admit  that  there  are  some  who  do 
make  great  personal  and  pecuniary  sacrifices,  for 
the  time  being,  in  coming  here ;  but  there  are 
others  very  differently  situated.  I  have  no  doubt 
that  my  friend  from  Salem,  (Mr.  Lord,)  among 
other  gentlemen,  experiences  no  little  sacrifice  of 
time  and  money,  by  his  absence  from  his  sphere 
of  duty ;  but  how  long  does  it  last  ?  I  have  had 
but  little  experience  myself,  but  I  should  suppose 
that  it  would  be  a  pleasant  relaxation  from  the 
laborious  duties  of  the  legal  profession,  to  come 
up  here  and  attend  to  the  affairs  of  the  State. 

I  come  back  to  the  point,  however,  to  which  I 
alluded  in  the  beginning  of  my  remarks,  because 
it  is  the  point  which  has  the  greatest  weight  in 
my  mind.  I  trust  that  we  shall  not  make  any 
change  in  the  tenure  of  the  judicial  office,  as  has 
been  proposed ;  but  I  hope  that  the  judges  will 
be  allowed  to  occupy  their  position  so  long  as 
they  do  their  duty,  and  satisfy  the  public  ;  and  if 
they  continue  in  it  for  a  longer  time  than  that,  it 
will  be  for  the  legislature  to  take  the  necessary 
steps  for  their  removal.  I  have  never  heard, 
however,  of  but  one  instance  where  a  judge  has 
been  removed  by  address,  or  where  the  people 
desired  to  have  him  so  removed. 

If  gentlemen  desire  to  ascertain  the  character 
of  our  judges,  let  them  go  to  the  juries,  let  them 
inquire  of  members  of  the  bar,  let  them  ask  the 
people  of  the  country,  and  they  will  obtain  a 
ready  response. 

As  E  have  said  before,  there  has  never  existed 
a  higher  tribunal  of  justice  than  that  of  the  su 
preme  court  of  the  State  of  Massachusetts ;  it  is 
known  not  only  for  its  integrity,  but  for  the  abil 
ity  and  legal  acumen  which  are  its  chief  .charac 
teristics.  Our  reports  are  read  where  any  are 
read,  and  that  too  by  a  people  not  accustomed  to 
think  too  highly  of  their  cousins  on  this  side  of 


the  water.  We  have  the  highest  testimony  of 
England,  in  regard  to  the  ability  and  justice  dis 
played  in  the  reports  and  decisions  of  our  judi 
ciary.  Under  these  circumstances,  are  we  not 
excusable,  and  justified  in  hesitating  to  make  a 
change  in  the  tenure  of  office  so  important  as 
this? 

Now,  there  is  one  time  of  life  when  I  think  it 
would  be  a  great  inducement  to  accept  an  office 
of  this  character,  and  continue  in  it  permanently. 
There  is  an  age  of  life, — that  is,  between  forty 
and  fifty  years, — when  the  constant  toil  and  ac 
tive  habits  resulting  from  the  frequent  collision 
of  members  of  the  bar,  begins  to  wear  upon 
men ;  when  they  find  that  they  are  becoming  old 
— not  superannuated  by  any  means — but  less 
calculated  for  the  laborious  duties  of  an  advocate 
than  in  the  early  part  of  life.  Then  is  the  season 
when,  if  they  are  qualified,  they  are  better  adapted 
for  the  quiet  labors  of  a  judge,  for  those  duties 
which  befit  the  calm  of  their  declining  years. 
Who  would  have  wished  that  Marshall  should 
have  left  the  bench  at  sixty  years  of  age  ?  Who 
would  not  have  desired  that  Kent  should  have 
remained  beyond  sixty,  had  not  the  hour  struck 
which,  by  the  Constitution  of  the  State  of  New 
York,  sent  him  from  his  seat.  And  yet  sixty 
years  is  full  old  for  active  legal  practice. 

But,  on  the  contrary,  go  to  a  man  who  occupies 
an  active  position  as  a  practising  lawyer,  a  man 
of  talent,  one  who  possesses  all  the  essential  attri 
butes  of  a  good  judge ; — ask  him  to  accept  that 
office,  and  how  will  he  reason  ?  He  will  say,  by 
my  practise  I  am  now  making  several  thousand 
dollars  a  year,  and  I  am  unwilling  to  give  that  up 
for  the  sake  of  a  mere  temporary  office,  with  the 
prospect,  in  a  few  years,  that  I  shall  be  compelled 
to  vacate  it  and  return  to  my  practise,  which  will 
then  require  more  activity  than  will  be  suited  to 
my  temperament ;  but  give  me  this  place  with 
the  privilege  that  if  I  demean  myself  in  a  proper 
manner,  I  can  hold  it  until  I  am  seventy  years 
old  or  more,  and  I  will  accept  it.  This  is  the 
manner  in  which  he  will  consider  the  subject. 
The  office  of  judge  is  one  that  is,  and  has  ever 
been,  held  in  high  honor,  I  had  almost  said  idol 
atry,  by  the  people  of  Massachusetts  ;  and  they 
desire  to  see  it  ably  occupied.  Let  gentlemen  go 
into  any  town  where  a  court  is  in  session,  and 
see  how  the  judge  is  looked  up  to  with  respect 
and  honor  by  every  one  present. 

It  is  for  these  reasons,— agreeing  entirely  that 
my  friend  for  Berlin  has  stated  the  issues  fairly, 
but  believing  that  we  shall  tear  down  this  stand 
ard  of  judicial  officers,  and  that  we  shall  not  have 
the  men  of  talent  and  worth  that  we  have  had 
during  the  past ;  believing,  farther,  that  it  has 


63d  day.] 


THE   JUDICIARY,   &c. 


219 


Thursday,] 


RANTOUL  —  WILSON  —  TYLER  —  EARLE  —  BATES  —  DANA. 


[July  21st. 


been  overlooked  in  the  consideration  of  this  sub 
ject,  that  the  power  of  impeachment  which  still 
exists  will  effectually  check  corruption,  if  there 
be  any  ;  believing  farther  that  the  power  of  removal 
by  address  of  the  legislature,  is  a  sufficient  pro 
vision  against  all  incompetency, — I  feel  compelled 
to  vote  against  this  motion  to  shorten  the  tenure 
of  the  judicial  office. 

Mr.  SCHOULER,  of  Boston.  Believing,  Sir, 
that  we  have  heard  enough  upon  this  subject  for 
one  day,  and  that  we  are  so  full  we  can  take  in 
no  more,  I  move  that  the  Convention  do  now 
adjourn. 

The  question  being  put,  a  division  was  called 
for,  and  it  was  ascertained  that  there  was  no 
quorum  voting.  The  President  pro  tern,  then,  at 
six  o'clock,  declared  the  Convention  adjourned. 


THURSDAY,  July  21,  1853. 

The  Convention  assembled  pursuant  to  ad 
journment,  and  was  called  to  order  at  nine  o'clock, 
by  W.  S.  Robinson,  Esq.,  one  of  the  Secretaries 
to  the  Convention,  the  President  being  absent  in 
consequence  of  indisposition. 

Prayer  by  the  Chaplain. 

Election  of  President  pro  tempore. 

The  Secretary  read  the  eighteenth  rule  of  the 
Convention,  which  directs  that  he  shall  preside, 
in  case  of  the  absence  of  the  President  at  the 
hour  to  which  the  Convention  was  adjourned, 
until  a  President  pro  tempore,  shall  be  appointed, 
which  shall  be  the  first  business  before  the  Con 
vention. 

Mr.  RANTOUL,  of  Beverly,  moved  that  the 
Convention  proceed  to  the  election  of  a  President 
pro  tempore,  by  nomination. 

The  motion  was  agreed  to. 

Mr.  RANTOUL  nominated  HENRY  WILSON,  of 
Natick,  and  moved  that  he  be  President  pro  tem 
pore,  of  the  Convention. 

The  motion  was  unanimously  agreed  to. 

The  Secretary  appointed  Messrs.  Briggs,  of 
Pittsfield,  and  Boutwell,  for  Berlin,  to  conduct 
Mr.  Wilson  to  the  chair. 

Mr.  WILSON,  upon  taking  the  chair,  said  :— 
Gentlemen  of  the  Convention  :  I  thank  you  for 
this  expression  of  your  confidence  and  kindness. 
I  shall  endeavor  to  discharge  the  duties  assigned 
me,  with  fairness  and  impartiality. 

Appendix  to  the  Debates. 

Mr.  TYLER,  of  Pawtucket,  submitted  the 
following  order : — 


Ordered,  That  the  Committee  on  Reporting  and 
Printing,  be  instructed  to  append  to  the  published 
Debates,  Poole's  Statistical  View  of  the  Members 
of  the  Convention. 

Mr.  TYLER.  I  beg  leave  just  to  remark,  that 
the  proceedings  of  the  New  York  Constitutional 
Convention  in  1846,  contain  a  similar  table  to 
this,  and  I  hope  that  this  may  be  appended,  and 
that  the  meritorious  author  may  obtain  an  hono 
rary  degree  from  some  of  our  colleges. 

Mr.  EARLE,  of  Worcester,  moved  to  amend 
the  order,  by  inserting  after  the  word  "  Conven 
tion,"  these  words  :  "with  the  amount  received 
by  each  for  travel  and  attendance." 

Mr.  BATES,  of  Plymouth.  Before  the  vote 
is  taken,  I  hope  the  Convention  will  consider,  for 
a  moment,  what  the  proposition  is.  It  is  to  ap 
pend  to  the  published  Debates  of  this  Convention, 
a  private  document  belonging  to  a  gentleman 
who  has  published  it  for  his  own  private  emolu 
ment.  Perhaps  he  will  have  something  to  say 
about  our  taking  it. 

Mr.  BOUTWELL  objected  to  the  considera 
tion  of  the  order  at  this  time,  and  asked  that  it 
lie  over. 

In  obedience  to  the  rule,  the  order  lies  over. 

Permission  to  submit  a  printed  Report. 

Mr.  BOUTWELL,  for  Berlin,  asked  and  ob 
tained  permission,  for  the  Committee  on  Revision 
to  make  their  Report  in  print. 

The  Judiciary. 

Mr.  DANA,  for  Manchester,  desired  to  be  in 
formed  by  the  Chair,  in  order  to  determine  the 
form  of  a  motion  which  he  desired  to  make, 
whether  the  amendment  submitted  yesterday,  by 
the  gentleman  from  Fall  River,  to  the  resolves  on 
the  subject  of  the  Judiciary,  was  an  amendment 
to  an  amendment,  or  whether  it  was  itself  sus 
ceptible  of  being  amended. 

The  PRESIDENT.  It  is  an  amendment  to  an 
amendment. 

Mr.  DANA.  That  being  the  case,  we  are  in 
this  situation :  no  amendment  can  be  offered  now, 
because  there  is  an  amendment  to  an  amendment 
already  pending.  The  question  on  the  amend 
ment  to  the  amendment,  cannot  be  taken  until 
eleven  o'clock,  and 

The  PRESIDENT.  The  Chair  must  remark, 
that  the  Orders  of  the  Day  are  not  under  consid 
eration. 

Mr.  DANA.  No,  Sir.  And  the  motion 
which  I  wish  to  make,  would  not  be  in  order  if 
they  were. 


220 


THE   JUDICIARY,  &c. 


[63d  day. 


Thursday,^ 


BOUTAVELL SUMNER. 


[July  21st. 


Hour  of  Adjournment. 

Mr.  BOUT  WELL,  for  Berlin,  moved  that  two 
o'clock,  instead  of  one,  be  fixed  as  the  hour  of 
adjournment  during  the  remainder  of  the  session. 

The  motion  was,  upon  a  division  agreed  to — 
ayes,  99  ;  noes,  56. 

Orders  of  the  Day. 

On  motion  by  Mr.  BOUTWELL,  the  Con 
vention  proceeded  to  the  consideration  of  the 
Orders  of  the  Day. 

The  first  subject  in  order  being  the  resolves  on 
the  subject  of 

The  Judiciary. 

The  pending  question  being  on  the  amendment 
moved  by  the  gentleman  from  Fall  Iliver,  (Mr. 
Hooper,)  to  the  amendment  of  the  gentleman 
from  Worcester,  (Mr.  Davis). 

Mr.  SUMNEll,  for  Otis.  I  trust  that  it  will 
not  be  supposed  from  the  effort  I  made  to  obtain 
the  floor  yesterday,  that  I  am  very  anxious  in  re 
lation  to  this  great  and  important  subject  now 
under  consideration,  because  I  have  lived  long 
enough,  and  have  had  experience  enough  in  the 
judicial  tribunals  of  this  Commonwealth,  to  un 
derstand  this  fact,  that  almost  any  judicial  system 
which  might  be  adopted  and  put  into  operation 
in  this  Commonwealth,  would  be  made,  perhaps, 
to  a  fair  extent,  to  work  tolerably  well.  Whether 
life  tenure,  limited  tenure,  appointment  by  the 
executive,  or  election  by  the  people — whichever 
system  should  be  adopted,  it  would  be,  as  I  appre 
hend,  sustained  by  the  people,  and  measurably  it 
would  effect  its  great  purpose,  viz. :  the  adminis 
tration  of  justice.  But,  Sir,  of  different  modes, 
I  think  there  is  a  choice.  We  have  hitherto  ex 
isted  under  a  judicial  system  of  judges  appointed 
by  the  executive,  and  appointed  for  life;  and 
there  is  a  great  portion  of  the  people,  undoubtedly, 
who  entertain  towards  that  system — although 
they  may  not,  perhaps,  prefer  it  to  all  other  sys 
tems—a  great  degree  of  respect.  Unquestionably 
a  proposition  materially  changing  the  present 
system  will  meet  with  opposition  ;  there  is  a 
disposition,  at  least,  to  give  to  any  proposition  for 
change,  a  very  thorough  and  close  examination  ; 
and  this  feeling  is  to  be  countenanced  and  favored. 
Sir,  in  the  discussion  which  has  taken  place  here 
in  my  hearing — for  I  have  not  been  able  to  be  pre 
sent  in  all  the  debates  upon  this  subject — I  have 
been  very  forcibly  reminded  of  a  series  of  dis 
cussions  which  I  had  an  opportunity  to  hear 
some  twenty  years  since,  upon  this  same  floor. 
There  is  in  this  Commonwealth  a  semi-judicial 
board  of  officers,  namely,  county  commissioners. 
As  originally  created,  they  held  their  offices  by 


executive  appointment,  and  this  continued  for 
several  years.  Finally,  however,  there  was  a  feel 
ing  pervaded  the  Commonwealth,  to  a  considera 
ble  extent,  in  favor  of  a  change  in  the  manner  of 
appointing  these  officers ;  as  is  well  known.  The 
people  demanded,  in  somewhat  loud  terms,  that 
the  appointment  of  these  officers  by  the  executive 
should  be  changed,  and  that  the  people  should  be 
permitted  to  elect  them.  They  accordingly  prefer 
red  their  applications  to  the  legislature,  and  these 
applications  for  a  long  time  met  with  precisely 
the  entertainment  that  the  proposition  meets  with 
here  in  regard  to  the  change  in  our  system  as  to 
the  appointments  of  the  judges  of  the  court  of 
common  pleas,  and  of  the  supreme  court.  It 
was  said,  in  the  first  place,  that  it  would  be  un 
constitutional  ;  that  if  the  legislature  should  pass 
a  law  giving  the  election  of  this  board  of  officers 
to  the  people,  the  supreme  court,  upon  a  proper 
process  bringing  the  question  before  them,  would 
set  the  proceedings  all  aside,  because,  forsooth, 
tin's  was  a  judicial  office,  and  under  the  Constitu 
tion,  the  executive,  and  the  executive  alone,  was 
competent  to  appoint.  That  argument  had  its 
weight,  and  its  influence.  But,  the  greatest  diffi 
culty  anticipated,  and  which  was  put  forth  as  an 
argument  by  those  who  resisted  the  proposal  to 
make  these  officers  elective,  was  that  it  would 
create  confusion,  disorder  and  trouble ;  that  there 
would  be  conflicting  interests  in  different  locali 
ties  ;  that  men  of  influence,  having  this  or  that 
purpose  to  subserve,  would  enter  into  the  arena  in 
regard  to  the  selection  and  choosing  of  these  offi 
cers  ;  that  there  would  be  no  such  thing  as  inde 
pendence  on  the  part  of  the  incumbent ;  that  they 
would,  in  their  conduct,  favor  their  friends  and 
supporters  ;  that  they  would  resort  to  improper 
efforts  for  the  purpose  of  securing  their  election, 
and  that  the  consequences  would  be  disastrous" ; 
and,  beyond  all  this,  it  was  believed,  that  it  would 
be  a  great  entering  wedge  which  applied  to  the 
entire  judicial  system,  would  finally  rive  it  asun 
der,  so  that  the  whole  system,  so  honored,  and  so 
cherished,  would  fall  to  ruin,  and  beneath  that 
ruin  our  liberties  would  be  buried.  Well,  Sir, 
all  those  arguments  produced  an  effect ;  the  legis 
lature  looked  at  the  matter  and  considered  it,  and 
finally,  with  great  trembling,  concluded  to  make 
this  mighty  and  fearful  experiment,  and  they  gave 
the  people  the  authority  claimed.  AVe  have  tried 
the  experiment,  and  we  find  ourselves  yet  alive 
and  above-board,  like  Belzoni's  mummy,  "  re 
visiting  the  glimpses  of  the  moon,"  without  being 
destroyed.  I  have  heard  almost  the  same  argu 
ments  in  this  Convention  in  relation  to  the  change 
now  proposed  in  our  judiciary  system,  which  I 
heard  here  in  1834,  in  respect  to  county  commis- 


63d  day.] 


THE  JUDICIARY. 


221 


Thursday,] 


SUMNER. 


[July  21st. 


sioners,  and  I  could  almost  believe,  that  there 
were  yet  remaining,  in  some  of  the  historical 
archives  of  the  city,  some  of  the  old  papers  of 
that  day,  in  which  were  set  forth,  not  so  eloquent 
ly,  perhaps,  or  so  forcibly,  as  the  arguments  of 
my  friend  from  Boston,  (Mr.  Schouler,)  or  the 
member  for  Manchester,  (Mr.  Dana)  ;  but  yet, 
some  arguments,  certainly,  very  much  like  them. 
After  all,  I  am  satisfied  that  a  plan  for  an  elective 
judiciary  with  a  limited  tenure,  may  be  safely 
adopted. 

I  wish,  Mr.  President,  to  enforce  the  idea 
which  I  have  already  suggested,  that  there  is 
amongst  the  people  of  this  Commonwealth  an 
ever- abiding  sentiment  of  affection  and  respect 
towards  the  judiciary  of  the  State.  We  are  all 
interested  in  its  preservation,  in  its  upright 
ness,  in  its  faithfulness,  in  its  high  character 
throughout ;  and  it  is  upon  this  great  fact  that  I 
think  we  may  safely  rely  in  giving  the  people 
power  in  relation  to  the  formation  of  the  judici 
ary,  the  choice  of  judges,  and  the  preservation  of 
the  system.  If  different  feelings  prevailed — if 
there  was  a  feeling  of  contempt  towards  that 
branch  of  the  government — if  there  was  a  senti 
ment  of  disrespect,  or  anything  bordering  on  dis 
respect  towards  the  judiciary,  we  might  well 
pause  before  we  gave  into  the  hands  of  the  people 
any  power  to  touch  it ;  we  might  let  the  appoint 
ments  be  made  by  some  authority  beyond  the 
control  of  the  people,  for  the  reason  that  the 
people  would  not  be  safe  depositories  of  trust,  in 
relation  to  it,  because  of  popular  aversion  to  its 
power  and  authority,  and  not  holding  it  in  proper 
regard. 

Now,  Sir,  what  is  it  that  the  people  desire  ? 
They  desire  learned  judges — men  who  are  capa 
ble,  honest,  faithful,  pure-minded,  independent ; 
such  is  the  all-pervading  sentiment  throughout 
the  whole  community.  That  is  the  wish,  and  the 
sole  wish  of  the  people  ;  and  such  being  the  fact, 
it  is  of  great  consequence  to  preserve  this  senti 
ment.  But,  Sir,  I  think  that  any  one  who  looks 
at  the  present  condition  of  tilings,  concerning  the 
judiciary, — and  I  certainly  am  not  going  to  stand 
up  here  to  arraign  or  impeach  its  members, — will 
be  satisfied  that  it  not  only  is  becoming,  but  per 
haps  has  become  a  matter  of  necessity  that  there 
should  be  some  modification  of  the  system,  in 
order  that  this  respect  may  be  preserved.  Let  us 
suppose  a  state  of  affairs,  in  order  to  illustrate  my 
views.  Suppose,  notwithstanding  a  desire  to 
sustain  the  judges,  it  should  happen,  in  the  course 
of  things,  that  when  the  members  of  the  legal  pro 
fession,  with  their  clients,  should  visit  the  court 
house,  at  term-time,  and  find  upon  the  bench 
Judge  A.,  or  Judge  somebody  else,  and  instead 


of  their  going  forward  and  trying  their  causes, 
the  counsel  and  clients  should  all  consent  to  con 
tinue  their  cases,  preferring  to  take  their  chance 
when  some  other  judge,  less  obnoxious,  should 
hold  the  court.  Suppose,  too,  in  addition  to  this, 
that  it  is  impossible  to  touch  any  judge,  except  in 
one  way,  and  that  one  which  is  most  obnoxious 
and  abhorrent  to  the  feelings  of  the  people,  viz. : 
by  address  to  the  executive  for  removal.  Nobody 
wants  to  resort  to  that.  The  legislature  may 
address  the  governor  to  remove  a  judge ;  and  he 
has  authority,  with  consent  of  council,  to  cause  his 
removal ;  but  that  provision  in  the  Constitution 
is  but  a  dead  letter.  Nobody  wishes  to  go  to  the 
legislature,  nor  do  the  legislature  want,  of  their 
own  motion,  to  say  to  the  executive  :  "  We  wish 
to  have  removed  from  office  a  judge  who  has 
been  ill-advisedly  placed  upon  the  bench." 

.  Now,  Sir,  if  such  a  state  of  things  were  to 
exist, — and  perhaps  it  may  exist, — would  it  not 
affect  the  kindly  and  desirable  sentiments  of  the 
people  towards  the  judges  ;  and  would  it  not  of 
itself  form  a  good  reason  for  some  constitutional 
modification  or  change  as  to  the  construction  of 
our  judiciary,  and  the  appointing  of  our  judges  ? 
Without  pursuing  this  subject  any  farther — and 
I  repeat,  without  making  myself  any  arraignment 
of  the  present  judges — I  have  to  submit,  that  I  do 
believe  a  majority  of  the  people  of  Massachusetts 
desire  there  should  be  some  change  in  our  judicial 
system  ;  and  I  do  not  accord  at  all  to  that  senti 
ment  which  seems  to  find  some  favor  in  different 
parts  of  this  Convention,  that  it  will  not  do  to  pre 
sent  this  proposition  to  them  because  they  are  not 
ready  to  adopt  it.  I  am  decidedly  in  favor  of  the 
proposition  for  a  limited  tenure.  I  think  that  we 
have  favored  this  system  of  life  tenure  so  long 
that  it  is  one  of  the  worn  out  things  in  old  Mas 
sachusetts,  and  that  young  Massachusetts  requires 
some  improvement  in  this  behalf.  When  regard  for 
any  institution  becomes  impaired,  though  slightly, 
it  is  wise  and  prudent  to  see  if  some  change  cannot 
be  made,  that  will  restore  confidence  and  respect. 
I  shall  vote,  therefore,  if  I  have  an  opportunity, 
in  favor  of  the  proposition  for  a  limited  tenure  ; 
and  if  the  judiciary  be  made  elective,  I  would  most 
heartily  concur  in  the  proposal  as  to  the  length 
of  tenure  suggested  yesterday,  by  the  learned  gen 
tleman  from  Boston,  (Mr.  Giles).  I  would  prefer  a 
longer  tenure  than  that  which  is  embraced  in  the 
resolution  offered  by  the  gentleman  from  Wor 
cester  ;  but  still,  Sir,  if  it  is  the  voice  of  the 
Convention  that  that  should  be  the  tenure,  I 
have  no  fears  whatever  in  regard  to  the  trial  of 
that  proposition.  I  would  prefer  a  longer  time, 
if  the  judiciary  be  elective.  I  would  propose 
such  a  tenure  as  that  it  should  be  an  object  to 


222 


THE   JUDICIARY. 


[63d  day. 


Thursday,] 


SUMNEB  —  BARTLETT  —  BUTLEK. 


[July  21st. 


men  of  talent,  honesty,  and  character,  to  take 
judicial  office;  and  for  that  purpose  I  would 
rather  favor  a  proposition  for  fourteen  years  than 
for  seven  years. 

And,  Sir,  I  have  no  fears  upon  the  subject  of 
the  eligibility  of  the  incumbents  for  reflection  ; 
for,  in  my  belief,  if  there  is  anything  fixed  in  the 
minds  of  the  people  in  relation  to  this  subject,  it 
is  that  they  are  in  favor  of  men  for  the  bench 
•who  are  aloof,  and  will  stand  aloof  from  the  polit 
ical  field.  I  do  not  think  like  many  gentlemen 
here,  that  the  great  criterion  in  relation  to  the 
selection  of  judges,  will  be  made  at  all,  or  to  any 
alarming  extent,  to  depend  upon  the  political 
preferences  of  gentlemen  who  may  be  brought 
forward  for  judicial  offices.  I  believe,  Mr.  Presi 
dent,  that  the  people  understand  perfectly  well, 
that  it  is  for  their  interest  to  have  "  good  men  and 
true,"  for  their  judges  ;  and  I  have  yet  to  learn, 
that  in  an  intelligent  Commonwealth  like  this, 
they  will  be  likely  to  act  in  a  manner  adversely  to 
their  interests.  Is  it  not  for  the  interest  of  every 
man,  woman  and  child,  high  and  low,  rich  or 
poor,  in  the  State,  that  those  who  are  invested 
with  authority  to  pass  upon  their  rights  in  the 
judicial  tribunals,  should  be  men  of  tried  integ 
rity,  of  sterling  merit,  of  ability,  and  learned  in 
the  law  ?  Is  not  all  this  for  their  interest,  and 
will  not  the  people  act  according  to  what  is  for 
their  interest  in  the  selection  of  their  judges  ? 
Who  doubts  the  fact  ? 

Mr.  President :  I  do  not  wish  to  take  up  time 
by  scrutinizing,  at  this  moment,  with  any  great 
particularity,  the  different  propositions  which  are 
before  us,  either  as  to  the  principal  resolution,  or 
the  amendments  offered.  I  think,  Sir,  that  con 
siderable  improvement  may  be  made  in  relation 
to  them,  and  farther  amendments  will  probably 
be  offered ;  and  I  suspect  we  shall  have  no  great 
difficulty  in  completing  in  proper  form  the  propo 
sitions,  so  that  they  may  be  made  acceptable. 

And  now,  Sir,  one  word  in  regard  to  those 
fears  which  are  entertained  in  respect  to  ingraft 
ing  this  proposition  in  the  proposed  Constitution 
which  is  to  be  sent  out  to  the  people.  I  believe, 
with  the  gentleman  from  Easthampton,  who 
briefly  addressed  us  yesterday,  that  it  is  one  of 
the  calls  of  the  people,  that  the  very  changes 
which  we  are  now  considering,  should  be  sub 
mitted  to  them ;  and  I  agree  with  him,  that  one 
of  the  most  acceptable  propositions,  as  I  appre 
hend,  which  can  be  presented  to  them,  would  be 
that  we  should  give  into  the  hands  of  the  people 
the  power  of  electing  their  judges,  with  limited 
tenures. 

Mr.  BARTLETT,  of  Boston.  In  the  present 
attitude  of  the  question  before  the  House,  though 


in  my  view,  I  trust  that  no  one  of  the  proposi 
tions  at  present  offered,  may  prevail,  and  that  the 
original  Report  should  stand,  it  seems  to  be  de 
sirable  that  all  projects  that  may  be  offered  should 
have  the  best  chance  for  being  properly  matured. 
As  the  matter  now  stands,  we  have  two  amend 
ments  pending ;  and  with  the  vote  of  the  Con 
vention  that  the  vote  be  taken  at  eleven  o'clock. 
I  do  not  see  how  farther  amendments  are  to  be 
reached  ;  and  therefore,  with  your  leave,  and  that 
of  the  Convention,  I  propose  to  offer  a  resolution 
which  was  once  adopted  in  relation  to  another 
topic — to  amend  the  order  fixing  eleven  o'clock 
for  the  taking  of  the  question,  so  as  to  permit  ten 
minutes  to  the  mover  of  each  amendment  for  the 
purpose  of  explanation,  and  ten  minutes  to  any 
person  who  may  obtain  the  floor  to  reply,  before 
the  main  question  be  taken.  For  that  purpose,  I 
therefore  move  that  for  the  present,  the  Orders  of 
the  Day  be  laid  upon  the  table. 

The  motion  to  lay  the  Orders  of  the  Day  upon 
the  table,  -was  agreed  to. 

The  resolution  of  the  gentleman  from  Boston 
was  then  read,  as  follows  : — 

Amendments  shall  be  admitted  after  debate  on 
the  main  question  shall  cease  ;  and  the  mover  of 
each  amendment  shall  be  allowed  ten  minutes  to 
explain  his  amendment,  and  the  person  who  shall 
next  obtain  the  floor,  shall  be  allowed  ten  minutes 
for  the  purpose  of  replying. 

Mr.  BUTLER,  of  Lowell.  I  have  long  acted 
upon  the  principle,  which,  perhaps,  I  can  express 
to  the  entire  understanding  of  the  gentleman 
from  Boston,  by  the  Latin  legend,  "  Timeo  Da- 
nceos  et  dona  ferentes" — I  fear  the  Greeks,  even 
when  they  bring  gifts ;  and  therefore,  as  I  found 
yesterday  on  the  part  of  gentlemen  with  whom 
he  acted— not  on  his  part,  I  must  do  him  the 
justice  to  say — a  disposition  to  protract  the  time, — 
a  disposition,  upon  the  most  frivolous  pretexts,  to 
put  off  taking  the  question.  After  they  got  us  to 
postpone  the  question  until  eleven  o'clock  this 
morning,  with  the  view  of  giving  gentlemen  an 
opportunity  of  expressing  their  views  still  farther, 
every- body  held  off,  gentlemen  went  away,  no 
quorum  was  left,  and  the  consequence  was  that 
the  Convention  adjourned  half  an  hour  or  three- 
quarters  eailier  than  the  usual  time.  Now,  if  we 
are  to  open  the  door  to  these  amendments,  in  the 
manner  proposed  by  the  gentleman  from  Boston, 
their  name  will  be  legion,  and  the  yeas  and  nays 
will  be  called  on  each,  and  we  shall  lose  much 
more  time.  I  am,  therefore,  afraid  of  this  propo 
sition.  I  am  afraid  that,  after  we  get  through 
the  debate,  we  may  have  amendments  offered  to 
such  an  extent  as  will  amount  simply  to  a  con 
sumption  of  time;  because,  from  the  way  in 


63d  day.] 


THE   JUDICIARY. 


223 


Thursday,; 


BUTLER —  SCHOULEK  — BARTLETT. 


[July  21st. 


which  this  thing  was  started,  and  the  mode  in 
which  it  was  attempted  to  be  made  by  parlia 
mentary  tactics  yesterday  morning  and  yesterday 
afternoon,  by  which  the  gentleman  from  Boston 
moved  the  previous  question,  and  another  gentle 
man  moved  the  yeas  and  nays  on  the  previous 
question  ; — so  the  thing  would  have  been  carried 
on,  without  end.  I  should,  myself,  have  no  ob 
jection  to  the  proposition  to  give  each  gentleman 
ten  minutes  to  explain  his  amendment,  if  I  could 
see  that  the  thing  was  to  be  carried  out  in  a 
proper  spirit ;  but  I  fear  that  we  should  have  the 
same  spirit  manifested  which  was  shown  here 
yesterday  afternoon,  and  that  it  would  entirely 
frustrate  the  object  of  the  mover  of  this  resolu 
tion.  We  should  have  all  sorts  of  amendments, 
and  all  kinds  of  terms,  from  seventy  years  down 
wards,  the  longest  term,  of  course,  being  taken 
first,  and  perhaps  the  yeas  and  nays  ordered  upon 
each.  I  only  speak  thus,  because  I  fear  such 
would  be  the  result.  I  do  not,  therefore,  know 
whether  it  is  best  to  vote  for  this  resolution  or 
not.  Upon  the  whole,  coming  in  that  way,  I 
have  always  found  it  safe  to  doubt  when  a  gen 
tleman  gets  up  and  says,  "I  hope  the  resolution 
will  not  pass,  in  any  shape,"  and  then  proposes 
to  amend  it.  I  say,  I  have  always  found  it  safe 
to  doubt  in  such  cases.  There  is  an  old  parlia 
mentary  maxim  which  says :  "  Never  put  your 
child  out  for  his  enemies  to  nurse ;"  and  I  trust, 
therefore,  that  this  motion  will  not  prevail ;  and 
more  especially  for  this  reason,  that  unless  the 
gentleman  will  indicate  some  of  the  amendments 
which  he  proposes  to  offer,  or  other  gentlemen 
their  amendments,  I  hope  the  motion  will  be 
rejected. 

Another  thing,  Sir:  I  have  seen  matters  in 
other  places — if  the  gentleman  from  Boston  de 
sires  me  to  explain,  I  can  do  so — I  have  seen 
heads  together  this  morning,  and  I  have  my 
doubts.  I  am  safe  where  I  am,  and  therefore  I 
think  it  is  best  to  remain  so. 

Mr.  SCHOULER.  I  think,  Mr.  President,  if 
the  Convention  would  spend  its  time  in  some 
other  manner  than  in  listening  to  harangues 
from  certain  gentlemen  here,  who  proceed,  in  all 
their  movements  and  arguments,  as  though  one 
class  in  the  Convention  alone  had  a  right  to  make 
a  motion,  it  would  spend  its  time  much  more 
profitably  than  it  has  frequently  done.  Sir,  no 
motion  can  be  made  by  any  member  of  this  body 
not  of  the  party  of  the  gentleman  from  Lowell, 
without  that  gentleman  suspecting  something  evil 
in  it.  Shakspeare  says — 

"Suspicion  haunts  the  guilty  breast;" 
and  if  there  be  any  truth  in  that  observation,  one 


might  think  that  the  gentleman  from  Lowell  waa 
haunted  from  morning  till  night ;  for  no  motion 
of  any  kind  can  be  made  on  a  certain  side  of  the 
House  without  his  seeing  trouble  in  it. 

Now,  Sir,  I  do  not  know  what  he  has  seen  by 
heads  being  put  together  this  morning,  but  he 
keeps  his  eye  all  around  upon  the  House,  and  if 
he  sees  a  couple  of  gentlemen  speaking  together, 
he  imagines  evil  in  the  wind.  I  do  not  know 
anything  about  this  motion,  but  I  have  no  doubt 
at  all  that  it  was  made  in  good  faith,  and  I  pre 
sume  it  will  be  acted  upon  in  good  faith.  There  has 
been  no  attempt  at  all,  since  the  commencement 
of  the  session — and  I  appeal  to  the  candid  men  of 
this  Convention  if  it  is  not  true — by  the  minority 
to  consume  the  time  of  the  Convention.  They 
have  called  for  the  yeas  and  nays  upon  no  ques 
tion,  as  far  as  I  know,  and  have  offered  no  frivo 
lous  motions ;  and  yet  we  are  daily  dragooned 
with  this  kind  of  stuff.  I  trust,  as  we  have  got 
along  so  well  thus  far,  with  good  feeling,  and 
good  spirits,  on  all  parts  of  the  House,  that  we 
will  continue  so  to  the  end,  and  that  we  may  con 
sider  each  other  as  gentlemen,  and  not  suspecting 
that  when  any  gentleman  offers  an  amendment, 
that  he  does  so  for  the  purpose  of  delay.  I  can 
say  for  myself,  that  I  concoct  and  make  no  mo 
tion  to  delay  the  business  of  the  Convention ;  and 
I  do  not  believe  there  is  any  gentleman  in  the 
Convention  who  desires  to  see  its  close  more  hear 
tily  than  I  do,  for  I  have  business  to  attend  to 
elsewhere.  I  would  like  to  see  the  Convention 
adjourn  on  Saturday  night,  and  I  do  not  believe 
that  any  attempt  whatever,  on  the  part  of  any 
one,  will  be  made  to  delay  the  action  of  the  Con 
vention. 

The  gentleman  from  Lowell,  (Mr.  Butler,)  re 
ferred  to  the  motion  which  I  made  last  night. 
Now,  Sir,  it  was  six  o'clock  when  I  made  that 
motion,  and  at  the  time  there  was  not  a  quorum 
of  members  in  the  Convention.  I  trust  I  have 
as  good  a  right  to  make  a  motion  as  has  the 
gentleman  from  Lowell ;  and  it  seems  that  my 
motion  was  proper,  because  a  large  majority  of 
the  members  then  present  voted  to  adjourn.  If 
it  were  not  that  my  colleague,  (Mr.  Bartlett,) 
wishes  to  speak  upon  this  question,  I  should 
move  the  previous  question,  so  as  to  stop  this  de 
bate. 

Mr.  BARTLETT,  of  Boston.  I  have  troubled 
this  Convention  so  little,  and  I  am  so  little  of  a 
stratagiet,  that  I  do  not  very  well  like  to  be  told 
that  I  have  made  a  motion  for  a  factious  purpose. 
As  it  is  not  the  habit  of  my  life  to  adopt  a  course  of 
that  sort,  I  put  in  a  disclaimer.  My  purpose  waa 
a  correct  one,  and  with  no  other  intent  than  I 
then  avowed ;  and  that  was,  that  in  a  matter  of 


224 


THE   JUDICIARY. 


[63d   day. 


Thursday,; 


EAKLE  —  ABBOTT  —  KEYES. 


[July  21st. 


the  gravest  importance  to  the  interests  of  the  Com 
monwealth,  if  my  own  wishes  should  not  pre 
vail,  and  the  proposition  of  the  gentleman  from 
Worcester,  (Mr.  Knowlton,)  should  not  be  reject 
ed—as  I  hope  heartily  it  may— I  still  desire,  as  I 
always  do,  to  mature  even  the  most  objectionable 
project  which  is  to  be  placed  ultimately  before  the 
Convention,  and  then  before  the  people. 

It  is  useless  to  discuss  farther  this  matter.  If 
the  gentleman  from  Lowell,  (Mr.  Butler,)  had 
remembered  that  yesterday,  when  I  proposed  to 
ask  the  gentleman  from  Worcester,  (Mr.  Kiiowl- 
ton,)  for  some  explanation  of  the  practical  work 
ings  of  his  plan,  he  objected — I  will  not  say  from 
discourtesy  on  his  part,  for  probably  he  acted 
from  a  sense  of  public  duty — he  would  have  seen 
that  I  had  in  view,  this  morning,  an  amendment 
to  that  proposition,  if  it  was  ultimately  to  be 
passed. 

Mr.  EARLE,  of  Worcester.  I  do  not  know 
but  that  I  can  say  what  I  wish  to  say,  under  the 
present  motion.  I  simply  wish  to  say  that  I  hope 
the  discussion  of  this  kind  may  not  go  on.  We 
had  enough  of  it  yesterday.  I  am  as  anxious  as 
any  other  gentleman  to  bring  the  session  of  the 
Convention  to  a  close,  and,  I  believe  the  best  way 
in  which  we  can  accomplish  that  end,  is  for  each 
member  to  do  what  he  can  towards  carrying  along 
the  business  in  the  regular  course,  and  to  treat 
every  other  member  present,  as  if  he  were  a  gen 
tleman,  and  as  if  he  meant  to  conduct  as  one.  If 
the  majority — for  I  may  allude  to  majorities  and 
minorities  in  such  a  case — if  the  majority  adopt 
that  principle  and  act  upon  it ;  if  they  concede  to 
the  minority  every  right  which  the  minority 
could  reasonably  ask  or  expect,  then,  if  they  are 
factious,  and  do  riot  conduct  themselves  in  the 
spirit  with  which  the  majority  act  towards  them, 
theirs  is  the  fault.  I  would  rather  permit  them 
in  error,  if  error  there  is  to  be,  than  to  be  in 
error  ourselves,  in  pressing  them  too  severely.  I 
have  no  objection  to  sustaining  the  previous 
question  at  this  time,  but  I  had  hoped  that  in 
stead  of  wasting  the  time  as  we  have  done,  in  dis 
cussing  the  mode  of  shortening  the  session,  that 
we  would  take  hold  of  the  work,  and  by  accom 
plishing  it,  shorten  the  session  in  that  way — the 
only  effectual  way,  in  my  opinion,  of  doing  it. 

Mr.  ABBOTT,  of  Lowell.  I  trust  that  the 
motion  of  the  gentleman  from  Boston,  (Mr.  Bart- 
lett,)  will  not  be  adopted.  As  I  understood  the 
matter  last  night,  and  I  think  it  was  so  understood 
in  all  parts  of  the  House,  it  was  agreed  all  around, 
that  for  the  purpose  of  preventing  anybody  from 
saying  they  had  not  time  to  make  amendments, 
and  to  discuss  everything  to  be  discussed,  that  all 
talk  upon  the  matter  should  not  cease  until,  and 


should  cease,  at  eleven  o'clock,  to-day.  I  went 
in  good  faith  for  that  arrangement,  and  I  supposed 
I  was  satisfying  every- body  upon  the  other  side  of 
the  House.  Now  that  the  arrangement  has  been 
made,  I,  for  one,  shall  stick  to  the  arrangement 
and  agreement  as  it  was  made.  I  do  not  mean  to 
charge  anything  upon  anybody  in  this  Conven 
tion,  but  I  mean  to  say  that  we  who  are  here  in 
the  majority  of  this  Convention,  are  responsible 
for  the  length  of  the  session,  and  will  be  held  to 
that  responsibility,  and  not  the  gentleman  from 
Boston,  (Mr.  Bartlett,)  and  those  with  whom  he 
is  associated.  I  ask,  if  the  gentleman  himself 
will  not,  when  we  get  through,  and  our  labors 
are  submitted  to  the  people,  will  not  charge  that 
this  Convention  have  set  here  too  long  ?  I  do 
not  mean  to  charge  that  they  intend  to  keep  us 
here  too  long,  but  I  do  mean  to  say  that  we  have 
been  here  quite  long  enough.  We  are  responsi 
ble,  and  unless  we  do  bring  this  debate  to  an  end 
somehow  or  other,  and  stick  to  the  arrangement 
and  agreement  we  made  yesterday,  I  apprehend 
that  the  vote  you  passed  a  little  while  ago,  that 
your  session  ought  to  be  brought  to  an  end  on 
Saturday  next,  means  nothing. 

Mr.  KEYES,  for  Abington.  I  am  almost  sorry 
that  I  got  up,  but  I  supposed  somebody  else 
would,  if  I  did  not.  [Laughter.]  I  got  up  upon 
the  same  principle,  that,  sometimes  when  I  have 
been  in  a  small  room  where  half  a  dozen  gentle 
men  have  been  smoking  cigars,  I  have  been  com 
pelled  to  take  one,  too,  to  enable  me  to  endure 
the  atmosphere.  On  this  occasion  I  have  become 
so  nervous  in  hearing  the  discussion  of  yesterday 
afternoon,  repeated  this  morning,  that  I  cannot 
sit  still,  but  must  participate  in  the  discussion,  or 
grow  crazy,  and  I  prefer  the  former.  This  is 
pretty  much  all  the  reason  and  all  the  argument 
I  have  to  use  here.  [Laughter.]  Since  I  find 
that  the  object  of  the  delay  granted  yesterday 
afternoon,  has  not  been  accomplished,  and  is  not 
meant  to  be  accomplished  by  anybody,  I  suppose 
it  was  not  meant  to  be  carried  out.  It  was  pro 
posed  to  delay  taking  the  vote  yesterday,  for  the 
purpose  of  having  some  discussion  upon  the 
questions  before  the  Convention ;  but  nobody 
seemed  to  take  the  floor,  except  the  gentleman 
representing  Otis,  (Mr.  Sumner,)  and  I  con 
fess  that  owing  to  the  noise  and  my  disturbed 
state  of  mind,  I  did  not  find  out  upon  which  side 
of  the  question  he  was,  whether  upon  my  side,  or 
against  it.  I  dare  say,  however,  he  made  a  very 
able  argument  in  favor  of  the  election  of  judges 
by  the  people. 

Now,  as  to  the  proposition  of  the  gentleman 

from  Boston,  (Mr.  Bartlett,)  let  us  look  at  it  and 

.  see  what  reason  there  is  for  supporting  it.     I  un- 


63d  day.] 


THE   JUDICIARY. 


225 


Thursday,! 


BIRD  —  GRAY  —  DANA  —  BRIGGS  —  BARTLETT. 


[July  21st. 


derstand  that  he  means  to  be  understood  as  not 
favoring  this  till  or  anything  like  it.  What, 
then,  does  he  want  an  amendment  for  ?  I  do  not 
think  he  cares  enough  about  the  bantlings  of  this 
Convention,  to  take  care  of  them ;  and  the  worse 
shape  in  which  they  come  out,  the  more  agreeable 
to  him.  If  there  was  any  gentleman  who  really 
had  an  amendment  which  he  felt  sincerely  desi 
rous  to  offer,  as  a  modification  of  this  proposi 
tion,  that  would  be  an  argument  in  favor  of  it, 
and  I  do  not  know  that  we  should  exclude  it. 
If  an  amendment  is  presented  to  us,  let  us  vote 
it,  or  vote  it  down,  as  we  like  it.  I  do  not,  after 
all,  see  any  great  deal  of  difficulty.  Nobody 
seems  inclined  to  enlighten  the  Convention  upon 
the  question  for  which  action  was  delayed  yester 
day.  There  is  an  opportunity  now  before  eleven 
o'clock,  to  make  at  least  twenty  better  speeches 
than  are  usually  made  here,  for  the  longer  they 
are,  the  worse  they  are. 

Mr.  BIRD,  of  Walpole.  A  proposition  was 
made  yesterday  afternoon,  to  delay  taking  the 
question  until  eleven  o'clock  this  morning,  as 
gentlemen  were  anxious  to  hear  farther  discus 
sion.  They  wanted  light,  and  it  would  not  do  to 
press  the  previous  question.  Finally,  as  a  matter 
of  compromise,  we  put  off  taking  the  question 
until  eleven  o'clock  this  morning.  What  was 
the  result  ?  The  very  moment  the  vote  was  taken 
to  postpone  the  taking  of  the  vote,  almost  every 
one  of  the  gentlemen  who  were  anxious  for  it, 
went  out  of  this  House  as  though  they  were  shot. 
In  fifteen  minutes  after  that  vote  was  taken,  not 
one-half  as  many  members  were  in  their  seats  as 
there  were  when  the  vote  was  taken.  They  wanted 
light,  did  they  ?  One  most  distinguished  gentle 
man  took  the  floor,  and,  failing  to  get  a  hearing, 
took  his  seat,  because  members  would  not  listen 
to  him.  They  wanted  light,  did  they  ?  Another 
distinguished  gentleman,  upon  the  other  side,  the 
gentleman  for  Berlin,  (Mr.  Boutwell,)  took  the 
floor — I  will  not  say  that  he  did  not  get  a  hearing 
— but  certainly  he  was  talking  to  empty  benches, 
and,  absolutely,  about  an  hour  after  that  vote  was 
taken,  we  adjourned  without  a  quorum.  We 
adjourned  at  six  o'clock  without  a  quorum.  And 
gentlemen  wanted  more  light !  Now  they  want 
to  put  off  the  question  four  or  five  hours,  for 
more  discussion.  I  say,  that  with  the  exception 
of  the  gentleman  who  just  moved  this  motion, 
(Mr.  Bartlett,) — I  believe  he  remained  until  the 
close — there  was  hardly  a  single  gentleman  upon 
that  side — I  believe  not  one  in  favor  of  that  con 
tinued  debate — who  did  not  go  out  of  the  House 
in  twenty  minutes  after  the  vote  was  taken.  I 
belong  to  the  majority,  but  I  am  not  to  be  fright 
ened  by  the  divisions  of  parties.  I  hope  that  the 


majority  of  this  Convention,  who  are  responsible 
for  the  length  of  this  session,  will  delay  action  no 
longer.  And  I  consider  the  course  pursued  yes 
terday  by  the  minority  as  a  sheer  pretence,  and 
for  a  hypocritical  purpose. 

[Cries  of  "  Order,"  "  Order,"  «  Order."] 

Mr.  GRAY,  of  Boston.  Mr.  President :  it  is 
really  hard,  after  having  detained  the  Convention, 
or  those  who  were  here  to  listen  to  me  yesterday 
afternoon,  for  nearly  half  an  hour,  and  then  have 
it  said — not  that  I  made  a  very  poor  speech,  which 
perhaps  could  often  be  said  with  truth — but  to 
have  it  said  that  I  was  not  even  here.  I  do  as 
sure  the  gentleman  from  Walpole,  (Mr.  Bird,) 
that  I  claim  no  more  power  than  any  other  mem 
ber  of  this  Convention,  and  not  so  much  as  some, 
and,  least  of  all,  do  I  claim  the  power  of  being  in 
two  places  at  once.  I  submit  it  to  the  candid 
gentlemen  of  the  Convention,  upon  all  sides,  that 
there  is  too  much  of  these  repeated  attacks  upon 
the  minority  for  delaying  the  business  of  the  Con 
vention.  Have  the  gentlemen  in  the  majority 
been  silent  ?  Have  they  failed  to  do  justice  to 
their  side  of  the  question  ?  The  fault  was  in  the 
ground  of  their  argument,  and  the  side  of  the 
question  they  were  upon,  and  not  in  their  ability 
or  their  disposition  to  do  the  best  they  could.  I  do 
hope — and  I  say  it  seriously — that  in  this  Con 
vention,  which,  up  to  this  moment,  has  been  dis 
tinguished  by  courtesy  and  comity  upon  all  sides, 
that  courtesy  and  good  feeling  will  continue  until 
the  end,  and  that  we  shall  not  lose  our  character 
in  that  respect,  however  our  character  for  wisdom 
may  stand  before  the  people. 

Mr.  DANA,  for  Manchester.  Feeling  an  in 
terest  in  the  character  and  credit  of  the  majority, 
of  which  I  am  one,  and  fearing  that  one  or  two 
of  them  are  in  danger  of  losing  their  temper,  and 
that  we  are  wasting  time,  I  move  the  previous 
question. 

The  previous  question  was  ordered. 

Mr.  BRIGGS,  of  Pittefield.  I  wish  to  inquire 
of  the  Chair,  when  the  hour  of  eleven  o'clock 
shall  arrive,  and  the  pending  amendment  shall 
have  been  voted  upon,  whether  other  amendments 
will  be  in  order  ? 

The  PRESIDENT.  The  Chair  thinks  they 
will  be  in  order. 

Mr.  BARTLETT,  of  Boston.  The  object  of 
the  motion  is  not  simply  that  amendments  may 
be  offered,  for  they  fall  dull  upon  the  ear  unac 
companied  with  explanation.  If  the  Convention 
are  in  such  hot  haste  that  ten  minutes  cannot  be 
afforded  for  explanation,  the  sooner  we  rise  and 
go  home  the  better. 

The  question  was  then  taken  upon  the  motion  of 
the  gentleman  from  Boston,  (Mr.  Bartlett,)  and 


226 


THE   JUDICIARY. 


[63d  day. 


Thursday,] 


KNOWLTON  —  BARTI?ETT. 


[July  21st. 


there  were,  upon  a  division — ayes,  140 ;   noes, 
144. 
So  the  motion  was  not  agreed  to. 

Orders  of  the  Day. 

On  motion  of  Mr.  KNOWLTON,  of  Worces 
ter,  the  Convention  proceeded  to  the  considera 
tion  of  the  Orders  of  the  Day,  the  first  business 
in  order  being  the  consideration  of  the  resolves 
upon  the  subject  of 

The  Judiciary) 

To  which  an  amendment  offered  by  the  gentle 
man  from  "Worcester,  (Mr.  Knowlton,)  and  an 
amendment  to  the  amendment  offered  by  the 
gentleman  from  Fall  River,  (Mr.  Hooper,)  were 
pending. 

Mr.  KNOWLTON,  of  Worcester,  by  unani 
mous  consent,  modified  his  amendment  by  in 
serting  in  the  fifth  line,  after  the  word  "  years," 
the  following :  "  and,  for  the  purpose  of  such 
confirmation,  the  governor  shall  have  power  to 
convene  the  Senate  from  time  to  time,  at  his 
discretion,"  so  that  the  amendment  as  modified, 
would  then  read  :— 

That  it  is  expedient  so  to  amend  the  Constitu 
tion,  that  all  Judicial  Officers,  except  those  con 
cerning  whom  a  different  provision  shall  be  made 
in  the  Constitution,  shall  be  nominated  and 
appointed  by  the  governor,  by  and  with  the  con 
sent  of  the  Senate,  for  the  term  of  seven  years ; 
and,  for  the  purpose  of  such  confirmation,  the 
governor  shall  have  power  to  convene  the  Senate 
from  time  to  time,  at  his  discretion;  that  they 
may  be  reappointed  at  the  expiration  of  such 
term,  and  that  all  such  nominations  shall  be  made 
at  least  seven  days  before  such  appointment. 

Mr.  BARTLETT,  of  Boston.  I  regret,  Mr. 
President,  that  the  stage  of  the  debate  is  such, 
that  every  ear  is  weary  of  the  discussion.  I  feel 
that  all  argument,  all  illustration  that  can  fitly  be 
applied  to  the  subject,  has  doubtless  been  ex 
hausted.  But,  having  been  necessarily  absent 
while  this  most  important  topic  has  been  under 
consideration,  I  am  unwilling  that  the  vote  should 
be  taken,  without  expressing,  in  some  brief  man 
ner,  the  views  which,  with  some  experience  of 
the  working  of  our  present  judicial  system,  I 
confidently  entertain. 

And,  now,  Mr.  President,  allow  me,  summa 
rily,  to  state  what,  in  my  judgment,  is  the  precise 
attitude  of  the  question.  I  shall  not  advert  to 
the  project  of  the  member  from  Fall  River,  be 
cause  I  think  there  is  a  foregone  conclusion  with 
regard  to  that  project ;  but  I  think  that  those  who 
favor  the  project  of  the  gentleman  from  Worces 
ter,  should  fairly  and  justly  be  held  to  establish 
three  things. 


In  the  first  place,  I  think  they  are  bound  to 
show  that  the  present  judicial  institutions  of  the 
Commonwealth  are,  in  some  respects,  defective. 
I  think  that  gentlemen  who  come  here  to  carry 
out  speculative  opinions  on  this  subject,  are 
bound,  at  the  outset,  to  establish  that  the  existing 
state  of  things  is  one  which  fails  to  meet  the  en 
tire  approbation  of  the  community.  They  should 
be  rigorously  held  to  this,  as  forming  the  basis 
of  their  argument. 

In  the  second  place,  if  they  succeed  in  their 
first  step,  I  think  they  are  bound  to  show  that  a 
learned  and  able  judiciary  can  be  secured  under 
the  tenure  of  office  proposed  by  the  gentleman 
from  Worcester. 

If  those  two  points  can  be  established,  I  think 
they  are  bound,  in  the  last  place,  to  make  it  rea 
sonably  certain  that  that  learning  and  ability 
thus  secured,  will  be  placed  in  such  a  position 
of  independence,  that  every  man  who  has  rights, 
or  property,  dependent  on  judicial  decision,  may 
feel,  whatever  may  be  the  result,  unshaken  con 
fidence  in  the  purity  and  impartiality  of  our  tri 
bunals.  These  three  questions,  I  think,  are 
questions  which  should  be  deliberately  consid 
ered  and  fairly  settled. 

Now,  Sir,  in  relation  to  the  first  question, 
although  I  have  not  been  able  to  be  present 
during  this  discussion,  yet,  from  inquiry,  I  am 
not  able  to  find  that  anywhere  during  that  de 
bate,  the  suggestion  has  been  made,  that  the 
judicial  system  of  Massachusetts,  from  its  earliest 
to  its  latest  history,  has  not  accomplished,  or  that 
it  does  not  now  accomplish,  fuDy  and  satisfactori 
ly,  the  great  purposes  for  which  it  was  instituted. 
What  man  has  told  you  that  human  liberty,  the 
rights  of  property,  and  all  that  is  confided  to 
judicial  keeping,  has  not  been  well  and  wisely 
confided  there,  during  the  whole  time  that  our 
judiciary  has  been  established  upon  its  present 
basis  ?  I  have  heard  of  no  such  complaint, 
abroad  or  at  home.  But,  on  the  contrary,  if 
there  be  any  portion  of  the  institutions  of  Mas 
sachusetts  which  has,  more  than  anything  else, 
redounded  to  her  credit  next  to  her  common 
schools,  it  is  the  marked  ability,  fairness  and 
learning  to  be  found  in  her  judicial  decisions. 
Wherever,  in  this  country,  the  common  law  is 
administered;  wherever  the  application  of  the 
great  principles  of  commercial  law  is  studied  or 
investigated  ;  wherever  schools  of  jurisprudence 
are  established,  there  will  be  found  the  reports  of 
your  adjudicated  cases. 

In  the  extensive  collection  of  books  forming 
the  law  library  of  congress,  I  am  told,  that 
among  the  best  thumbed  volumes  are  the  Reports 
of  your  Pickering ;  a  fact,  if  it  be  true,  which 


63d  day.] 


THE   JUDICIARY. 


227 


Thursday,] 


BARTLETT. 


[July  21st. 


constitutes  a  proud  tribute  to  the  institution 
which  the  pending  resolution  seeks  to  alter  if 
not  impair. 

I  submit,  then,  Mr.  President,  that  the  first 
important  position  which  those  who  support  the 
pending  resolution  are  bound  to  establish,  has 
nothing  to  rest  upon.  That  your  existing  judi 
cial  system  is,  and  should  be,  a  source  of  just 
pride  and  congratulation ;  and  that  it  is  due  to 
common  prudence  to  leave  untouched  a  branch 
of  your  government  that  commands  and  obtains 
unusual  approbation  and  respect. 

But  if  this  were  doubtful — as  it  is  not — and  if 
the  conclusion  should  be  adopted  that  our  pres 
ent  system  requires  to  be  modified,  or  radically 
changed ;  the  next  important  question  occurs : 
will  the  proposed  substitute  secure  the  requisite 
learning  and  ability  ? 

In  determining  this  question,  the  advantage  of 
professional  success,  compared  with  a  judicial 
position,  are  to  be  carefully  balanced.  You  must 
assume  that  the  selection  of  judges  is  to  be  made 
from  among  those  who  have  reached  the  foremost 
rank  of  the  profession,  that  a  humiliating  con 
trast  between  the  capacity  of  the  bar  and  the 
bench  may  be  avoided.  To  attain  such  degree 
of  professional  standing,  years  of  severe  study 
and  practise,  reaching,  on  the  average,  to  the 
meridian  of  life,  will  commonly  be  requisite. 
The  present  standard  of  judicial  compensation — 
or,  indeed,  any  probable  measure  of  compensa 
tion  which  will  ever  obtain  in  this  Common 
wealth—will  compare  most  unfavorably  with  the 
results  of  professional  success.  In  this  condition 
of  things,  is  it  probable,  nay,  is  it  even  possible, 
that,  for  any  lengthened  period,  the  judicial  office, 
with  a  tenure  of  ten  years,  can  be  an  object  of 
professional  aspiration  ?  What  is  to  be  the  fate 
of  an  incumbent  at  the  end  of  his  term  ?  Reap- 
pointment  can  never  be  counted  on  with  certainty. 
Failing  that,  he  is  left  without  resource.  The 
instances  in  which  a  return  to  practise  at  the  bar 
has  been  successful — aside  from  the  irksomeness 
of  such  change  of  position — are  very  rare.  The 
usual  resort,  under  such  circumstances — to  the 
habit  of  giving  advice  and  opinions  at  chambers, 
— has  been  found  to  be  unenduring,  and  from  ob 
vious  causes,  unsatisfactory ;  and  your  judge  is  left 
substantially  stranded  and  helpless,  on  the  shore 
of  the  great  current  with  which  he  has  heretofore 
mingled,  and,  to  some  extent,  aided  to  guide. 

It  may  be,  Mr.  President,  that  where  judicial 
positions  have  ceased  to  be  the  aim  of  those 
whose  experience  and  learning  furnish  the  requi 
site  qualifications,  talent  and  industry  may  oc 
casionally  be  found,  and  trained  by  the  experi 
ence  of  years,  to  come  up  to  the  standard  of 


judicial  excellence  which  it  has  hitherto  been 
our  pride  to  require.  But  this  must  be  the  acci 
dent  and  not  the  rule ;  and  I  am  unwilling  to 
believe  that  this  Convention  will  be  content  to 
subject  to  chance  the  sound  and  successful  ad 
ministration  of  justice  in  this  Commonwealth. 

Mr.  President :  There  are  many  gentlemen  in 
this  Convention,  who  upon  this  subject  are,  from 
their  independent  position  and  large  experience, 
qualified  to  testify  rather  than  to  argue  the  ques 
tion.  The  journal  shows  that  they  have  been 
heard,  and  I  desire  only  to  add  my  own  convic 
tions,  that  the  proposed  scheme  of  limiting  the 
judicial  tenure  to  a  period  of  ten  years,  will  fail 
to  secure  the  talent  and  learning  which  have 
hitherto  been  deemed  so  essential  to  a  safe  and 
impartial  administration  of  the  law. 

Mr.  President:  Assuming  that  a  change  in 
our  system  is  required, — or,  whether  required  or 
not,  is  to  be  made, — and  assuming,  farther,  that 
the  scheme  proposed  by  the  member  from  Wor 
cester  will  command  the  requisite  learning  and 
ability  in  the  judicial  office,  the  question  still 
remains,  will  that  learning  and  ability  be  placed 
in  a  position  that  will  secure  its  independence 
and  purity  ? 

The  argument  founded  on  the  alleged  average 
number  of  years,  during  which  office  has  been  held 
by  the  judges  of  this  Commonwealth,  if,  under 
any  circumstances  entitled  to  consideration,  can 
have  no  weight  in  determining  this  question.  The 
practical  inquiry  is,  whether — contrasted  with  a 
tenure  during  good  behavior — a  term  of  ten 
years  will  probably  preserve  the  sense  of  just 
independence,  without  which,  all  agree,  the  judi 
cial  office  may  be  a  scourge  or  a  nuisance. 

This  must  be  tested  by  assuming  that  your 
judges  are  dependent  on  their  compensation  for 
their  support.  It  may  not  always  be  true,  but 
the  exceptions  are  too  rare  to  be  relied  on  in 
forming  a  system.  In  this  condition  of  things — 
having  deserted  a  profession  to  which  he  cannot 
successfully  return — how  can  a  judge,  as  his  term 
approaches  its  end,  free  his  mind  from  solicitude 
as  to  the  future  ?  and  pressed  by  that  solicitude— 
with  no  hopeful  issue  save  a  reappointment — he 
must  be  more  than  human,  if  his  conduct  be  not, 
insensibly,  perhaps,  to  himself,  influenced  by  his 
position  ;  and  how  important  that  influence  may 
be,  to  what  extent  it  may  interfere  with  the  fair 
and  just  administration  of  his  office,  must  depend 
on  the  strength  of  his  mind  and  character.  But 
a  system  that  places  its  magistrates  in  a  position 
of  possible  peril  from  such  causes,  has  no  founda 
tion  in  true  wisdom. 

It  has  been  suggested  that  no  good  and  compe 
tent  judge  need  ever  subject  himself  to  unworthy 


228 


THE   JUDICIARY. 


[63d  day. 


Thursday,] 


BARTLETT  —  DANA  —  KEYES. 


[July  21st. 


appliances,  to  secure  a  reappointment — that  policy 
as  well  as  duty,  point  to  the  uncompromising  dis 
charge  of  the  functions  of  his  office,  as  the  true 
method  of  securing  his  continuance  in  it.  I 
agree  that  acknowledged  judicial  eminence  in 
creases  the  embarrassment  of  displacing  its  pos 
sessor  ;  but  the  certainty  of  such  ultimate  emi 
nence  at  the  outset,  where  one  is  to  shape  his 
destiny  for  life,  can  never  be  felt  to  be  secure  ;  and 
a  fear  or  a  doubt  of  its  existence,  when  the  period 
of  reappointment  arrives,  may  disturb  the  coolest 
judgment. 

Mr.  President :  Judicial  appointments  will  be 
made  in  the  future — as  they  have  for  the  most  part 
been  in  past  times — from  the  ranks  of  the  domi 
nant  party,  whenever  it  is  supposed  to  contain 
persons  of  fit  or  equal  qualifications.  To  that 
condition  of  things  every  incumbent  must  have 
more  or  less  regard  ;  and  in  my  judgment  it  is 
vain  to  hope,  that  under  the  short  and  limited 
tenure  proposed,  the  great  judicial  offices  of  this 
Commonwealth  can  be  worthily  filled,  or  their 
purity  and  independence  as  successfully  main 
tained  as  under  the  existing,  long-tried  tenure ; 
and  I  hope,  as  I  stated  at  the  outset,  that  the 
proposed  scheme  will  be  rejected  altogether. 

Mr.  DANA,  for  Manchester.  I  have  already 
had  the  attention  of  the  Convention  several  times 
upon  this  subject,  and  if  there  is  any  other  gen 
tleman  who  desires  to  speak,  I  will  yield  the  floor 
with  great  pleasure.  I  do  not  desire  to  speak 
upon  the  general  subject,  but  upon  a  collateral 
point  which  I  cannot  speak  to  when  it  regularly 
comes  before  the  Convention,  by  reason  of  the 
rule  you  have  adopted,  closing  debate.  I  have 
an  amendment,  bona  fide,  which  I  mean  to  offer  ; 
and  as  I  shall  not  have  the  opportunity  under  the 
order  to  explain  it  when  it  shall  come  up,  I  desire 
to  speak  to  it  now. 

The  gentleman  from  "Worcester,  (Mr.  Knowl- 
ton,)  proposes  in  his  amendment  that  the  judges 
shall  be  confirmed  by  the  Senate.  But,  he  has 
seen  this  morning,  that  his  proposition  would 
operate  rather  badly  in  one  respect.  That  is  to 
say,  by  the  provision  you  have  adopted  in  rela 
tion  to  the  length  of  the  sessions  of  the  legisla 
ture,  the  Senate  ought  not  to  be  in  session  more 
than  one  hundred  days  in  any  one  year,  leaving 
two  hundred  and  sixty-five  days  in  each  year,  in 
which  you  would  have  no  confirming  body  in 
session.  But,  this  morning,  the  gentleman  from 
Worcester  has  modified  his  plan  so  as  to  allow 
the  governor  to  call  the  Senate  together,  when 
ever  a  vacancy  in  any  of  your  courts  occurs 
during  the  recess.  Of  course,  the  chances  are 
that  three- fourths  of  the  vacancies  will  occur 
during  the  recesses,  and  the  governor  must  call 


together  a  body  of  forty  men  and  keep  them  in 
session  for  seven  days  to  confirm  a  single  judge, 
perhaps  of  the  court  of  common  pleas.  Yet,  all 
that  time,  the  Council,  elected  for  the  purpose  of 
being  a  confirming  body,  are  in  session  in  their 
chamber. 

Now,  let  us  put  this  question  to  the  Conven 
tion.  You  have  a  Council  of  nine,  elected  for 
the  purpose  of  confirming  the  appointments  of 
the  governor,  with  nobody  to  confirm  but  coro 
ners  and  notaries.  They  are  in  session  a  great 
part  of  the  whole  year.  Is  it,  then,  worth  while 
to  provide  that  whenever  a  vacancy  occurs  in 
your  supreme  court,  or  your  court  of  common 
pleas,  you  must  wait  for  nine  months  without  a 
judge,  with  your  courts  over- crowded  as  they  are 
with  business,  or  call  together  a  body  of  forty 
men,  from  the  different  portions  of  the  Common 
wealth,  and  keep  them  in  session  in  the  other  end 
of  this  capitol  for  seven  days,  at  an  expense  of 
some  $1,200  or  $1,400? 

That  objection,  I  think,  ought  to  be  fatal.  I 
shall  propose  to  amend  by  striking  out  the  word 
"  Senate,"  and  inserting  the  word  "  Council ;"  be 
cause  it  is  my  wish,  that  whatever  passes  here,  may 
pass  in  the  best  form  possible  ;  for  I  expect  to  be 
obliged  to  go  before  the  people  and  defend  the  Con 
stitution,  when  the  time  comes,  and  I  desire  to 
make  it  as  good  as  I  can.  I  do  not  wish  to  be 
obliged  to  go  down  to  Manchester,  and  tell  the 
people  of  that  town  that  we  must  have  a  session  of 
the  Senate  seven  days — forty  men  here  sucking 
their  thumbs,  wandering  about  Boston  with  no 
thing  to  do,  at  three  dollars  a  day,  and  all  to  confirm 
a  judge  of  the  court  of  common  pleas.  The  peo 
ple  of  Massachusetts  will  not  sustain  such  a  prop 
osition  as  that.  It  may  be  that  the  Council  is 
unnecessary.  Then  do  away  with  it.  The  Con 
vention  have  voted  to  retain  the  Council ;  and 
influential  men  here,  ex -councillors  and  ex-gov 
ernors,  are  in  favor  of  it  on  account  of  the  pardon 
ing  power.  If  we  have  that  Council,  let  us  give 
them  something  to  do.  The  most  dignified  part 
of  their  business  is  taken  away  from  them.  Of 
course,  I  am  opposed  to  the  whole  proposition  of 
appointing  judges  for  the  period  of  seven  years, 
for  I  do  believe  that  it  will  place  the  judiciary 
under  the  control  of  the  governor  too  much,  and 
will  lead  to  cabals,  and  influences,  and  suspicions, 
and  conditions  of  dependence,  which  I  do  not  wish 
to  see.  But  this  subject  has  already  been  dis 
cussed  at  great  length,  and  I  do  not  wish  to 
detain  the  Convention  any  farther. 

Mr.  KEYES,  for  Abington.  I  hope  the 
amendment  offered  by  the  gentleman  for  Man 
chester,  (Mr.  Dana,)  will  prevail.  I  was  sur 
prised,  I  confess,  to  find  the  proposition  now 


63d  day.] 


THE   JUDICIARY. 


229 


Thursday,] 


KEYES  —  HOOPER. 


[July   21st. 


under  consideration,  coming  from  the  sensible 
gentleman  from  Worcester,  (Mr.  Knowlton).  I 
supposed  it  was  settled,  that  is  was  bad  policy  to 
combine  two  branches  of  the  government,  the 
executive  and  the  legislative.  If  we  vote  to 
have  judges  appointed  by  the  governor,  that  will 
amount  to  an  additional  necessity  for  a  Council, 
and  that  body  is  a  thousand  times  more  adapted 
to  the  duties  of  a  confirming  body,  than  the 
Senate. 

The  Senate,  as  a  confirming  body,  would  be 
liable  to  all  the  objections  which  are  urged  against 
popular  elections  of  the  people ;  because  it  is  a 
political  body,  and  their  actions  upon  such  ques 
tions  would  be  determined  politically.  The  Coun 
cil,  as  a  body,  may  be  political  in  its  character  ; 
but  it  is  not  so  likely  to  be  guided  by  political 
considerations  in  its  action.  That  is  the  difference 
between  the  two  bodies.  The  Council  can  find 
out  what  the  Senate  never  can  find  out ;  and,  of 
course,  as  a  confirming  body,  it  is  far  better  and 
more  convenient.  By  maintaining  the  present 
system,  we  do  not  trample  upon  the  great  princi 
ple  we  have  adopted  :  that  no  two  departments  of 
the  government  shall,  jointly,  exercise  political 
power.  I  hope  that  the  amendment  of  the  gen 
tleman  from  Fall  River,  (Mr.  Hooper,)  may  be 
adopted,  and  I  trust  we  shall  vote  to  elect  judges 
by  the  people.  I  wish  to  offer  one  suggestion 
here,  in  regard  to  what  has  been  the  tenor  of  the 
argument  upon  the  other  side.  It  has  been  held 
for  a  positive  fact  by  all  the  lawyers  who  have 
spoken  on  that  side — who  may  be  supposed  to 
know  their  own  kin  in  the  profession  better  than 
I  do— that  they  are  the  most  corrupt  and  selfish 
men  in  the  community ;  men  who  cannot  be  trust 
ed  for  a  day,  unless  you  give  them  offices  for  life. 
I  do  not  mean  any  impertinence  or  any  disrespect 
by  suggesting  that  it  seems  to  be  taken  for  granted 
that  they  would  be  always  ready  to  "  kiss  the  hand 
that  feeds  them."  The  gentleman  from  Boston, 
(Mr.  Hillard,)  has  informed  us  that  if  the  term  of 
the  office  of  judge  should  be  limited,  and  the  elec 
tion  given  to  the  people,  the  latter  would  be  like 
ly  to  select  for  judges  a  pack  of  mean  and  abject 
wretches,  who  would,  in  order  to  gain  a  reelection, 
fail  to  discharge  their  duties  faithfully,  and  vio 
late  their  oaths.  I  desire  to  know  if  that  was  not 
the  whole  tenor  of  the  gentleman's  argument, 
from  the  beginning  to  the  end,  and  if  he  did  not 
proceed  upon  the  assumption,  all  through,  that  a 
man  who  does  not  hold  office  for  life,  would, 
necessarily,  become  corrupt?  I  do  not  believe 
any  such  thing.  I  know  how  men  will  stoop,  and 
how  their  judgments  are  apt  to  be  warped  in  view 
of  four-pence-half-pennies  ;  but  men  placed  in 
responsible  public  positions,  lose  a  great  portion  of 


that  weakness.  It  may  be  illustrated  by  the  case 
of  a  man,  who,  hearing  of  some  great  crime  com 
mitted,  says,  at  once,  and  in  the  first  excitement : 
"  He  ought  to  be  hung,  and  if  I  was  on  the  jury, 
I  would  hang  him  ;"  but  put  the  responsibility 
of  that  office  upon  him,  and  he  changes  his  tone 
immediately.  I  believe  that  this  would  be  the 
effect  in  the  case  of  judges.  The  gentleman  for 
Otis,  (Mr.  Sumner,)  was  in  favor  of  limiting  the 
tenure  of  office,  but  he  wanted  it  so  long  that  a 
man,  in  many  cases,  would  die  before  he  would 
ever  reach  it.  He  might  have  as  well  put  it  at 
fifty  as  fifteen  years.  Such  a  tenure  is  good  for 
nothing.  Some  gentlemen  advocate  the  plan  of 
electing  judges  by  the  people,  if  you  will  give 
them  a  life  tenure ;  but  what  difference  does  it 
make  whether  they  are  elected,  or  appointed,  if 
that  is  to  be  the  tenure  ?  The  governor  of  Massa 
chusetts  can  appoint,  or  the  people  can  elect, 
good  judges ;  but  the  whole  argument  against  the 
people  electing  judges  is  entirely  opposed  to  the 
form  of  government  which  we  have  adopted. 
The  Convention  have  settled  that  the  governor  is 
not  to  be  intrusted  to  appoint  the  least  respon 
sible  and  important  officers ;  but  here  it  is  pro 
posed  that  he  is  fit  to  be  intrusted  with  the 
appointment  of  the  judges,  an  office  affecting  the 
interests  and  honor  of  the  people  more  than  that 
of  any  other  in  the  State.  I  do  not  understand 
such  doctrine  to  be  democratic  doctrine.  Thomas 
Jefferson  was  in  favor  of  electing  judges  by  the 
people  ;  but  men  who  are  supposed  to  wear  his 
mantle,  preach  a  very  different  doctrine.  But 
they  do  not  quote  or  imitate  him  much  nowa 
days.  What  would  Thomas  Jefferson's  bones  do 
if  they  could  hear  all  this  talk  about  compromise  ? 
[Laughter.]  But  of  that  I  have  not  time  to  speak. 
The  party  to  which  I  belong  do  not  care  anything 
about  names  ;  but  it  is  the  thing  at  which  they 
look.  When  we  support  a  compromise,  you  may 
be  sure  it  will  be  one  that  has  no  villainy  in  it 
like  that  indorsed  by  the  Baltimore  Conventions. 

[Here  the  hammer  fell.] 

The  hour  of  eleven  o'clock,  fixed  by  special  as 
signment  for  taking  the  vote,  having  arrived, 

Mr.  HOOPER,  of  Fall  River,  moved  to  mod 
ify  his  amendment,  so  that  the  second  resolve 
would  read  as  follows  : — 

Resolved,  That  it  is  expedient  so  to  revise  the 
Constitution  as  to  require  that  provision  shall  be 
made,  by  law,  for  the  election  of  all  the  judges 
and  justices  of  inferior  courts  for  a  term  at  years. 

The  yeas  and  nays  having  been  ordered  on  Mr. 
Hooper's  amendment  yesterday,  the  question  was 
then  taken,  and  there  were— yeas,  150 ;  nays, 
236— as  follows :— 


230 

THE   JUDICIARY. 

[63d  day. 

Thursday,] 

YEAS  —  NAYS. 

[July  21st. 

YEAS.                                           Underwood,  Orison 

Wilbur,  Joseph 

Aldrich,  P.  Emory 

Hoyt,  Henry  K. 

Upham,  Charles  W. 
Walker,  Amasa 

Williams,  Henry 
Williams,  J.  B. 

Allen,  James  B. 

Hunt,  Charles  E. 

Ward,  Andrew  H. 

Wilson,  Willard 

Alii  s,  Josiah 

Huntington,  Charles  P. 

Weston,  Gershom  B. 

Winslow,  Levi  M. 

Alvord,  D.  W. 
Austin,  George 

Hyde,  Benjamin  D. 
Ide,  Abijah  M.,  Jr. 

White,  George 
Whitney,  Daniel  S. 

Wood,  Charles  C. 
Wood,  Otis 

Baker,  Ilfflel 
Bancroft,  Alpheus 
Barrett,  Marcus 

Jacobs,  John 
Keyes,  Edward  L. 
Kingman,  Joseph 

Whitney,  James  S. 
Wilbur,  Daniel 

Wood,  William  H. 
Wright,  Ezekiel 

Bates,  Moses,  Jr. 

Knowlton,  J.  S.  C. 

Bigelow,  Edward  B. 

Knowlton,  William  H. 

NAYS. 

Bird,  Francis  W. 

Kiiox,  Albert 

Abbott,  Josiah  G. 

Cummings,  Joseph 

Bout  well,  Sewell 

Langdon,  Wilber  C. 

Adams,  Benjamin  P. 

Cutler,  Simeon  N. 

Breed,  Hiram  N. 

Lawrence,  Luther 

Adams,  Shubael  P. 

Dana,  Richard  H.,  Jr. 

Bronson,  Asa 

Lawton,  Job  G.,  Jr. 

Allen,  Charles 

Davis,  Charles  G. 

Brown,  Adolphus  F. 

Leland,  Alden 

Allen,  Joel  C. 

Davis,  Ebenezer 

Brown,  Hammond 

Lincoln,  Abishai 

Alley,  John  B. 

Davis,  John 

Brownell,  Frederick 

Little,  Otis 

Andrews,  Robert 

Davis,  Solomon 

Brownell,  Joseph 

Loomis,  E.  Justin 

Aspinwall,  William 

Dehon,  William 

Bryant,  Patrick 

Mason,  Charles 

Atwood,  David  C. 

Deming,  Elijah  S. 

Buck,  Asahel 

Merritt,  Simeon 

Ayres,  Samuel 

Deiiison,  Hiram  S. 

Burlingame,  Alison 

Monroe,  James  L. 

Ball,  George  S. 

Doane,  James  C. 

Butler,  Benjamin  F. 

Moore,  James  M. 

Barrows,  Joseph 

Dorman,  Moses 

Case,  Isaac 

Morss,  Joseph  B. 

Bartlett,  Sidney 

Eames,  Philip 

Childs,  Josiah 

Morton,  William  S. 

Bates,  Eliakim  A. 

Easland,  Peter 

Clark,  Henry 

Nash,  Hiram 

Beach,  Erasmus  D. 

Easton,  James,  2d 

Clarke,  Alpheus  B. 

Nayson,  Jonathan 

Beal,  John 

Eaton,  Lilley 

Cleverly,  William 

Newman,  Charles 

Beebe,  James  M. 

Edwards,  Samuel 

Cole,  Sumner 

Nute,  Andrew  T. 

Bell,  Luther  V. 

Ely,  Homer 

Crane,  George  B. 

Orne,  Benjamin  S. 

Bennett,  William,  Jr. 

Eustis,  William  T. 

Cressy,  Oliver  S. 

Osgood,  Charles 

Bennett,  Zephaniah 

Farwell,  A.  G. 

Cushman,  Henry  W. 

Packer,  E.  Wing 

Bigelow,  Jacob 

Fay,  Sullivan 

Cushman,  Thomas 

Paine,  Benjamin 

Bishop,  Henry  W. 

Fellows,  James  K. 

Davis,  Isaac 

Parris,  Jonathan 

Blagden,  George  W. 

Foster,  Abram 

Davis,  Robert  T. 

Partridge,  John 

Bliss,  Gad  O. 

Fowle,  Samuel 

Dawes,  Henry  L. 

Perkins,  Daniel  A. 

Booth,  William  S. 

Fowler,  Samuel  P. 

Day,  Oilman 

Perkins,  Noah  C. 

Boutwell,  Geo.  S. 

French,  Charles  H. 

Dean,  Silas 

Phelps,  Charles 

Braman,  Milton  P. 

Gale,  Luther 

Denton,  Augustus 

Pierce,  Henry 

Brewster,  Osmyii 

Gardner,  Henry  J. 

Duncan,  Samuel 

Pool,  James  M. 

Brinley,  Francis 

Gardner,  Johnson 

Dunham,  Bradish 

Powers,  Peter 

Briggs,  George  N. 

Gates,  Elbridge 

Durgin,  John  M. 

Rawson,  Silas 

Brown,  Alpheus  R. 

Gilbert,  Wanton  C. 

Earle,  John  M. 

Richardson,  Daniel 

Brown,  Artemas 

Gilbert,  Washington 

Eaton,  Calvin  D. 

Richardson,  Nathan 

Brown,  Hiram  C. 

Giles,  Charles  G. 

Edwards,  Elisha 

Ring,  Elkanah,  Jr. 

Bullock,  Rufus 

Giles,  Joel 

Ely,  Joseph  M. 

Rogers,  John 

Bumpus,  Cephas  C. 

Gooch,  Daniel  W. 

Fisk,  Lyman 

Ross,  David,  S. 

Cady,  Henry 

Gould,  Robert 

Fiske,  Emery 

Royce,  James  C. 

Carter,  Timothy  W. 

Goulding,  Dalton 

Fitch,  E/ekiel  W. 

Sanderson,  Amasa 

Caruthers,  William 

Goulding,  Jason 

Foster,  Abram 

Sanderson,  Chester 

Chandler,  Amariah 

Graves  John  W. 

Freeman,  James  M. 

Sheldon,  Luther 

Chapin,  Henry 

Gray,  John  C. 

French,  Charles  A. 

Simmons,  Perez 

Choate,  Rufus 

Green,  Jabez 

French,  Rodney 

Simonds,  John  W. 

Churchill,  J.  McKean 

Greenleaf,  Simon 

French,  Samuel 

Sprague,  Melzar 

Clark,  Ransom 

Hadley,  Samuel  P. 

Frothingham,  Rich'd,  Jr 

Spooner,  Samuel  W. 

Clarke,  Stillman 

Hale,  Artemas 

Gooding,  Leonard 

Stacy,  Eben  H. 

Coggin,  Jacob 

Hale,  Nathan 

Greene,  William  B. 

Stevens,  Granville 

Cogswell,  Nathaniel 

Hallett,  B.  F. 

Griswold,  Josiah  W. 

Stevens,  Joseph  L.,  Jr. 

Conkey,  Ithamar 

Hammond,  A.  B. 

Griswold,  Whiting 

Strong,  Alfred  L. 

Cook,  Charles  E. 

Hapgood,  Seth 

Hapgood,  Lyman  W. 

Sumner,  Charles 

Cooledge,  Henry  F. 

Haskins,  William 

Hawkes,  Stephen  E. 
Haze  well,  Charles  C. 

Sumner,  Increase 
Taft,  Arnold 

Copeland,  Benjamin  F. 
Crittenden,  Simeon 

Hathaway,  Elnathan  P. 
Hayden,  Isaac 

Heath,  Ezra  2d, 
Hewes,  William  H. 

Thayer,  Willard,  2d 
Thomas,  John  W. 

Crockett,  George  W. 
Crosby,  Leander 

Hayward,  George 
Heard,  Charles 

Holder,  Nathaniel 

Tilton,  Abraham 

Cross,  Joseph  W. 

Henry,  Samuel 

Hood,  George  ' 

Turner,  David  P. 

Crowell,  Seth 

Hersey,  Henry 

Hooper  Foster 

Tyler,  William 

Crowninshield,  F.  B. 

Hewes,  James 

63d   day.] 


THE   JUDICIARY. 


231 


Thursday,] 


NAYS  —  ABSENT  —  DAVIS  —  ALVORD  —  HUNTINGTON. 


[July  21st. 


Heywood,  Levi  Peabody,  George 

Hillard,  George  S.  Peabody,  Nathaniel 

Hindsdale,  William  Pease,  Jeremiah,  Jr. 

Hobart,  Aaron  Penniman,  John 

Hobart,  Henry  Perkins,  Jesse 

Hobbs,  Edwin  Phinney,  Silvanus  B. 

Hopkinson,  Thomas  Plunkett,  William  C. 

Houghton,  Samuel  Pomroy,  Jeremiah 

Howard,  Martin  Preston,  Jonathan 

Howland,  Abraham  H.  Putnam,  George 

Hubbard,  William  J.  Rantoul,  Robert 

Hunt,  William  Read,  James 

Huntington,  Asahel  Reed,  Sampson 

Hurlburt,  Samuel  A.  Rice,  David 

Hurlbut,  Moses  C.  Richards,  Luther 

Jackson,  Samuel  Richardson,  Samuel  II. 

James,  William  Rockwell,  Julius 

Jenkins,  John  Rockwood,  Joseph  M. 

Jenks,  Samuel  H.  Sampson,  George  R. 

Johnson,  John  Sargent,  John 

Kellogg,  Giles  C.  Schouler,  William 

Kendall,  Isaac  Sherril,  John 

Kimball,  Joseph  Sikes,  Chester 

Kinsman,  Henry  W.  Sleeper,  John  S. 

Knight,  Hiram  Smith,  Matthew 

Knight,  Jefferson  Souther,  John 

Knight,  Joseph  Stetson,  Caleb 

Knowlton,  Charles  L.  Stevens,  Charles  G. 

Kuhn,  George,  H.  Stevens,  William 

Ladd,  Gardner  P.  Stevenson,  J.  Thomas 

Ladd,  John  S.  Stiles,  Gideon 
Lincoln,  Frederic  W.,  Jr.Storrow,  Charles  S. 

Littlefield,  Tristram  Taber,  Isaac  C. 

Livermore,  Isaac  Talbot,  Thomas 

Lothrop,  Samuel  K.  Taylor,  Ralph 

Loud,  Samuel  P.  Thayer,  Joseph 

Lowell,  John  A.  Thompson,  Charles 

Marble,  William  P.  Tileston,  Edmund  P. 

Marcy,  Laban  Tilton,  Horatio  W. 

Marvin,  Abijah  P.  Train,  Charles  R. 

Marvin,  Theophilus  R.  Turner,  David 

Meader,  Reuben  Tyler,  John  S. 

Miller,  Seth,  Jr.  Upton,  George  B. 

Mixter,  Samuel  Viles,  Joel 

Morey,  George  Vinton,  George  A. 

Morton,  Elbridge  G.  Walcott,  Samuel  B. 

Morton,  Marcus  Wales,  Bradford  L. 

Morton,  Marcus,  Jr.  Wallis,  Freeland 

Nichols,  William  Walker,  Samuel 

Norton,  Alfred  Warner,  Marshal 

Noyes,  Darnel  Warner,  Samuel,  Jr. 

Ober,  Joseph  E.  Waters,  Asa  H. 

Oliver,  Henry  K.  Weeks,  Cyrus 

Orcutt,  Nathan  Wetmore,  Thomas 

Paige,  James  W.  Wheeler,  William  F. 

Paine,  Henry  White,  Benjamin 

Park,  John  G.  Wilder,  Joel 

Parker,  Adolphus  G.  Wilkins,  John  H. 

Parker,  Joel  Wilson,  Henry 

Parker,  Samuel  D.  Wilson,  Milo 

Parsons,  Samuel  C.  Winn,  Jonathan  B. 

Parsons,  Thomas  A.  Wood,  Nathaniel 


ABSENT. 


Abbott,  Alfred  A. 
Allen,  Parsons 
Appleton,  William 


Ballard,  Alvah 
Banks,  Nathaniel  P.,  Jr. 
Bartlett,  Russel 


Kellogg,  Martin  R. 
Lord,  Otis  P. 
Payson,  Thomas  E. 
Perkins,  Jonathan  C. 
Prince,  F.  O. 
Putnam,  John  A. 
Sherman,  Charles 
Stutson,  William 
Swain,  Alanson 
Tower,  Ephraim 
Wallace,  Frederick  T. 
Wilkinson,  Ezra 
Woods,  Josiah  B. 


Bliss,  Willam  C. 
Bradbury,  Ebenezer 
Bradford,  William  J.  A. 
Bullen,  Amos  H. 
Chapin,  Chester  W. 
Chapin,  Daniel  E. 
Clark,  Salah 
Cole,  Lansing  J. 
Curtis,  Wilber 
DeWitt,  Alexander 
Hall,  Charles  B. 
Harmon,  Phineas 
Haskell,  George 
Huntington,  George  H. 

Absent  and  not  voting,  33. 

So  the  amendment  was  not  adopted. 

Mr.  DAVIS,  of  Plymouth,  moved  to  amend 
by  striking  out  the  word  "  Senate,"  in  the  fifth 
line  of  Mr.  Knowlton' s  amendment,  and  insert 
in  lieu  thereof  the  word  "  Council ;"  and  also  by 
striking  out  the  words  "for  the  purpose  of  such 
confirmation,  the  governor  shall  have  the  power 
to  convene  the  Senate,  from  time  to  time,  at  his 
discretion;"  so  that  it  would  read  as  follows: — 

Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution  that  all  judicial  officers,  except  those 
concerning  whom  a  different  provision  shall  be 
made  in  the  Constitution,  shall  be  nominated  and 
appointed  by  the  governor,  by  and  with  the  con 
sent  of  the  Council,  for  the  term  of  seven  years  ; 
that  they  may  be  reappointed  at  the  expiration  of 
such  term,  and  that  all  such  nominations  shall  be 
made  and  publicly  announced,  at  least  seven  days 
before  such  appointment. 

Mr.  CROWNINSHIELD  asked  for  a  division 
of  the  question. 

The  PRESIDENT.  The  question  will  first  be 
taken  upon  striking  out  the  word  "  Senate,"  and 
inserting  the  word  "  Council." 

The  question  was  taken,  and  the  motion  was 
agreed  to— ayes,  213  ;  noes,  78. 

The  PRESIDENT.  The  question  now  recurs 
upon  the  motion  of  the  gentleman  from  Plymouth, 
(Mr.  Davis,)  to  strike  out  the  following  words : 
"and  for  the  purpose  of  such  confirmation,  the 
governor  shall  have  the  power  to  convene  the 
Senate,  from  time  to  time,  at  his  discretion." 

The  question  was  taken  upon  the  amendment, 
and  it  was  agreed  to. 

Mr.  ALVORD,  for  Montague,  moved  to  amend 
the  amendment,  by  adding  the  following  words  : 
"and  the  judges  now  in  office  shall  hold  their 
offices  according  to  their  commission." 

The  question  was  taken  on  the  amendment, 
and  it  was  agreed  to. 

Mr.  HUNTINGTON,  of  Northampton,  moved 
to  strike  out  the  word  "  seven,"  in  the  fifth  line, 
and  insert,  in  lieu  thereof,  the  word  "ten." 


232                                                  THE   JUDICIARY. 

[63d  day. 

Thursday,]                    HALLETT  —  MORTON  —  STEVENSON  —  BUTLER  —  YEAS.                     [July  21st. 

The  question  was  taken  upon  the  amendment,      Alvord,  D.  W. 

Greene,  William  B. 

and  it  was  rejected  —  ayes,  163  ;  noes,  180. 
Mr.   HALLETT,   for   Wilbraham,   moved   to 
amend  by  inserting  in   the  first  line,  after  the 

Austin,  George 
Baker,  Hillel 
Ball,  George  S. 
Bancroft,  Alpheus 

Griswold,  Josiah  W. 
Griswold,  Whiting 
Hadley,  Samuel  P. 
Hallett,  B.  F. 

word  "  that,"  the  following  words  :   "  from  and 

Barrett,  Marcus 

Hapgood,  Lyman  W. 

after   seven    years    from    the    adoption  of    this 

Bates,  Eliakim  A. 

Hapgood,  Seth 

amendment." 

Bates,  Moses,  Jr., 

Haskins,  William 

Mr.  MORTON,  of  Andover.    I  move  to  amend 
the  amendment  of  the  gentleman  from  Worcester, 

Bennett,  William,  Jr. 
Bigelow,  Edward  B. 
Bird,  Francis  W. 

Hawkes,  Stephen  E. 
Hay  den,  Isaac 
Hazewell,  Charles  C. 

by  striking  out  the  word  "seven,"  and  inserting 

Bishop,  Henry  W. 

Heath,  Ezra,  2d 

the  word  "ten." 

Booth,  William  S. 

Hewes,  William  II. 

Mr.  BREED,  of  Lynn.     I  ask  for  the  yeas  and 

Bout  well,  Sewell 

Hobart,  Henry 

nays  on  that  question. 

Bradford,  William  J.  A. 

Holder,  Nathaniel 

The  yeas  and  nays  were  not  ordered. 
Mr.  BUTLER,  of  Lowell.     After  the  motion 

Breed,  Hirm  N. 
Bronson,  Asa 
Brown,  Adolphus  F. 

Hood,  George 
Hooper,  Foster 
Howard,  Martin 

to  strike  out  "seven"  has  been  disposed  of,  can 

Brown,  Alpheus  11. 

Hoyt,  Henry  K. 

the  motion  be  renewed  by  simply  adding  a  word 

Brown,  Artemas 

Hunt,  Charles  E. 

to  be  inserted  ? 

Brown,  Hammond 

Hurlbut,  Moses  C. 

The  PRESIDENT.     The  Chair  is  of  opinion 
that  such  motion  is  in  order. 
The  question  was  taken,  and,  on  a  division, 

Brownell,  Frederick 
Brownell,  Joseph 
Bryant,  Patrick 
Buck,  Asahel 

Hyde,  Benjamin  D. 
Ide,  Abijah  M.,  Jr. 
Jacobs,  John 
Keyes,  Edward  L. 

there  were  —  ayes,  186  ;  noes,  173. 

Burlingame,  Alison 

Kimball,  Joseph 

So  the  amendment  was  adopted. 

Butler,  Benjamin  F. 

Kingman,  Joseph 

Mr.  STEVENSON,  of  Boston,  moved  to  amend 

Case,  Isaac 

Knight,  Hiram 

the  amendment,  by  inserting,  in  the  third  line, 
after  the  word  "Constitution,"  the  words,  "and 

Childs,  Josiah 
Clark,  Henry 
Clark,  Ransom 

Knight,  Jefferson 
Knowlton,  J.  S.  C. 
Knowlton,  William  H. 

the  justices  of  the  supreme  judicial  court." 

Clarke,  Alpheus  B. 

Knox,  Albert 

Mr.  HALLETT.      I   suppose   the   gentleman 

Clarke,  Still  man 

Ladd,  Gardner  P. 

understands,  and  intends  that  we  shall  under 

Cleverly,  William 

Langdon,  Wilber  C. 

stand,  that  an  invidious  distinction  is  to  be  cre 

Cole,  Sumner 

Lawrence,  Luther 

ated  between  different  classes  of  justices. 

Crane,  George  B. 
Cressy,  Oliver  S. 

Leland,  Alden 
Little,  Otis 

The  question  was  taken  on  the  amendment, 

Cross,  Joseph  W. 

Loomis,  E.  Justin 

and  it  was  rejected. 

Cushman,  Henry  W. 

Mason,  Charles 

The  question  then  recurred  on  the  adoption  of 

Cushman,  Thomas 

Merritt,  Simeon 

the  amendment  of  the  gentleman  from  Worcester, 
as  amended,  which  is  as  follows  :  — 

Davis,  Ebenezer 
Davis,  Isaac 
Davis,  Robert  T. 

Monroe,  James  L. 
Moore,  James  M. 
Morton,  Elbridge  G. 

Resolved,  That  it  is  expedient  so  to  amend  the 

Day,  Gilman 

Morton,  William  S. 

Constitution  that  all  judicial  officers,  except  those 

Dean,  Silas 

Nayson,  Jonathan 

concerning  whom  a  different  provision  shall  be 

Denton,  Augustus 

Newman,  Charles 

made  in  the  Constitution,  shall  be  nominated  and 

Duncan,  Samuel 

Nichols,  William 

appointed  by  the  Governor,  by  and  with  the  con 

Dunham,  Bradish 

Nute,  Andrew  T. 

sent  of  the  Council,  for  the  term  of  ten  years  ; 

Earle,  John  M. 

Osgood,  Charles 

that  they  may  be  reappointed  at  the  expiration  of 

Easland,  Peter 

Packer,  E.  Wing 

such  term,  and  that  all  such  nominations  shall  be 

Eaton,  Calvin  D. 

Paine,  Benjamin 

made  at  least  seven  days  before  such  appoint 

Edwards,  Elisha 

Parris,  Jonathan 

ment  ;  and  the  judges  now  in  office  shall  hold 

Ely,  Joseph  M. 

Partridge,  John 

their  offices  according  to  their  commissions. 

Fellows,  James  K. 

Peabody,  Nathaniel 

Fisk,  Lyman 

Penniman,  John 

Mr.  BUTLER,  of  Lowell.     I  move  that  the 

Fitch,  Ezekiel  W. 

Perkins,  Daniel  A. 

vote   by  which  the  word  "  seven  "   was  struck 

Foster,  Abram 

Perkins,  Noah  C. 

out  and  the  word  "  ten  "  inserted,  be  reconsidered, 
and  on  that  question  I  ask  the  yeas  and  nays. 
The  yeas  and  nays  were  ordered,  and  being 

Freeman,  James  M. 
French,  Charles  A. 
French,  Rodney 
French,  Samuel 

Phelps,  Charles 
Phinney,  Sylvanus  B. 
Pierce,  Henry 
Pool,  James  ivl. 

taken,  there  were  —  yeas,  188  ;  nays,  195  —  as  fol 

Frothirgham,  R'd,  Jr. 

Powers,  Peter 

lows  :  — 

Gardner,  Johnson 

Putnam,  John  A. 

Giles,  Charles  G. 

Rawson,  Silas 

YEAS. 

Gooch,  Daniel  W. 

Richardson,  Daniel 

Abbott,  Josiah  G.            Allen,  James  B. 

Gooding,  Leonard 

Richardson,  Nathan 

Adams,  Shubael  P.        Allen,  Parsons 

Graves,  John  W. 

Richardson,  Samuel  H. 

Allen,  Charles                 Allis,  Josiah 

Green,  Jabez 

Rogers,  John 

63d  day.] 

THE   JUDICIARY. 

233 

Thursday,] 

NATES  —  ABSENT. 

[July  21st. 

Ross,  David  S. 

Turner,  David  P. 

Hay  ward,  George 

Park,  John  G. 

Royce,  James  C. 

Underwood,  Orison 

Heard,  Charles 

Parker,  Adolphus  G. 

Sanderson,  Amasa 

Viles,  Joel 

Henry,  Samuel 

Parker,  Joel 

Sanderson,  Chester 

Vinton,  George  A. 

Hersey,  Henry 

Parker,  Samuel  D. 

Sheldon,  Luther 

Wallis,  Freeland 

Ilewes,  James 

Parsons,  Samuel  C. 

Sherril,  John 

Walker,  Araasa 

Heywood,  Levi 

Parsons,  Thomas  A. 

Simmons,  Perez 

Ward,  Andrew  II. 

Hillard,  George  S. 

Peabcdy,  George 

Simonds,  John  W. 

Warner,  Marshal 

Hinsdale,  William 

Pease,  Jeremiah,  Jr. 

Smith,  Matthew 

Warner,  Samuel,  Jr. 

Hob  art,  Aaron 

Perkins,  Jesse 

Sprague,  Melzar 

Weston,  Gershom  B. 

Hobbs,  Edwin 

Plunkett,  William  C. 

Spooner,  Samuel  W. 

White,  George 

Hopkinson,  Thomas 

Pomroy,  Jeremian 

Stevens,  Granville 

Whitney,  Daniel  S. 

Houghton,  Samuel 

Preston,  Jonathan 

Stevens,  Joseph  L.,  Jr. 

Whitney,  James  S. 

Howland,  Abraham  H. 

Putnam,  George 

Stevens,  William 

Wilbur,  Daniel 

Hubbard,  William  J. 

Runtoul,  Robert 

Stiles,  Gideon 

Wilbur,  Joseph 

Hunt,  William 

Read,  James 

Strong,  Alfred  L. 

Williams,  J.  B. 

Huntington,  Asahel 

Reed,  Sampson 

Sumner,  Charles 

Wilson,  Willard 

Huntington,  Charles  P. 

Rice,  David 

Taft,  Arnold 

Winslow,  Levi  M. 

Hurlburt,  Samuel  A. 

Richards,  Luther 

Thayer,  Joseph 

Wood,  Charles  C. 

Jackson,  Samuel 

Ring,  Elkaiiah,  Jr. 

Thaver,  Willard,  2d 

Wood,  Nathaniel 

James,  William 

Rockwell,  Julius 

Thomas,  John  W. 

Wood,  Otis 

Jenkins,  John 

RockAvood,  Joseph  M. 

Thompson,  Charles 

Wood,  William  H. 

Jenks,  Samuel  II. 

Sampson,  George  R. 

Tilton,  Abraham 

Wright,  Ezekiel 

Johnson,  John 

Sargent,  John 

Kellogg,  Giles  C. 

Schouler,  William 

NAYS. 

Kendall,  Isaac 

Sikes,  Chester 

Adams,  Benjamin  P. 
Aldrich,  P.  Emory 

Crockett,  George  W. 
Crosbv,  Leander 

Kinsman,  Henry  W. 
Knight,  Joseph 
Kno  wlton,  Charles  L. 

Sleeper,  John  S. 
Souther,  John 
Stetson,  Caleb 

Allen,  Joel  C. 
Alley,  John  B. 

Cro  we'll,  Seth 
Crowninshield,  F.  B. 

Kuhn,  George  H. 
Ladd,  John  S. 

Stevens,  Charles  G. 
Stevenson,  J.  Thomas 

Andrews,  Robert 

Cummings,  Joseph 

Lawton,  Job  G.,  Jr. 

Storrow,  Charles  S. 

Aspinwall,  William 
Atwood,  David  C. 

Cutler,  Simeon  N. 
Dana,  Richard  H.,  Jr. 

Lincoln,  Abishai 
Lincoln,  Fred.  W.,  Jr. 

Sumner,  Increase 
Taber,  Isaac  C. 

Ayres,  Samuel 

Davis,  Charles  G. 

Littlefield,  Tristram 

Talbot,  Thomas 

Barrows,  Joseph 
Bartlett,  Sidney 
Beach,  Erasmus  D. 
Beal,  John 
Beebe,  James  M. 
Bell,  Luther  V. 
Bennett,  Zephaniah 
Bigelow,  Jacob 
Blagden,  George  W. 
Bliss,  Gad  O. 
Boutwell,  George  S. 
Braman,  Milton  P. 
Brewster,  Osmvn 
Brinley,  Francis 
Briggs,  George  N. 
Brown,  Hiram  C. 
Bullock,  Rufus 
Bumpus,  Cephas  C. 
Cady,  Henry 
Carter,  Timothy  W. 
Chandler,  Amariah 
Chapin,  Chester  W. 
Chapin,  Daniel  E. 

Davis,  John 
Davis,  Solomon 
Dawes,  Henry  L. 
Dehon,  William 
Deming,  Elijah  S. 
Dennison,  Hiram  S. 
Dorman,  Moses 
Eames,  Philip 
Easton,  James,  2d 
Edwards,  Samuel 
Ely,  Homer 
Eustis,  William  T. 
Farwell,  A.  G. 
Fay,  Sullivan 
Fiske,  Emery 
Foster,  Aaron 
Fowle,  Samuel 
Fowler,  Samuel  P. 
French,  Charles  H. 
Gale,  Luther 
Gardner,  Henry  J. 
Gates,  Elbridge 
Gilbert,  Wanton  C. 

Livermore,  Isaac 
Lord,  Otis  P. 
Lothrop,  Samuel  K. 
Loud,  Samuel  P. 
Lowell,  John  A. 
Marcy,  Laban 
Marvin,  Abijah  P. 
Marvin,  Theophilus  R. 
Meader,  Reuben 
Miller,  Seth,  Jr. 
Mixter,  Samuel 
Morey,  George 
Morss,  Joseph  B. 
Morton,  Marcus 
Morton,  Marcus,  Jr. 
Norton,  All  red 
Noyes,  Daniel 
Ober,  Joseph  E. 
Oliver,  Henry  K. 
Orcutt,  Nathan 
Orne,  Benjamin  S. 
Paige,  James  W. 

Taylor,  Ralph 
Tileston,  Edmund  P. 
Tilton,  Horatio  W. 
Train,  Charles  R,. 
Turner,  David 
Tyler,  John  S. 
Upham,  Charles  W. 
Upton,  George  B. 
Wraleott,  Sanrael  B. 
Wales,  Bradford  L. 
Wallace,.  Frederick  T. 
W'alker,  Samuel 
Weeks,  Cyrus 
Wetmore,  Thomas 
Wheeler,  William  F, 
White,  Bemamin 
Wilder,  Joel 
"Wilkins,  John  H. 
Williams,  Henry 
Wilson,  Milo 
Winn,  Jonathan  B. 

Chapin,  Henry 

Gilbert,  Washington 

Choate,  Rufus 

Giles,  Joel 

ABSiiiNT. 

Churchill,  J.  McKean 

Gould,  Robert 

Abbott,  Alfred  A. 

Clark,  Salah 

Coggin,  Jacob 

Goulding,  Dalton 

Appleton,  William 

Curtis,  Wilbur 

Cogswell,  Nathaniel 

Goulding,  Jason 

Ballard,  Alvah 

DeWitt,  Alexander 

Cole,  Lansing  J. 

Gray,  John  C. 

Banks,  Nathaniel  P.,  Jr. 

Doane,  James  C. 

Conkey,  Ithamar 

Greeiileaf,  Simon 

Bartlett,  Russel 

Durgin,  John  M. 

Cook,  Charles  E. 

Hale,  Artemas 

Bliss,  William  C. 

Eaton,  Lilley 

Cooledge,  Henry  F. 

Hale,  Nathan 

Bradbury,  Ebenezer 

Hall,  Charles  B. 

Copeland,  Benjamin  F. 

Hammond,  A.  B. 

Bullen,  Amos  H. 

Harmon,  Phineas 

Crittenden,  Simeon 

Hathaway,  Elnathan  P. 

Caruthers,  William 

Haskell,  George 

16  • 

234 


THE    JUDICIARY. 


[63d  day. 


Thursday,] 


HOOPER  —  ALLEN  —  WHITNEY  —  HALLETT  —  THOMAS  —  KEYES.  [July  21st. 


Huntington,  George  H.  Stacy,  Eben  H. 

Kellogg,  Martin  R.  Stutson,  William 

Marble,  William  P.  Swain,  Alanson 

Nash,  Hiram  Tower,  Ephraim 

Paine,  Henry  Tyler,  William 

Payson,  Thomas  E.  Waters,  Asa  H. 

Perkins,  Jonathan  C.  Wilkinson,  Ezra 

Prince,  F.  O.  Wilson,  Henry 

Sherman,  Charles  Woods,  Josiah  B. 

Absent  and  not  voting,  36. 

So  the  motion  to  reconsider  was  rejected. 

Mr.  HOOPER,  of  Fall  River.  I  move  to 
amend  the  amendment  by  adding  at  the  end,  the 
following : — 

Provided,  That  no  judge  shall  continue  to  hold 
office  after  he  shall  have  arrived  at  the  age  of 
seventy  years. 

Mr.  ALLEN,  of  Worcester.  I  wish  to  make 
the  inquiry  whether  that  will  apply  to  the  judges 
now  in  office,  so  as  to  remove  the  present  chief 
justice  from  the  bench  ? 

Mr.  WHITNEY,  of  Conway.  I  move  to 
amend  the  amendment  by  inserting  after  the 
word  "  judge,"  the  words  "  hereafter  to  be  ap 
pointed." 

Mr.  HOOPER.     I  accept  that  modification. 

The  question  was  taken  on  the  amendment, 
and  on  a  division,  there  were — ayes,  158  ;  noes, 
ISA. 

So  the  amendment  was  agreed  to. 

MX.  HALLETT,  for  Wilbraham.  I  move  to 
amend  by  adding,  after  the  words  "  all  such  nom 
inations  shall  be  made,"  the  words  "  and  officially 
publicly  .announced." 

The  amendment  was  agreed  to. 

Mr.  ALLEN.  As  the  vote  was  small,  compara 
tively,  by  which  the  amendment  of  the  gentleman 
from  Fall  J?uver  was  adopted,  to  test  the  sense  of 
the  Convention  upon  the  question  of  changing 
the  tenure  of  the  judicial  office  from  seventy  to 
seventy -five  years,  I  move  a  reconsideration  of 
that  vote. 

The  question  w^s  taken,  and  on  a  division, 
there  were — ayes,  168  ;  noes,  162. 

So  the  caotion  to  reconsider  was  agreed  to. 

Mr.  THOMAS.,  of  Weymouth.  I  move  to 
amend  by  "inserting -eighty  instead  of  seventy. 

The  PRESIDENT.  The  motion  is  not  in 
order. 

Mr.  ALLEN.  I  cannot  give  the  reasons  for 
wishing  to  substitute  seventy-Eye,  but  I  ask  the 
gentleman  from  Fall  Rivej  if  he  will  not  accept 
that  modification. 

Mr.  HOOPER.  I  suppose  the  question  has 
been  decided  by  the  last  vote  ;  but  I  will  accept 
of  that  modification  with  the  striking  out  of  the 
words  "hereafter  appointed." 


Mr.  KEYES,  for  Abington.  I  know  not  how 
the  gentleman  from  Fall  River  presumes  that  the 
question  has  been  decided  as  he  says,  in  one  way 
more  than  in  another.  The  Convention  may 
turn  two  or  three  more  somersets. 

The  question  recurred  on  the  adoption  of  the 
amendment  offered  by  Mr.  Hooper,  of  Fall  River, 
and  on  a  division,  there  were — ayes,  160  ;  noes, 
168. 

So  the  amendment  was  rejected. 

Mr.  ALLEN.  I  now  move  to  amend  the 
same  amendment,  substituting  "  seventy-  five  " 
in  the  place  of  the  word  "  seventy  "  as  the  limit 
of  the  tenure  of  the  judges. 

Mr.  THOMAS,  of  Weymouth.  Is  the  amend 
ment  which  I  proposed,  in  order. 

The  PRESIDENT.     It  is  not. 

Mr.  BUTLER.  I  rise  to  a  question  of  order. 
In  filling  up  amendments  with  numbers,  is  it  not 
necessary  to  have  the  highest  number  which  is 
proposed,  put  first  r  When  a  gentleman  moves 
seventy- five,  is  it  not  in  order  for  another  gentle 
man  to  move  to  insert  eighty,  or  for  me  to  move 
one  hundred  ?  And  must  not  the  question  be 
taken  on  the  longest  time  first  ? 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  it  is  not  in  order,  and  that  the  motion  of  the 
gentleman  from  Worcester  is  in  order. 

Mr.  HALLETT.  I  would  like  to  make  the 
inquiry,  whether  it  is  not  out  of  order  to  propose 
to  have  a  judge  hold  his  office  beyond  the  years 
allotted  to  man  in  the  Scripture  ?  [Laugh 
ter.] 

Mr.  KEYES,  for  Abington.  Inasmuch  as  no 
amendment  can  now  be  offered,  I  propose,  if  this 
amendment  is  adopted,  to  offer  an  amendment 
inserting  the  words  "  one  hundred  and  fifty." 
[Laughter.]  It  is  known  that  Dr.  Parr  lived  to, 
that  age  or  more,  and  perhaps  some  of  our  judges 
may. 

The  question  was  taken  on  the  amendment  of 
the  gentleman  from  Worcester,  and  it  was  not 
agreed  to. 

Mr.  THOMAS,  of  Weymouth.  I  now  move 
to  strike  out  seventy-five  and  insert  the  word 
"  eighty." 

The  question  was  taken,  and  the  amendment 
was  rejected. 

Mr.  STETSON,  of  Braintree,  moved  to  amend 
the  resolution  so  that  no  judge  should  continue  to 
hold  office  after  he  shall  have  arrived  at  the  age  of 
seventy- two  years. 

The  motion  was  not  agreed  to. 

Mr.  DANA  moved  to  amend  the  resolution  by 
adding  the  following  words  : — 

Provided  that  no  judge  shall  continue  to  hold 


63d  day.]                                        THE   JUDICIARY. 

235 

Thursday,]                                            KINSMAN  —  GOOCH  —  YEAS. 

[July  21st. 

office  after  he  shall  have  arrived  at  the  age  of 

YEAS. 

seventy-five  years. 

Allen,  Charles 

Fowle,  Samuel 

Mr.  BUTLER  inquired  whether  that  amend 

Allen,  James  B. 

Freeman,  James  M. 

ment  applied  to  the  present  judges,  or  those  which 
should  be  hereafter  appointed. 
Mr.  DANA  said  that  it  was  intended  to  cover 

Allen,  Parsons 
Alley,  John  B. 
Allis,  Josiah 
Austin,  George 

French,  Rodney 
French,  Samuel 
Frothmgham,  R.,  Jr. 
Gale,  Luther 

both  classes  of  judges. 

Ball,  George  S. 

Gardner,  Johnson 

Mr.  KINSMAN,  of  Newburyport.     I  would 

Barrett,  Marcus 

Giles,  Charles  G. 

inquire  of  the  Chair,  whether  the    Convention 

Bates,  Eliakim  A. 

Giles,  Joel 

have  not  already  passed  upon  this  subject,  by 
a  previous  vote  that  judges  shall  continue  in  office 

Bates,  Moses,  Jr. 
Beal,  John 
Bennett,  William,  Jr. 

Gooch,  Daniel  W. 
Gooding,  Leonard 
Graves,  John  W. 

according  to  their  present  commissions  ?     If  that 

Bennett,  Zephaniah 

Green,  Jabez 

is  the  case,  it  seems  to  me  that  the  gentleman  for 

Bigelow,  Edward  B. 

Greene,  William  B. 

Manchester  cannot   attain   his   object  unless   he 

Booth,  William  S. 

Griswold,  Josiah  W. 

moves  a  reconsideration  of  that  vote. 
The  PRESIDENT.     The  Chair  will  state  the 

Boutwell,  George  S. 
B  outwell,  Sewell 
Bradford,  William  J.  A 

Griswold,  Whiting 
Hadlev,  Samuel  P. 
HaUett,  B.  F. 

question.     The  resolution  closes  with  the  follow 

Bronson,  Asa 

Hapgood,  Lyman  W. 

ing  words  :    "  they  may  be    reappointed   at  the 

Brown,  Adolphus  F. 

Hapgood,  Seth 

expiration  of  such  term,  and  that  all  such  nomi 

Brown,  Artcmas 

Haskins,  William 

nations  shall  be  made  and  publicly  announced  at 
least  seven  days  before  such  appointment;  and 
the  judges  now  in  office  shall  hold  their  offices 

Brown,  Hammond 
Brownell,  Frederick 
Brownell,  Joseph 
Bryant,  Patrick 

Hathaway,  Elnathar:  P. 
Hay  den,  Isaac 
Hazewell,  Charles  C. 
Heath,  Ezra,  2d 

according  to  their  commissions  :  provided,  that  no 

Buck,  Asahel 

Hewes,  James 

judge  shall  continue  to  hold  office  after  he  shall 

Cady,  Henry 

Hewes,  William  H. 

have  arrived  at  the  age  of  seventy-five  years." 

Case,  Isaac 

Hobart,  Aaron 

The  Chair  is  of  the  opinion  that  the  motion  made 
by  the  delegate  for  Manchester  is  in  order. 
Mr.  CHAPIN,  of  Worcester.     I  would  like  to 

Chapin,  Daniel  E. 
Childs,  Josiah 
Clark,  Henry 
Clark,  Ransom 

Hobart,  Henry 
Hobbs,  Edwin 
Hooper,  Foster 
Howard,  Martin 

ask,  if  our  best  judge  now  upon  the  bench  has 

Clarke,  Stillman 

Howland,  Abraham  H. 

not  already  attained  that  age  ? 

Cleverly,  William 

Hunt,  Charles  E. 

Mr.  DANA.     He  is  only  seventy-two. 
The  question  being  then  taken  on  the  amend 
ment  of  Mr.  Dana,   on  a  division  there  were  — 

Cooledge,  Henry  F. 
Crane,  George  B. 
Cressy,  Oliver  S. 
Crittenden,  Simeon 

Huntington,  Charles  P, 
Hurlbut,  Moses  C. 
Hyde,  Benjamin  D. 
Ide,  Abijah  M.,  Jr. 

ayes,  102  ;  noes,  193  —  so  it  was  not  agreed  to. 

Cross,  Joseph  W. 

Jacobs,  John 

Mr.  GOOCH,  of  Melrose,  moved  to  amend  the 

Cushman,  Henry  W. 

Johnson,  John 

resolution  by  striking  out  the  words  "  according 
to  their  commissions,"  and  inserting  in  lieu  thereof 
the  words  "  for  ten  years  from  the  adoption  of 

Cushman,  Thomas 
Cutler,  Simeon  N. 
Davis,  Charles  G. 
Davis,  Isaac 

Keyes,  Edward  L. 
Kimball,  Joseph 
Kingman,  Joseph 
Knight,  Hiram 

this  amendment." 

Davis,  Robert  T. 

Knight,  Jefferson 

The  PRESIDENT  ruled  the  amendment  out 

Day,  Gilman 

Knowlton,  Charles  L. 

of  order. 

Dean,  Silas 

Knowlton,  J.  S.  C. 

Mr.  GOOCH.     If  my  amendment  is  not  in 

Deming,  Elijah  S. 

Knowlton,  William  H. 

order  in  its  present  shape,  I  move  to  reconsider 

Deiiton,  Augustus 
Duncan,  Samuel 

Knox,  Albert 
Ladd,  Gardner  P. 

the  vote  by  which  the  amendment  of  the  gentle 

Dunham,  Bradish 

Lawrence,  Luther 

man  from  Montague  was  adopted  by.  the  Conven 

Eames,  Philip 

Lawton,  Job  G.,  Jr, 

tion,  in  order  that  I  may  move  this  amendment. 

Earle,  John  M. 

Leland,  Alden 

The  question  being  then  taken  on  reconsider 

Easland,  Peter 

Lincoln,  Abishai 

ing  the  vote  by  which  the  following  words  were 
adopted,  viz.  :  "  and  the  judges  now  in  office  shall 
hold  their  offices  according  to  their  commissions," 

Easton,  James,  2d 
Eaton,  Calvin  D. 
Edwards,  Elisha 
Edwards,  Samuel 

Little,  Otis 
Littlefield,  Tristraia 
Loomis,  E.  Justin 
Marble,  William  P. 

it  was  not  agreed  to. 

Ely,  Joseph  M. 

Marvin,  Abijah  P, 

The  question  then  recurred  on  striking  out  the 

Fay,  Sullivan 

Mason,  Charles 

whole  of  the  fourth  resolution,  and  substituting 
therefor  the  amendment    of   Mr.  Knowlton,  as 

Fellows,  James  K. 
Fisk,  Lyman 
Fiske  Emery 

Meader,  Reuben 
Merritt,  Simeon 
Monroe,  James  L. 

amended  by  the  Convention  ;  and  the  question. 

Fitch,  Ezekiel  W. 

Moore,  James  M. 

being  then  taken  by  yeas  and  nays,  resulted  — 

Foster,  Aaron 

Morton,  Elbridge  G. 

yeas,  200  ;  nays,  164—  as  follows  :  — 

Foster,  Abram 

Morton,  Marcus,  Jr. 

236 

THE   JUDICIARY. 

[63d  day. 

Thursday,] 

YEAS  —  NAYS  —  ABSENTEES. 

[July  21st. 

Morton,  William  S. 

Spooner,  Samuel  W.             Goulding,  Dalton 

Parker,  Samuel  D. 

Nash,  Hiram 

Stacy,  Ebon  H. 

Goulding,  Jason 

Parsons,  Thomas  A. 

Newman,  Charles 

Stetson,  Caleb 

Gray,  John  C. 

Peabody,  George 

Nichols,  William 

Stevens,  Granville 

Greenleaf,  Simon 

Pease,  Jeremiah,  Jr. 

Orne,  Benjamin  S. 

Stiles,  Gideon 

Hale,  Artemas 

Perkins,  Jesse 

Osgood,  Charles 

Sumner,  Charles 

Hale,  Nathan 

Plunkett,  William  C, 

Packer,  E.  Wing 

Sumner,  Increase 

Hammond,  A.  B. 

Pomroy,  Jeremiah 

Paine,  Benjamin 

Taft,  Arnold 

Hawkes,  Stephen  E. 

Preston,  Jonathan 

Parris,  Jonathan 

Thavcr,  Joseph 

Havward,  George 

Putnam,  George 

Parsons,  Samuel  C. 

Thayer,  Willard,  2d 

Heard,  Charles 

Rantoul,  Robert 

Partridge,  John 

Thomas,  John  W. 

Henry,  Samuel 

Read,  James 

Pcahody,  Nathaniel 
Penniman,  John 

Thompson,  Charles 
Tilton,  Abraham 

Hersey,  Henry 
Hillard,  George  S. 

Reed,  Sampson 
Richards,  Luther 

Perkins,  Daniel  A. 

Tilton,  Horatio  W. 

Hinsdale,  William 

Rockwell,  Julius 

Perkins,  Noah  C. 

Turner,  David  P. 

Holder,  Nathaniel 

Royce,  James  C. 

Phelps,  Charles 

Underwood,  Orison 

Hood,  George 

Sampson,  George  R. 

Phinney,  Silvanus  B. 

Viles,  Joel 

Hopkinson,  Thomas 

Sargent,  John 

Pierce,  Henry 

Vinton,  George  A. 

Hough  ton,  Samuel 

Schouler,  William 

Pool,  James  M. 

Wallace,  Frederick  T. 

Hovt,  Henry  K. 

Sherril,  John 

Powers,  Peter 

Wallis,  Freeland 

Hubbard,  William  J. 

Sikes,  Chester 

Putnam,  John  A. 

Walker,  Amasa 

Hunt,  William 

Simmons,  Perez 

Puce,  David 

Ward,  Andrew  II. 

Huntington,  Asahel 

Sleeper,  John  S. 

Richardson,  Daniel 

Warner,  Samuel,  Jr. 

Hurlburt,  Samuel  A. 

Souther,  John 

Richardson,  Nathan 

Waters,  Asa  H. 

Jackson,  Samuel 

Stevens,  Charles  G. 

Richardson,  Samuel  II. 

Weston,  Gershom,  B. 

James,  William 

Stevenson,  J.  Thomas 

Ring,  Elkanah,  Jr. 

Whitney,  Daniel  S. 

Jenkins,  John 

Storrow,  Charles  S. 

Rockwood,  Joseph 

Wilbur,  Daniel 

Jenks,  Samuel  H. 

Taber,  Isaac  C. 

Rogers,  John 

Wilbur,  Joseph 

Kellogg,  Giles  C. 

Talbot,  Thomas 

Ross,  David  S. 

Williams,  J.  B. 

Kinsman,  Henry  W. 

Taylor,  Ralph 

Sanderson,  Amasa 

Wilson,  Henry 

Knight,  Joseph 

Tileston,  Edmund  P. 

Sheldon,  Luther 

Wilson,  Willard 

Ladcl,  John  S. 

Train,  Charles  R. 

Simonds,  John  W. 

Winn,  Jonathan  B. 

Lincoln,  F.  W.,  Jr. 

Turner,  David 

Smith,  Matthew 

Winslow,  Levi  M. 

Livermore,  Isaac 

Tyler,  John  S. 

Sprague,  Melzar 

Wood,  Nathaniel 

Lord,  Otis  P. 

Tyler,  William 

Lothrop,  Samuel  K. 

TJpham,  Charles  W. 

NAYS. 

Loud,  Samuel  P. 

Upton,  George  B. 

Abbott,  Josiah  G. 
Adams,  Benjamin  P. 
Adams,  Shubacl  P. 
Aldrich,  P.  Emory 
Allen,  Joel  C. 
Alvord,  D.  W. 
Andrews,  Robert 
Aspinwall,  William 
Atwood,  David  C. 
Ayres,  Samuel 
Barrows,  Joseph 
Bartlett,  Sidney 
Beebe,  James  M. 
Bell,  Luther  V. 
Bigelow,  Jacob 

Chandler,  Amariah 
Chapin,  Henry 
Choate,  Rufus 
Churchill,  J.  McKean 
Coggin,  Jacob 
Cogswell,  Nathaniel 
Conkey,  Ithamar 
Cook,  Charles  E. 
Copeland,  Benjamin  F. 
Crockett,  George  W. 
Crosby,  Leander 
Crowell,  Seth 
CroAviihishield,  F.  B. 
Cummings,  Joseph 
Dana,  Richard  II.,  Jr. 

Lowell,  John  A. 
Marvin,  Theophilus  R. 
Miller,  Seth,  Jr. 
Mixter,  Samuel 
Morey,  George 
Morss,  Joseph  B. 
Morton,  Marcus 
Noyes,  Daniel 
Nute,  Andrew  T. 
Oliver,  Hcnrv  K. 
Orcutt,  Nathan 
Paige,  James  W. 
Park,  John  G. 
Parker,  Adolphus  G. 
Parker,  Joel 

Walcott,  Samuel  B. 
Wales,  Bradford  L. 
Walker,  Samuel 
Weeks,  Cyrus 
Wetmore,  Thomas 
Wheeler,  William  F. 
White,  Benjamin 
White,  George 
Wilder,  Joel 
Wilkins,  John  II. 
Williams,  Henry 
Wilson,  Milo 
Wood,  Charles  C. 
Wood,  Otis 
Wright,  Ezekiel 

Bird,  Francis  W. 

Davis,  Ebciiezer 

Blagden,  George  W. 

Davis,  John 

ABSENT. 

Bliss,  Gad  O. 
Braman,  Milton  P. 
Breed,  Hiram  N. 

Davis,  Solomon 
Dawes,  Henry  L. 
Dehon,  William 

Abbott,  Alfred  A. 
Appleton,  William 
Baker,  Hillel 

Clarke,  Alpheus  B. 
Cole,  Lansing  J. 
Cole,  Sunnier 

Brewster,  Osmyn 

Denison,  Hiram  S. 

Ballard,  Alvah 

Curtis,  Wilber 

Brmley,  Francis 

Doane,  James  C. 

Bancroft,  Alpheus 

DeWitt,  Alexander 

Briggs,  George  N. 

Dorman,  Moses 

Banks,  Nath'l  P.,  Jr. 

Durgin,  John  M. 

Brown,  Alpheus  R. 

Ely,  Homer 

Bartlett,  Russel 

Eaton,  Lilley 

Brown,  Hiram  C. 

Farwell,  A.  G. 

Beach,  Erasmus  D. 

Eustis,  William  T. 

Bullock,  Rufus 
Bumpus  Cephas  C. 

Fowler,  Samuel  P. 
French,  Charles  H. 

Bishop,  Henry  W. 
Bliss,  William  C. 

French,  Charles  A. 
Gilbert,  Washington 

Burlingame,  Anson 
Butler,  Benjamin  F. 

Gardner,  Henry  J. 
Gates,  Elbridge 

Bradbury,  Ebenezer 
Bullen,  Amos  II. 

Hall,  Charles  B. 
Harmon,  Phineas 

Carter,  Timothy  W. 
Carruthers,  William 

Gilbert,  Wanton  C. 
Gould,  Robert 

Chapin,  Chester  W. 
Clark,  Salah 

Haskell,  George 
Heywood,  Levi 

63d  day.] 


THE   JUDICIARY. 


237 


Thursday,] 


HOOPER  —  LORD  —  SHELDOX  —  WHEELER. 


[July  21st. 


Sanderson,  Chester 
Sherman,  Charles 
Stevens,  Joseph  L.,  Jr. 
Stevens,  William 
Strong,  Alfred  L. 
Stutson,  William 
Swain,  Alanson 
Tower,  Ephraim 
Warner,  Marshal 
Whitney,  James  S. 
Wilkinson,  Ezra 
Wood,  William  H. 
Woods,  Josiah  B. 


Huntington,  George  H. 
Kellogg,  Martin  11. 
Kendall,  Isaac 
Kuhn,  George  H. 
Langdon,  Wilber  C. 
Marcy,  Laban 
Nayson,  Jonathan 
Norton,  Alfred 
Ober,  Joseph  E. 
Paine,  Henry 
Payson,  Thomas  E. 
Perkins,  Jonathan  C. 
Prince,  F.  O. 
Rawson,  Silas 

Absent  and  not  voting,  66. 

So  the  amendment  was  agreed  to. 

The  question  then  recurred  on  the  final  passage 
of  the  resolutions  as  amended. 

Mr.  LORD,  of  Salem,  asked  that  the  question 
on  the  resolutions  be  taken  separately. 

Mr.  HOOPER,  of  Fall  River,  moved  to  amend 
the  first  resolution,  by  adding  at  the  close  the 
following  words  :  "  and  that  each  branch  of  the 
legislature  shall  have  authority  to  require  the 
opinion  of  the  justices  of  the  supreme  judicial 
court  on  questions  of  constitutional  construction." 

Pending  this  question,  Mr.  PHINNEY,  for 
Chatham,  moved  to  adjourn ;  which  was  not 
agreed  to. 

The  question  being  then  taken  on  the  amend 
ment  offered  by  Mr.  Hooper,  it  was  not  agreed  to. 

The  first  three  resolutions  were  then  severally 
read  and  finally  passed  ;  and  the  question  was 
stated  on  the  fourth  as  amended. 

Mr.  LORD,  of  Salem.  I  desire  to  know 
whether,  in  the  ruling  of  the  Presiding  Officer,  a 
resolution  which  is  substituted  for  one  that  it  is 
inexpedient  to  act  upon  a  certain  matter,  has  its 
several  readings  after  it  is  substituted  ;  or  whether, 
this  having  been  adopted,  the  question  will  now 
be  on  its  final  passage  ? 

The  PRESIDENT.  The  Chair  rules  that  this 
is  the  final  passage  of  the  resolution  ;  and  the 
question  before  the  Convention  is  now  on  its 
final  passage. 

Mr.  LORD.  As  there  has  never  been  any 
vote  taken  upon  this  resolution  in  its  present 
shape,  I  ask  that  the  question  may  be  taken  by 
yeas  and  nays. 

Mr.  WARD,  of  Newton.  I  rise  to  ask  if  the 
yeas  and  nays  have  not  already  been  taken  upon 
this  question  ? 

The  PRESIDENT.  The  yeas  and  nays  have 
been  taken  upon  it  as  an  amendment  to  strike 
out  the  original  resolution,  and  to  substitute  this, 
but  not  upon  its  final  passage. 

The  question  being  put  on  ordering  the  yeas 
and  nays,  on  a  division,  there  were — ayes,  59  ; 


nays,  159 — so  the  yeas  and  nays  were  ordered, 
more  than  one-fifth  of  the  members  voting  having 
voted  therefor. 

Mr.  DENTON,  of  Chelsea,  moved  that  the 
Convention  adjourn. 

Mr.  KEYES,  for  Abington,  called  for  the  yeas 
and  nays  on  the  question  of  adjournment,  and 
they  were  ordered. 

Mr.  SCHOULER.  I  rise  to  make  an  inquiry 
of  the  Chair.  The  Convention  has  voted  to  ad 
journ  at  two  o'clock  ;  and  as  it  is  not  possible  to 
take  the  yeas  and  nays  between  this  time  and 
two  o'clock,  I  wish  to  know  whether  the  Con 
vention  will  be  adjourned  as  soon  as  that  hour 
arrives  ? 

The  PRESIDENT.  By  the  construction  of 
the  Chair,  heretofore,  it  will  be  imperative  upon 
the  Chair,  at  the  hour  of  two,  to  adjourn  the  Con 
vention. 

Mr.  SHELDON,  of  Easton,  moved  a  recon 
sideration  of  the  vote  by  which  the  yeas  and  nays 
were  ordered  on  the  motion  to  adjourn,  which 
was  agreed  to. 

The  question  then  recurred  on  the  motion  of 
Mr.  Keyes  for  the  yeas  and  nays  on  the  question 
of  adjournment ;  and  they  were  not  ordered. 

The  question  then  recurred  on  the  motion  of 
Mr.  Denton,  which  was  agreed  to ;  and  accord 
ingly,  at  quarter  before  two  o'clock,  the  Con 
vention  adjourned  until  three  o'clock,  P.  M. 


AFTERNOON    SESSION. 
The  Convention  reassembled,  and  was  called 
to  order  at  three  o'clock,  the  President  pro  tern. 
in  the  chair. 

The  Judiciary. 

On  motion  by  Mr.  SCHOULER,  the  Conven 
tion  proceeded  to  the  consideration  of  the  Orders 
of  the  Day,  the  question  pending  being  on  the 
final  passage  of  the  fourth  resolution  on  the  sub 
ject  of  the  Judiciary,  as  amended,  on  which  the 
yeas  and  nays  had  been  ordered. 

Mr.  WHEELER,  of  Lincoln.  I  would  in 
quire  whether  it  is  in  order  to  move  a  reconsid 
eration  of  the  vote  by  which  the  yeas  and  nays 
have  been  ordered  ? 

The  PRESIDENT.  In  the  opinion  of  the 
Chair,  it  will  be  in  order. 

Mr.  WHEELER.  I  will,  then,  submit  that 
motion. 

Mr.  LORD,  of  Salem.  Mr.  President :  I  rise 
to  a  question  of  order,  and  that  is,  whether  or 
not  the  matter  of  ordering  the  yeas  and  nays  is  a 
motion  at  all ;  whether  it  is  not  a  demand  which 
certain  gentlemen,  to  wit,  one- fifth  of  the  Con- 


238                                                THE   JUDICIARY. 

[63d    day. 

Thursday,]                                            WHEELER  —  ELY  —  YEAS. 

[July  21st. 

vention  voting,  have  a  right  to  make,  and  which 
none  others  can  control  after  it  has  been  ordered  ? 
The  language  of  the  rule  is  :  "  On  all  questions 

Earle,  John  M. 
Easland,  Peter 
Eaton,  Calvin  D. 
Edwards,  Elisha 

Mason,  Charles 
Meader,  Rueben 
Merritt,  Simeon 
Monroe,  James  L. 

and  motions  whatsoever,  the  President  shall  take 

Edwards,  Samuel 

Moore,  James  M. 

the  sense  of  the  Convention  by  yeas  and  nays, 

Ely,  Joseph  M. 

Morton,  Elbridge  G. 

provided  one-  fifth  of  the  members  present  shall 
so  require."     That  is  not  a  motion. 
The  PRESIDENT.     The  Chair  is  of  opinion 
that  it  is  competent  for  every  member   of  the 

Fay,  Sullivan 
Fellows,  James  K. 
Fiske,  Emery 
Fisk,  Lyman 
Fitch,  Ezekiel  W. 

Morton,  Marcus,  Jr. 
Morton,  William  S. 
Nash,  Hiram 
Nayson,  Jonathan 
Newman,  Charles 

Convention  to  move  a  reconsideration  of  the  vote 

Foster,  Aaron 

Nichols,  William 

by  which  the  yeas  and  nays  were  ordered,  and 

Foster,  Abram 

Ober,  Joseph  E. 

that  it  is  competent  for  a  majority  of  the  Con 
vention  to  reconsider  that  vote.     The  question 
will  then  recur  on  the  motion  for  the  yeas  and 

Fowle,  Samuel 
Freeman,  James  M. 
French,  Charles  A. 
French,  Samuel 

Orne,  Benjamin  S. 
Osgood,  Charles 
Packer,  E.  Wing 
Paine,  Benjamin 

nays,  and  one-  fifth  can  carry  that  vote. 

Frothingham,  R.,  Jr. 

Parris,  Jonathan 

Mr.  WHEELER.     Since  it  is  likely  that  the 

Gale,  Luther 

Parsons,  Samuel  C. 

motion  which  I  made  will  give  rise  to  discussion, 

Gilbert,  Washington 

Partridge,  John 

I  withdraw  it. 

Giles,  Charles  G. 

Peabody,  Nathaniel 

Mr.  ELY,  of  Westfield.     I  wish  to  inquire, 
Mr.  President,  if  a  vote  on  the  subject-matter  of 

Giles,  Joel 
Gooding,  Leonard 
Graves,  John  W. 

Penniman,  John 
Perkins,  Noah  C. 
Phelps,  Charles 

the  resolution  now  under  consideration  has  not 

Green,  Jabez 

Phinney,  Silvanus  B. 

been  taken  by  yeas  and  nays  already  ? 

Griswold,  Josiah  W. 

Pierce,  Henry 

The  PRESIDENT.     A  motion  was  made  to 

Griswold,  Whiting 

Pool,  James  M. 

strike  out  the  fourth  resolution,  and  to  substitute 
the   resolution  now  pending,  which  was  carried 

Hadley,  Samuel  P. 
Hallett,  B.  F. 
Hapgood,  Lyman  W. 

Powers,  Peter 
Putnam,  John  A. 
Rawson,  Silas 

by  yeas  and  nays.     That  is  a  different  question 

Hapgood,  Seth 

Richardson,  Daniel 

from  the  present  ;  that  was  a  motion  to  amend  ; 

Haskins,  William 

Richardson,  Nathan 

this  is  a  motion  to  order  the  resolution  to  its  final 

Hathaway,  Elnathan  P. 

Richardson,  Samuel  H. 

•nn,ssa°'e 

Hay  den,  Isaac 

Ring,  Elkanah,  Jr. 

J/OBBOgd 

The  question  being  taken  by  yeas  and  nays, 

Hazewell,  C.  C. 
Heath,  Ezra,  2d 

Rockwood,  Joseph  M. 
Rogers,  John 

the  result  was  —  yeas,  204  ;  nays,  143  —  as  follows  : 

Hewes,  James 

Ross,  David  S. 

Hewes,  William  H. 

Sanderson,  Amasa 

TEAS. 

Heywood,  Levi 

Sanderson,  Chester 

Allen,  Charles                  Buck,  Asahel 

Hobart,  Henry 

Sheldon,  Luther 

Allen,  James  B.                Cady,  Henry 

Hobbs,  Edwin 

Smith,  Matthew 

Allen,  Parsons                  Case,  Isaac 

Hood,  George 

Sprague,  Melzar 

Alley,  John  B.                  Chapin,  Daniel  E. 

Hooper,  Foster 

Spooner,  Samuel  W. 

Allis,  Josiah                       Childs,  Josiah 

Howard,  Martin 

Stetson,  Caleb 

Andrews,  Robert             Churchill,  J.  McKean 

Howland,  Abraham  H. 

Stevens,  Granville 

Austin,  George                 Clark,  Henry 

Hunt,  Charles  E. 

Stevens,  Joseph  L.,  Jr. 

Baker,  Hillel                    Clarke,  Alpheus  B. 

Hurlbut,  Moses  C. 

Stevens,  William 

Ball,  George  S.                 Clarke,  Stillman 

Hyde,  Benjamin  D. 

Stiles,  Gideon 

Bancroft,  Alpheus            Cleverly,  William 

Ide,  Abijah  M.,  Jr. 

Sumner,  Charles 

Barrett,  Marcus                Cole,  Sumner 

Jacobs,  John 

Sunnier,  Increase 

Bates,  Eliakim  A.            Cooledge,  Henry  F. 

Keyes,  Edward  L. 

Taft,  Arnold 

Bates,  Moses,  Jr.              Crane,  George  B. 

Kimball,  Joseph 

Thayer,  Joseph 

Beach,  Erasmus  D.          Cressy,  Oliver  S. 

Kingman,  Joseph 

Thomas,  John  W. 

Beal,  John                         Crittenden,  Simeon 

Knight,  Hiram 

Thompson,  Charles 

Bennett,  William,  Jr.      Cross,  Joseph  W. 

Knight,  Jefferson 

Tilton,  Horatio  W. 

Bennett,  Zephaniah         Cushman,  Henry  W. 

Kiiowlton,  Charles  L. 

Turner,  David  P. 

Bigelow,  Edward  B.        Cushman,  Thomas 

Knowlton,  J.  S.  C. 

Underwood,  Orison 

Bird,  Francis  W.              Cutler,  Simeon  N. 

Knowlton,  William  H. 

Viles,  Joel 

Bishop,  Henry  W.           Davis,  Charles  G. 

Knox,  Albert 

Vinton,  George  A. 

Booth,  William  S.           Davis,  Ebenezer 

Ladd,  Gardner  P. 

Wallace,  Frederick,  T. 

Bout  well,  Sewell              Davis,  Isaac 

Lawrence,  Luther 

Wallis,  Freeland 

Boutwell,  George  S.        Davis,  Robert  T. 

Lawton,  Job  G.,  Jr. 

Walker,  Amasa 

Bronson,  Asa                    Day,  Gilman 

Leland,  Alden 

Ward,  Andrew  H. 

Brown,  Adolphus  F.       Dean,  Silas 

Lincoln,  Abishai 

Warner,  Marshal 

Brown,  Hammond           Deming,  Elijah  S. 

Littlefield,  Tristram 

Warner,  Samuel,  Jr. 

Brownell,  Frederick         Denton,  Augustus 

Loomis,  E.  Justin 

Waters,  Asa  H. 

Brownell,  Joseph             Dunham,  Bradish 

Marble,  William  P. 

Weston,  Gershom  B. 

Bryant,  Patrick                 Eames,  Philip                        Marvin,  Abijah  P. 

Whitney,  Daniel  S. 

63d  day.] 

THE   JUDICIARY.                                                 239 

Thursday,] 

NAYS  —  ABSENTEES  —  FROTHINGHAM.                                   [July  21st 

Wilbur,  Daniel 

Winn,  Jonathan  B.               Stevens,  Charles  G.         Upton,  George  B. 

Wilbur,  Joseph 

Winslow,  Levi  M. 

Stevenson,  J.  Thomas     Walcott,  Samuel  B. 

Williams,  J.  B. 

Wood,  Charles  C. 

Storrow,  Charles  S.         Wales,  Bradford  L. 

Wilson,  Henry 

Wood,  Nathaniel 

Taber,  Isaac  C.                Walker,  Samuel 

Wilson,  Willard 

Wood,  Otis 

Talbot,  Thomas               Weeks,  Cyrus 

Taylor,  Ralph                  Wheeler,  William  F. 

V 

Tileston,  Edmund  P.       White,  Benjamin 

L  !&• 

Train,  C.  R.                      White,  George 

Adams,  Benjamin  P. 

Heard,  Charles 

Turner,  David                  Wilder,  Joel 

Adams,  Shubael  P. 

Hersey,  Henry 

Tyler,  John  S.                  Wilson,  Milo 

Allen,  Joel  C. 

Hillard,  George  S. 

Tyler,  William                 Wright,  Ezekiel 

Aspinwall,  William 
Atwood,  David  C. 

Holder,  Nathaniel 
Houghton,  Samuel 

Upham,  Charles  W. 

Ayres,  Samuel 

Hoyt,  Henry  K. 

Barrows,  Joseph 

Hubbard,  William  J. 

ABSENT. 

Bartlett,  Sidney 

Hunt,  William 

Abbott,  Alfred  A.           Hinsdale,  William 

Beebe,  James  M. 

Huntington,  Asahel 

Abbott,  Josiah  G.            Hobart,  Aaron 

Blagden,  George  W. 

Hurlburt,  Samuel  A. 

Aldrich,  P.  Emory          Hopkinson,  Thomas 

Bliss,  Gad  O. 

Jackson,  Samuel 

Alvord,  D.  W.                 Huntington,  Charles  P. 

Braman,  Milton  P. 

James,  William 

Appleton,  William          Huntington,  George  H. 

Breed,  Hiram  N. 

Jenkins,  John 

Ballard,  Alvah                  Johnson,  John 

Brewster,  Osymn 

Jenks,  Samuel  H. 

Banks,  Nathaniel'P.,  Jr.  Kellogg,  Martin  R. 

Brinley,  Francis 

Kellogg,  Giles  C. 

Bartlett,  Russel                Ladd,  John  S. 

Briggs,  George  N. 

Kendall,  Isaac 

Bell,  Luther  V.                 Langdon,  Wilber  C. 

Brown,  Alpheus  R. 

Kinsman,  Henry  W. 

Bigelow,  Jacob                 Little,  Otis 

Brown,  Hiram  C. 

Knight,  Joseph 

Bliss,  William  C.             Marcy,  Laban 

Bullock,  Rufus 

Kuhn,  George  H. 

Bradbury,  Ebenezer        Marvin,  Theophilus  R. 

Bumpus,  Cephas  C. 

Lincoln,  Frederic  W.,  Jr. 

Bradford,  William,  J.A.  Norton,  Alfred 

Burlingame,  Anson 

Livermore,  Isaac 

Brown,  Artemas               Paine,  Henry 

Carter,  Timothy  W. 

Lord,  Otis  P. 

Bullen,  Amos  H.              Payson,  Thomas  E. 

Caruthers,  William 

Lothrop,  Samuel  K. 

Butler,  Benjamin  F.         Perkins,  Daniel  A. 

Chandler,  Amariah 

Loud,  Samuel  P. 

Clark,  Ransom                 Perkins,  Jonathan  C. 

Chapin,  Chester  W. 

Lowell,  John  A. 

Clark,  Salah                      Prince,  F.  O. 

Chapin,  Henry 

Miller,  Seth,  Jr. 

Cole,  Lansing  J.               Rice,  David 

Choate,  Rufus 

Mixter,  Samuel 

Copeland,  Benjamin  F.  Sampson,  George  R. 

Coggin,  Jacob 

Morey,  George 

Curtis,  Wilber                  Sherman,  Charles 

Cogswell,  Nathaniel 

Morss,  Joseph  B. 

DeWitt,  Alexander          Souther,  John 

Conkev,  Ithamar 

Morton,  Marcus 

Doane,  James  C.               Stacy,  Eben  H. 

Cook,  Charles  E. 

Noyes,  Daniel 

Duncan,  Samuel               Strong,  Alfred  L. 

Crockett,  George  W. 

Nute,  Andrew  T. 

Durgin,  John  M.             Stutson,  William 

Crosby,  Leander 

Oliver,  Henry  K. 

Easton,  James,  2d             Swain,  Alanson 

Crowell,  Seth 

Orcutt,  Nathan 

Eaton,  Lilley                    Thayer,  Willard,  2d 

Crowninshield,  F.  B. 

Paige,  James  W. 

French,  Rodney               Tilton,  Abraham 

Cummings,  Joseph 
Dana,  Richard  H.,  Jr. 

Park,  John  G. 
Parker,  Adolphus  G. 

Gardner,  Johnson            Tower,  Ephraim 
Gooch,  Daniel  W.           Wetmore,  Thomas 

Davis,  John 

Parker,  Joel 

Gray,  John  C.                  Whitney,  James  S. 

Davis,  Solomon 

Parker,  Samuel  D. 

Greene,  William  B.         Wilkins,  John  H. 

Dawes,  Henry  L. 

Parsons,  Thomas  A. 

Hall,  Charles  B.               Wilkinson,  Ezra 

Dehon,  William 

Peabody,  George 

Harmon,  Phineas             Williams,  Henry 

Denison,  Hiram  S. 

Pease,  Jeremiah,  Jr. 

Haskell,  George               Wood,  William  H. 

Dorman,  Moses 

Perkins,  Jesse 

Henry,  Samuel                 Woods,  Josiah  B. 

Ely,  Homer 

Plunkett,  William  C. 

Eustis,  William  T. 

Pomroy,  Jeremiah 

Absent  and  not  voting,  72. 

Farwell,  A.  G. 

Preston,  Jonathan 

Fowler,  Samuel  P. 

Putnam,  George 

So  the  resolution  was  passed. 

French,  Charles  H. 

Rantoul,  Robert 

Mr.   FROTHINGHAM,  of  Charlestown.     I 

Gardner,  Henry  J. 

Read,  James 

move  to  lay  the  Orders  of  the  Day  upon  the 

Gates,  Eibridge 
Gilbert,  Wanton  C. 
Gould,  Robert 

Reed,  Sampson 
Richards,  Luther 
Rockwell,  Julius 

table  for  the  purpose  of  taking  up  Convention 
Document  No.  54,  being  the  Report  of  the  Com 

Goulding,  Daltoii 

Royce,  James  C. 

mittee  on  Elections,  in  reference  to  the  memorial 

Goulding,  Jason 

Sargent,  John 

of  John  Sanborn,  from  Charlestown,  claiming  a 

Greenleaf,  Simon 

Schouler,  William 

seat  in  the  Convention. 

Hale,  Artemas 

Sherril,  John 

The  motion  was  rejected,  on  a  division  —  ayes, 

Hale,  Nathan 

Sikes,  Chester 

Hammond,  A.  B. 
Hawkes,  Stephen  E. 

Simmons,  Perez 
Simonds,  John  W. 

72  ;  noes,  112. 
So  the  Orders  of  the  Day  were  not  laid  upon 

Hayward,  George 

Sleeper,  John  S. 

the  table. 

240 


NEW   TOWNS,   &c. 


[63d  day. 


Thursday,] 


MORTON  —  FROTHIXGHAM  —  HOOPER  —  BATES  —  KEYES. 


[July  21st. 


Mr.  MORTON,  of  Taunton.  There  is  a  sub 
ject  of  considerable  interest,  which  I  had  the 
honor  to  bring  before  the  Convention,  some  time 
ago  ;  and  with  the  understanding  that  it  should 
be  taken  up  at  an  early  day,  I  withdrew  it  as  an 
amendment  to  a  proposition  then  pending,  and 
presented  it  as  an  independent  proposition  ;  and 
it  was  referred  to  the  Committee  of  the  Whole. 
I  therefore  move  that  the  Convention  resolve 
itself  into  Committee  of  the  Whole,  on  Docu 
ment  59.  I  wished  to  make  this  explanation, 
and  then  will  move  to  lay  the  Orders  of  the  Day 
upon  the  table,  that  the  Convention  may  go  into 
Committee  of  the  Whole,  and  consider  the  alter 
native  proposition  in  relation  to  the  amendments 
of  the  Constitution.  I  move  that  the  Orders  of 
the  Day  be  laid  upon  the  table. 

Mr.  HOOPER,  of  Fall  River.  I  hope  that 
that  motion  will  not  prevail.  It  is  only  a  few 
moments  since  the  Convention  refused  to  adopt 
the  very  same  motion. 

Mr.  BIRD,  of  Walpole.  I  want  to  know  if  it 
is  in  order  to  make  the  same  motion  twice  in 
succession,  without  the  intervention  of  other 
business  ? 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  the  motion  of  the  gentleman  from  Taunton 
is  in  order. 

Mr.  FROTHINGHAM,  of  Charlestown.  I 
ask  the  leave  of  the  Convention,  at  this  time,  to 
make  a  statement.  I  will  not  occupy  more  than 
one  or  two  minutes. 

Leave  was  granted. 

Mr.  FROTHINGHAM.  I  moved,  a  few 
moments  ago,  to  lay  the  Orders  of  the  Day 
upon  the  table  for  the  purpose  of  going  into  Com 
mittee  of  the  Whole  on  the  Report  on  the  sub 
ject  of  Banks  and  Banking.  I  did  so  because  I 
had  refrained  for  some  time  past  from  making 
that  motion,  and  with  a  view  to  accommodate 
gentlemen  who  felt  a  strong  interest  in  relation 
to  other  questions,  which  have  been  before  the 
Convention.  On  the  suggestion  of  some  of  the 
members  of  the  Convention,  I  made  the  motion 
to  lay  the  Orders  of  the  Day  upon  the  table, 
for  the  express  purpose  of  taking  up  that  ques 
tion. 

The  PRESIDENT.  The  Chair,  upon  reflec 
tion,  is  of  opinion  that  the  motion  made  by  the 
gentleman  from  Taunton,  (Mr.  Morton,)  is  not 
in  order,  no  business  having  been  transacted  since 
the  same  question  was  previously  decided.  The 
next  matter  in  the  Orders  of  the  Day,  is  the  mo 
tion  of  the  gentleman  from  Fall  River,  (Mr. 
Hooper,)  to  reconsider  the  vote  by  which  the 
resolve  on  the  incorporation  of  new  towns  was 
indefinitely  postponed. 


Incorporation  of  New   Towns. 

Mr.  HOOPER.  I  moved  a  reconsideration 
of  this  resolution,  with  the  view  of  offering  an 
amendment.  It  will  be  recollected,  that  one  of 
the  resolutions  fixing  the  basis  of  representation, 
pi'ovides  that  110  town  shall  be  incorporated,  with 
the  right  to  send  a  representative  to  the  legisla 
ture,  having  less  than  fifteen  hundred  inhabitants. 
I  suppose  the  meaning  of  that  is,  that  no  to\vn 
hereafter  created  shall  be  represented  in  the  legis 
lature  unless  it  have  fifteen  hundred  inhabitants. 
But  this  resolution  guards  the  matter  only  on 
one  side.  It  does  not  prevent  the  creation  of  new 
towns  having  fifteen  hundred  inhabitants,  and 
leaving  the  old  town,  perhaps,  with  less  than  one 
thousand  inhabitants.  For  the  purpose  of  pre 
venting  this,  I  moved  a  reconsideration,  so  as  to 
guard  the  matter  in  such  a  way  that  no  town 
should  be  left  with  less  than  fifteen  hundred  in 
habitants,  by  the  creation  of  any  new  town. 
That  is  my  object ;  and  if  the  Convention  decide 
to  reconsider,  I  will  offer  such  an  amendment. 

Mr.  BATES,  of  Plymouth.  I  would  simply  say 
to  the  gentleman  from  Fall  River,  that  when  this 
whole  subject  was  under  discussion,  an  amend 
ment  precisely  similar  to  this  was  moved  and  re 
jected,  and  that,  consequently,  such  an  amend 
ment  cannot  be  in  order  at  this  time. 

Mr.  HOOPER.  I  think  the  gentleman  is 
mistaken.  The  amendment  which  was  rejected 
was  very  different  from  this.  That  amendment 
was,  that  no  town  should  be  incorporated  with  less 
than  fifteen  hundred  inhabitants,  thereby  imply 
ing  that  new  towns  having  that  number  of  inhab 
itants  might  be  incorporated,  and  be  entitled  to 
representation.  The  object  I  have  in  view,  is 
quite  different.  It  is  to  prevent  the  formation  of 
new  towns,  leaving  the  old  ones  with  a  less  num 
ber  of  inhabitants  than  fifteen  hundred.  I  think 
if  gentlemen  will  reflect  for  a  moment,  they 
cannot  object  to  having  the  matter  guarded  in 
this  way. 

Mr.  KEYES,  for  Abington.  It  seems  to  me, 
that  the  gentleman  from  Fall  River,  is  a  little 
mistaken  ;  that  these  towns  do  not  stand  on  the 
same  basis  ;  and  whereas,  it  might  be  unjust  in 
one  sense,  it  would  not  be  in  the  other.  I  take 
it,  that  the  Convention  decided  for  good  reasons, 
that  no  new  town  should  be  created  for  the  pur 
poses  of  representation  with  less  than  fifteen 
hundred  inhabitants  ;  and  the  ground  was  this  : 
before  these  new  towns  petition  for  a  town  organ 
ization  they  understand  precisely  what  they  have 
to  meet  with.  They  may  have  a  representation, 
or  they  may  not,  as  the  legislature  may  determine. 
If  they  choose  to  be  incorporated  for  town  pur 
poses  without  the  representation  privilege,  no 


63d  day.] 


NEW   TOWNS. 


241 


Thursday,] 


SCHOULER  —  HALLETT  —  HOOPER. 


[July  21st. 


injustice  will  be  done.  On  the  other  hand,  if 
they  permit  a  new  town  to  go  off  from  the  old 
one,  and  thereby  take  away  the  right  of  the  old 
town  to  send  a  representative,  a  double  injustice 
will  be  done.  Suppose  that  a  new  village  starts 
up  in  a  town,  with  its  railroad,  and  manufactur 
ing,  and  other  establishments,  gathering  around 
them  a  large  population,  and  they  say  to  them 
selves,  '-'let  us  go  off  from  the  old  town  and  leave 
it  in  its  loneliness,  and  take  with  us  the  right  of 
representation,"— this  would  not  be  right.  I  take 
it,  therefore,  that  in  such  case,  the  old  town  ought 
not  to  suffer  in  consequence  of  the  new  town 
going  off,  because,  if  they  do  go  off,  they  go  with 
their  eyes  open. 

Mr.  SCHOULER.  I  hope  the  motion  to  re 
consider  will  not  prevail.  It  seems  to  me,  that 
we  ought  to  leave  something  for  the  legislature  to 
do  hereafter.  The  usual  practice  has  been,  that 
where  a  town  was  set  off  it  should  vote  for  rep 
resentatives  with  the  town  from  which  it  came 
out  until  the  next  decennial  census.  New  towns 
can  be  incorporated  for  all  purposes  which  ap 
pertain  to  town  business,  and  nobody  will  be 
affected,  but  themselves ;  but  they  cannot  vote 
for  representatives  otherwise  than  in  conjunction 
with  the  town  from  which  they  were  set  off. 

Mr.  HALLETT.  It  seems  to  me,  that  this 
motion  ought  to  be  reconsidered,  and  for  a  very 
plain  reason.  You  have  got  to  provide  against 
the  indefinite  increase  of  representation  by  the 
multiplication  of  new  towns,  and  if  that  is  not 
done,  your  system  of  town  representation  is  not 
safe.  You  cannot  well  leave  the  matter  unguarded 
in  this  way,  so  that  a  town  having  twenty-five 
hundred  inhabitants,  may  set  off  fifteen  hundred 
of  them,  to  be  incorporated  and  entitled  to  a  new 
representation,  and  still  retain  its  own  represen 
tation  with  a  population  of  one  thousand.  The 
legislature  may  guard  against  it,  but  if  they  do 
not  and  we  leave  the  matter  in  this  shape,  then,  as 
I  showed  the  other  day,  a  town  having  four  thou 
sand  inhabitants,  and  sending  two  representa 
tives,  may  be  divided  into  three  towns,  sending 
three  representatives  ;  and  there  is  no  knowing 
where  the  effect  of  such  a  thing  is  to  stop,  if  the 
legislature  connive  at  it.  It  seems  to  me,  that  we 
should  not  leave  a  loop-hole  of  this  sort  in  the 
principle  of  representation.  If  this  thing  is  to 
remain  so,  you  had  better  declare  at  once,  that 
your  basis  of  representation  shall  be  fifteen  hun 
dred  for  a  representative  in  every  town.  If  you 
say,  in  this  implied  manner,  that  there  shall  be  as 
many  towns  sending  representatives  as  your  old 
towns  will  make,  by  dividing  their  population  by 
fifteen  hundred,  you  may  have  the  House  of  Rep 
resentatives  enlarged  to  an  impracticable  extent. 


What  would  be  the  result  ?  What  would  be  the 
danger  ?  Why,  that  in  case  of  any  extraordinary 
political  pressure,  your  legislature  would  create  so 
many  new  towns  in  order  to  accommodate  the 
condition  of  political  parties.  E very-body  knows 
this.  Every-body  can  see  it  at  a  glance ;  and  the 
question  would  at  once  be :  what  will  be  the  polit 
ical  character  of  the  representative  who  will  come 
from  such  and  such  a  new  town,  if  it  is  created  ? 

Now,  if  this  motion  is  reconsidered,  you  can 
then  adopt  a  principle  such  as  is  suggested  by  the 
gentleman  from  Fall  River ;  or  you  can  say  upon 
a  general  principle  that  no  incorporation  of  any 
new  town  shall  thereby  increase  the  representa 
tion  within  the  limits  of  the  old  and  new  town 
together ;  and  then  you  leave  the  matter  so  that 
if  a  town  chooses  to  divide,  it  may  do  so ;  but  it 
shall  not  divide  at  the  expense  of  the  whole  rep 
resentation  of  the  State.  I  think  that  that  is  a 
sound  reason ;  a  good  ground  why  this  motion  to 
reconsider  should  prevail ;  so  that  this  salutary 
precaution  may  be  adopted. 

The  question  being  taken  on  the  motion  to 
reconsider,  it  was  decided,  on  a  division,  in  the 
affirmative— ayes,  130;  noes,  114. 

The  PRESIDENT.  The  question  now  is  on 
ordering  to  a  second  reading  the  following  re 
solve  : — 

Resolved,  That  the  Constitution  be  so  amended 
that  hereafter  no  town  shall  be  incorporated  with 
less  than  fifteen  hundred  inhabitants. 

A  MEMBER.  Is  not  the  first  question  on  the 
motion  to  postpone  the  farther  consideration  of 
the  resolution  indefinitely  ? 

The  PRESIDENT.     That  is  the  first  question. 

Mr.  HOOPER,  of  Fall  River.  I  wish  to 
amend  the  resolution  as  follows  :  strike  out  all 
after  the  word  "  town,"  in  the  second  line,  and 
insert  the  following  : — 

The  number  of  whose  inhabitants  shall  be 
reduced  below  fifteen  hundred  by  the  incorpora 
tion  of  another  town  from  a  part  of  its  territory, 
shall  retain  the  right  of  sending  a  representative 
annually  to  the  general  court. 

The  resolution,  if  thus  amended,  will  then  read 
as  follows : — 

Resolved,  That  the  Constitution  be  so  amended 
that  hereafter  no  town,  the  number  of  whose  in 
habitants  shall  be  reduced  below  fifteen  hundred 
by  the  incorporation  of  another  town  from  a  part 
of  its  territory,  shall  retain  the  right  of  sending  a 
representative  annually  to  the  general  court. 

Mr.  HALLETT.  For  the  purpose  of  enabling 
the  Convention  to  judge  of  the  two  modes  of 


242 


NEW   TOWNS. 


[63d  day. 


Thursday,] 


BIRD  —  HOOPER  —  HALLETT  —  SPOONER. 


[July  2 1st. 


reaching  this  object,  I  would  amend  the  resolu 
tion  by  adding  the  following  words  : — 

But  the  incorporation  of  any  town  shall  not 
thereby  increase  the  whole  number  of  representa 
tives  in  the  Commonwealth. 

The  resolution,  if  thus  amended,  would  then 
read : — 

Resolved,  That  the  Constitution  be  so  amended 
that,  hereafter,  no  town  shall  be  incorporated 
with  less  than  fifteen  hundred  inhabitants :  pro 
vided,  that  the  incorporation  of  any  town  shall 
not  thereby  increase  the  whole  number  of  repre 
sentatives  in  the  Commonwealth. 

Mr.  BIRD,  of  Walpole.  I  rise  to  a  question 
of  order.  The  point  of  order  that  I  make  is,  that 
the  same  amendment  was  offered  by  the  gentle 
man  from  Fall  River  the  other  day,  in  the  same 
stage  of  the  resolution,  and  was  rejected.  The 
phraseology  of  the  amendment  may  be  somewhat 
different,  but  the  object  to  be  attained  is  substan 
tially  the  same. 

Mr.  HOOPER.  I  deny  that  it  is  the  same 
amendment.  If  the  gentleman  will  look  at  it,  he 
will  see  that  it  is  different.  He  will  see  that  it 
restricts  the  old  town,  thus  left,  from  sending  a 
representative  annually  to  the  general  court. 

Mr.  ASPINWALL,  of  Brookline.  I  rise  to  a 
question  of  order.  It  is,  that  the  subject  of  the 
amendment  is  entirely  distinct  and  different  from 
the  subject  of  the  resolution. 

Mr.  HOOPER.  The  gentleman  from  Brook- 
line  is  surely  laboring  under  some  great  mistake. 
If  he  will  examine  the  amendment  in  connection 
with  the  resolution,  he  cannot  fail  to  perceive  its 
pertinency. 

The  PRESIDENT.  Two  questions  of  order 
have  been  raised,  one  by  the  gentleman  from 
Walpole,  that  the  subject  of  the  amendment  has 
been  already  acted  upon,  and  rejected,  in  the 
same  stage  of  the  resolution.  This  amendment, 
the  Chair  is  inclined  to  think,  was  acted  upon  in 
Committee  of  the  Whole,  and  the  point  of  order 
is  therefore  overruled. 

The  gentleman  from  Brookline  raises  another 
point  of  order,  which  is,  that  the  amendment  has 
no  connection  with  the  resolution  noAv  pending. 
The  Chair  is  of  opinion  that  the  amendment  is 
not  in  order,  not  being  germain  to  the  resolution. 

Mr.  HOOPER.  I  am  sorry  that  I  shall  be 
under  the  necessity  of  taking  an  appeal  from  the 
decision  of  the  Chair.  Sir,  this  amendment  simply 
qualifies  the  subject-matter  of  the  resolution  in 
relation  to  the  incorporation  of  towns.  It  is 
merely  fixing  a  condition  in  relation  to  these 
incorporations.  It  is  certainly  pertinent  to  the 


subject  of  the  resolution,  if  any  one  thing  can  be 
pertinent  to  another.  It  certainly  seems  to  me 
that  it  must  be  in  order. 

The  PRESIDENT,  after  reading  the  resolution 
and  amendment  again,  decided  that  the  amend 
ment  was  not  germain  to  the  resolution. 

Mr.  CROSBY,  of  Orleans.  I  would  inquire  of 
the  Chair  whether  the  immediate  question  before 
the  Convention  is  not  on  the  motion  for  indefinite 
postponement  ? 

The  PRESIDENT.     That  is  the  first  question. 

Mr.  SPOONER,  of  Warwick.  I  move  the 
previous  question. 

Mr.  HALLETT.  I  understood  the  position  of 
the  question  before  the  Convention  was,  that  the 
gentleman  from  Fall  River  moved  an  amendment 
to  the  present  resolution,  with  the  view  of 

Mr.  LORD,  of  Salem.  I  rise  to  a  question  of 
order.  [Laughter.] 

The  PRESIDENT.  The  gentleman  from  Sa 
lem  will  state  his  point  of  order. 

Mr.  LORD.  I  understood  the  gentleman  from 
Fall  River  to  appeal  from  the  decision  of  the 
Chair.  I  understand  the  rule  of  the  House  to 

Mr.  HALLETT.  I  call  the  gentleman  from 
Salem  to  order.  [Much  laughter.]  The  question 
is  that  he  is  about  to  anticipate  the  very  question 
I  was  about  to  state  to  the  Chair.  [Roars  of 
laughter.]  The  Chair  ruled  that  the  amendment 
of  the  gentleman  from  Fall  River,  to  which  I 
moved  an  amendment,  was  out  of  order.  The 
gentleman  from  Fall  River  took  an  appeal  from 
the  decision  of  the  Chair ;  and  it  was  not  until 
after  the  appeal  was  made,  that  the  motion  for 
indefinite  postponement  was  offered. 

The  PRESIDENT.  The  question  before  the 
Convention  is  on  the  motion  for  the  indefinite 
postponement  of  the  resolution.  The  gentleman 
from  Fall  River  moves  an  amendment  to  the  reso 
lution,  which  the  Chair  decides  to  be  out  of  order. 
The  Chair  did  not  understand  the  gentleman  from 
Fall  River  as  having  appealed  from  that  decision. 
The  Chair  understood  the  gentleman  to  say  that  he 
would  be  under  the  necessity  of  doing  so  ;  but  not 
that  he  actually  did  appeal.  If  he  appeals,  that 
will  be  the  first  question  to  be  taken. 

Mr.  HOOPER.  I  did  take  an  appeal,  and  I 
supposed  that  the  Chair  so  understood  me. 

Now.  Mr.  President 

Mr.  SPOONER.  I  rise  to  a  question  of  order, 
[laughter,]  which  is,  whether  a  motion  to  post 
pone  a  resolution  indefinitely,  permits  an  amend 
ment  to  the  resolution  to  be  offered  pending  the 
motion  to  postpone  ? 

The  PRESIDENT.  It  is  competent  for  any 
gentleman  to  move  an  amendment  to  an  amend- 


63d  day.] 


NEW   TOWNS. 


243 


Thursday,] 


HOOD  —  HOOPER  —  LORD  —  KEYES  —  HALLETT  —  STETSON. 


[July  21st. 


ment  pending  the  question  on  the  indefinite  post 
ponement.  The  gentlemen  from  Fall  River  will 
proceed. 

Mr.  HOOD,  of  Lynn.  I  rise  to  a  point  of 
order.  [Great  laughter.]  The  gentleman  from 
Fall  River  took  an  appeal  from  the  decision  of 
the  Chair ;  then  the  gentleman  from  Warwick 
moved  the  previous  question.  Is  the  appeal  in 
order  under  the  motion  for  the  previous  question  ? 
[Continued  laughter.] 

The  PRESIDENT.  The  first  question  will  be 
on  the  appeal. 

Mr.  HOOPER.  I  certainly,  Mr.  President, 
am  sorry  to  be  under  the  necessity  of  taking  an 
appeal ;  but  it  seems  to  be  so  clear  a  case  that 
there  can  be  no  doubt  about  it.  The  resolve  is  in 
relation  to  the  incorporation  of  new  towns.  That 
is  the  object. 

Mr.  LORD,  of  Salem.  I  rise  to  a  question  of 
order.  I  believe,  Sir,  that  there  is  but  one  gen 
tleman  in  the  House  who  does  not  believe  that 
the  ruling  of  the  President  is  right,  and  that  gen 
tleman  is  the  gentleman  from  Fall  River  himself. 
I  submit,  that  under  the  second  rule,  the  gentle 
man  must  find  somebody  to  second  his  appeal. 
The  second  rule  requires  that  the  President  shall 
decide  all  questions  of  order  subject  to  an  appeal, 
on  a  motion  regularly  seconded.  Somebody  must 
second  the  appeal  before  it  is  before  the  Conven 
tion. 

Mr.  CHURCHILL,  of  Milton.  I  do  not  know 
anything  about  the  question  of  order,  and  whether 
it  is  well  taken  or  not ;  but,  out  of  courtesy  to  the 
gentleman  from  Fall  River,  I  second  his  motion. 

Mr.  HOOPER.  I  was  not  aware  that  I  was 
out  of  order,  and  I  am  told  by  gentlemen  around 
me,  who  understand  these  matters  better  than  I 
do,  that  I  was  clearly  right.  The  resolution  is  in 
relation  to  the  incorporation  of  new  towns,  and 
the  amendment  simply  fixes  a  condition  connected 
with  such  incorporations.  It  provides  that  by 
such  incorporation  no  town  shall  retain  its  right 
of  sending  representatives  annually,  if  it  is  re 
duced  below  a  certain  number.  It  leaves  the 
subject  of  incorporation  open  hereafter,  without 
restricting  it,  but  only  attaches  the  condition  that 
if  the  town  assent,  as  it  may  readily  do,  to  part 
with  a  major  part  of  its  inhabitants,  it  shall  not 
thereafter  retain  its  right  of  sending  annual  rep 
resentatives.  The  old  town  may  consent  to  such 
division  for  the  purpose  of  increasing  the  number 
of  representatives,  and  this  is  simply  a  condition 
to  prevent  such  incorporations  for  the  purpose  of 
multiplying  representation.  It  strikes  me  that  it 
simply  fixes  a  condition  to  the  main  proposition, 
and  therefore  must  be  in  order, 

Mr.  KEYES,  for  Abington.     It  seems  to  me 


that  the  original  resolution  is  better  than  the 
amendments,  and  none  at  all  would  be  better  than 
both  ;  therefore,  I  move  that  the  subject  lie  upon 
the  table,  and  remain  there  forever. 

The  PRESIDENT.  The  question  before  the 
Convention  is  vpon  the  appeal  of  the  gentleman 
from  Fall  River  from  the  decision  of  the  Chair. 

Mr.  KEYES.  My  motion  was  to  lay  the  whole 
subject,  appeal  and  all,  upon  the  table. 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  such  a  motion  is  not  in  order. 

Mr.  HOOPER.  I  withdraw  my  appeal,  having 
stated  my  views. 

Mr.  KEYES.  I  now  move  to  lay  the  whole 
subject  upon  the  table. 

The  question  was  taken,  and  there  were — ayes, 
99 ;  noes,  120. 

So  the  Convention  refused  to  lay  the  subject 
upon  the  table. 

Mr.  HALLETT,  for  Wilbraham.  I  now  move 
to  amend  the  proposition  as  it  stands,  by  adding 
the  words  which  I  submitted  at  a  former  stage, 
to  wit :  "  but  the  incorporation  of  any  town  shall 
not  thereby  increase  the  whole  number  of  repre 
sentatives  in  the  Commonwealth." 

Mr.  JAMES,  of  South  Scituate.  Suppose  a 
town  of  four  thousand  inhabitants,  wants  to  be 
divided,  and  is  divided,  which  of  them  will  be 
entitled  to  the  representative  ? 

Mr.  HALLETT.  If  I  may  be  allowed  to 
answer  that  question,  the  legislature  will  take 
care  of  that  matter,  and  determine  which  shall 
have  the  representation.  The  only  effect  of  the 
amendment  is  to  prevent  the  whole  number  from 
being  increased. 

Mr.  STETSON,  of  Braintree.  Having  intro 
duced  this  resolution  at  first,  and  having  been 
asked  the  other  day,  when  the  question  came  up 
for  discussion,  the  reasons  for  it,  I  wish  briefly  to 
state  the  reasons  which  induced  me  to  offer  the 
proposition  for  the  consideration  of  the  Conven 
tion.  The  resolve  itself,  is  one  which  affects  the 
prospective  size  of  the  representative  body.  The 
question  then  for  the  consideration  of  the  Con 
vention  is,  whether  it  is  expedient  to  check  the 
growing  tendency  which  exists  in  relation  to  the 
formation  of  new  towns.  That  is  a  question  up 
on  which  every  member  of  this  Convention  is 
able  to  judge  for  himself.  My  own  opinion  is, 
that  some  check  is  necessary,  and  that  some  con 
stitutional  provision  should  be  provided  to  check 
the  growing  tendency  to  cut  up  towns  into  two 
or  more  small  corporations.  My  opinion  is,  that 
some  check  should  be  made,  in  order  to  save 
harmless  those  little  republics,  of  which  so  much 
has  been  said,  and  in  reference  to  which,  I  think 
those  who  wish  a  check  upon  the  size  of  the 


244 


NEW   TOWNS. 


[63d  day. 


Thursday,] 


HOOD  —  STETSON  —  THOMPSON  —  SCHOULER. 


[July  21st. 


representative  body,  should  have  a  little  care  for. 
I  believe,  Sir,  that  the  largest  number  of  the  new 
towns,  which  have  been  incorporated  for  the  last 
few  years,  have  contained  less  than  one  thousand 
inhabitants ;  and  Sir,  they  come  in  here,  and  claim 
a  basis  of  representation  upon  equal  grounds 
with  towns  created  two  hundred  years  ago. 
Now,  if  this  work  is  to  continue  to  go  on,  why 
Sir,  what  will  be  the  result  ? 

Mr.  HOOD,  of  Lynn.  I  rise  to  a  point  of 
order.  It  is,  that  the  amendment  of  the  gentle 
man  for  Wilbraham  is  not  in  order  under  the 
thirty-fourth  rule,  that  the  amendment  relates  to 
a  different  matter  from  the  subject  of  the  resolve. 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  the  amendment  is  not  strictly  in  order. 

Mr.  DAY,  of  Templeton.  I  move  the  previ 
ous  question. 

Mr.  STETSON.  I  would  like  to  raise  a  ques 
tion  of  order  myself.  Having  proceeded  with 
the  consent  of  the  Convention,  to  argue  the 
proposition  before  it,  and  having  been  called  to 
order  by  my  friend  from  Lynn,  (Mr.  Hood,) 
whether,  by  yielding  the  floor  for  a  decision  of 
the  point  of  order,  I  thereby  lose  it,  and  a  gentle 
man  can  take  it  away  from  me  and  move  the  pre 
vious  question. 

The  PRESIDENT.  The  Chair  understood 
the  gentleman  from  Braintree  as  yielding  the 
floor,  the  decision  of  the  question  of  order  hav 
ing  cut  off  the  amendment.  If,  however,  the 
gentleman  claims  the  floor,  the  Chair  will  con 
sider  the  previous  question  as  not  having  been 
made,  and  the  gentleman  may  proceed  upon  the 
question  before  the  Convention,  which  is  upon 
the  indefinite  postponement  of  the  resolution. 

Mr.  STETSON.  I  trust  the  Convention  will 
not  postpone  it.  I  say,  Mr.  President,  it  fre 
quently  happens,  that  in  consequence  of  the 
location  of  railroads,  or  the  establishment  of 
manufactories  in  a  portion  of  a  town  ;  in  conse 
quence  of  centralization,  of  which  so  much  has 
been  said,  that  some  portion  of  the  towns 

Mr.  THOMPSON,  (interrupting).  I  rise  to  a 
point  of  order.  I  wish  to  inquire  what  the  sub 
ject-matter  under  consideration  is  ?  If  I  under 
stand  it,  it  is  the  previous  question. 

The  PRESIDENT.  The  question  under  dis 
cussion  is  the  motion  to  indefinitely  postpone  the 
resolution. 

Mr.  STETSON.  I  was  saying  that  in  con 
sequence  of  centralization,  in  consequence  of  the 
location  of  railroads,  and  the  establishment  of 
manufactories,  a  new  part  of  a  town  may  be 
come  predominant,  and  outgrow  the  old  town, 
and  they  can  come  before  the  legislature  and 
ask  for  a  separate  town  incorporation,  and  if 


they  happen  to  be  upon  the  right  side  of  politics 
they  get  what  they  ask  for.  The  proposition 
which  this  Convention  has  determined  to  submit 
to  the  people,  holds  out  strong  inducements  to  the 
division  of  towns.  Take  the  class  of  towns 
varying  from  one  thousand  to  four  thousand  in 
habitants — being  the  largest  fraction  under  this 
rule  which  the  Convention  has  passed — and  they 
are  the  greatest  sufferers.  Now  this  involves  the 
rights  of  the  people,  and  the  question  is  :  does 
any  exigency  require  its  submission  to  the  people, 
in  order  to  save  ourselves  from  the  evils  which 
go  to  undermine  town  representation  ?  I  am  sat 
isfied  if  this  Convention  vote  to  lay  this  upon  the 
table,  or  dispose  of  it  as  they  have  heretofore 
done ;  but  I  want  them  to  understand  the  princi 
ple  involved,  and  the  fact  that  the  rights  of  the 
middle-sized  towns  of  about  four  thousand  inhab 
itants  will  be  the  greatest  sufferers  under  it. 
Sir,  I  trust  that  this  Convention  will  adopt  some 
principle  whereby  they  may  save  themselves  from 
the  undermining  and  underworkings  of  the  sys 
tem  which  involves  in  itself  the  rights  of  the 
people,  under  the  representative  system,  which  is 
to  exist  hereafter,  if  the  constitutional  provision 
which  is  proposed  by  the  Convention  shall  be 
adopted  by  the  people.  The  consequence,  under 
this  system,  will  be  that  the  rural  part  of  a  town 
will  be  shorn  of  its  strength,  and  left  to  shift  for 
itself,  and  probably  will  be  barely  able  to  exist  as 
a  town  corporation.  The  course  adopted  in 
regard  to  the  basis  of  town  representation,  makes 
the  question  one  of  great  importance.  But  if 
this  Convention  are  willing  to  let  the  matter 
rest  where  it  is,  I  am  content. 

Mr.  SCHOULER,  of  Boston.  I  hope  the 
motion  for  indefinite  postponement  will  prevail. 
My  friend  near  me  says  I  am  on  the  wrong  side 
for  once,  but  I  think  I  am  right.  I  think  this  is 
a  matter  which  can  be  better  left  to  the  legisla 
ture  than  to  this  Convention.  Now,  what  is  this 
great  evil  which  the  gentleman  speaks  about? 
During  the  last  thirty-three  years,  only  thirty-two 
towns  have  been  incorporated ;  less  than  one  every 
year,  and  I  appeal  to  gentlemen  representing  those 
towns,  whether  they  have  experienced  any  evils 
from  that. 

Here  are  the  towns  which  have  been  incorpo 
rated  in  the  several  counties  within  thirty-  three 
years. 

Suffolk. — North  Chelsea  and  Winthrop. 

Essex. — Georgetown,  Groveland,  Lawrence, 
Rockport,  Nahant  and  Swampscot. 

Middlesex. — Ashland,  Lowell,  Melrose,  North 
Reading,  Somerville  and  Winchester. 

Worcester. — Blackstone,  Clinton,  Webster  and 
West  Brookfield. 


63d  day.] 


NEW    TOWNS. 


245 


Thursday,; 


HALLETT  —  SCHOULER. 


[July  21st. 


Hampshire. — Prescott. 

Hampden. — Chicopee  and  Holyoke. 

Franklin, — Erving  and  Monroe. 

Berkshire, — Monterey. 

Norfolk.—  West  Roxbury. 

Plymouth. — East  Bridgewater,  North  Bridge- 
water,  South  Scituatc,  West  Bridgewater,  Lake- 
ville  and  Marion. 

Bristol. — Pawtucket. 

Is  not  that  a  very  moderate  number  ?  The 
exigencies  of  the  case  sometimes  require  that 
new  towns  should  be  made.  We  had  a  case 
before  the  legislature  last  year,  for  the  incorpo 
ration,  in  Hampshire  County,  of  a  new  town  at 
Cheshire.  Cheshire  village  was  composed  of 
parts  of  four  towns,  which  all  happened  to  center 
there.  A  large  village  had  been  built  upon  this 
junction  of  those  towns,  and  a  part  of  the  vil 
lage  was  in  each  of  them.  They  could,  in  con 
sequence,  have  no  efficient  police,  and  a  person 
had  only  to  cross  over  from  one  town  line  to 
another,  to  be  out  of  the  reach  of  the  police. 
That  case  went  through  the  House  without  any 
difficulty,  although  it  is  generally  with  the  great 
est  difficulty  that  you  can  get  an  act  for  the  incor 
poration  of  a  new  town,  through  the  legislature. 
The  case  must  be  a  strong  one,  before  the  legis 
lature  will  do  it.  I  think  the  whole  matter 
should  be  left  to  the  legislature  to  decide,  when 
circumstances  require  the  erection  of  new  towns, 
as  they  have  heretofore  done. 

Mr.  HALLETT.  I  think  this  subject  should 
not  be  indefinitely  postponed,  because  it  is,  in  my 
judgment,  a  very  important  question.  It  is  one 
upon  which  may  depend  the  continuance  of  town 
representation  after  the  year  1860  ;  because,  if  the 
legislature  goes  on  to  incorporate  towns  as  fast 
as  they  will  be  applied  for,  your  representative 
system  cannot  exist  for  ten  years,  without  over 
whelming  the  House  with  the  number  of  mem 
bers  coming  from  these  new  towns. 

Now  the  provision  which  has  been  adopted 
with  regard  to  representatives — a  provision  which 
gives  no  new  town  the  right  of  representation, 
unless  it  has  at  least  1,500  inhabitants — makes  no 
express  restriction  to  prevent  both  the  old  and  new 
town  from  being  represented,  and  the  number  of 
representatives  from  being  increased,  provided  the 
new  town  has  1,500  inhabitants,  and  the  old  one 
1,000.  If  gentlemen  desire  to  have  it  understood, 
that  within  the  given  limits  of  a  large  town,  you 
may  multiply  the  number  of  representatives  as 
many  times  as  you  can  divide  the  number  of  in 
habitants  by  1,500,  and  leave  1,000  in  the  old 
town  ;  if  they  mean  to  do  that,  then  why  not  take 
the  ratio  of  1,500  alone,  and  stand  by  it?  I  should 


prefer  that  to  adopting  4,000  as  the  increasing 
number,  and  then  leaving  a  loop-hole  whereby 
the  legislature  can  divide  any  town  having  more 
than  1,500  inhabitants,  and  give  to  each  town  a 
representative.  I  do  not  believe  the  Convention 
mean  to  do  any  such  thing ;  and  yet  the  legisla 
ture  may  put  that  construction  on  the  making  of 
new  towns.  Now,  Sir,  I  desire  that  some  such 
amendment  as  that  proposed  by  the  gentleman 
from  Fall  Elver,  (Mr.  Hooper,)  shall  be  adopted. 
I  hope  some  provision  will  be  made,  in  this  stage 
or  another,  if  not  now  in  order,  by  which,  when 
a  new  town  is  incorporated,  with  a  sufficient 
number  of  inhabitants  to  give  it  a  representative, 
the  number  of  representatives  for  the  two  towns 
shall  not  be  increased,  if  our  Constitution  pro 
vides  that  no  new  town  shall  be  incorporated  with 
the  privilege  of  representation  containing  a  less 
number  of  inhabitants  than  1,500,  but  makes  no 
provision  against  increasing  the  number  of  rep 
resentatives  where  the  number  of  inhabitants 
equal  1,500.  The  effect,  therefore,  may  be,  to 
increase  the  number  of  members  in  the  House  of 
Representatives,  in  a  few  years,  to  an  inconve 
niently  great  extent.  I  hope  the  subject  will  not 
be  postponed ;  and,  if  it  is  not,  I  have  an  amend 
ment  which  I  am  sure  will  be  in  order,  and 
which  will  obviate  the  difficulty. 

Mr.  SCHOULER,  of  Boston.  Will  the  gen 
tleman  allow  me  to  ask  him  a  question  ?  Within 
the  last  twenty  years  the  town  of  Lowell  has 
been  set  off  from  the  town  of  Chelmsford  ;  now 
I  want  to  ask  him  which  is  entitled  to  be  repre 
sented,  Chelmsford  or  Lowell  ?  Of  course  Low 
ell  will  be  represented,  and  yet  Chelmsford  will 
be  left  with  only  population  sufficient  to  entitle 
her  to  one  representative,  or  a  half  of  one.  Now, 
I  do  not  think  it  is  justice  to  the  old  town,  to 
deprive  her  of  her  representative  by  cutting  out  a 
new  one  within  her  limits. 

The  same  is  true  with  regard  to  Lawrence.  I 
want  to  know  if  there  is  to  be  no  representative 
in  the  town  from  which  Lawrence  was  taken,  for 
all  time  to  come  ?  I  want  to  know,  when  we 
come  to  have  the  new  town  or  city  of  Holyoke, 
if  the  town  from  which  it  is  taken  is  to  be  de 
prived  of  its  representation  ? 

Mr.  HALLETT.  The  gentleman  asks  the 
question,  suppose  Lowell,  with  a  population  of 
10,000,  is  taken  from  Chelmsford,  leaving  Chelms 
ford  with  a  population  of  only  1,000,  whether 
we  are  to  deprive  Chelmsford  of  her  representa 
tive  ?  Certainly  not.  I  would  give  Chelmsford 
with  its  1,000  population,  a  representative ;  but  I 
would  provide  that  the  whole  population  of 
11,000,  which  was  originally  within  the  limits  of 
one  town,  should  be  entitled  to  no  greater  number 


246 


NEW   TOWNS. 


[63d  day. 


Thursday,; 


UPTON  —  SARGENT. 


[July  21st. 


of  representatives  when  in  two  separate  towns, 
than  it  was  when  in  one  and  the  same  town. 
That  is  my  proposition.  The  object  is  to  give 
a  reasonable  limit  to  the  increase  of  new  towns, 
so  as  to  prevent  their  being  divided  for  the  pur 
pose  of  giving  additional  representatives.  If  the 
legislature  go  on  incorporating  new  towns,  at  the 
rate  it  has  done,  for  the  last  five  or  six  years,  and 
representatives  are  given  to  each  of  these  new 
towns,  you  will  soon  have  a  House  so  large  that 
you  will  be  compelled  to  abandon  town  represent 
ation  entirely,  and  adopt  a  district  system.  I 
hope  this  subject  will  not  be  postponed,  but  that 
we  shall  adopt  some  amendment  to  remedy  the 
difficulty,  and  then  incorporate  the  resolve  into 
the  Constitution. 

Mr.  UPTON,  of  Boston.  I  hope  the  motion, 
indefinitely  to  postpone,  will  not  prevail.  I 
think  an  amendment  may  be  framed  which  will 
be  in  order,  and  which  will  have  the  effect  of 
remedying  the  evil.  It  is  a  subject  of  consid 
erable  importance,  and  one  which  I  hope  we 
shall  make  provision  for.  By  the  provisions  you 
have  adopted,  you  apportion  your  representa 
tives  under  the  census  of  1850,  and  that  appor 
tionment  holds  until  a  new  census  is  taken. 
Now,  the  question  before  the  Convention,  as  I 
understand  it,  is  this  :  Do  you  mean  to  have 
this  matter  open,  so  that  towns  can  be  divided 
and  entitled  to  an  increased  number  of  repre 
sentatives  without  increasing  their  population? 
I  say  you  ought  not  thus  to  have  it,  and  I 
hope  you  will  not.  I  agree  substantially,  with 
the  position  taken  by  the  gentleman  for  Wilbra- 
ham,  (Mr.  Hallett).  I  had  drawn  up  an  amend 
ment,  which  I  think  will  meet  the  case,  and 
which,  at  a  proper  time,  I  propose  to  offer.  It  is 
the  following  : — 

That  the  Constitution  be  so  amended,  that 
hereafter  no  town  shall  be  incorporated  by  which 
the  representation  on  the  present,  or  any  future 
basis,  shall  be  increased  in  consequence  of  the 
division  of  any  of  the  existing  towns. 

That  is  the  principle  which  I  wish  to  adopt.  I 
hold  that  to  be  a  sound  principle,  and  a  principle 
which  gentlemen  from  the  rural  towns  in  this 
Commonwealth  ought  to  follow. 

Mr.  SARGENT,  of  Cambridge.  I  think,  Mr. 
President,  that  the  debates  which  we  have  had 
upon  this  question,  furnish  a  most  beautiful 
commentary  upon  the  system  of  representation 
we  have  adopted.  The  injustice  and  inequalities 
of  that  system,  seem  to  haunt  the  minds  of  gen 
tlemen  at  every  step  they  take. 

The  gentleman  for  Wilbrahara,  (Mr.  Hallett,) 
fears  that  in  consequence  of  the  incorporation  of 
new  towns,  the  House  will  become  so  large  as  to 


render  the  system  obnoxious,  and  in  a  few  years 
to  overthrow  it.  To  obviate  this  difficulty,  he 
proposes  to  ingraft  into  the  Constitution  a  provis 
ion,  that  the  number  of  representatives  shall 
not  be  increased  by  incorporating  new  towns. 
Well,  Sir,  let  us  look  at  it  for  a  moment,  and  see 
how  it  will  stand,  if  we  adopt  the  amendment 
which  he  proposes.  We  have  provided  first,  that 
every  town  in  the  Commonwealth  now  incorpo 
rated  having  1,000  inhabitants,  shall  be  entitled  to 
one  representative.  We  have  provided  farther, 
that  no  town  shall  be  hereafter  incorporated,  with 
the  right  of  annual  representation,  containing  a 
population  of  less  than  1,500  inhabitants.  That 
is,  if  they  have  1,500  inhabitants,  they  shall  have 
an  annual  representative.  Well,  Sir,  you  make 
the  census  of  1850,  your  basis  to  start  with.  But, 
when  you  come  to  1860,  what  are  you  to  do  ? 
You  take  your  towns,  whether  they  already  are 
incorporated,  or  whether  they  shall  be  incorporated 
between  now  and  1860,  and  apportion  their  rep 
resentatives  according  to  the  plan  you  have  already 
adopted.  Well,  Sir,  there  is  no  difficulty  in  this  ; 
it  is  all  very  plain  and  easily  understood.  But, 
Sir,  what  does  the  the  gentleman  for  Wilbraham, 
(Mr.  Hallett,)  propose  to  do  ?  Here  is  your  plan 
which  you  have  already  adopted,  providing  that 
at  every  decennial  period  you  shall  so  apportion 
your  representatives  that  each  town  now  incor 
porated  having  1,000  inhabitants  shall  have  one 
representative  annually,  and  that  each  town  here 
after  incorporated  having  not  less  than  1,500  in 
habitants,  shall  have  an  annual  representative 
also  ;  and  yet,  with  these  provisions  standing  in 
your  Constitution,  the  gentleman  for  Wilbraham 
proposes  to  adopt  another  proposition  directly  in 
conflict  with  this,  providing  that  the  number  of 
representatives  shall  not  be  increased  by  the  in 
corporation  of  new  towns.  Now,  Sir,  let  us  look 
at  the  practical  result  of  this  system  thus  com 
plicated.  Suppose  you  have  a  town  with  2,600 
inhabitants,  which  should  be  so  divided,  that  the 
original  town  shall  contain  1,050  inhabitants, 
and  the  new  town  1,550.  When  the  next  decen 
nial  period  arrives,  how  are  you  to  apportion 
your  representatives.  You  have  one  constitutional 
provision,  which  declares,  that  each  of  these  towns 
are  entitled  to  an  annual  representative  ;  and  yet 
you  will  have  another  provision  declaring  that 
those  two  towns  shall  have  but  one  between 
them. 

Now,  Sir,  which  of  these  two  provisions 
shall  rule,  and  how  shall  that  question  be  decided  ? 
This  is  the  position  in  which  we  shall  be  placed 
if  we  adopt  the  amendment  proposed  by  the  gen 
tleman  for  Wilbraham,  (Mr.  Hallett).  And,  Sir, 
this  shows  the  difficulty  into  which  we  are  led, 


63d  day.] 


HARVARD   COLLEGE,   &c. 


247 


Thursday,] 


ELY  —  HALLETT  —  WILSON  —  BOUTWELL. 


[July  21st. 


step  by  step,  when  we  attempt  to  remedy  one 
evil,  or  one  wrong  principle  by  establishing 
another  wrong  principle.  Sir,  I  think  we  had 
better  pause,  an^.  not  plunge  ourselves  into  greater 
difficulties  by  attempting  to  convert  two  wrongs 
into  one  right.  Sir,  every  step  we  take  in  that 
direction  plunges  us  into  greater  difficulties.  I 
hope,  therefore,  that  the  subject  will  be  indefi 
nitely  postponed. 

Mr.  ELY,  of  Westfield.  I  move  the  previous 
question. 

Mr.  HALLETT.  If  the  gentleman  will  allow 
me  to  make  just  a  single  explanation  in  reply  to 
the  gentleman  from  Cambridge,  (Mr.  Sargent,) 
I  will  then  renew  his  motion. 

Mr.  ELY.  With  that  understanding,  I  will 
withdraw  the  motion. 

Mr.  HALLETT.  The  gentleman  from  Cam 
bridge,  goes  on  as  if  each  town  had  an  absolute 
right  of  division  with  the  privilege  of  representa 
tion,  without  reference  to  any  other  power. 
Now,  Sir,  this  matter  must  all  go  before  the  leg 
islature.  If  a  town  with  2,000  inhabitants,  asks 
to  be  divided,  and  the  legislature  make  the  divi 
sion,  they  will  make  it  with  certain  restrictions 
which  shall  guard  the  right  of  representation. 
The  legislature  will  take  care  of  that ;  and,  after 
all,  there  will  be  no  very  great  difficulties  to  en 
counter.  All  they  have  to  do  is,  that  when  a  new 
town  is  to  be  incorporated  under  these  circum 
stances,  to  provide,  as  a  condition  upon  which  it 
shall  be  incorporated,  that  the  representation  of 
the  two  towns  shall  not  be  increased  thereby.  It 
seems  to  me  very  necessary,  that  we  should  make 
some  provision  to  prevent  multiplying  the  repre 
sentatives  of  these  small  towns,  if  we  mean  to 
stand  by  the  basis  which  we  have  adopted.  I 
hope,  therefore,  that  the  resolve  will  be  properly 
amended,  and  then  passed.  I  now  renew  the  mo 
tion  for  the  previous  question. 

The  previous  question  was  seconded,  and  the 
main  question  ordered. 

Mr.  HOOPER,  of  Fall  River.  I  desire  to 
inquire  if  the  main  question  is  not  upon  the 
motion  indefinitely  to  postpone  ? 

The  PRESIDENT.  The  previous  question 
cuts  off  the  motion  to  postpone ;  and  the  question, 
therefore,  now  is,  upon  ordering  the  resolve  to  a 
second  reading. 

The  question  was  taken,  and  the  Convention 
refused  to  order  the  resolve  to  a  second  reading. 

Harvard  College. 

The  next  business  in  the  Orders  of  the  Day 
was  the  consideration  of  the  resolves  upon  the 
subject  of  Harvard  College,  the  question  being 
upon  its  final  passage. 


Mr.  KNOWLTON  moved  that  the  subject  be 
passed  over  in  the  Orders  of  the  Day. 

The  motion  was  not  agreed  to. 

The  resolve  was  then  read  by  the  Secretary. 

On  motion  of  Mr.  BOUTWELL,  for  Berlin, 
the  yeas  and  nays  were  ordered  upon  its  final 


Mr.  WILSON,  of  Natick.  Mr.  President: 
Having,  for  some  years,  taken  a  deep  interest  in 
the  discussions  growing  out  of  the  questions  that 
have  arisen  concerning  Harvard  University ; 
having  introduced,  early  in  the  session  of  the 
Convention,  a  proposition  to  authorize  the  legis 
lature,  in  joint  ballot,  to  choose  the  corporators  of 
the  University  for  the  term  of  seven  years,  I 
had  intended  to  address  the  Convention  at  some 
length  upon  the  resolution  now  pending.  I  have 
prepared,  with  considerable  care  and  labor,  an 
argument  to  sustain  the  position  that  the  college 
was  founded  by  the  Commonwealth,  and  that  the 
Commonwealth  has  the  right  to  change  the  mode 
of  choosing  the  board  of  corporators,  and  that 
the  interest  of  the  university  would  be  promoted 
by  so  doing.  I  hold  in  my  hand  more  than  fifty 
closely  written  pages  of  quotations  from  the 
records  of  the  State,  from  the  best  authorities  I 
could  find,  to  show  the  connection  of  the  State 
with  the  college,  and  the  powers  exercised  over 
its  government,  through  a  long  series  of  years. 

Sir,  had  this  resolution  come  up  for  considera 
tion  earlier  in  this  session,  I  should  have  claimed 
the  indulgence  and  attention  of  the  Convention 
upon  this  great  question — a  question  upon  which 
the  people  of  this  Commonwealth  take  the  deep 
est  interest.  But  at  this  time,  when  we  are 
pressed  for  time ;  when  we  have  limited  each 
speaker  to  half  an  hour ;  when  all  of  us  are 
exhausted  and  weary,  I  shall  forego  what  I  had 
intended  to  say  upon  the  merits  of  the  pend 
ing  resolution.  The  chairman  of  the  Committee, 
(Mr.  Knowlton,)  in  his  very  able  speech,  has 
placed  the  question  upon  the  basis  on  which  we 
are  content  to  rest  it. 

I  desire,  Sir,  to  say  a  few  words  in  reply  to  the 
remarks  made  the  other  day  by  the  member  from 
Danvers  (Mr.  Braman).  I  regret  that  he  is  not 
now  in  his  seat.  I  have  not  a  word  to  say 
in  reply  to  the  personal  allusion  made  by  the 
member  from  Danvers.  I  fully  concur  in  the 
remark  made  by  Governor  Leonard,  one  of  the 
foremost  statesmen  of  the  republic,  on  the  floor 
of  the  American  Senate,  that  no  man  was  per 
sonally  of  consequence  enough  to  occupy  the 
time  of  the  body  of  which  he  was  a  member,  one 
minute,  by  explanations  of  a  personal  character. 
But  the  member  from  Danvers  came  to  the  de 
fence  of  Mr.  Francis  Bowen,  who  was  rejected 


248 


HARVARD    COLLEGE. 


[63d   day. 


Thursday,] 


PARKER  —  WILSON  —  LOTHROP. 


[July  21st. 


in  1851,  by  the  board  of  overseers,  of  which 
many  of  us  on  the  floor  of  this  Convention  were 
members.  I  am  ready,  here  or  elsewhere,  at  all 
times  to  defend  that  glorious  act,  which  put  the 
hand  of  condemnation  upon  the  libeller  of  the 
advocates  of  popular  rights  in  the  old  world  and 
in  the  new.  I  am  ready  to  defend  that  act,  wheth 
er  it  be  assailed  by  the  polished  rhethoric  of  the 
gentleman  from  Boston,  (Mr.  Hillard,)  or  the 
coarse  wit  of  the  member  from  Danvers,  (Mr. 
Bramau). 

I  propose,  Sir,  to  prove  the  truth  of  the  dec 
laration  made  the  other  day,  in  reply  to  the  charge 
of  the  gentleman  from  Boston,  (Mr.  Hillard,) 
that  Francis  Bowen  was  rejected,  in  1851,  not 
alone  for  his  sentiments  and  opinions,  but  for 
ignorance  of  the  historical  questions  discussed, 
and  for  misquoting,  misstating,  and  garbling  his 
torical  authorities. 

Mr.  PAKKE11,  of  Cambridge.  I  rise  to  a 
question  of  order.  It  is  the  prevailing  fashion,  I 
believe,  to  make  points  of  order.  The  question 
which  I  wish  to  suggest  is,  whether  it  is  in  order 
for  the  gentleman  from  Xatick  to  try  the  case  of 
the  Professor  of  History  over  again.  That  sub 
ject,  Sir,  was  drawn  into  the  debate  here,  I  mean 
the  subject  of  the  rejection  of  the  Professor  of 
History.  I  believe,  in  the  first  place,  there  were 
some  remarks  made  by  the  gentleman  from  Bos 
ton,  to  which  the  gentleman  from  Natick,  and  the 
gentleman  for  Abington,  made  their  replies  at 
the  time.  I  had  hoped  that  that  subject — a  sub 
ject  foreign  entirely  to  any  business  before  the 
Convention — might,  at  least,  have  been  suffered  to 
rest  there ;  but  the  gentleman  from  Danvers,  some 
days  since,  saw  fit  to  allude  to  the  matter  again, 
and  the  gentleman  from  Natick  replied  to  him 
without  any  objection  being  made.  Having  been 
up  twice  before  the  Convention,  it  seems  to  me 
the  gentleman  who  was  nominated  as  Professor  of 
History  and  rejected,  should  be  allowed  to  sleep 
in  peace,  and  not  have  his  case  farther  discussed 
before  this  Convention.  It  seems  to  me  that  the 
time  of  the  Convention  is  quite  too  precious  to  be 
wasted  in  talcing  up  that  subject  again  for  farther 
discussion.  There  is  no  gentleman  I  would  listen 
to  with  more  pleasure  than  I  would  to  the  gentle 
man  from  Natick.  I  do  not  make  an  objection 
because  he  proposes  to  discuss  the  matter,  but 
because  it  seems  to  me  that  it  is  hardly  just 
towards  the  gentleman  who  has  been  the  subject 
of  so  much  remark,  that  he  should  be  drawn  in 
here  for  the  third  time,  without  his  agency,  and 
without  his  consent. 

The  PRESIDENT.  The  Chair  cannot  under 
take,  at  this  stage  of  the  gentleman's  remarks,  to 
say  that  he  is  out  of  order. 


Mr.  WILSON,  of  Natick.  Mr.  President :  I 
am  quite  sure  it  would  be  in  order  for  me  to  dis 
cuss  the  subject,  in  order  to  show  that  the  Con 
vention  should  adopt  the  resolution  now  pending 
— that  the  action  of  the  corporation  of  the  college 
in  nominating  Francis  Bowen  to  a  Professorship 
after  his  rejection  from  the  Professorship  of  His 
tory,  for  his  opinions,  which  unfitted  him  to  be 
the  teacher  of  American  young  men,  and  for  his 
ignorance,  exhibited  in  the  discussions  of  historical 
questions  ;  demand  that  a  change  should  be 
made  in  the  organization,  of  that  board  of  corpo 
rators — a  change  that  shall  compel  the  corporators 
to  put  that  institution  along  abreast  of  the  spirit 
of  the  age.  The  action  of  the  corporation  of  the 
university  in  sustaining  Francis  Bowen,  is  one  of 
the  strongest  reasons  for  the  action  of  the  Conven 
tion  ;  and  it  is  in  order  to  show  what  that  action 
was,  and  to  explain  and  defend  the  motives  and 
action  of  the  overseers  of  the  institution  in  1851. 

The  PRESIDENT.  The  gentleman  from  Na 
tick  will  proceed. 

Mr.  WILSON.  I  have  no  wish,  Mr.  Presi 
dent,  to  take  up  the  time  of  the  Convention  with 
the  discussion  of  this  subject.  I  will  forego  what 
I  was  prepared  to  say,  and  at  some  future  time  I 
may  publish  so  much  of  it  as  I  deem  necessary  to 
vindicate  the  action  of  the  overseers  of  1851. 

Mr.  LOTHROP,  of  Boston.  I  move  to  strike 
out  the  words  "  hereafter  granted,"  in  the  last 
line  of  the  resolve. 

The  resolve  as  amended,  would  then  read  : — 

Resolved,  That  the  Constitution  ought  to  be 
amended  by  adding  to  chapter  5,  section  1,  the 
following  article,  to  wit : — 

The  legislature  shall  forever  have  full  power 
and  authority,  as  may  be  judged  needful  for  the 
advancement  of  learning,  to  grant  any  farther 
powers  to,  or  alter,  limit,  annul,  or  restrain,  any 
of  the  powers  now  vested  in  the  President  and 
Fellows  of  Harvard  College  :  provided,  the  obli 
gation  of  contracts  shall  not  be  imj  aired ;  and 
shall  have  the  like  power  and  authority  over  all 
corporate  franchises  for  the  purposes  of  education 
in  this  Commonwealth. 

Mr.  LOTHROP.  I  have  no  very  strong  ob 
jection  to  the  resolution  as  it  stands  at  present. 
I  think,  however,  it  will  be  improved  by  the 
amendment  I  have  proposed,  because  that  amend 
ment  would  make  it  more  general  and  compre 
hensive.  When  this  resolution  was  before  us  a 
few  days  ago,  I  proposed  to  amend  by  including 
the  other  colleges  of  the  Commonwealth.  That 
amendment  was  ruled  out  of  order.  It  was  also 
said  by  the  chairman  of  this  Committee,  that  that 
amendment  was  unnecessary,  because  the  lan 
guage  of  this  resolution  was  already  incorporated 
into  the  charters  of  the  other  two  colleges.  That 


63d  day.] 


HARVARD    COLLEGE. 


249 


Thursday,] 


LOTHROP. 


[July  21st. 


may  be,  Sir,  but  we  have  many  other  institutions 
for  educational  purposes  in  this  Commonwealth, 
besides  those  two  colleges.  We  have  a  great 
many  academies,  and  some  of  their  charters  run 
far  back,  some  of  them  dating  even  at  an  earlier 
period  than  the  charters  of  these  colleges.  Several 
of  these  academies,  also,  have  now  a  considerable 
amount  of  funds  at  their  disposal.  Others  of 
them,  as  has  been  the  case  with  that  at  Groton, 
for  instance,  may  have  their  funds  greatly  increased 
hereafter  by  rich  merchants,  who  were  once 
pupils  of  these  academies,  and  natives  of  the  towns 
where  they  are  located.  They  may  become  very 
important  and  influential  institutions  of  learning, 
hold  a  large  amount  of  funds,  and  still  keeping 
their  charters  as  academies,  may  become  as  worthy 
of  the  care  and  oversight  of  the  Commonwealth, 
and  may  demand  that  care  and  oversight  as  much 
as  Harvard  University  or  any  of  the  colleges  of 
the  State  ;  and  unless  gentlemen  can  say  that  the 
provision  contained  in  the  first  part  of  this  reso 
lution  is  expressly  declared  in  the  charters  upon 
academies,  my  amendment  ought  to  prevail.  If  I 
understand  the  distinguished  gentleman  for  Berlin, 
(Mr.  Boutwell,)  this  resolution  simply  declares 
expressly  and  unequivocally  in  its  application  to 
Harvard  College,  a  general  principle  which,  in 
point  of  fact,  is  applicable  to  every  institution 
created  by  the  State ;  and  if  he  deems  it  necessa 
ry  to  make  the  distinct  avowal  of  this  principle  in 
regard  to  Harvard  College,  then  I  think  he  must 
admit  and  maintain — or  if  he  does  not,  I  do  main 
tain — that  it  is  important  that  the  Constitution 
should  not  leave  it  equivocal  or  doubtful,  whether 
this  principle  does  apply  to  these  academies,  or  all 
institutions  of  learning  in  the  Commonwealth. 
The  Constitution  ought  not  to  leave  that  point 
equivocal  or  doubtful.  The  main  reason  given 
by  the  chairman  of  this  Committee,  the  other 
day,  for  the  adoption  of  the  resolution  as  reported, 
was  that  there  might  be  no  doubt  upon  the  sub 
ject.  He  contended  that  the  Constitution  now 
virtually  gives  to  the  legislature  the  power  which 
is  here  given  ;  but  there  might  be  some  doubt 
about  it,  and  in  order  to  remove  that  doubt  and 
make  the  matter  distinct  and  clear,  this  resolution 
was  introduced.  I  say  it  is  equally  desirable  that 
there  should  not  be  any  doubt,  whether  the  legis 
lature  has  like  power  over  all  the  institutions  in 
corporated  in  this  Commonwealth  for  educational 
purposes.  If  you  retain  the  words,  at  the  close  of 
this  resolution,  "  hereafter  granted,"  you  do  leave 
that  matter  doubtful ;  or  rather  you  remove  all 
doubt,  and  virtually  say,  that  all  other  institu 
tions  for  educational  purposes,  now  incorporated, 
would  not  come  in  under  the  resolution,  because 
the  phrase,  "hereafter  granted,"  implies  that 

17 3 


those  already  granted,  are  not  included.  The 
principal  reason  which  makes  it  necessary  to  pass 
the  first  part  of  the  resolution,  in  relation  to  Har 
vard  College,  makes  it  equally  necessary,  and 
equally  important,  that  you  pass  the  same  re 
solution  in  regard  to  all  institutions  incorpo 
rated  for  educational  purposes  in  the  Common 
wealth.  It  is  desirable  that  the  academies  of 
the  Commonwealth,  some  of  which  may  become 
very  important  institutions  hereafter,  hold  a  large 
amount  of  funds  and  exercise  a  wide  influence, 
should  be  included  under  the  same  general  rule, 
which  is  here  expressly  applied  to  Harvard  Col 
lege,  which  by  their  charters  is  applied  to  the 
other  colleges,  and  which  by  the  terms  of  the 
resolution  is  to  be  henceforth  applied  to  all "  corpo 
rate  franchises  henceforth  granted  "  for  educational 
purposes.  Unless  there  is  in  the  resolution  some 
thing  specific  and  peculiar  aimed  exclusively  at 
Harvard  College,  there  can  be  no  objection  to  my 
amendment,  and  every  reason  that  can  be  given 
for  the  adoption  of  the  resolution  at  all,  applies 
with  equal  force  to  the  adoption  of  the  amend 
ment. 

I  have  said  that  I  had  no  very  strong  objec 
tion  to  the  resolution  reported  by  the  Committee. 
I  should  have  been  glad  if  the  Committee  had 
reported  something  a  little  more  distinct,  definite, 
and  full,  in  relation  to  this  subject.  There  were 
various  orders  submitted  to  that  Committee  for 
their  consideration,  emanating  from  opposite 
sources,  and  opposite  in  their  character.  I  was  in 
hopes  that  the  Committee  would,  in  their  Report, 
refer  to  those  orders,  and  that  they  would  indi 
cate  pretty  distinctly  what  they  thought  were,  or 
ought  to  be,  the  relations  subsisting  between  the 
Commonwealth  and  the  university  at  Cambridge,, 
and  what  line  of  policy  it  would  be  wise  to  pur 
sue  in  relation  to  the  college.  I  do  not  know 
whether  the  Committee  intend  to  report  farther 
in  relation  to  these  orders,  or  not.  As  this  reso 
lution  has  been  explained  by  the  gentlemen,  I 
have  no  particular  objection  to  it.  If  it  is  intended, 
as  they  say  it  is,  simply  to  give  the  State  of  Mas 
sachusetts  all  the  right,  power,  and  control  over 
the  college  which  it  can  have,  except  the  power  to 
violate  its  own  faith,  break  and  invalidate  its  own 
contracts,  and  if  that  is  all  which  the  resolution 
is  intended  to  convey,  of  course  there  can  be  no 
objection  to  it.  No  one  will  deny  that  the  State 
has,  and  ought  to  have,  that  power.  But,  if  it  is- 
intended  to  convey  anything  more;  if  there  is 
anything  concealed ;  if  the  provision  alluded  to,. 
"  provided  the  obligation  of  contracts  shall  not  be 
impaired,"  does  not  cover  the  charter  of  the  col 
lege,  if  it  is  intended  that  the  legislature  shall 
have  power  to  take  possession  of  this  whole  in- 


250 


HARVARD    COLLEGE. 


[63d   day. 


Thursday,] 


LOTHROP. 


[July  21st. 


stitution  and  all  its  funds,  and  bring  it  into  the 
arena  of  politics  and  State  legislation  every  year, 
then  1  object  to  the  resolution  as  wrong  in  itself, 
extremely  inexpedient  and  impolitic  ;  prejudicial 
in  every  point  of  view  to  the  interests  of  the  col 
lege,  and  to  that  great  object,  the  advancement  of 
learning  and  education,  which  the  college  is  in 
stituted  to  promote.  After  the  debate  upon  this 
subject  the  other  day — if  I  may  be  permitted  to  al 
lude  to  something  which  was  said  out  of  debate — 
my  distinguished  friend  representing  Berlin  (Mr. 
Boutwell)  said  to  me  that  I  was  afraid  some  harm 
would  be  done  the  college,  that  I  was  afraid  to 
trust  it  with  the  State,  &c.  Sir,  in  one  sense,  I 
am  not  afraid  of  anything  in  this  world.  I  be 
lieve  in  God,  in  his  overruling  providence,  and  I 
believe  that  progress  is  the  law  of  that  providence. 
But  I  do  not  believe  that  government  has  much 
to  do  with  human  progress,  and  I  do  not  believe 
in  the  power  of  government  to  do  mxich  good 
in  the  world.  I  think  that  every  gentleman 
must  be  satisfied,  from  the  discussiona  which  we 
have  had  here  this  very  day,  from  the  discussion 
of  the  last  three  months  in  this  hall,  that  govern 
ment  is  nothing  but  a  necessary  evil,  a  nuisance 
that  cannot  be  abated  from  civil  society.  It  has 
never  done  much,  and  cannot  do  much,  to  carry 
the  world  forward.  It  is  the  ship,  the  mariner's 
compass,  the  cotton-gin,  the  spinning-jenny,  the 
printing-press,  the  steam-engine,  the  railroad,  the 
telegraph,  and  all  the  other  discoveries  and  in 
ventions  that  result  from  human  thought,  and 
give  impulse  to  individual  action,  which  have 
carried  the  world  forward.  Government  has  never 
done  much  positive  good  for  the  world.  It  can 
only  prevent  some  evils,  and  that  is  the  best  you 
can  say  of  it.  The  very  discussion  we  have  had 
here  this  morning,  helps  to  confirm  what  all 
human  history  teaches,  that  in  regard  to  govern 
ment  there  is  a  continual  struggle  of  conflicting 
opinions  going  on.  Nothing  is  settled  or  deter 
mined  ;  all  legislation  is,  to  this  hour,  an  experi 
ment  ;  and  taking  this  assembly  as  a  type,  I  may 
say  that  even  in  this  country,  at  this  moment,  not 
a  single  important  principle  entering  into  the  or 
ganization  and  structure  of  civil  government 
can  be  considered  as  fixed  and  established  by  the 
consenting  wisdom  of  the  people,  not  one  that 
men  are  not  discussing,  and  attempting,  in 
j(ome  way,  to  change,  modify,  or  overturn  and 
destroy ;  and  I  have  not  much  respect,  there 
fore,  for  government.  I  am  very  glad  that 
with  us  it  is  so  good  as  it  is ;  and  I  submit 
to  it  and  honor  it  for  what  it  is  worth ;  but  I 
do  not  attach  much  importance  to  it  as  an  instru 
ment  of  social  progress.  I  think  the  great  reason 
•why  we  have  made  so  much  progress  in  this 


country,  is  not  because  of  any  direct  and  positive 
power  of  the  government,  but  because  of  the 
extent  to  which  our  government  lets  the  people  _ 
alone,  and  leaves  institutions  alone  to  individual 
energy,  enterprise,  thought,  and  action.  Has  the 
government  of  Massachusetts  raised  up  Harvard 
College  to  be  the  noble  institution  it  is  ?  By  no 
means.  The  government  permitted  it  to  exist, 
and  individual  benefactions,  individual  enter 
prise,  effort,  and  wisdom,  have  made  it  what  it 
is.  Taking  into  consideration  the  little  gov 
ernment  has  done  for  this  institution  during  the 
more  than  two  hundred  years  which  have  elapsed 
since  its  foundation,  and  remembering  that  of 
that  little,  by  far  the  greater  part  were  appropria 
tions  to  meet  its  annual  expenses,  so  that  the 
State,  and  the  living  generations  of  youth  edu 
cated  at  the  college,  had  then  the  benefit,  and  the 
whole  benefit  of  these  appropriations ;  and  re 
membering,  also,  that  this  was  done  long  years 
ago,  at  a  time  when  nineteen-twentieths  of  the 
people  of  the  Commonwealth  were  of  the  same 
religious  denomination  ;  remembering  these  things 
— which  cannot  be  denied — I  say,  that  if  this 
resolution  is  intended  to  give  the  legislature 
power  henceforth,  to  take  that  institution  under 
its  entire  and  absolute  control,  and  bring  the  elec 
tion  of  its  president  and  fellows,  and  the  direct 
management  of  its  affairs  into  the  arena  of  poli 
tics  and  legislation  ;  and,  to  do  this  now,  at  a 
time  when  the  State  is  divided  into  all  manner  of 
religious  denominations,  each  of  which,  if  you 
make  it  a  State  institution,  may  claim  a  right  to 
be  represented  on  its  boards  of  government,  and 
to  have  its  opinions  consulted  in  the  course  of 
studies  and  text-books  appointed  ;  and  to  do  this 
now,  when  the  institution  itself  has  grown,  from 
a  small  academy,  to  be  the  noblest  seminary  of 
learning  on  this  Western  Hemisphere,  with  large  ""* 
means  and  instrumentalities  of  education,  nearly 
the  whole  of  which  must  be  acknowledged  to 
come,  not  from  State  endowments,  but  from  the 
donations  and  bequests  of  private  individuals  ;  if 
the  resolution  contemplates  giving  the  legislature 
power,  and  an  invitation  to  do  this,  then  I  say 
that  I  am  opposed  to  it,  both  as  a  matter  of  right 
and  of  expediency.  I  do  not  believe  it  would  be 
just  for  the  State  to  do  this.  I  am  sure  it  would 
be  most  injurious  to  the  interests  of  the  college, 
and  to  the  great  good  the  college  can  do  the  State 
and  the  country.  A  State  cannot  manage  a 
higher  seminary  of  learning,  and  make  it  useful 
and  progressive,  so  easily  or  so  well  as  a  corpo 
ration  of  private  individuals  ;  and,  admitting  that 
the  corporation  of  Harvard  College  have  not 
been  perfectly  wise,  free  from  all  the  errors  inci 
dent  to  humanity,  I  yet  maintain  that  neither  the 


63d  day.] 


HARVARD    COLLEGE. 


251 


Thursday,; 


LOTHROP. 


[July  21st. 


State  nor  any  political  or  religious  party  in  the 
State,  could  have  managed  the  college  more  suc 
cessfully,  or  conducted  it  upon  broader,  more 
generous,  catholic  principles.  In  this  respect  it 
may  challenge  comparison  with  any  other  col 
lege  in  the  land.  Gentlemen  say  they  desire  to 
make  the  institution  more  popular,  to  infuse  a 
more  popular  spirit  into  it,  and  bring  it  more 
into  sympathy  with  the  people.  Sir,  in  this  de 
sire,  I  go  with  gentlemen  with  my  whole  heart, 
so  far  as  it  can  be  done  by  any  wise  and  legiti 
mate  means.  I  do  not  concur  with  gentlemen  in 
the  alleged  necessity  of  any  extraordinary  efforts 
in  this  direction.  If  you  look  at  the  history  of 
the  college,  its  present  condition  and  its  continu 
ally  increasing  adaptation  to  the  growing  intellec 
tual  wants  of  the  age,  I  do  not  see  how  gentle 
men  can  stand  up  here  and  say  that  it  is  not  in 
.  harmony  with  the  people ;  that  is,  with  their 
interests  and  wants,  in  regard  to  education.  If  a 
tree  is  known  by  its  fruits,  then  I  maintain  that 
Harvard  College  has  always  been  in  sympathy 
with  the  people,  and  that,  at  all  periods  of  her 
history,  the  leading  popular  men  of  the  day  have 
come  forth  from  that  college.  This  fact  will  be 
apparent  to  all  who  look  over  the  catalogue  of 
the  names  of  the  graduates  of  that  institution, 
from  the  earliest  period  down  through  the  days 
of  the  Revolution,  to  our  own  times.  This  fact 
is  especially  seen,  by  looking  around  upon  our 
own  community  in  Massachusetts.  I  maintain 
-that  many  of  the  leaders  in  every  popular  move 
ment,  made  among  us  at  the  present  day,  are  sons 
of  Harvard.  Phillips,  Quincy,  Rantoul,  Dana, 
Sumner,  Adams,  Gushing,  Bancroft — are  not 
these  the  names  of  men  prominent  in  matters  of 
moral,  social,  or  democratic  reform  ?  are  they  not 
sons  of  Harvard  ?  They  were  educated  at  that 
institution  ;  their  characters  were  there  subjected 
to  many  forming  influences,  and  whatever  their 
present  power — intellectual  and  moral — they  owe 
as  much,  if  not  more  of  it,  to  Harvard  College, 
than  to  anything  else.  Take  the  whole  history 
of  that  institution,  from  its  origin  down  to  the 
^present  day.  I  believe  it  will  be  found,  that  the 
most  leading  and  popular  men  of  Massachusetts ; 
those,  in  every  generation,  who  have  been  the 
most  earnest  advocates  of  reform  and  progress, 
have* been  sons  of  Harvard  College.  I  maintain, 
and  the  position  is  amply  sustained  by  the  facts 
of  the  case,  that  the  influence  always  exerted 
upon  the  minds  of  young  men  at  that  institution, 
has  been  a  good  influence,  an  influence  favorable 
to  social  progress.  It  has  not  been  a  narrow 
ing,  bigoted,  sectarian  spirit  which  has  prevailed 
there,  but  a  large,  generous  and  progressive  spirit ; 
and  we  have  a  right  to  maintain,  that  that  col- 


I  lege  has,  in  an  eminent  degree,  contributed  to 
the  spirit  of  popular  progress.  Upon  the  prin 
ciple  that  a  tree  is  to  be  judged  by  its  fruit,  and 
looking  at  the  character  of  those  whom  Harvard 
College  has  sent  out  into  the  world,  I  maintain 
that  the  college  has  never  been  behind  the  age,  or 
wanting  in  sympathy  towards  the  best  interests 
of  the  people.  The  same  position  is  true,  if  we 
look  at  the  college  itself,  and  the  provision  made 
to  meet  the  educational  wants  of  the  people.  I 
ask  if  there  is  any  kind  of  learning,  education, 
or  preparation  for  life,  which 'the  people  of  this 
country  desire  for  their  children,  that  is  not  pro 
vided  for  them  at  that  institution  ?  Has  not  that 
college  continually  made  progress  in  all  direc 
tions,  through  the  efforts  of  its  friends,  and  the 
enterprise  of  those  who  have  had  charge  of  it  ? 
Look  at  its  academical  department  now,  and  see 
what  progress  has  been  made  there,  in  enlarging 
and  perfecting  its  cour.se  of  study.  Look  at  its 
law  school,  with  the  best  law  library  to  be  found 
upon  this  continent,  if,  indeed,  there  is  a  better 
in  any  place  in  the  world.  Look  at  its  medical 
department,  and  its  scientific  school,  founded  by 
a  munificent  donation  of  $50,000,  from  a  distin 
guished  merchant  of  this  city,  one  of  those  rich 
men,  of  whom,  as  the  gentleman  said,  we  might 
kindly  lay  a  thousand  of  them  under  the  sods  of 
Mount  Auburn  and  not  miss  them.  Look  at  the 
arrangements  of  that  scientific  school,  and  the 
facilities  which  it  alfords  for  thoroughly  educating 
men  for  all  the  practical  purposes  of  life.  Look 
at  its  divinity  school,  and  the  principle  upon 
which  that  school  is  founded;  and  I  ask  if  it 
would  be  possible  for  the  State  to  take  control  of 
it,  and  make  a  broader,  better,  more  catholic  and 
Christian  foundation  than  the  one  upon  which 
that  school  now  rests  ?  No  man  going  there  to 
acquire  theological  education,  is  called  upon  to 
subscribe  to  any  articles  of  faith,  or  the  doctrines 
of  any  particular  denomination ;  nor  is  such  sub 
scription  required  of  any  professor ;  but  every  one 
connected  with  that  school  is  at  liberty  to  study 
the  Divine  Oracles,  and  interpret  them  according 
to  the  dictates  of  his  own  conscience,  and  gather 
from  them  what  he  deems  to  be  their  true  mean 
ing,  and  go  forth  into  the  world  to  connect  him 
self  with  whatever  religious  denomination  he 
chooses. 

I  say,  look  at  the  college  in  all  these  depart 
ments,  and  see  if  it  has  not  constantly  endeavored 
to  come  up  to  the  wants  of  the  people  of  this 
Commonwealth  by  presenting  the  means  and  op 
portunities  for  the  best  education  that  could  be 
procured  in  the  country.  Has  there  ever  been, 
on  the  part  of  those  who  have  had  charge  of  this 
institution,  any  action,  which,  fairly  construed, 


252 


HARVARD   COLLEGE. 


[63d  day. 


Thursday,] 


LOTH  no  P. 


[July   21st. 


could  be  regarded  as  an  expression,  or  evidence,  of 
their  want  of  sympathy  with  the  people  ?  or  has 
there  ever  been,  as  regards  education,  any  want 
expressed,  or  manifested,  by  the  people,  which 
they  have  not  endeavored  to  meet  ?  I  do  not  think, 
therefore,  that  we  have  a  right  to  say  that  the  col 
lege  has  no  sympathy  with  the  people,  or  with 
popular  wants  and  interests,  merely  because  the 
corporation  of  the  college  is  a  close  corporation, 
as  it  is  termed,  and  its  members,  in  filling  vacan 
cies,  have  chosen  men  with  wlio.se  characters  and 
principles  they  were  well  acquainted,  and  who, 
they  believed,  would  sympathize  and  unite  with 
them  in  administering  the  college  upon  broad, 
catholic,  unsectarian  principles.  The  college  was 
not  established  that  the  offices  in  its  corporation 
might  be  for  the  benefit  of  those  who  hold  them, 
— a  benefit  in  which  the  whole  community  might 
have  a  right  and  claim  to  share.  The  offices  in 
its  corporation  exist,  that  the  college  may  be  -\vell 
administered ;  that  it  may  be  carried  forward,  as 
a  seminary  of  education,  in  all  the  great  depart 
ments  of  learning.  And  the  only  question  of 
any  practical  importance,  is  not,  whether  this  or 
that  man,  of  this  or  that  political  or  religious  par 
ty,  has  been  chosen  a  member  of  the  corporation, 
but,  has  the  college  been  well  administered ;  has 
it  grown  in  means  and  instrumentalities  of  edu 
cation,  and  in  adaptation  to  the  wants  and  pro 
gress  of  the  age?  And  this  question,  I  maintain, 
must  be  answered  in  the  affimative.  No  other 
institution  of  learning  in  the  country  has  made 
greater,  if  any  have  made  as  great,  progress  during 
the  last  half  century,  as  Harvard  College.  The 
offices  in  its  corporation  are  offices  of  labor  and 
responsibility,  and  they  have  been  well  filled, 
hitherto,  throughout  the  whole  history  of  the 
college,  by  men  who  had  no  object  but  to  pro 
mote  the  best  interest  of  this  community  by  pro 
moting  the  advancement  of  that  institution.  If 
we  review  the  history  of  the  college,  therefore,  if 
we  review  the  catalogue  of  its  graduates,  and  con 
sider  the  present  condition  of  the  college,  and  all 
its  instrumentalities  for  the  promotion  of  learning, 
we  shall  find  that  all  who  have  had  the  control  of 
it  have  endeavored,  according  to  their  best  judg 
ment  and  ability,  to  bring  it  into  sympathy  with 
the  wants  and  interests  of  the  people,  and  make 
it  promote  their  welfare  and  interest  by  the  ad 
vancement  and  diffusion  of  sound  learning. 

As  this  question  about  the  organization  of  the 
college  is  one  of  some  interest,  I  may  be  per 
mitted  to  say,  that  if  I  was  supreme  in  this  mat 
ter,  and  could  take  the  colleges  of  the  Common 
wealth,  and  organize  them  according  to  my  own 
judgment,  I  would  adopt  a  plan  which  I  propose 
to  state,  and  I  was  in  hopes  that  the  various 


orders  submitted  to  the  Committee,  would  induce 
them  to  take  the  matter  into  consideration,  and, 
perhaps,  present  something  of  the  same  sort.  I 
would  have  a  board  of  trustees  for  each  of  the  other 
colleges,  precisely  similar  to  the  corporation  of 
Harvard  College,  perhaps  a  little  larger,  but  still 
small ;  and  a  self- renewing  board,  which  should 
originate  all  measures,  have  all  the  responsi 
bility,  and  the  controlling  power  over  the  institu 
tion.  I  believe  that  in  all  matters  a  small  body 
acts  better  than  a  large  one,  and  that  a  small  body, 
having  charge  of  a  college,  will  be  more  faithful 
in  carrying  forward  measures  for  the  benefit  of 
the  college  and  increasing  its  value  to  the  people 
of  the  State,  than  a  large  body,  where  the  respon 
sibility  is  greatly  divided,  consequently  diminished. 
I  would  have  such  a  board  for  each  of  these  col 
leges,  and  then  I  would  have  a  large  board  of 
overseers,  like  the  overseers  of  Harvard  College, 
consisting  of  fifty  for  each  college  ;  and  these  over 
seers  should  be  chosen  by  the  alumni  of  each  col 
lege,  in  convention  assembled,  holding  office  for  a 
limited  term,  or  as  long  as  they  chose  to  serve,  and 
I  would  include  in  the  alumni  all  who  had  re 
ceived  honorary  degrees  in  the  college. 

This  siiggests  to  me  another  point  to  which  I 
intended  to  refer,  while  speaking  of  the  sympathy 
of  the  college  with  the  people.  If  you  will  look 
throxigh  the  list  of  the  honorary  degrees  it  has 
conferred,  you  will  find  that  whenever  there  has 
been  a  man  who  has  distinguished  himself  in  any 
department,  but  who  had  not  the  advantages  of  a 
collegiate  education,  was  not  a  son  of  Harvard  or 
any  other  college,  the  college  at  Cambridge  has 
been  among  the  first  to  recognize  the  merits  of 
such  a  self-made  man,  and  give  him  an  honorary 
degree ;  showing,  thereby,  that  the  persons  who 
had  charge  of  the  college  felt  some  sympathy 
for  the  people,  and  with  every  manifestation  of 
excellence,  superiority,  and  progress,  among 
them. 

I  would  organize  these  institutions  in  the  way 
I  have  suggested,  because  nothing  is  so  impor 
tant  for  any  of  these  colleges,  as  to  increase  alike 
the  interest  and  influence  of  the  alumni  of  each 
college,  in  its  prosperity  and  welfare.  A  board  of 
overseers  for  each  college,  chosen  by  the  graduates, 
from  their  own  number,  of  that  college  in  con 
vention  assembled,  would  effectually  produce  this 
increased  interest  and  influence.  I  regret  that  no 
distinct  plan,  no  outlines  of  policy,  nothing  indi 
cating  the  precise  relations  of  the  college  to  the 
State  has  been  reported  by  the  Committee ;  nothing 
but  a  single  resolution,  which  decides  nothing,  and 
leaves  it  doubtful  what  those  who  like  to  speak 
of  the  college  as  a  State  institution,  a  government 
institution,  propose  to  do. 


63d    day.] 


HARVARD   COLLEGE. 


253 


Thursday,] 


LOTHROP  —  HALLETT. 


[July  21st. 


There  are  one  or  two  positions,  which  I  -wish, 
before  I  sit  down,  to  state ;  propositions  which 
gentlemen  acquainted  with  the  history  of  the 
college,  will  acknowledge,  and  which,  fairly 
stated  and  considered,  ought  to  influence  the  fu 
ture  action  of  the  State,  in  relation  to  the  college. 
The  distinguished  gentleman  for  Berlin,  (Mr. 
Boutwell,)  has  several  times  spoken  of  this  as  a 
State  institution.  I  believe  that  in  the  debate 
the  other  day,  on  a  resolution  which  came  from 
the  Committee  on  Education — I  was  not  present 
at  that  time,  but  I  see  him  reported  as  using  the 
words  "  government  institution."  If  it  is  in 
tended  by  this  resolution,  or  if  it  is  intended  by 
that  gentleman  in  his  remarks,  to  claim  that 
there  is  a  special  relation  between  Harvard  Col 
lege  and  the  State,  which  authorizes  such  expres 
sions,  I  should  take  issue  with  him  on  that  point. 
The  military  academy,  at  West  Point,  is  a  gov 
ernment  institution  ;  the  reform  school,  at  West- 
borough,  is  a  government  institution  ;  the  State's 
prison  is  a  government  institution,  a  State  insti 
tution.  In  regard  to  the  reform  school  at  West- 
borough,  the  State  appoints  all  the  officers,  owns 
all  the  property,  controls  and  manages  the  whole 
thing,  in  any  way,  at  any  point.  It  is,  therefore, 
a  State  institution.  But,  a  college,  a  bank,  a 
railroad,  though  the  State  may  give  funds  to  it, 
though  the  State  may  be  interested  in  it,  though 
the  State  may  have  created  it  by  a  charter,  it  is 
still  not  a  State  institution,  but  an  institution  of 
the  State,  and  is  within  the  control  and  manage 
ment  of  its  properly  constituted  authorities. 
Now,  my  first  proposition  in  regard  to  Harvard 
College,  is  this  :  If  we  go  back  to  the  early  his 
tory  of  this  college,  during  the  time  of  the  colo 
nial  government,  I  think  you  will  find  that  the 
institution  made  very  little  progress  so  long  as 
there  was  constant  interference  on  the  part  of  the 
State,  with  its  affairs  and  interests.  The  college 
never  began  to  grow  and  prosper,  and  take  steps 
towards  the  great  institution  that  it  now  is,  so 
long  as  the  colonial  government  was  constantly 
interfering  with  it.  It  was  only  after  it  had 
worked  itself  free,  to  stand  on  its  own  founda 
tion,  that  it  began  to  rise  and  flourish.  The  inter 
ference  of  the  State  affected  it  in  various  ways ; 
but  more  particularly,  in  regard  to  the  important 
matter  of  the  presidency  of  the  college.  You 
will  find,  on  looking  at  its  history  and  reading 
the  record  of  the  board  of  overseers,  that  it  was 
almost  impossible  to  get  the  best  men  in  the  State 
to  take  the  office  of  president.  There  were 
innumerable  cases  in  which  gentlemen,  who 
were  consulted  whether  they  would  take  that 
office,  declined,  because  then  the  salary  was  pre 
carious,  dependent  upon  an  appropriation  from 


the  colonial  legislature.  In  other  cases,  gentle 
men  who  were  elected,  and  had  agreed  to  accept 
it,  had  to  decline,  because  the  legislature  would 
make  no  appropriation.  My  second  proposition 
is,  that  all,  or  very  nearly  all,  the  funds  which 
the  college  has  ever  received  from  the  State,  were 
received  as  appropriations  to  meet  contingent  ex 
penses,  to  pay  the  salary  of  the  president  and 
other  officers,  or  defray  the  expenses  of  indigent 
students.  These  appropriations  were  all  expended 
during  the  year  when  they  were  made  ;  and  the 
community,  the  young  men  of  that  time,  the 
generations  growing  up  then,  had  the  return  for 
these  appropriations  to  the  college,  in  the  educa 
tion  which  they  received.  There  is  not  in  a  single 
endowment 

[Here  the  time  allowed  under  the  rule,  expired, 
and  the  hammer  fell.] 

Mr.  HALLETT,  for  Wilbraham.  I  have 
listened  with  a  great  deal  of  interest,  to  the  re 
marks  of  the  gentleman  from  Boston.  He  made 
an  appeal  in  this  wise :  whether  Harvard  College 
had  ever  failed  to  conform  to  the  wishes  of  the 
people  in  its  action.  I  would  not  have  replied  to 
anything  else  which  the  gentleman  said,  but  I  do 
feel  it  to  be  my  bounden  duty  to  mention  one 
single  act  in  the  history  of  Harvard  College,  with 
which  I  was  personally  connected,  relating  to  her 
respect  for  the  laws  of  this  Commonwealth.  In 
1828  an  act  was  passed  by  the  legislature  of 
Massachusetts,  requiring  that  Harvard  College, 
thereafter,  in  the  filling  up  of  the  clerical  portion 
of  the  board  of  overseers,  should  have  no  respect 
to  denominations.  That  order  or  resolve  was 
passed  by  the  legislature  of  Massachusetts,  re 
quiring  the  concurrence  of  the  board  of  fellows 
of  the  college — five  gentlemen — before  it  could 
become  a  by-law  of  the  college.  It  slept  on  the 
statute  book  from  1828  to  1843  ;  and  during  the 
whole  of  that  period,  no  person  was  elected  to 
the  clerical  board  of  the  college,  that  was  not  of 
one  particular  denomination. 

In  1843  a  political  change  took  place  in  the 
administration  of  the  government  of  the  Com 
monwealth  of  Massachusetts,  for  the  first  time 
since  1824.  Although  there  was  a  majority  of 
the  Senate  one  way,  yet  with  the  minority  and 
the  Council,  there  was  a  majority  of  the  board 
of  Harvard  College,  of  different  political  sen 
timents  from  those  who  had  remained  there  since 
1824. 

A  MEMBER.     Of  different  religion  ? 

Mr.  HALLETT.  No,  Sir,  there  was  no  re 
ligion  about  it ;  it  was  all  politics.  It  was  then 
proposed  in  the  board  of  overseers,  that  the  fel 
lows  should  adopt  a  rule,  which  we  reCnacted, 
that  the  vacancies,  which  then  amounted  to  four, 


254 


HARVARD    COLLEGE. 


[63d  day. 


Thursday/ 


HALLETT  —  WILSON. 


[July  21st. 


in  the  board,  should  be  filled  without  regard  to 
denomination.  That  order  passed  the  board,  and 
was  sent  down  to  the  fellows  for  their  concur 
rence,  and  it  remained  there  one  fortnight.  The 
majority  of  the  board  took  the  determination — 
and  I  know  very  well  they  would  have  adhered 
to  it  as  long  as  they  had  any  vitality,  officially — 
that  no  nomination  coming  from  Harvard  College 
should  be  confirmed  until  the  board  of  fellows 
did  adopt  that  order.  For  one  meeting,  it  passed 
over ;  but  when  the  fellows  found  there  was  a 
determined  resolution  to  carry  out  the  will  of  the 
board  of  overseers,  they  accepted  the  order,  and 
they  went  on  and  did  the  wonderful  thing  of 
electing  four  clerical  gentlemen,  taking  one  from 
the  Orthodox  church,  one  from  the  Baptist,  one 
from  the  Universalist,  even,  and  one  from  the 
Episcopalian.  Those  were  the  four  denomina 
tions.  It  was  then  most  alarming  and  terrifying 
to  a  very  reverend  gentleman  of  the  liberal  order 
of  Christians,  and  he  expressed  himself  with  a 
great  feeling  of  awe  and  indignation  towards 
some  of  us,  that  we  were  most  irreverently  lay 
ing  our  hands  on  Harvard  College,  to  destroy  the 
intention  of  the  original  founders  of  that  institu 
tion.  And  thereupon,  being  brought  up  as  I 
was,  an  old-fashioned  Baptist — I  regret  to  say 
that  I  have  not  honored  the  profession  as  I  ought 
to  have  done — I  said  to  that  gentleman,  "Who 
has  perverted  the  original  foundation  of  Harvard 
College,  if  that  be  the  question  ?  What  would 
Harvard,  and  Ellis,  and  the  rest  of  them  say,  to 
hear  the  doctrines  preached  which  you  preach  in 
your  pulpits?"  Those  doctrines  were  denounced 
by  the  early  founders  of  the  college  as  litt'e  better 
than  heresy.  We  restore  to  the  college,  at  least, 
religious  liberty,  whatever  else  may  be  its  fate. 
That  was  the  first  time  when  Harvard  College 
was  opened  to  religious  freedom ;  for  she  had 
been  excluded  from  religious  freedom  in  the 
hands  of  the  liberal  Christians !  Sir,  I  am  no 
bigot,  on  any  point ;  I  am  as  universal  a  man,  as 
regards  religious  profession,  as  can  be  found  any 
where.  But  that  showed  to  me,  what  all  history 
shows,  that  you  cannot  trust  anything  connected 
with  religious  freedom,  in  the  hands  of  one  de 
nomination.  I  would  not  have  trusted  the  Or 
thodox,  any  more  than  the  liberal  Christians. 
For  I  remember — and  this  is  an  illustration  of 
that  idea — that  there  was  one  Orthodox  clergy 
man  in  that  board.  How  he  got  there,  I  do  not 
know  ;  but  he  happened  to  be  there,  in  solitary 
grandeur,  and  when  we  proposed  to  him  that  we 
were  going  to  open  Harvard  College  to  all  denom 
inations  of  Christians,  he  was  most  delighted,  and 
clapped  his  hands  with  joy,  and  said,  "I  go  with 
you."  But  when  we  went  farther,  and  proposed 


to  introduce  the  Rev.  Mr.  Ballou,  a  TJniversalist 
clergyman,  this  reverend  gentleman  was  horrified 
at  the  idea  of  opening  it  to  every-body,  and  pro 
tested  against  it. 

The  conclusion  of  the  whole  matter  is — and  I 
appeal  to  the  liberality  of  the  last  gentleman  who 
spoke,  and  a  more  liberal  and  enlightened  gentle 
man  I  do  not  know,  and  there  is  none  for  whom 
I  entertain  a  higher  respect,  for  I  would  trust 
him  sooner  than  any  denomination,  or  his  own 
denomination — whether  the  supervision  of  the 
legislature  has  not  had  a  pure,  wholesome,  bene 
ficial  influence,  over  this  institution,  in  which  we 
all  take  pride.  That  is  just  what  you  want,  and 
nothing  more :  and  whenever  the  influence  of 
sects  come  in  to  disturb,  your  legislature  here, 
and  your  people  behind  them,  are  the  best  pos 
sible  source  to  go  to,  to  correct  these  evils.  I 
think,  therefore,  this  resolve  should  pass,  pre 
cisely  as  it  is  ;  and  that  it  should  pass  with  the 
most  cordial  understanding  between  us,  and  the 
people  when  they  adopt  it,  and  Harvard  College, 
which  I  trust  we  shall  guard  as  the  apple  of  our 
eye,  and  as  the  fountain  from  Avhence  are  to  flow 
streams  of  purity  and  intelligence,  to  elevate  and 
purify  the  land. 

Mr.  WILSON,  of  Natick.  Mr.  President :  My 
friend  from  Boston,  (Mr.  Lothrop,)  has  opened  a 
subject,  upon  which  I  have  a  few  words  to  say. 
He  has  spoken  with  all  the  ardor  and  generosity 
of  his  nature,  of  the  liberality  of  Harvard  College, 
and  of  the  men  who  direct  and  control  it. 

Mr.  LOTHROP.  If  the  gentleman  will  allow 
me,  I  will  tell  him  what  I  said.  I  referred  to  the 
efforts  of  these  men  to  keep  the  college  along 
with  the  wants  of  the  people. 

Mr.  WILSON.  The  gentleman,  as  he  states, 
spoke  of  the  efforts  of  these  men  to  keep  the  col- , 
lege  along  with  the  wants  of  the  people.  But  he 
held  out  the  idea,  also,  that  in  its  management,  it 
was  guided  by  men  of  liberal  opinions,  who  kept 
it  abreast  of  the  spirit  of  the  age — along  with  the 
sentiments  and  opinions  of  the  people.  Upon  this 
theme,  the  gentleman  descanted  with  all  the  ardor 
of  sincere  conviction.  Now,  Sir,  I  have  a  word 
to  say  upon  this  topic,  thus  introduced  by  my 
friend  from  Boston. 

In  looking  over  the  catalogue  of  Harvard 
College,  I  am  not  able  to  find  a  single  name  of  a 
corporator,  for  more  than  half  a  century,  which 
is  not  associated  with  one  sect  in  religion,  and 
with  one  party  in  politics.  I  may  be  mistaken  ; 
but  out  of  the  last  thirty-three  corporators,  who 
have  been  appointed  during  the  present  century, 
I  do  not  see  a  name  that  is  not  connected  with 
the  Unitarian  sect,  in  religion,  and  the  Federal 
and  Whig  parties,  in  politics.  I  must  say,  Sir, 


63d  day.] 


HARVARD  COLLEGE. 


255 


Thursday,] 


WILSON. 


[July  21st 


that  it  seems  to  me  exceedingly  strange,  that 
the  corporators  of  that  institution — an  institution 
founded  by  the  Commonwealth — incorporated 
into  the  Constitution  with  the  injunction  that 
the  government  should  foster  and  cherish  it — 
should  so  manage  it,  that  one  religous  sect,  and 
one  political  organization,  should  alone  be  repre 
sented  in  that  corporation.  The  corporators 
have  the  control  of  the  university— they  fill  all 
vacancies  in  their  number,  that  happen  by  death 
or  otherwise.  For  fifty  years,  in  spite  of  the  re 
monstrances  of  all  other  religious  sects,  and  of  all 
other  political  organizations,  they  have  continued 
to  fill  up  the  board  of  corporators  with  men  of 
their  own  creed  and  political  faith.  I  put  it  to 
the  gentleman  from  Boston — I  put  it  to  the  mem 
bers  of  the  Convention  to  say,  if  this  is  an  evidence 
of  liberality — an  evidence  of  keeping  along  with 
the  sentiments,  and  opinions  of  the  people  ? 

Farthermore,  during  a  long  series  of  years,  the 
permanent  overseers  of  the  institution  have  near 
ly  all  been  of  one  political  faith,  of  one  religious 
creed.  In  1851,  the  legislature,  under  the  lead 
of  a  distinguished  gentleman,  (General  Gushing,) 
passed  an  act  reorganizing  the  board  of  overseers. 

At  that  time,  there  were  thirty-one  permanent 
overseers,  of  whom,  twenty- seven  were  of  one 
political  party,  and  twenty- five,  of  one  religious 
sect.  By  the  provisions  of  the  act  of  1851,  it 
was  made  the  duty  of  the  legislature,  in  joint  bal 
lot,  to  choose  the  overseers,  and  by  the  legislature 
of  1852,  ten  were  accordingly  chosen.  The  men 
who,  for  years,  had  complained  of  the  exclusive- 
ness  of  the  corporators  and  overseers  of  the  uni 
versity,  having  then  the  power,  determined  to  act 
up  to  their  professions,  and  to  set  an  example, 
which  they  hoped  future  legislatures  would  imi 
tate.  A  meeting  was  called  in  the  Senate- Cham 
ber  of  Whigs,  Democrats,  and  Free  Democrats. 
Over  that  caucus  of  the  members  of  three  parties, 
I  had  the  honor  to  preside ;  and  I  can  bear  witness 
to  the  desire  expressed  on  all  sides,  to  select  men 
of  learning  and  ability,  without  regard  to  parties, 
or  sects.  The  delegate  from  Boston,  (Mr.  Gray,) 
a  devoted  friend  of  the  university,  was  present, 
and  he  can  tell  you,  Sir,  that  the  meeting  was 
unanimous  in  the  sentiment,  that  men  of  learning 
and  talent,  of  all  sects  and  parties,  should  be 
selected.  Ten  gentlemen  were  nominated,  three 
Whigs,  three  Free  Democrats,  and  four  Demo 
crats,  and  the  various  religious  denominations 
were  represented;  the  Unitarians  having  three, 
although  they  had  thirty-one,  out  of  the  existing 
thirty-seven  corporators  and  overseers.  The  two 
branches  of  the  legislature,  went  into  convention, 
and  the  persons  nominated,  were  elected  without 
any  opposition  whatever.  The  men  who  had  for 


years,  justly  complained  of  the  policy  by  which 
nearly  all  the  religious  denominations  were  kept 
out  of  the  corporation  and  board  of  overseers, 
thus  set  to  future  legislatures  a  glorious  example 
of  liberality,  which,  if  followed,  will  cause  all 
parties  and  sects  to  be  represented  in  the  board 
of  overseers,  by  their  most  gifted  and  competent 
men — an  example,  which,  if  imitated  by  future 
legislatures,  and  by  the  corporators,  will  restore 
to  the  university,  the  affectionate  regards  of  the 
whole  people,  lost  to  some  extent,  by  fifty  years 
of  sectarian  and  political  exclusiveness  and  illib- 
erality. 

By  the  provisions  of  the  act  of  1851,  it  became 
the  duty  of  the  legislature  of  1853,  to  elect  ten 
overseers.  Day  after  day,  no  action  was  taken 
towards  the  performance  of  this  duty.  Efforts 
were  made  by  gentlemen,  who  were  anxious  to 
follow  the  example  of  the  legislature  of  1852,  and 
select  persons  of  all  sects  and  parties,  to  induce 
the  leading  members  of  the  majority  to  hold  a 
caucus  with  the  minority,  for  the  nomination  of 
candidates.  Mr.  President :  I  know  that  these 
efforts  were  made — but  they  were  made  in  vain. 
Under  the  pressing  influences  of  men  outside  of 
the  legislature, — men  who  claim  to  be  the  exclu 
sive  friends  of  the  university, — the  political  ma 
jority  of  the  legislature  of  1853,  went  into  a  party 
caucus,  and  nominated  ten  candidates,  eight  of 
whom  were  of  their  own  political  faith.  One 
political  party,  that  gave  more  than  a  fourth  of 
the  votes  of  the  State,  at  the  last  election,  was 
entirely  excluded  from  the  list  of  candidates. 
This  is  the  way  the  political  majority  of  the  leg 
islature  of  1853,  responded  to  the  example  of 
liberality,  set  by  the  legislature  of  1852.  Sir,  I 
assert  what  I  know  to  be  true,  that  this  act  of 
partisan  exclusiveness,  was  performed  under  the 
influences  of  the  men,  in,  and  out  of  the  legisla 
ture,  who  for  years,  have  justified  the  exclusive- 
ness  and  illiberality  which  have  prevailed  in  the 
corporation  and  board  of  overseers. 

Mr.  HUNTINGTON,  of  Northampton,  (inter 
rupting).  I  wish  to  inquire  of  the  gentleman 
from  Natick,  whether  he  intends  to  charge  upon 
Harvard  College,  the  action  of  a  political  party, 
here,  last  winter  ? 

Mr.  WILSON.  I  will  tell  the  gentleman 
from  Northampton  precisely  what  I  mean.  There 
is  a  class  of  men  in,  and  about  the  city  of  Boston, 
who  seem  to  think  that  they  were  born  to  guard, 
guide,  govern,  direct  and  control,  Harvard  Col 
lege.  With  the  cry  of  "  No  party !  No  sect !  " 
upon  their  lips,  they  have  ever  evinced  the  spirit 
of  partisan  and  sectarian  bigotry,  intolerance, 
and  exclusiveness.  These  men  strongly  objected 
to  the  act  of  1851,  but  they  acquiesced  in  it, 


256 


HARVARD    COLLEGE. 


[63d  day. 


Thursday,] 


WILSON. 


[July  21st. 


because  they  could  not  help  themselves.  Last 
winter,  knowing  that  there  were  men  here  whom 
they  could  use,  they  came  here,  and  used  these 
men  to  effect  their  purpose. 

Mr.  HUNTIXGTON.  I  hope  the  gentleman 
from  Natick,  does  not  mean  to  charge  the  acts  of 
that  party,  upon  the  corporators  of  the  college. 

Mr.  HILLARD,  (in  his  seat).  Or  on  the  city 
of  Boston. 

Mr.  WILSON.  I  do  not,  Sir,  mean  to  charge  it 
directly,  or  indirectly*  upon  the  corporators  of 
that  institution,  upon  the  president  of  that  institu 
tion,  or  upon  the  overseers  of  that  institution.  I 
charge  it  upon  a  certain  class  of  individuals,  who 
seem  to  think  that  they  own  the  institution,  pres 
ident,  corporators,  overseers,  and  all — a  class  of 
individuals  who  assume  it  to  be  their  mission  to 
keep  Harvard  College  from  the  influences  of  the 
outside  barbarians.  I  would  not,  if  I  could,  take 
Harvard  College  from  one  sect  of  religionists,  and 
place  it  under  the  control  of  another  sect.  I  would 
not  take  it  from  the  control  of  one  political  party, 
and  place  it  under  the  control  of  another  politi 
cal  party.  I  would  introduce  into  its  govern 
ment  men  of  all  religious  sects  and  of  all  political 
parties,  men  of  genius  and  knowledge;  men 
devoted  to  the  cause  of  sound  learning  and  litera 
ture  ;  men  of  liberal  ideas ;  men  who  would 
bring  that  institution,  founded  by  our  fathers 
in  their  days  of  weakness,  abreast  of  the  pro 
gressive  march  of  the  age,  and  within  the  circle  of 
popular  sympathy. 

Mr.  President :  In  1850,  Francis  Bo  wen,  editor 
of  the  North  American  Review,  was  nominated 
Professor  of  History  by  the  corporators  of  Har 
vard  College.  On  the  6th  day  of  February,  1851, 
his  nomination  came  up  for  confirmation  before 
the  board  of  overseers  in  the  Senate-Chamber. 
A  majority  of  the  board  of  overseers  of  that  year, 
believed  that  he  entertained  sentiments  and  opin 
ions  which  unfitted  him  to  be  a  teacher  of  his 
tory  in  that  university,  or  an v where  else  in 
America,  and  he  was  rejected — ignominiously  re 
jected — rejected  for  sentiments  and  opinions  that 
disqualified  him  to  be  the  teacher  of  American 
youth  ;  and  rejected,  also,  for  the  historical  igno 
rance  he  had  shown,  for  the  perversions,  mis 
quotations,  and  blunders  he  had  made  in  defend 
ing  his  obnoxious  sentiments  and  opinions. 

Sir,  I  ask  the  gentleman  from  Boston,  (Mr. 
Lothrop,)  if  the  nomination  of  Francis  Bo  wen  to 
the  Professorship  of  History,  by  the  corporation 
of  Harvard  College,  in  1850,  was  an  evidence  of 
the  desire  of  the  men  who  control  that  institu 
tion,  to  keep  it  along  with  the  wants  of  the  peo 
ple,  and  the  spirit  of  the  age  ?  Are  such  senti 
ments  and  opinions  as  Bowen  has  expressed 


for  years  through  the  North  American  Revieic, 
such  sentiments  and  opinions  as  fit  him  to  teach 
the  young  men  of  Massachusetts,  and  of  the 
country?  Are  such  historical  mistakes,  blun 
ders,  and  perversions,  as  he  has  exhibited  in  his 
Hungarian  controversy,  evidences  of  the  qualifi 
cations  to  teach  the  young  men  of  Harvard  ?  Is 
such  dishonesty  as  he  has  shown  in  garbling  his 
torical  authorities,  an  evidence  of  fitness  for  the 
chair  of  the  Professorship  of  History  in  the  oldest 
university  of  the  country  ?  Is  such  a  temper  as 
he  has  manifested  in  the  controversies  growing 
out  of  his  historical  discussions,  an  evidence  of  his 
fitness— of  his  impartiality  ?  His  sentiments, 
opinions,  historical  ignorance,  mistakes,  perver 
sions,  blunders,  plagiarisms,  and  garbling  of 
authorities,  were  not  unknown  to  the  corporators 
when  his  name,  in  January,  1851,  was  submitted 
to  the  board  of  overseers.  When,  on  the  6th  of 
February,  his  nomination  came  up  for  confirma 
tion,  they  were  there— not  to  withdraw  the  nomi 
nation,  in  obedience  to  the  almost  united  voice  of 
the  American  press  and  the  American  people,  who 
loathed  and  abhorred  his  sentiments— but  they, 
and  the  peculiar  friends  of  the  college  were  there, 
to  sustain  the  man  whom  the  voice  of  the  people 
had  pronounced  unfit  to  be  the  teacher  of  Ameri 
can  youth.  And,  Sir,  when  the  majority  of  the 
board  of  overseers  had  rejected  their  nomination, 
that  board  of  corporators,  sustained  by  the  self- 
constituted  friends  of  the  college,  seized  the  first 
accidental  opportunity  that  turned  up,  to  place 
that  man  in  the  chair  of  the  Professorship  of 
Moral  Philosophy. 

These  men  knew  Bowen's  sentiments  ;  they 
knew  he  had  been  proved  ignorant  of  the  subjects 
he  professed  to  understand ;  they  knew  he  had 
been  convicted  of  dishonesty  in  garbling,  pervert 
ing,  and  misquoting  historical  authorities ;  they 
knew  that  the  public,  with  a  voice  approaching 
unanimity,  demanded  his  rejection ;  yet  they 
pressed  his  nomination,  and  when  that  nomina 
tion  was  rejected,  they  seized  the  first  opportunity 
to  obtain  a  snap-judgment  for  him,  and  placed 
him  in  a  professor  s  chair.  Does  the  member 
from  Boston,  (Mr.  Lothrop,)  think  this  an  evi 
dence  of  liberality — of  a  desire  to  keep  along  with 
popular  opinion  ? 

Mr.  President :  The  men  who  have  thus,  in 
defiance  of  the  popular  voice,  sustained  Francis 
Bowen,  cannot  plead  ignorance  of  his  sentiments 
and  opinions.  For  several  years  he  has  edited 
the  North  American  Review — a  journal  which 
claims  to  be  the  leading  literary  organ  of  the 
country;  but  which,  in  comparison  with  the 
English  Reviews,  in  ability,  learning,  and  schol 
arship,  is  something  like  a  comparison  between  a 


63d   day.] 


HARVARD    COLLEGE. 


257 


Thursday,] 


WILSON. 


[July  21st. 


Cnpe  Cod  fishing-smack  and  a  line- of- battle  ship. 
Through  the  columns  of  this  journal,  for  years, 
he  has  avowed  sentiments  and  opinions  which 
show  that  whatever  passes  through  his  mind  is 
perverted — that  it  is  impossible  for  him  to  com 
prehend  the  true  relations  of  events,  or  to  give  a 
truthful  and  philosophic  view  of  the  events  of 
history  in  the  old  world  or  in  the  new — of  the 
events  of  the  past,  or  of  the  events  of  the  present 
day.  Narrow,  bigoted,  intolerant,  he  and  the 
class  of  which  he  is  the  head,  have  converted  the 
North  American  Review — once  graced  by  the 
genius  and  learning  of  Edward  Everett,  and  the 
ripe  scholarship  and  comprehensive  views  of 
Alexander  H.  Everett ;  a  journal  once  presided 
over  by  that  liberal  and  true-hearted  scholar, 
John  G.  Palfrey ;  by  Jared  Sparks,  who  has  done 
more  for  American  history  than  any  other  man 
in  the  country ;  and  by  other  eminent  men,  who 
made  the  Review  worthy  of  the  country  and  of  its 
rising  literature — he,  and  the  class  of  which  he  is 
the  head,  have  converted  that  Review  into  a  nar 
row,  intolerant,  bigoted  organ  of  that  conserva 
tism  which  shrinks  from  everything  progressive, 
at  home  or  abroad.  Could  the  spirit  of  William 
Gifford — who  battled  with  such  ferocious  vigor 
and  ability  through  the  London  Quarterly  Review, 
against  the  spirit  of  progress,  against  the  rights 
of  the  many  and  for  the  exclusive  privileges  of  the 
few — come  back  to  earth,  he  would  be  delighted 
with  its  tone  of  fanatical  conservatism,  if  he  did 
not  feel  utter  contempt  for  its  want  of  power, 
vigor,  learning,  and  ability.  Through  the  col 
umns  of  that  journal,  Francis  Boweii  has  poured 
out  his  slanders  and  libels  upon  the  great  leaders 
of  European  Republicanism.  Men  illustrious  for 
genius,  ability,  learning,  eloquence,  and  self-sac 
rificing  patriotism — men  who  have  perilled  all 
for  the  cause  of  republicanism ;  men  who  have 
been  driven  into  exile  for  their  devotion  to  popu 
lar  rights — are  sneered  at,  libelled,  and  slander 
ed,  by  this  Professor  of  History — this  teacher  of 
Moral  Philosophy — through  the  pages  of  his 
journal. 

When  the  reaction  of  1850  overran  Europe — 
when  the  high  hopes  excited  by  the  popular  rev 
olutions  of  1848  were  buried  in  the  graves  and 
dungeons  of  the  martyrs  of  freedom,  quenched  in 
the  blood  of  the  people  ;  when  the  voice  of  free 
dom  was  heard  only  in  the  murmurs  of  the 
down-trodden  masses,  or  in  the  sad  accents  of 
their  exiled  leaders ;  when  Hungary  went  down 
before  the  armed  intervention  of  Russia ;  when 
the  hopes  of  Italy  fell  before  the  soldiers  of  Louis 
Napoleon  ;  when  the  hopes  of  the  friends  of  re 
publicanism  in  France,  Italy,  Germany,  Hun 
gary,  and  on  all  the  continent  had  failed ;  when 


the  prisons  were  crowded  with  patriots ;  when 
banishment  was  the  sad  fate  of  some  of  the  no 
blest  men  of  the  age ;  when  Kossuth  was  lan 
guishing  in  his  Turkish  exile — Francis  Bowen 
placed  the  North  American  Review  on  the  side  of 
the  oppressor,  and  falsified  and  garbled  even  the 
oppressor's  historical  authorities,  in  order  to  blast 
the  names  of  the  champions  of  freedom.  When 
Kossuth  was  in  a  Turkish  prison,  Francis  Bowen 
sneeringly  called  him  "  a  renegade,"  "  a  fanatic 
and  ultraist,"  "  a  demagogue  and  radical  of  the 
lowest  stamp."  Such  were  the  epithets  applied 
to  one  whom  so  many  now  here  have  welcomed 
to  this  Commonwealth,  where  he  won  all  hearts 
by  his  noble  qualities  of  mind  and  character. 
Mazzini,  Garibaldi,  and  the  Italian  patriots,  are 
denounced  as  "conspirators"  and  "brigands." 
And,  Sir,  this  man — this  libeller  of  European 
republicanism — this  narrow,  bigoted  advocate  of 
a  conservatism  that  shrinks  from  all  change,  is 
the  man  selected  by  the  corporators  of  Harvard 
College  to  teach  the  young  men  of  that  University 
history  and  moral  philosophy  ! 

Mr.  President :  while  this  Convention  has  been 
in  session,  another  article  has  appeared  in  that 
Review^  which  has  met  the  sternest  rebuke  of  the 
press  of  the  country.  This  article  is  in  perfect 
consistency  with  its  general  tone  and  character. 
I  hold  this  Professor  of  Moral  Philosophy  per 
sonally  responsible  for  every  line  and  sentence  of 
that  article.  He  is  the  editor  of  the  Revieiv,  the 
articles  in  which  appear  without  the  names  of  the 
writers.  He  is  responsible  to  the  literary  public, 
to  the  country,  and  the  world,  for  its  articles. 
No  matter  who  he  employs,  whose  brains  he 
taxes,  whether  he  gets  some  one  here,  or  whether 
he  purloins  his  articles  from  French  absolutist 
writers  without  giving  any  credit,  he  is  morally 
and  legally  responsible  for  what  appears  in  that 
journal.  The  New  York  Commercial  Advertiser, 
a  journal  of  the  conservative  school,  which  has 
heretofore  sustained  the  North  American  Review, 
condemns  the  article  in  the  most  pointed  manner. 
Says  the  Commercial : — 

"  The  July  number  of  that  periodical  contains 
an  article  entitled  «  France,  England,  and  Ameri 
ca,'  from  which  we  must  strongly  arid  earnestly 
dissent,  as  utterly  unworthy  of  a  writer  living  in  a 
republic,  and  professedly  entertaining  republican 
opinions.  If  the  North  American  Review's  con 
servatism  leads  to  the  conclusions  broached  in  the 
article  under  notice,  we  judge  it  to  be  high  time 
that  its  publication  office  be  removed  from  Boston 
to  Paris,  Vienna,  or  St.  Petersburg. 

"  The  general  principles  laid  down  at  the  com 
mencement  of  the  above  quotation,  the  entire 
tone  of  the  article  in  question,  and  the  offensive 
and  contumelious  epithets  heaped  upon  the  friends 


258 


HARVARD    COLLEGE. 


[63d  day. 


Thursday,] 


WILSON. 


[July  21st. 


of  republicanism  upon  the  continent  of  Europe, 
betray  the  writer's  secret  dislike  of  republican  in 
stitutions,  and  his  heart-felt  admiration  of  abso 
lutism.  Not  the  writer,  however,  but  the  North 
American  Review  is  to  be  held  responsible  for  the 
publication  and  circulation  of  such  sentiments ; 
and  much  as  we  have  hitherto  respected  that 
periodical  for  its  conservative  tone  and  manly  but 
courteous  independence,  we  are  constrained  now 
to  say,  that  if  such  are  hereafter  to  be  its  teach 
ings,  it  will  no  longer  be  a  fit  instructor  for  the 
people  of  the  United  States,  and  ought  to  be  re 
pudiated  by  every  American  citizen." 

The  Boston  Evening  Transcript  quotes  these  re 
marks  with  approbation.  Says  the  Transcript : — 

"  We  notice  with  pleasure  that  a  journal  of  the 
high  character  and  ability  of  the  New  York  Com 
mercial  Advertiser,  administers  a  severe  rebuke  to 
the  editor  of  the  North  American  Review  for  the 
anti-republican  sentiments  expressed  in  the  article 
on  « France,  England,  and  America,'  in  the 
July  number.  We  believe  the  Commercial  Ad 
vertiser  expresses  the  almost  universal  voice  of 
the  public  upon  this  question ;  for,  however  much 
persons  may  differ  upon  affairs  of  domestic  policy 
which  relate  to  the  government,  we  think  that 
few  can  be  found  to  sympathize  with  the  tor (j  ism 
of  the  North  American  JRevic^v." 

The  New  York  Tribune,  whose  sympathies  are 
on  the  side  of  freedom  at  home  and  abroad,  no 
tices  the  Commercial  Advertiser's  rebuke  of  Bo  wen 
in  the  following  language  : — 

"  The  Commercial  Advertiser  is  mildly  shocked 
by  an  article  in  the  last  North  American  Review, 
justifying  the  usurpation  of  Louis  Napoleon, 
effected,  as  it  was,  through  perjury,  treason,  and 
wholesale  murder ;  declaring  him  « the  lawful 
heir  of  an  empire  ;'  denouncing  the  republicans 
of  France  as  an  insignificant  faction  composed  of 
'  a  few  poets  and  theorists,  four  or  five  journalists, 
and  one  or  two  thousand  ruffians  ! '  and  asserting 
that  '  The  coup  d'etat  of  Louis  Napoleon  should 
have  been  a  matter  of  congratulation  to  good  citi 
zens  everywhere,  and  that  '  The  dynasty  of  Na 
poleon,  restored  at  last  to  its  natural  place  in  the 
affections  of  the  French  people,  ought  to  be  cor 
dially  recognized  and  supported  by  the  active 
sympathies  of  the  country.'  " 

"  How  came  the  Commercial  to  have  opened  its 
eyes  so  tardily?  When  that  infamous  Revieiv 
was  industriously  and  unscrupulously  engaged 
in  lying  down  the  patriots  of  Hungary,  and  de 
filing  their  green  graves  with  its  venom,  we  can 
not  remember  that  the  Commercial  devoted  any 
considerable  space  to  an  exposure  and  reprobation 
of  the  palpable  falsehoods  it  profusely  vomited 
through  issue  after  issue.  When  a  Whig  board 
of  overseers,  reversing  the  just  action  of  its  Coa 
lition  predecessor,  rewarded  this  base  successor  of 
Benedict  Arnold  with  the  Professorship  of  Phi 
losophy  in  the  State's  University,  we  heard  no 
whisper  of  remonstrance  from  the  Commercial. 
Then  why  not  let  the  creature  earn  another  in 


stalment  of  despots'  gold,  red  with  the  blood  of 
martyred  republicans,  as  quietly  as  before?" 

I  commend,  Mr.  President,  this  language  of  the 
Tribune  to  the  consideration  of  the  gentleman 
from  Boston,  (Mr.  Hillard,)  who  charged  us  the 
other  day  with  the  crime  of  proscription  for  re 
jecting  his  nomination  for  the  Professorship  of 
History,  "  thereby,"  in  the  words  of  Bowen, 
"  despoiling  him  and  his  family  of  their  daily 
bread."  I  commend  this  language  of  the  Whig 
Transcript,  Commercial  Advertiser,  and  Tribune, 
especially  to  gentlemen  who  last  winter  placed  in 
the  board  of  overseers  persons  willing  to  aid  in 
confirming  the  man  who  had  once  been  justly 
rejected  as  unfit  to  be  the  teacher  of  the  young 
men  of  the  country. 

I  have  said,  Mr.  President,  that  Franc's  Bo  wen, 
in  his  articles  in  the  North  American  Review,  on 
"  The  War  of  Races,"  and  on  the  Hungarian 
question,  had  exhibited  historical  ignorance ;  that 
he  had  misstated,  misquoted,  and  garbled  histor 
ical  authorities.  In  reply  to  the  charge  made 
by  the  gentleman  from  Boston,  (Mr.  Hillard,) 
that  he  had  been  proscribed,  in  1851,  for  his 
opinions,  I  took  occasion  to  say  that  he  was  re 
jected,  not  alone  for  his  opinions,  but  for  the  his 
torical  ignorance  he  had  manifested  in  supporting 
his  opinions.  The  member  from  Danvers  (Mr. 
Braman)  travelled  out  of  his  line  of  argument, 
the  other  day,  to  say  that  this  was  a  bold  declar 
ation  for  me  to  make.  A  bold  declaration  for  me 
to  make  ! 

Sir,  here  and  now  I  repeat  the  declaration. 
Here  and  now — on  the  floor  of  this  Convention, 
which  has  enrolled  in  its  list  of  members  the  gen 
tleman  from  Boston,  (Mr.  Hayward,)  the  gen 
tlemen  from  Roxbury,  (Mr.  Lowell  and  Mr. 
Putnam,)  three  of  the  seven  corporators  of  the 
university,  the  two  learned  and  distinguished  pro 
fessors  of  the  law  school  of  the  university,  (Mr. 
Parker  and  Mr.  Greenleaf,)  and  the  gentlemen 
from  Boston,  (Mr.  Lothrop  and  Mr.  Hillard,) 
members  of  the  board  of  overseers  of  the  uni 
versity — I  renew  and  repeat  the  declaration  that 
Francis  Bowen  was  rejected  in  1851  from  the 
Professorship  of  History  for  his  sentiments  ;  for 
his  historical  ignorance,  and  for  misstating,  mis 
quoting,  and  garbling  historical  authorities. 
Here  and  now  I  proceed  to  establish  the  truth  of 
this  declaration  by  authorities  that  cannot  be 
questioned  here  or  elsewhere. 

In  January,  1850,  Francis  Bowen's  first  article 
011  "  The  War  of  Races  "  appeared  in  the  North 
American  Review ;  in  April,  1850,  his  second  ar 
ticle  was  published.  It  is  said,  Sir,  that  these 
articles  secured  his  appointment  of  Professor  of 
History  by  the  corporators  of  Harvard  University. 


63d  day.] 


HARVARD   COLLEGE. 


259 


Thursday,] 


WILSON. 


[July  21st. 


This  may  or  may  not  be  so.  A  distinguished 
literary  gentleman  of  Cambridge  is  said  to  have 
remarked  that  Mr.  Bowen  fell  into  eight  histori 
cal  blunders  in  his  articles  on  the  Hungarian  ques 
tion,  for  which  he  was  made  Professor  of  History 
— that  in  defending  his  blunders  he  told  eight 
falsehoods,  for  which  he  was  made  Professor  of 
Moral  Philosophy.  [Laughter.]  Of  course,  Sir, 
I  do  not  vouch  for  the  literal  accuracy  of  this 
criticism  of  the  poet  and  scholar  to  whom  I  allude ; 
but,  really,  the  witticism  gives  a  not  very  incor 
rect  idea  of  the  character  of  these  appointments. 

Whatever  may  have  been  the  reasons  of  the 
corporators  for  his  nomination,  the  opinions  which 
unfitted  him  to  be  the  teacher  of  Amercan  youth 
had  been  published  when  it  was  made ;  and  when 
his  name  was  submitted  in  1851  to  the  overseers, 
his  historical  blunders,  mistakes,  misquotations, 
and  plagiarisms,  had  been  exposed.  His  articles 
were  severely  criticized  in  various  quarters — by 
the  presses  of  Boston,  New  York,  and  Washing 
ton — by  journals  of  every  shade  of  political  opin 
ion.  They  were  almost  universally  condemned 
by  the  press  of  the  country,  so  far  as  it  saw  fit  to 
notice  them  at  all.  Conducting  at  the  time  a  pub 
lic  journal  in  this  city,  I  had  an  opportunity  to 
know  something  of  the  opinions  of  the  press  on 
the  subject.  My  friend  from  Concord,  (Mr. 
Hazewell,)  a  gentleman  of  vast  historical  acquire 
ments — a  sort  of  walking  encyclopedia  of  histori 
cal  facts — through  the  columns  of  the  Boston 
Times,  had  exposed  the  ignorance,  perversions, 
and  blunders  of  the  author  of  these  articles.  The 
Evening  Transcript — edited  by  Epes  Sargent,  a 
gentleman  of  literary  reputation — had  severely 
criticized  them  much  to  the  annoyance  of  Mr. 
Bowen  and  his  little  coterie  of  "  mutual  admira 
tion,"  friends.  The  New  York  Evening  Post — 
edited  by  William  C.  Bryant,  one  of  the  first,  if 
not  the  first,  of  living  American  poets,  a  scholar 
and  man  of  genius  who  comprehends  the  spirit  of 
free  institutions — had  also  condemned  the  senti 
ments  and  exposed  the  errors  of  these  articles. 
The  New  York  Tribune — conducted  by  Greeley, 
Dana,  Pvipley,  Taylor,  and  others,  combining  an 
amount  of  talent  and  culture  unsurpassed,  if 
equalled,  in  the  press  of  this  country — had  like 
wise  criticized  and  exposed  Mr.  Bowen's  histori 
cal  blunders,  mistakes,  and  misrepresentations. 
The  Washington  Republic  and  other  leading 
journals,  condemned,  not  only  the  sentiments  and 
opinions  avowed  in  those  North  American  articles, 
but  they  showed  that  the  writer  pretended  to 
knowledge  he  did  not  possess,  and  that  he  did 
not  deal  honestly  by  the  authors  he  pretended  to 
cite. 

But  the  most  thorough  reply  to  Mr.  Bowen  ap 


peared  in  the  Christian  Examiner  of  May  and 
November,  1850,  from  the  pen  of  Mrs.  Mary 
Lowell  Putnam,  of  Roxbury.  Mrs.  Putnam  is  a 
lady  of  distinguished  ability  and  learning,  whose 
rare  knowledge  of  the  languages  and  literature  of 
Eastern  Europe,  gave  her  peculiar  facilities  for 
such  a  controversy.  The  member  from  Roxbury, 
(Mr.  Putnam,)  himself  a  member  of  the  corpora 
tion  of  the  university,  and  the  learned  editor  of 
the  Christian  Examiner,  can  tell  you,  Sir,  that 
Mrs.  Putnam  is  a  lady  of  eminent  learning,  and 
better  fitted  to  treat  the  topics  discussed  by  her 
than  any  other  person  in  the  country.  Mr.  Web 
ster,  at  the  congressional  banquet  to  Kossuth, 
quoted  her  as  the  highest  American  authority  on 
the  history  of  Hungary. 

Well,  Sir,  in  the  Christian  Examiner,  Mrs. 
Putnam  proved,  in  a  manner  entirely  satisfactory 
to  every  one  who  read  her  reply,  that  Bowen's 
articles  were  a  tissue  of  historical  blunders,  of 
perversions,  of  falsifications,  and  of  plagiarisms. 
She  demonstrated  that  he  had  pretended  to 
knowledge  on  the  subject  he  did  not  possess.  She 
demonstrated  that  he  had  deliberately  misquoted 
the  authorities  on  which  he  pretended  to  base  his 
articles,  and  had  perverted  them  by  omissions  to 
such  an  extent,  and  in  such  a  manner,  as  to  make 
them  appear  to  say  just  the  reverse  of  what  they 
really  meant.  She  showed  that  his  first  article 
was  taken  almost  wholly  from  the  Revue  des  Deux 
Mondes,  a  French  magazine,  conducted  by  men 
hostile  to  freedom  and  democratic  institutions — 
whose  statements  and  arguments  he  had  pervert 
ed  in  a  most  outrageous  manner  in  order  to  make 
out  a  case  against  Hungary  and  in  favor  of  Aus 
tria.  He  had  placed  at  the  head  of  his  article  the 
work  of  Degerando,  a  reliable  French  writer  on 
Hungary.  Mrs.  Putnam  showed  that  he  had  not 
used  that  work  at  all  in  the  article,  and  that 
"  there  is  not,"  to  use  her  language,  "  a  statement 
of  fact  or  opinion  in  the  article  which  can  be  at 
tributed  to  Degerando ;  and  that  the  greater  part 
of  it  is  in  direct  contradiction  to  the  statements  of 
that  author."  Mr.  Robert  Carter,  of  Cambridge, 
who  has  published  a  pamphlet  upon  this  contro 
versy,  states  that  of  the  sixty  pages  of  Bowen's 
first  article,  fifty  are  translated,  without  acknowl 
edgment,  from  the  partisan  French  magazine  to 
which  I  have  referred.  Mrs.  Putnam  proves  that 
in  his  zeal  to  vindicate  his  anti-Hungarian  views 
he  went  beyond  the  French  writers  he  plagiarized, 
so  "  that"  to  use  her  own  words,  "  there  is  hardly 
a  sentence  in  which  an  error  is  not  either  ex 
pressed  or  implied." 

One  or  two  instances  of  Bowen's  perversions 
will  be  sufficient  to  show  the  character  of  the 
articles,  which,  it  is  said,  secured  his  nomination 


260 


HARVARD    COLLEGE. 


[63d  day. 


Thursday,] 


WILSON. 


[July  21st. 


to  the  Professorship  of  History.  In  giving  an 
account  of  Kossuth,  he  translates,  in  his  first 
article,  without  acknowledgment,  from  the  French 
magazine,  passing  it  off  as  his  own  until  he  arrives 
at  a  passage  in  which  the  French  writer  says  that 
Kossuth  is  "  a  democrat  of  the  new  revolutionary 
school,  who  will  seek  to  get  rid  of  the  nobility 
when  he  shall  have  got  rid  of  Austria,"  and  that 
he  "has  not  feared  to  overthrow  the  whole 
political  and  social  state  of  his  country,  to  realize 
dreams  of  universal  equality,  more  chimerical  in 
Hungary  than  anywhere  else."  This  passage 
Bo  wen  is  too  dishonest  to  plagiarize.  It  will  not 
answer  his  purpose.  So  he  omits  it  and  inserts  a 
piece  of  his  own  composition,  in  which  Kossuth 
is  accused  of  being  an  aristocrat,  whose  object  was 
to  preserve  the  feudal  privileges  of  the  nobility 
and  to  maintain  the  aristocratic  supremacy  of  the 
Magyar  race  !  Such  is  the  bitter  hostility  of 
Bowen  to  the  Hungarian  cause, — to  Kossuth  and 
his  associates, — that  he  will  not  plagiarize  what 
the  French  writers  have  said  in  favor  of  the  Hun 
garians,  although  he  is  not  ashamed  to  steal  their 
slanders  upon  Hungary  and  its  patriotic  defenders. 
In  another  case,  in  order  to  throw  discredit  upon 
the  government  of  Kossuth,  he  pretends  to  quote 
from  a  German  work  on  the  history  of  Hungary ; 
while  in  reality,  as  Mrs.  Putnam  shows,  the  quo 
tation  is  not  to  be  found  in  the  German  work, 
but  is  a  mere  extract  from  an  anonymous  article 
in  the  London  Athenceum.  And  these  are  not  rare 
instances  at  variance  with  the  general  character  of 
his  articles.  I  might,  if  I  had  time,  quote  several 
instances  to  prove  his  ignorance  of  the  historical 
subjects  discussed  by  him,  and  his  perversions  of 
the  authorities  he  pretends  to  quote.  I  will  read 
what  Mrs.  Putnam  says  in  the  Christian  Exami 
ner,  of  the  first  of  his  articles : — 

"  We  are  reluctantly  compelled  to  affirm  that 
there  is  no  portion  of  the  article  on  the  «  War  of 
Races,'  on  which  the  reader  can  safely  rely.  We 
do  not  exaggerate,  and  we  believe  that  all  those 
persons  who  have  an  acquaintance  with  the  history 
of  Hungary,  and  who  have  read  the  article  in  the 
North  American,  will  sustain  us,  when  we  say 
that  there  is  hardly  a  sentence  in  this  article  in 
which  an  error  is  not  either  expressed  or  implied  ; 
and  in  many  portions  of  it  error  is  so  interwoven 
with  error  that  the  baffled  critic  turns  from  the 
task  of  refutation  as  from  the  entrance  to  an  inex 
tricable  labyrinth.  We  are  disposed  to  believe 
that  the  absence  of  any  formal  and  labored  confu 
tation  of  the  article  on  the  «  War  of  Races ' — to 
which  absence  the  author  appeals  as  a  proof  of  its 
invulnerability — may  be  attributed  to  the  hercu 
lean  labor  which  the  task  of  correcting  all  the 
errors  contained  in  this  historical  essay  seemed  to 
involve,  and  the  great  length  to  which  such  a 
confutation  must  be  extended,  if  the  task  were 
thoroughly  executed.  These  errors  pervade  every 


part  of  the  article,  and  are  almost  as  numerous  in 
that  portion  which  relates  to  those  periods  of 
Hungarian  history  which  are  most  familiar  to  the 
general  reader,  as  in  those  whose  investigation 
requires  a  certain  degree  of  research." 

This  description  is  fully  justified  by  the  errors 
she  exposed  in  her  article  in  the  Examiner. 

Sir,  before  Mrs.  Putnam's  reply  appeared,  a 
reply  to  the  North  American  Review  had  been 
published  in  New  York,  from  the  pen  of  Count 
Gurowski,  a  Polish  nobleman  of  great  learning 
and  ability,  who  is  profoundly  acquainted  with 
the  affairs  of  Eastern  Europe,  on  the  history  of 
which  he  has  published  several  volumes  in 
French  and  German.  Few  men  in  the  new  world 
or  the  old  are  better  read  in  European  affairs. 
You,  Mr.  President,  (Mr.  Sumner,)  can  bear  tes 
timony  to  his  vast  acquirements  and  profound 
knowledge  of  European  history.  He  is  an  impar 
tial  critic,  for  he  is  no  partisan  of  the  Hungarians 
and  no  friend  to  Kossuth.  He  says  of  Bowen's 
first  and  principal  article : — 

"  It  is  a  thick  and  dark  forest  of  errors  in  his 
torical,  or  rather  unhistorical  quotations,  as  well 
as  in  reasoning.  Almost  every  line  requires 
rectification.  Almost  all  motives  assigned  to  the 
actions  of  individuals,  as  well  as  to  the  mass  of 
the  people  in  Vienna,  in  Hungary,  and  in  the 
Sclavonian  countries,  are  put  in  a  false  light,  and 
denote,  by  the  quoted  French  authorities,  perfect 
ignorance  or  perfect  bad  faith.  As  most  of  the 
facts  are  misrepresented,  or  shown  in  the  falsest 
possible  light,  so  almost  all  the  deductions  are  at 
least  erroneous ;  and  it  cannot  be  otherwise,  as  a 
disfigured  fact  very  naturally  produces  the  most 
false  conclusions  ;  and  the  number  of  these  is 
infinite,  so  as  to  render  their  rectification  impos 
sible." 

Such  is  the  opinion  expressed  by  a  critic  friendly 
to  Mr.  Bowen — for  Count  Gurowski,  at  that  time, 
supposed  that  the  Cambridge  professor  was  de 
ceived  and  misled  by  the  French  magazine  writers. 

Smarting  under  Mrs.  Putnam's  exposure  of  his 
gross  ignorance,  falsifications  and  misquotations, 
he  came  out  in  two  rejoinders  in  the  Boston  Daily 
Advertiser.  They  were  scandalously  abusive  of 
Mrs.  Putnam,  accusing  her  of  "  vanity,"  of 
"hardihood  and  recklessness" — of  "profound 
ignorance  of  history  and  every  other  subject — 
except  a  knowledge  of  the  Magyar  language  " — 
and  lastly,  of  having  "  deliberately  forged  histori 
cal  statements  in  order  to  damage  his  reputation 
and  deprive  him  of  office."  His  language  towards 
her  throughout  his  reply  was  unmanly  and  dis 
gracefully  unworthy  of  the  office  which  he  held. 
I  suppose  he  thought  Mrs.  Putnam  had  travelled 
out  of  her  woman's  sphere,  and  that  he  might,  as 
he  did,  sneeringly  question  her  claim  to  the  au- 


63d  day.] 


HARVARD   COLLEGE. 


261 


Thursday,] 


WILSON. 


[July  21st. 


thorship  of  the  article.  He  did  not,  however,  Sir, 
descend  low  enough  to  call  her  Mr.  Putnam.  To 
the  member  from  Danvers,  (Mr.  Braman,)  was 
reserved  the  high  honor  of  originating  that  feeble 
,  sneer  at  a  woman.  It  is  probable  that  the  tone 
and  temper  exhibited  towards  Mrs.  Putnam  by 
Bowen,  in  his  replies,  may  have  won  for  him  the 
admiration  and  support  of  the  member  from  Dan 
vers.  "  A  fellow  feeling  makes  us  wondrous 
kind."  Bowen  will  doubtless  be  highly  gratified 
to  learn  that  there  is  another  man  in  Massachu 
setts—and  he  a  member  of  this  Convention — 
capable  of  offering  an  insult  to  a  woman. 

Bowen,  in  his  reply  to  Mrs.  Putnam,  attempted 
to  defend  himself  by  gross  perversions  and  mis 
quotations  of  her  language,  but  I  have  not  time 
to  quote  these  perversions  and  misquotations. 
There  were  eight  points  in  the  ancient  history  of 
Hungary,  on  which  she  had  exposed  his  igno 
rance,  and  upon  these  he  attempted  a  defence.  I 
hold  in  my  hand  a  review  of  that  defence,  from 
the  pen  of  Mr.  Robert  Carter,  a  gentleman  of 
great  historical  research  and  ability.  These  arti 
cles,  from  the  pen  of  Mr.  Carter,  were  first  pub 
lished  in  the  Boston  Atlas,  the  leading  Whig 
journal  of  Massachusetts  at  that  time,  under  the 
charge  of  my  friend  from  Boston,  (Mr.  Schouler,) 
who,  to  his  honor  be  it  said,  never  allowed  his 
columns  to  be  desecrated  by  defences  of  European 
despotism,  or  libels  upon  European  republicans. 
Mr.  Carter  clearly  demonstrates,  that  in  his  eight 
points,  Mr.  Bowen  was  mistaken,  and  that  in  de 
fending  them,  he  has  been  guilty  of  the  most 
shameful  garbling  of  historical  works,  and  of  al 
most  equally  shameful  ignorance  of  historical 
facts,  with  which,  at  least,  every  Professor  of  his 
tory  in  the  civilized  world  ought  to  be  acquainted. 
I  will  give  but  one  example  of  the  character  of 
this  portion  of  Mr.  Bowen's  reply.  He  had  stat 
ed  in  his  article  that  the  Turks  were  expelled  from 
Hungary  by  John  Sobieski,  King  of  Poland,  in 
1683.  Mrs.  Putnam  pointed  out  that  he  was 
mistaken — that  they  were  expelled  by  Prince 
Eugene,  in  1718,  thirty-five  years  later.  Mr. 
Bowen,  in  reply,  maintained  that  he  was  right, 
and  quoted,  in  proof,  a  sentence  from  the  first 
volume  of  McCulloch's  Universal  Gazetteer,  in 
which  it  is  said,  (speaking  of  the  Hungarian 
nobles,)  "  So  great  was  their  antipathy  to  the 
Austrian  yoke,  that  in  1683  they  rose,  with  Te- 
keli  at  their  head,  and  called  upon  the  Turks  to 
relieve  them  from  servitude.  Austria,  however, 
succeeded  by  the  help  of  John  Sobieski  and  Prince 
Eugene,  in  expelling  the  Turks  from  these  coun 
tries,"  &c.  This  was  as  far  as  Mr.  Bowen  thought 
it  prudent  to  quote.  He  omitted  the  conclusion 
of  the  sentence,  which  reads  thus:  " Austria, 


however,  succeeded  by  the  help  of  John  Sobieski 
and  Prince  Eugene,  in  expelling  the  Turks  from 
these  countries,  and  they  were  finally  secured  to 
it  by  the  treaties  of  Carlowitz  and  Passarowitz, 
in  1718." 

"  The  character  of  this  transaction,"  says  Mr. 
Carter,  "  is  easily  understood.  Mr.  Bowen  has  a 
controversv  with  Mrs.  Putnam  about  the  date  of 
an  important  event  in  history.  He  states  one 
year  as  the  date,  and  she  states  another.  He  finds 
in  McCulloch' s  Universal  Gazetteer,  a  passage  in 
which  both  dates  are  mentioned — the  date  for 
which  Mrs.  Putnam  contends,  being  given  as  that 
of  the  event  in  question,  while  the  other  is  intro 
duced  as  the  date  of  a  totally  different  event.  Mr. 
Bowen  quotes  that  portion  of  the  passage  which 
contains  the  date  for  which  he  was  contending, 
and  stopping  at  a  comma,  suppresses  the  sentence 
which  proves  the  truth  of  Mrs.  Putnam's  posi 
tion  ! " 

Mr.  Bowen  subsequently  copied  his  reply  from 
the  Daily  Advertiser  into  the  North  American  Re 
view  for  January,  1851.  Sometime  in  the  pre 
vious  month,  Mr.  Carter,  in  the  Atlas,  had  pointed 
out  his  garbling  of  McCulloch.  Mr.  Bowen  ac 
cordingly  withdrew  the  quotation,  and  explained 
its  withdrawal,  by  saying  that  it  had  been  acci 
dentally  substituted  by  "  a  mistake  of  his  copyist," 
for  another  passage  from  the  second  volume  of 
McCulloch.  That  is  to  say,  Mr.  Bowen's  aman 
uensis  accidentally  copied  a  passage  from  the  first 
volume  of  McCulloch  instead  of  a  passage  from 
the  second — a  very  likely  mistake,  which,  it 
seems,  Mr.  Bowen  did  not  discover  when  he  read 
the  proof,  nor  until  some  weeks  after,  when  it 
was  pointed  out  by  Mr.  Carter,  in  the  Atlas. 

The  passage  from  the  second  volume,  which 
Mr.  Bowen  says  he  meant  originally  to  quote, 
reads  thus  : — [Speaking  of  Turkey  under  Soly- 
man  the  Magnificent.] 

"  At  this  period,  the  Turkish  empire  was  un 
questionably  the  most  powerful  in  the  world. 
Nor  had  this  mighty  power  even  then  reached  its 
greatest  height.  Solyman  was  succeeded  by  other 
able  princes,  and  the  Ottoman  arms  continued  to 
maintain  their  ascendancy  over  those  of  Christen 
dom,  until,  in  1683,  thefamous  John  Sobieski,  King 
of  Poland,  totally  defeated  the  army  employed  in 
the  siege  of  Vienna.  This  event  marked  the  era 
of  their  decline." 

Now  there  is  here  nothing  whatever  about  Hun 
gary,  and  nothing  that  throws  light  on  the  date 
of  the  expulsion  of  the  Turks  from  that  country. 
It  is  difficult  to  conceive  for  what  purpose  it  was 
quoted,  except  to  fill  an  inconvenient  gap.  Let 
me,  however,  ask  the  attention  of  the  Convention 
to  the  whole  of  the  passage,  as  it  appears  in  Mc 
Culloch,  and  not  as  Mr.  Bowen  has  published  it. 


262 


HARVARD    COLLEGE. 


[63d  day. 


Thursday,] 


WILSON  —  GREENE. 


[July  21st. 


The  point,  it  will  be  recollected,  is,  whether  the 
Turks  were  expelled  from  Hungary  in  1683,  by 
Sobieski,  as  Mr.  Bowen  asserts,  or  in  1718,  by 
Prince  Eugene,  as  Mrs.  Putnam  maintained. 
Here  is  what  McCulloch  says : — 

"  The  Ottoman  arms  continued  to  maintain 
their  ascendancy  over  those  of  Christendom  until, 
in  1683,  the  famous  Sobieski,  king  of  Poland, 
totally  defeated  the  army  employed  in  the  siege  of 
Vienna.  This  event  marked  the  era  of  their  de 
cline."  [Thus  far  Mr.  Bowen  quoted  and  then 
stopped  for  a  very  good  reason.  The  next  sentence 
says  :]  "  For  a  while  they  continued  to  oppose  the 
Austrians  and  Hungarians  with  doubtful  fortune 
and  various  success  ;  but  the  victories  of  Prince 
Eugene  gave  a  decisive  superiority  to  the  Chris 
tians." — Vol.  ii.  p.  977. 

Sir,  these  are  merely  examples  which  I  have 
selected  for  their  brevity  out  of  scores  of  cases. 
There  is  scarcely  a  quotation  in  his  articles  which 
is  not  garbled  so  as  to  pervert  the  sense  of  the 
author.  Mr.  Carter  says,  after  a  thorough  exam 
ination  and  analysis  of  his  articles  :  "  I  do  not  be 
lieve  there  can  be  found  elsewhere  in  the  English 
language  in  the  same  compass,  so  many  blunders, 
so  many  falsehoods,  so  much  literary  dishonesty." 

Mr.  President :  On  the  6th  of  February,  18<51, 
when  the  overseers  of  Harvard  College  assembled 
in  the  Senate- Chamber  to  act  upon  Mr.  Bo  wen's 
nomination  for  Professor  of  History,  the  knowl 
edge  of  these  things,  brought  forward  and  proved 
as  they  were  by  persons  of  eminent  ability  and 
learning,  and  to  that  day — aye,  to  this  day — un 
answered  by  Bowen  or  his  friends,  convinced  a 
majority  of  its  overseers  that  duty  to  the  literary 
character  of  the  country,  to  the  reputation  and 
welfare  of  the  university,  demanded  that  they 
should  vote  against  his  confirmation. 

His  sentiments  and  opinions,  in  the  judgment 
of  a  majority  of  the  board  of  overseers,  unfitted 
him  to  be  the  teacher  of  American  youth.  Those 
sentiments  better  fitted  him  to  be  Professor  of 
History  at  Vienna,  or  St.  Petersburg,  than  at 
Cambridge.  Persons  of  rare  learning  and  un 
questioned  ability,  had  proved  him  to  be  ignorant 
of  the  historical  subjects  he  pretended  to  be  mas 
ter  of,  and  that  he  had  misquoted,  garbled  and 
misstated  the  authorities  upon  which  he  professed 
to  base  his  opinions.  The  member  from  Danvers 
may  question  the  ability  of  the  members  of  the 
majority  of  the  board  of  overseers,  in  1851,  to 
decide  upon  the  fitness  of  Mr.  Bowen,  for  the 
Professorship  of  History.  But  of  the  ability  and 
intelligence  of  the  members  of  that  board,  I  need 
not  here  speak.  Twenty-two  of  them,  I  think, 
are  members  of  this  Convention,  and  when  I  say 
that  the  President  of  this  Convention,  (Mr. 


Banks,}- the  member  for  Berlin,  (Gov.  Bout  well,) 
the  member  from  Bernardston,  (Lieut.  Gov. 
Cushman,)  the  member  for  Erving,  (Mr.  Gris- 
wold,)  the  member  from  Worcester,  (Mr.  Davis,) 
the  member  from  Springfield,  (Mr.  Beach,)  the 
member  for  Abington,  (Mr.  Keyes,)  and  other 
gentlemen  I  cannot  stop  to  designate,  were  mem 
bers  of  that  board  of  overseers,  I  am  sure  no 
one  will  question  their  ability  to  judge  of  the  fit 
ness  of  Francis  Bowen  for  the  Professorship  of 
History.  If  the  member  from  Danvers  were 
present,  I  would  say  to  him,  that  these  gentlemen 
were  quite  as  well  informed,  in  regard  to  Mr. 
Bowen's  qualifications,  at  the  time  of  his  rejec 
tion,  as  were  the  corporators  at  the  time  of  his 
nomination. 

That  act  of  the  majority  of  the  board  of  over 
seers  on  the  6th  of  February,  1851,  received  the 
approving  plaudits  of  the  people  of  Massachu 
setts  ;  and,  indeed,  of  the  whole  country,  without 
distinction  of  sect  or  party,  except  a  little  coterie  of 
"mutual  admiration  "  friends  in  and  about  this 
city,  and  that  small  class  of  conservatives,  whose 
bigoted  and  blind  fanaticism  makes  them  sympa 
thize  with  the  privileged  few  everywhere,  and 
renders  them  the  milignant  enemies  of  liberal 
ideas  and  liberal  men  alike  in  the  Old  World  and 
in  the  New. 

About  the  time  of  Bowen's  rejection,  he  raised  the 
cry  that  "  a  grand  crusade  of  the  Coalized  Demo 
cratic  and  Free  Soil  parties  has  been  invoked,  that 
they  might  obtain  possession  of  the  government  of 
the  State,  for  the  express  purpose  of  depriving  him 
of  an  honorable  appointment,  exclusively  literary 
and  educational  in  its  character,  which  he  held, 
and  thereby  of  despoiling  him  and  his  family  of 
their  daily  bread."  The  Coalition,  I  will  venture 
to  say,  is  ready  to  take  whatever  responsibility 
may  belong  to  the  deed.  And,  if  the  gentleman 
from  Boston,  or  the  member  from  Danvers,  con 
sider  him  a  victim  of  the  Coalition  ;  if  they  wish 
to  take  him  upon  their  shoulders,  or  to  put  him 
on  the  shoulders  of  their  party,  they  are  welcome 
to  the  honor  of  the  burden,  and  still  more  wel 
come  to  its  weight. 

Mr.  GREENE,  of  Brookfield.  I  would  like 
to  say  that  if  we  go  on  with  this  debate,  we  shall 
evidently  occupy  the  whole  day  to-morrow  upon 
it ;  and  as  it  is  desirable  that  we  should  close  the 
session  of  this  Convention  some  time  this  sum 
mer,  I  move  the  previous  question,  and  I  appeal 
to  the  patriotism  of  gentlemen  present  to  sustain  it. 

The  demand  for  the  previous  question  was 
sustained. 

The  question  was  then  taken  on  the  proposition 
to  strike  out  the  words  "  hereafter  granted  "  and 
it  was  rejected. 


63d  day.]                                  HARVARD   COLLEGE.                                              263 

Thursday,]                 LIVERMORE  —  BIRD  —  NAYSON  —  YEAS  —  NAYS  —  ABSENT.                [July  21st. 

The  PRESIDENT.     The  question  now  is  on 

Goulding,  Jason               Phelps,  Charles 

the  final  passage  of  the  resolution. 
Mr.  LIVERMOKE,  of  Cambridge.     I  move  a 
reconsideration  of  the   vote  by  which  the  yeas 

Green,  Jabez                     Phinney,  Silvaiius  B. 
Greene,  William  B.         Pierce,  Henry 
Griswold,  Josiah  W.       Pomroy,  Jeremiah 
Griswold,  Whiting          Rawson,  Silas 

and  nays  were  ordered  on  the  final  passage.     I 

Hallett,  B.  F.                    Rice,  David 

think  there  is  no  necessity  for  the  yeas  and  nays. 

Hapgood,  Seth                  Richards,  Luther 

Mr.  BIRD,  of  Walpole.   I  move  that  the  Con- 

Harmon,  Phineas             Richardson,  Daniel 

ventioii  adjourn. 

Heath,  Ezra  2d,               Richardson,  Samuel  H. 

[Loud  cries  of  "  No  !"  "  No  !"  "  No  !"] 

Hood,  George                   Ring,  Elkanah,  Jr. 
Howland,  Abraham  H.  Rogers,  John 

Mr.   NAYSON.     I  submit  that  the  previous 

Hoyt,  Henry  K.               Ross,  David,  S. 

question  having  been  ordered,  a  motion  to  ad 

KnoAvlton,  J.  S.  C.          Royce,  James  C. 

journ  is  not  in  order. 

Knox,  Albert                    Schouler,  William 

The  PRESIDENT.     The  motion  to  adjourn  is 

Ladd,  Gardner  P.            Simonds,  John  W. 

always  in  order. 
Mr.  NAYSON.     The  uniform  practice,  both 

Langdon,  Wilber  C.        Smith,  Matthew 
Little,  Otis                        Sprague,  Melzar 
Loomis,  E.  Justin             Spooner,  Samuel  W. 

in  this  body  as  in  the  legislature,  has  been,  that 

Marble,  William  P.         Stevens,  Granville 

when  the  main  question  has  been  ordered  to  be 

Merritt,  Simeon                Stiles,  Gideon 

put,  the  motion  to  adjourn  has  been  ruled  out  of 

Monroe,  James  I,.            Suraner,  Charles 

order. 

Morton,  Elbridge  G.        Sumner,  Increase 

Mr.  BIRD.     In  order  to  settle  any  difficulty 

Morton,  William  S.         Tilton,  Horatio  W. 
Nash,  Hiram                     Wallis,  Freeland 

in  that  respect,  I  will   withdraw  the  motion  to 

Nayson,  Jonathan           Walker,  Amasa 

adjourn. 

Newman,  Charles             Ward,  Andrew  H. 

The  question  now  recurred  on  the  motion  to 

Osgood,  Charles               W^arner,  Marshal 

reconsider  the  vote  by  which  the  yeas  and  nays 
were   ordered.      The   motion  to  reconsider  was 

Packer,  E.  Wing              Weston,  Gershom  B. 
Paine,  Benjamin               Wilson,  Henrv 
Parker,  Adolphus  G.      Wood,  Charles  C. 

agreed  to. 

Parsons,  Samuel  C.          Wood,  Otis 

The  question  then  being  on  the  motion  order 

Partridge,  John                Wright,  Ezekiel 

ing  the  yeas  and  nays,  on  a  division,  they  were 

Pemiiman,  John 

ordered—  ayes,  125  ;  nays,  35. 

The  yeas  and  nays  were  then  taken,  and  resulted 
—  yeas,  121  ;  navs,  28—  as  follows  :  — 

NAYS. 

Adams,  Benjamin  P.       Huntington,  Charles  P. 

•7                                         *      * 

Aldrich,  P.  Emory          Kellogg,  Giles  C. 

Allen,  Joel  C.                   Kendall,  Isaac 

YEAS. 

Ball,  George  S.                 Knight,  Hiram 

Allen,  James  B.                Cole,  Sumner 
Allen,  Parsons                  Conkey,  Ithamar 
Allis,  Josiah                      Crittenden,  Simeon 
Andrews,  Robert             Cross,  Joseph  W. 
Austin,  George                 Cummings,  Joseph 
Baker,  Hillel                     Cushman,  Henry  W. 
Bancroft,  Alpheus            Cushman,  Thomas 
Bates,  Moses,  Jr.              Dana,  Richard  IL,  Jr. 
Beach,  Erasmus  D.         Day,  Gilman 
Beal,  John                         Dean,  Silas 

Brinlc)',  Francis               Livermore,  Isaac 
Bullock,  Rufus                 Lothrop,  Samuel  K. 
Bumpus,  Cephas  C.         Parker,  Joel 
Crowell,  Seth                   Parker,  Samuel  D. 
Crowninshield,  F.  B.       Putnam,  George 
Eames,  Philip                   Heed,  Sampson 
Hayward,  George             Stevens,  Charles  G. 
Hopkinson,  Thomas         Tyler,  William 
Houghton,  Samuel          Wetmore,  Thomas 
Hubbard,  William  J.       White,  George 

Bennett,  William,  Jr.      Deming,  Elijah  S. 

ABSENT 

Bliss,  Gad  O.                    Denton,  Augustus 

Boutwell,  Geo.  S.            Duncan,  Samuel 

Abbott,  Alfred  A.           Bates,  Eliakim  A. 

Breed,  Hiram  N.              Dunham,  Bradish 

Abbott,  Josiah  G.            Beebe,  James  M. 

Brown,  Adolphus  F.       Easland,  Peter 

Adams,  Shubael  P.          Bell,  Luther  V. 

Brown,  Hammond           Eaton,  Calvin  D. 

Allen,  Charles                  Bennett,  Zephaniah 

Brown,  Hiram  C.             Edwards,  Elisha 

Alley,  John  B.                 Bigelow,  Edward  B. 

Brownell,  Frederick        Edwards,  Samuel 

Alvord,  D.  W.                 Bigelow,  Jacob 

Brownell,  Joseph             Fisk,  Lyman 

Appleton,  William          Bird,  Francis  W. 

Buck,  Asahel                   Fitch,  Ezekiel  W. 

Aspinwall,  William         Bishop,  Henry  W. 

Carter,  Timothy  W.         Foster,  Aaron 

Atwood,  David  C.           Blagden,  George  W. 

Caruthers,  William         French,  liodney 

Ayres,  Samuel                  Bliss,  Willam  C. 

Case,  Isaac                        French,  Samuel 

Ballard,  Alvah                 Booth,  William  S. 

Chapin,  Chester  W.         Gale,  Luther 

Banks,  Nathaniel?.,  Jr.  Boutwell,  Sewell 

Childs,  Josiah                   Gates,  Elbridge 

Barrows,  Joseph               Bradbury,  Ebenezer 

Churchill,  J.  McKean     Gilbert,  Wanton  C. 

Bartlett,  Russel                 Bradford,  William  J.  A, 

Clark,  Hansom                 Giles,  Charles  G. 

Bartlett,  Sidney                Braman,  Milton  P. 

Cole,  Lansing  J.               Giles,  Joel 

Barrett,  Marcus                Brewster,  Osmyn 

264 

THE    JUDICIARY.                                      [64th  day. 

Friday,] 

ABSENT.                                                            [July  22d. 

Briggs,  George  N. 

Greenleaf,  Simon                  Moore,  James  M.              Stevens,  William 

Bronson,  Asa 

Hartley,  Samuel  P. 

Morey,  George                  Stevenson,  J.  Thomas 

Brown,  Alpheus  R. 
Brown,  Arteraas 

Hale,  Artemas 
Hale,  Nathan 

Morss,  Joseph  B.              Storrow,  Charles  S. 
Morton,  Marcus                Strong,  Alfred  L. 

Bryant,  Patrick 

Hall,  Charles  B. 

Morton,  Marcus,  Jr.         Stutson,  William 

Bullen,  Amos  II. 

Hammond,  A.  B. 

Nichols,  William              Swain,  Alanson 

Burlingamc,  Anson 
Butler,  Benjamin  F. 

Hapgood,  Lyman  W. 
Haskell,  George 

Norton,  Alfred                 Taber,  Isaac  C. 
Noyes,  .Daniel                  Taft,  Arnold 

Cady,  Henry 

Haskins,  William 

Nute,  Andrew  T.             Talbot,  Thomas 

Chandler,  Araariah 

Hathaway,  Elnathan  P. 

Ober,  Joseph  E.               Taylor,  Ralph 

Chap  in,  Daniel  E. 

Hawkes,  Stephen  E. 

Oliver,  Henry  K.             Thayer,  Joseph 

Chapin,  Henry 

Hayden,  Isaac 

Orcutt,  Nathan                 Thayer,  Willard,  2d 

Choate,  Rufus 

Haze  well,  Charles  C. 

Orne,  Benjamin  S.           Thomas,  John  W. 

Clark,  Henry 

Heard,  Charles 

Paige,  James  W.              Thompson,  Charles 

Clark,  Salah 

Henry,  Samuel 

Paine,  Henry                    Tileston,  Edmund  P. 

Clarke,  Alpheus  B. 

Hersey,  Henry 

Park,  John  G.                  Tilton,  Abraham 

Clarke,  Stillman 

Hewes,  James 

Pan-is,  Jonathan              Tower,  Ephraim 

Cleverly,  William 

Hewes,  William  H. 

Parsons,  Thomas  A.        Train,  Charles  R. 

Coggin,  Jacob 

Heywood,  Levi 

Payson,  Thomas  E.          Turner,  David 

Cogswell,  Nathaniel 

Hillard,  George  S. 

Peabody,  George             Turner,  David  P. 

Cook,  Charles  E. 

Hindsdale,  William 

Peabody,  Nathaniel        Tyler,  John  S. 

Cooledge,  Henry  F. 

Hobart,  Aaron 

Pease,  Jeremiah,  Jr.         Underwood,  Orison 

Copeland,  Benjamin  F. 

Hobart,  Henry 

Perkins,  Daniel  A.          Upham,  Charles  W. 

Crane,  George  B. 

Hobbs,  Edwin 

Perkins,  Jesse                   Upton,  George  B. 

Cressv,  Oliver  S. 

Holder,  Nathaniel 

Perkins,  Jonathan  C.       Viles,  Joel 

Crockett,  George  W. 

Hooper,  Foster 

Perkins,  Noah  C.             Vinton,  George  A. 

Crosby,  Leander 

Howard,  Martin 

Plunkett,  William  C.      Walcott,  Samuel  B. 

Curtis,  Wilber 

Hunt,  Charles  E. 

Pool,  James  M.                Wales,  Bradford  L. 

Cutler,  Simeon  N. 

Hunt,  William 

Powers,  Peter                   Wallace,  Frederick  T. 

Davis,  Charles  G. 

Huntington,  Asahel 

Preston,  Jonathan            Walker,  Samuel 

Davis,  Ebenezer 

Huntington,  George  H. 

Prince,  F.  O.                    Warner,  Samuel,  Jr. 

Davis,  Isaac 

Hurlburt,  Samuel  A. 

Putnam,  John  A.             Waters,  Asa  H. 

Davis,  John 
Davis,  Itobert  T. 

Hurlbut,  Moses  C. 
Hyde,  Benjamin  D. 

Rantoul,  Robert               Wreeks,  Cyrus 
Read,  James                      Wheeler,  William  F. 

Davis,  Solomon 

Ide,  Abijah  M.,  Jr. 

Richardson,  Nathan         White,  Benjamin 

Dawes,  Henry  L. 

Jackson,  Samuel 

Rockwell,  Julius              Whitney,  Daniel  S. 

Dehon,  William 

Jacobs,  John 

Rockwood,  Joseph  M.     Whitney,  James  S. 

Denison,  Hiram  S. 

James,  William 

Sampson,  George  R.        Wilbur,  Daniel 

DeWitt,  Alexander 

Jenkins,  John 

Sanderson,  Amasa           Wilbur,  Joseph 

Doane,  James  C. 

Jenks,  Samuel  II. 

Sanderson,  Chester          Wilder,  Joel 

Dorman,  Moses 

Johnson,  John 

Sargent,  John                    Wilkins,  John  H. 

Durgin,  John  M. 

Kellogg,  Martin  R. 

Sheldon,  Luther               Wilkinson,  Ezra 

Earle,  John  M. 

Keyes,  Edward  L. 

Sherman,  Charles             Williams,  Henry 

Easton,  James,  2d 

Kingman,  Joseph 

Sherril,  John                     Williams,  J.  B. 

Eaton,  Lilley 

Kimball,  Joseph 

Sikes,  Chester                   Wilson,  Milo 

Ely,  Homer 

Kinsman,  Henry  W. 

Simmons,  Perez               Wilson,  Willard 

Ely,  Joseph  M. 

Knight,  Jefferson 

Sleeper,  John  S.               Winn,  Jonathan  B. 

Eustis,  William  T. 

Knight,  Joseph 

Souther,  John                   Wrinslow,  Levi  M. 

Farwell,  A.  G. 

Knowlton,  Charles  L. 

Stacy,  Eben  H.                 Wood,  Natnaniel 

Fay,  Sullivan 

Knowlton,  William  H. 

Stetson,  Caleb                   Wood,  William  H. 

Fellows,  James  K. 

Kuhn,  George,  H. 

Stevens,  Joseph  L.,  Jr.    Woods,  Josiah  B. 

Fiske,  Emery 
Foster,  Abram 

Ladd,  John  S. 
Lawrence,  Luther 

Absent  and  not  voting,  270. 

Fowle,  Samuel 

Lawton,  Job  G.,  Jr. 

So  the  resolve  was  passed. 

Fowler,  Samuel  P. 
Freeman,  James  M. 

Leland,  Alden 
Lincoln,  Abishai 

On  motion  by  Mr.  FRENCH,  of  New  Bedford, 

French,  Charles  A. 

Lincoln,  Frederic  W.,  Jr. 

at  a  quarter  before  seven  o'clock, 

French,  Charles  H. 

Littlefield,  Tristram 

The   Convention   adjourned   until   to-morrow 

Frothingham,  Rich'd,  Jr.Lord,  Otis  P. 

morning  at  nine  o'clock. 

Gardner,  Henry  J. 

Loud,  Samuel  P. 

Gardner,  Johnson 

Lowell,  John  A. 



Gilbert,  Washington 

Marcy,  Laban 

Gooch,  Daniel  W. 

Marvin,  Abijah  P. 

FRIDAY,  July  22,  1853. 

Gooding,  Leonard 
Gould,  Robert 

Marvin,  Theophilus  R. 
Mason,  Charles 

The   Convention   assembled  pursuant  to    ad 

Goulding,  Dalton 

Meader,  Reuben 

journment,  and  was  called  to  order  by  the  Presi 

Graves  John  W. 

Miller,  Seth,  Jr. 

dent  pro  tempore,  at  nine  o'clock. 

Gray,  John  C. 

Mixter,  Samuel                           Prayer  by  the  Chaplain. 

64th   day.] 


LIMITATION   OF   DEBATE,    &c. 


265 


Friday,] 


TYLER  —  HALLETT  —  ASPIN WALL  —  KNO  WLTON  —  BUTLER  —  KINSMAN.       [July  2  2d. 


The  journal  of  yesterday's  proceedings  was 
read. 

Order  to  Print. 

The  following  order,  submitted  yesterday  by 
the  gentleman  from  Pawtucket,  (Mr.  Tyler,)  was 
taken  xip  for  consideration  : — 

Ordered,  That  the  Committee  on  Reporting 
and  Printing,  be  instructed  to  append  to  the  pub 
lished  Debates,  Poole's  Statistical  Yiew  of  the 
Members  of  the  Convention. 

To  which  the  following  amendment  had  been 
moved  by  Mr.  Earle,  of  Worcester.  Add  the 
following  words  :  "  with  the  amount  received  by 
each  for  travel  and  attendance." 

Mr.  TYLER  moved  that  the  order  be  referred 
to  the  Committee  on  Reporting  and  Printing  the 
Debates  and  Proceedings  of  the  Convention. 

The  question  on  this  motion  was  put  by  the 
President,  and  declared  to  be  decided  in  the 
affirmative. 

Mr.  GRISWOLD,  for  Erving,  demanded  a 
count. 

Mr.  EAMES,  of  Washington,  said  he  thought 
it  would  be  better  to  adopt  the  amendment,  before 
sending  the  order  to  the  Committee. 

Mr.  HALLETT.  As  one  of  the  Committee, 
to  whom  it  is  proposed  to  refer  this  order,  I  de 
sire  simply  to  make  a  suggestion. 

Mr.  ASPINWALL.  I  rise  to  a  question  of 
order.  I  believe,  Sir,  no  debate  is  permitted. 

Mr.  HALLETT.  The  gentleman  is  somewhat 
premature  with  his  point  of  order.  I  rose  for 
the  purpose  of  moving  that  the  order  be  laid 
upon  the  table.  I  hope  we  shall  have  no  more 
printing,  and  no  more  expense  of  that  sort.  We 
are  already  accumulating  our  expense  for  printing. 
I  move  that  it  be  laid  upon  the  table. 

The  PRESIDENT.  The  question  was  put 
on  the  motion  of  the  gentleman  from  Pawtucket, 
to  refer  the  order  to  the  Committee,  and  the  Chair 
decided  that  motion  carried.  The  gentleman 
for  Erving  has  demanded  a  count. 

Mr.   GRISWOLD.     I  withdraw  the  demand. 

Mr.  KNO  WLTON,  of  Worcester.  I  move  to 
strike  out  the  word  "instructed,"  so  that  it  shall 
be  a  mere  matter  of  inquiry. 

The  PRESIDENT.  The  order  is  merely  in 
the  nature  of  inquiry,  and  is  referred  to  the  Com 
mittee  on  Reporting  and  Printing. 

Limitation  of  Debate. 

Mr.  BUTLER  moved  to  take  up  from  the  table 
the  order  submitted  by  the  gentleman  from  Med- 
way,  (Mr.  Brown,)  in  regard  to  the  limitation  of 
debate. 

The  motion  was  agreed  to. 

18 8 


The  order  was  read  as  follows  r — 

Ordered,  That  hereafter,  no  member,  except 
the  chairmen  of  Committees,  be  allowed  to  speak 
longer  than  fifteen  minutes  on  any  one  subject, 
without  leave  of  the  Convention. 

Mr.  Aspinwall,  of  Brookline,  having  on  a  pre 
vious  day  moved  to  amend,  by  striking  out  the 
words,  "  except  chairmen  of  Committees." 

Mr.  WHITNEY,  of  Boylston.  I  would  ask 
if  the  chairmen  of  the  several  Committees  have 
made  their  final  reports  ? 

Mr.  BUTLER.  If  I  understand  the  motion  of 
the  gentleman  from  Brookline,  it  is  to  except  the 
chairmen  of  Committees. 

The  PRESIDENT.  The  gentleman  from 
Brookline  has  moved  to  strike  out  the  words, 
"  except  chairmen  of  Committees." 

Mr.  BUTLER.  I  can  hardly  agree  to  that 
motion. 

Mr.  KINSMAN,  of  Newburyport.  I  ex 
pressed  my  opinion  the  other  day,  with  reference 
to  the  passage  of  such  an  order  as  this,  both  on 
grounds  of  common  fairness,  and  in  consequence 
of  the  fact  that  some  of  the  most  important  ques 
tions  we  have  to  consider,  are  yet  to  be  considered, 
and  I  will  state  as  an  illustration,  the  mode  in 
which  the  amendments  we  agree  to,  shall  be  sub 
mitted  to  the  people.  There  appears  to  be  a 
difference  of  opinion  on  the  subject,  if  we  can 
trust  the  declarations  of  gentlemen  here,  and 
unquestionably  that  diversity  of  opinion  must 
lead  to  debate ;  it  ought  to  lead  to  debate,  and 
gentlemen  ought  to  have  an  opportunity  to  dis 
cuss  it  freely.  There  are  some  things  so  apparent, 
that  it  is  scarcely  worth  while  to  reason  about 
them;  and  the  injustice  of  limiting  the  minority 
to  fifteen  minutes,  while  the  chairmen  of  Com 
mittees — all  of  whom  are  members  of  the  majority 
of  the  Convention — are  allowed  one  hour,  is  in 
itself  so  clear,  that  it  seems  hardly  worth  while  to 
debate  it.  I  shall  not  debate  it.  I  rose  simply  to 
call  for  the  yeas  and  nays  on  the  adoption  of  the 
order. 

The  call  for  the  yeas  and  nays  was  sustained — 
by  ayes,  38  ;  noes,  159 — one-fifth  of  those  voting- 
being  in  favor  thereof — and  the  yeas  and  nays- 
were  ordered. 

Mr.  ASPINWALL,  of  Brookline.  I  suppose, 
Sir,  after  the  intimation  of  opinion  by  the  gentle 
man  from  Lowell,  without  the  slightest  reason 
given  for  it,  in  order  to  convince  and  thus  influ 
ence  this  Convention,  it  is  altogether  useless  for 
me  to  say  anything  in  favor  of  my  amendment. 
I  suppose  the  gentleman  practices  upon  the  prin 
ciple,  that  a  nod  is  as  good  as  a  wink  to  a  blind 
horse,  and  that  an  intimation  from  him  will  carry 


2G6 


LIMITATION    OF   DEBATE. 


[64th  day. 


Friday,] 


AsrixwALi,  —  BUTLER  —  ELY. 


[July  22d. 


the  Convention  to  his  side.  I  do  not  know  how 
it  may  be  ;  and  whether  true  or  not,  I  shall  say 
what  I  think  ought  to  be  the  action  of  the  Con 
vention  in  regard  to  this  matter.  I  disapprove,  I 
have  always  disapproved,  whether  I  have  been  on 
the  side  of  the  majority  or  the  minority,  of  limit 
ing  debate.  I  have  never,  I  believe,  voted  for 
any  such  proposition  as  is  now  before  the  Con 
vention.  I  have  never  moved  the  previous  ques 
tion.  I  have  never  seen  any  use  in  doing  so.  I 
have  never  seen  any  good  effect  result  from  any 
of  these  measures  for  cutting  off  debate ;  but  I 
know  the  Convention  is  determined  to  do  some- 
thin01  in  that  way ;  they  have  already  enacted  the 
half-hour  rule,  applying  to  all  members  except 
chairmen  of  Committees.  I  regarded  that  as  ex 
ceedingly  unjust.  It  has  already,  as  every-body 
has  perceived,  given  to  the  majority  of  this  body 
the  opportunity  to  have  a  fuller  expression  of 
their  views  and  opinions  than  is  given  to  the  mi 
nority.  It  is  giving  them  great  power;  they 
have  every  means  of  arranging  all  matters  to  suit 
themselves ;  the  right  of  coming  into  the  Con 
vention  and  explaining  fully  their  views,  of  go 
ing  into  all  the  argument  and  reasoning  that  they 
may  deem  necessary  in  support  of  their  measures ; 
and  then  they  have  the  po\ver  of  preventing  the 
minority  from  giving  their  reasons  for  opposing 
those  measures.  The  rule  wag  bad  enough  which 
limited  to  half  an  hour  the  speeches  of  those  op 
posing  the  reports  of  the  Committees,  and  gave  to 
gentlemen  who  advocated  them,  an  hour ;  but  it 
is  a  little  worse  now,  for  it  is  proposed  to  limit 
the  speeches  of  those  opposing  the  adoption  of 
reports,  to  fifteen  minutes,  while  the  chairmen  of 
Committees  are  to  be  allowed  an  hour  to  present 
their  arguments  in  favor  of  such  reports.  Now, 
I  ask  the  Convention,  whether  this  is  just  and 
equal ;  whether  there  is  any  propriety  in  the  ma 
jority  assuming  the  power,  as  they  undoubtedly 
do,  of  giving  themselves  four  times  the  right  of 
speech  which  they  deal  out  to  the  minority  ?  If 
they  think  so,  they  will  have  the  privilege  of  de 
claring  it.  I  have  assumed  the  privilege  of  enter 
ing  my  protest  against  the  injustice  of  such  a 
proceeding,  and  having  done  this,  I  shall  trouble 
the  Convention  no  farther. 

Mr.  BUTLER,  of  Lowell.  Sir,  it  is  evident 
what  all  this  means.  It  is  a  favorite  way — when 
occasionally  a  popinjay  gets  into  the  Convention, 
if  by  chance  any  should,  though  whether  they 
do  or  not  I  do  not  mean  to  express  an  opinion — 
in  which  he  endeavors  to  influence  the  action  of 
the  Convention,  by  attempting  to  hold  up  some 
one  as  doing  that  which  he  ought  not  to  do,  and 
endeavoring  to  excite  prejudice  against  an  indi 
vidual,  and  by  that  means  to  influence  the  action 


of  the  Convention,  which  he  can  accomplish  in 
no  other  way.  But  certainly,  Sir,  the  gentleman 
from  Brookline  has  no  reason  to  complain.  He 
moved  his  amendment,  and  has  had  an  opportu 
nity  to  advocate  its  adoption.  I  merely  stated 
that  I  was  opposed  to  it,  and  tbat  was  tortured 
into  the  fact  that  I  had  expressed  an  opinion  that 
I  control  this  Convention,  simply  for  the  purpose 
of  bringing  about  a  change  of  action  on  the  part 
of  the  Convention,  which  could  not  be  done  by 
argument.  The  next  movement  on  the  pro 
gramme  was,  the  gentleman  from  Newburyport 
demanded  the  yeas  and  nays ;  and  thus  gentlemen 
who  have  no  disposition  to  take  up  time  them 
selves,  are  compelled  to  see  the  time  wasted  by 
taking  the  yeas  and  nays.  Gentlemen  who  pro 
fess  to  wrish  to  do  no  wrong,  but  to  discuss  the 
high  principles  involved  in  the  questions  that  are 
presented,  choose  to  have  an  hour  spent  in  taking 
the  yeas  and  nays.  Very  good.  They  have  the 
power ;  let  them  create  delay  if  they  will.  They 
say  they  never  saw  any  good  arise  from  attempt 
ing  to  cut  off  debate.  It  is  true,  there  is  little 
gained  by  it ;  because,  when  a  factious  rainority 
choose  to  create  delay,  they  are  fruitful  in  expe 
dients  for  that  purpose,  by  dilatory  motions,  by 
getting  up  and  speaking  to  questions  that  are  not 
pertinent  to  the  subject  under  consideration. 
When  they  choose  to  take  that  course,  of  course 
you  cannot  limit  debate.  There  is  no  means  of 
suppressing  faction  in  this  world ;  there  never 
has  been,  and  probably  never  will  be. 

Sir,  I  do  not  propose  to  argue  this  question. 
We  have  argued  it  sufficiently.  The  chairmen  of 
two  Committees  have  had  an  opportunity  to  oc 
cupy  an  hour  each  upon  it.  And  if  any  gentle 
man  wishes  to  debate  it,  I  will  give  up  my  por 
tion  of  the  time.  I  have  no  desire  to  say  a  word. 
I  do  not,  therefore,  see  any  occasion  for  an  attack 
being  made  upon  me ;  but  if  it  is  made,  perhaps 
gentlemen  will  find  that  the  time  has  gone  past 
when  an  attack  can  be  made  with  impunity ; 
that  while  I  allow  a  sick  man  to  attack  me  with 
out  a  reply,  I  may  have  occasion  to  twist  the 
neck  of  some  well  man,  if  they  do  not  let  me 
alone. 

Mr.  ELY,  of  Westfield.  In  view  of  the  manner 
in  which  debate  has  been  carried  on  for  the  last 
few  days,  I  think  the  less  we  have  of  it  the  better ; 
I  therefore  move  the  previous  question. 

Mr.  ASPINWALL,  of  Brookline.  I  trust  I 
may  be  allowed  to  say  a  few  words. 

The  PRESIDENT.  The  question  is:  Shall 
the  main  question  be  now  put. 

The  demand  for  the  previous  question  was 
seconded,  and  the  main  question  ordered. 

The  question  was  then  taken  on  the  pending 


64th  day.] 


THE   COUNCIL,  dtc. 


267 


Friday,] 


EARLE  —  KEYES  —  MORTON  —  GRISWOLD  —  CHURCHILL. 


[July  22d. 


amendment,  viz. :  that  moved  by  the  gentleman 
from  Brookline,  (Mr.  Aspiuwall,)  to  strike  out 
the  words,  "  except  chairmen  of  Committees,"  and 
it  was  decided  in  the  affirmative. 

So  the  amendment  was  adopted. 

Mr.  EARLE,  of  Worcester.  I  wish  to  inquire 
whether,  if  this  order  be  adopted,  it  will  require 
a  vote  of  two-thirds  for  its  suspension  ? 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  it  is  in  the  nature  of  a  rule,  and  will  require 
two-thirds. 

Mr.  EARLE.     If  so,  I  am  satisfied. 

Mr.  KEYES  rose  and  addressed  the  Chair. 

The  PRESIDENT.     Debate  is  not  in  order. 

Mr.  KEYES.  I  had  no  intention  to  debate.  I 
wish  to  ask  if  an  amendment  is  in  order  ? 

The  PRESIDENT.     It  is  not  in  order. 

Mr.  KEYES.  I  was  going  to  move  to  strike 
out  the  words,  "  without  leave." 

The  PRESIDENT.     No  debate  is  in  order. 

A  MEMBER.  I  wish  to  know  what  the 
amended  order  will  mean  ? 

The  PRESIDENT.  It  is  not  for  the  Chair  to 
explain  its  meaning.  The  previous  question  still 
applies,  and  the  question  now  is  on  the  adoption 
of  the  order  as  amended. 

The  order,  as  amended,  was  adopted. 

Amendments  to  the  Constitution. 

Mr.  MORTON,  of  Taunton,  moved  that  the 
Convention  resolve  itself  into  Committee  of  the 
Whole,  for  the  purpose  of  considering  the  resolves 
in  relation  to  the  mode  of  submitting  to  the  peo 
ple,  for  their  approval  or  rejection,  future  amend 
ments  to  the  Constitution. 

It  is,  said  Mr.  Morton,  a  subject  of  considerable 
interest ;  and  it  is  of  some  consequence  that  it 
should  be  disposed  of  as  early  as  possible. 

Mr.  GRISWOLD,  for  Erving.  Is  the  motion 
debatable  ? 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  debate  may  be  entertained. 

Mr.  GRISWOLD.  I  hope  that  this  motion 
will  prevail  at  this  time.  There  are  some  subjects 
on  the  Orders  of  the  Day,  that  may  be  disposed 
of  in  a  short  time,  and  they  are  matters  which 
ought  not  to  be  delayed.  I  trust  we  shall  now 
proceed  to  dispose  of  them.  And  I  will  say, 
farther,  that  I  suppose — I  know,  in  fact 

Mr.  BRIGGS,  of  Pittsfield.  Is  this  motion 
debatable  ? 

The  PRESIDENT.  The  Chair  is  of  opinion, 
upon  reflection,  that  it  is  not. 

The  question  was  taken  on  the  motion  of  the 
gentleman  from  Taunton,  and  it  was  decided  in 
the  negative. 

On  motion  of  Mr.  CUSHMAN,  of  Bernardston, 


the  Convention  proceeded  to  the  consideration  of 
the  Orders  of  the  Day,  the  first  subject  being 
the  resolves  in  relation  to 

The  Council. 

The  question  being  upon  their  final  passage. 

Mr.  CHURCHILL,  of  Milton.  I  rise  to  detain 
the  Convention  but  a  single  moment,  for  the  pur 
pose  of  proposing  an  amendment,  which  I  do  upon 
consultation  with  many  eminent  and  leading  men 
of  the  Convention,  of  all  parties,  whose  approba 
tion  or  assent  to  this  proposition,  I  am  happy  to 
say  I  have  received.  I  respectfully  ask  the  atten 
tion  of  the  Convention  to  this  amendment  while 
I  read  it,  that  they  will  consider  it  for  a  moment, 
and  they  will  perceive  that  there  can  be  no  objec 
tion  to  it,  even  if  it  has  no  great  virtue  in  it.  It 
is  to  add  an  additional  resolution,  as  follows  : — 

Resolved,  That  it  is  expedient  to  amend  the 
Constitution  as  follows,  to  wit :  The  legislature 
may  provide  by  law  that  public  notice  shall  be 
given  of  all  applications  to  the  Governor  and 
Council,  for  the  remission  of  the  sentences  of 
persons  imprisoned  for  crime. 

It  will  be  perceived  that  it  is  not  intended,  by 
this  amendment,  to  limit,  or  restrict,  or  impair, 
in  any  way,  the  exercise  of  that  power  hereafter, 
or  to  cast  any  reflection  upon  the  manner  in 
which  it  has  been,  exercised  heretofore.  The 
power  to  which  that  amendment  refers  is  one  of 
the  highest,  most  important,  and  most  delicate 
exercises  of  sovereignty  in  the  Commonwealth. 
It  touches  upon  the  life  and  liberty  of  the  sub 
ject.  It  reviews  and  reexamines  the  long  and 
expensive  investigations  of  your  courts,  and  may, 
in  proper  cases,  reverse  their  decisions.  I  do  not 
wish  to  open,  in  any  way,  the  debate  which  has 
already  been  had  upon  the  subject  of  the  Coun 
cil.  I  do  not  suppose  that  the  Convention  desire 
to  open  that  debate,  and  therefore  I  shall  not 
give  any  lengthy  reasons  for  this  amendment. 
A  similar  provision  exists  in  the  Constitution  of 
the  State  of  New  York ;  and  it  is  well,  in  calm 
times  in  this  Commonwealth,  to  adopt  such  rules 
as  will  tend  to  our  protection  and  safety  in  times 
of  excitement  and  danger ;  for,  although  there 
may  not  have  been,  hitherto,  any  abuse  of  the 
pardoning  power — as  to  which  gentlemen  differ 
widely — we  may  have  in  this  Commonwealth 
such  difficulties  as  have  occurred  in  New  York, 
and  Pennsylvania,  and  other  States ;  and,  in 
such  case,  this  provision  will  enable  the  legisla 
ture,  in  some  manner  to  look  after  the  exercise 
of  that  power.  It  does  not  make  the  granting 
of  a  pardon  dependent  upon  the  giving  of  notice, 
but  it  simply  allows  the  legislature,  if  it  shall 


2G8 


THE   COUNCIL. 


[64th  day. 


Friday,] 


BOUTWELL  —  GRISWOLD  —  CHURCHILL  —  WHITNEY  —  LORD. 


[July  22d. 


see  fit  to  do  so,  to  legislate  upon  the  matter  of 
notice  for  such  applications.  I  believe  that  every 
gentleman  will  see  that  this  may  be  a  useful  and 
practical  amendment,  and  that  there  can  be  no 
danger,  whatever,  in  its  adoption. 

Mr.  BOUTWELL,  for  Berlin.  I  wish  to  say, 
only,  that  I  entirely  concur  in  the  object  of  this 
amendment,  proposed  by  the  gentleman  from 
Milton,  (Mr.  Churchill).  I  think  it  is  a  proper 
one.  It  leaves  the  matter  in  this  form :  if  at 
any  time  the  legislature  shall  see  fit  to  declare, 
by  law,  that  public  notice  shall  be  given  of  the 
intended  application  of  convicts  for  a  remission 
of  sentence,  they  may  do  so ;  and  I  think  that 
no  executive  can  object,  under  any  circumstances, 
to  such  notice.  I  hope,  therefore,  that  the  amend 
ment  may  be  adopted. 

Mr.  GRISWOLD,  for  Erving.  I  dare  say, 
that  this  amendment  may  pass  ;  and  as  it  is  to  be 
left  with  the  legislature,  it  makes  it  less  objec 
tionable.  I  should  be  reluctant  to  disagree  in  a 
matter  of  this  sort,  with  the  gentleman  who  has 
just  taken  his  seat ;  but  if  I  were  a  member  of  the 
legislature,  I  should  oppose  such  a  proposition  in 
that  body  ;  and,  therefore,  I  think  it  my  duty  to 
vote  against  it  here.  I  suppose  the  object  of  the 
amendment  is  to  bring  the  government  officers  in 
to  oppose  the  pardon. 

Mr.  CHURCHILL.  No  such  object  is  intend 
ed.  It  is  left  to  the  legislature  to  provide  for  the 
giving  of  such  notice  as  they  may  see  fit ;  but  it 
is  not  to  bring  the  government  officers  in  to  op 
pose  a  pardon. 

Mr.  GUIS  WOLD.  Then  I  want  to  know 
what  the  object  is  ?  A  convict  has  ordinarily  a 
hard  enough  chance.  He  is  generally  poor  and 
without  means — often  without  friends  ;  and  it  is 
difficult  enough  for  him  to  gain  access  to  the 
Council.  I  cannot,  therefore,  see  any  object  in 
this  amendment,  except  to  notify  the  government 
officers  that  they  may  come  in  and  oppose  a  par 
don.  It  seems  to  me  that  it  is  well  enough  as  it 
is  now,  and  that  the  chances  are  against  the  con 
vict.  I  have  not  reflected  upon  the  question,  but 
with  my  present  views  I  shall  oppose  it. 

Mr.  BOUTWELL.  If  the  Convention  will 
allow  me,  I  will  state  a  case  within  my  own  per 
sonal  experience  which  will  satisfy  gentlemen 
that  it  is  well  enough  that  the  public,  and  es 
pecially  the  prosecuting  officers  and  the  judges, 
should  know  that  such  application  is  made ;  for 
it  necessarily  happens  that  the  hearings  are  very 
much  ex  parte.  No  one  will  contend  that  a  con 
vict  should  be  released  without  a  just  and  proper 
claim  upon  the  clemency  of  the  government. 
Now,  it  happened  in  the  case  to  which  I  refer, 
that  the  Council  recommended  a  convict  to  the 


executive  clemency.  I  wrote  to  the  judge  who 
tried  the  case,  and  he  furnished  such  information 
as  satisfied  me  that  the  pardoning  power  ought 
not  to  be  exercised.  Now,  it  is  not  usually  con 
venient  for  the  executive  to  go  out  of  his  way  to 
ascertain  the  facts  which  may  be  in  the  possession 
of  individuals,  and  which  may  not  otherwise  come 
under  his  notice. 

Mr.  WHITNEY,  of  Boylston.  I  hope  that 
this  amendment  will  not  be  adopted,  because  1 
see  that  it  will  open  the  whole  question  of  par 
doning  and  condemning  criminals.  I  think  the 
reasons  last  given  are  sufficient  to  show  us  that  it 
does  open  this  question.  Here  is  a  case  where 
the  decision  of  the  executive  was  determined  by 
facts  coming  from  the  officers  of  the  law.  This  is 
one  case  ;  and  may  there  not  be  a  hundred  cases 
where  a  man  may  lose  his  pardon  from  the  same 
cause  ?  As  the  gentleman  for  Erving  has  said, 
the  chances  are  against  the  criminal ;  and  after  a 
man  has  had  his  trial  they  ought  to  leave  him 
alone  with  the  pardoning  power,  and  not  with 
the  power  of  the  law.  Why  should  the  law  offi 
cers  intervene  to  prevent  a  pardon,  if,  after  con 
sideration  by  the  pardoning  power,  the  executive 
should  deem  him  worthy  of  a  pardon  ?  They 
have  all  the  means  of  information  that  they  ought 
to*  have,  and  therefore  I  am  opposed  to  this  amend 
ment,  because  it  opens  up  before  the  Convention 
the  whole  question  again. 

Mr.  LORD,  of  Salem.  I  think,  Mr.  Presi 
dent,  that  there  has  really  been  sometimes  in  the 
Council- Chamber  a  misapprehension  as  to  what 
the  pardoning  power  is.  I  have  been  accustomed 
to  believe  that  a  pardon  implied  that  the  person 
pardoned  had  been  guilty  of  some  offence ;  that 
you  cannot  pardon  an  innocent  man  ;  and  I  think 
that  all  this  discussion  would  have  been  avoided, 
and  the  true  theory  of  a  pardon  would  have  been 
sustained,  if  we  had  made  this  provision,  that  no 
pardon  should  be  granted  upon  the  ground  that 
the  party  suing  for  a  pardon  was  wrongfully  con 
victed,  but  that  it  should  be  the  duty  of  the  legis 
lature  to  provide  a  remedy  in  all  such  cases  by  a 
judicial  tribunal. 

It  seems  to  me  that  such  a  provision  in  the 
Constitution  as  that  would  cover  the  entire  diffi 
culty.  The  Government  and  Council  represent 
the  people  just  as  much,  and  rather  more  than 
the  district-attorneys  do.  They  represent  the 
public  wholly  upon  this  matter  of  pardon,  and 
the  district- attorneys  have  nothing  to  do  with 
that,  and  have  nothing  to  do  with  the  question 
whether  a  person  ought  to  be  forgiven.  If  a 
person  is  to  be  pardoned,  upon  the  ground  that 
he  is  not  guilty,  then  the  district- attorney  has 
something  to  say  about  it,  and  not  otherwise. 


64th  day.] 


THE   COUNCIL. 


269 


Friday,] 


KEYES  —  TRAIN. 


[July  22d. 


Therefore,  it  seems  to  me,  that  if  we  leave 
the  matter  of  clemency  to  the  executive,  who 
represents  the  people  of  the  Commonwealth,  we 
do  well.  If  we  provide  that  no  pardon  shall  be 
granted  on  the  ground  of  a  wrongful  conviction, 
we  shall  also  do  right,  at  the  same  time,  to  pro 
vide  that  the  legislature  should  make  a  proper 
remedy  for  such  cases. 

Mr.  KEYES,  for  Abington.  I  saw  this  amend 
ment  before  it  was  offered,  and  I  had  one  reason 
for  not  opposing  it.  The  other  day,  when  the  sub 
ject  was  before  the  Convention,  it  did  not  seem  to 
me  that  there  was  any  substantial  ground  presented 
for  any  action  in  regard  to  the  matter.  Therefore, 
I  then  opposed  even  what  I  should  consider  a 
proper  motion,  on  the  ground  that  it  might  con 
firm  a  false  opinion  which  was  abroad  in  the  com 
munity,  viz. :  that  the  Council  were  too  lenient,  and 
too  loose  in  their  action,  and  that  they  have  been 
disposed  to  throw  open  the  prison  doors  without 
reason.  It  was  on  that  ground  alone  that  I  op 
posed  the  proposition  then.  Now,  I  do  not  want 
to  keep  up  the  opposition,  because  if  carried  too 
far,  it  might  tend  to  confirm  the  opinion  that 
the  Council  wished  to  hide  their  acts,  and  felt 
guilty,  and  were  afraid  of  exposure.  I  do  not 
believe  that ;  there  is  no  truth  in  it.  As  far  as 
this  can  be  adopted  on  proper  principles  and  for 
proper  purposes,  I  will  not  oppose  it,  because 
any  assistance  the  Council  can  obtain  from  either 
side,  is  what  they  seek  and  desire,  and  such  in 
formation  they  have  never  sought  to  avoid.  I 
think  the  reasons  of  the  gentleman  from  Salem 
(Mr.  Lord)  are  pretty  important.  This  matter  of 
pardoning  on  the  ground  of  a  wrongful  conviction 
of  the  court,  is  right,  because  the  courts  may  make 
mistakes.  Within  the  last  twelve  months,  sen 
tences  have  been  passed  by  a  judge  of  this  Com 
monwealth,  upon  two  convicts,  one  being  sen 
tenced  to  the  State  Prison  for  three  or  four  years, 
and  the  other  to  the  House  of  Correction  for  three 
or  four  months  ;  whereupon  the  juries  that  tried 
those  cases  were  so  thunderstruck  at  the  dispro 
portion  of  the  sentences  to  the  nature  of  the 
crimes  ;  and  believing  that  the  one  sent  to  the 
State  Prison  should  have  gone  to  the  House  of 
Correction,  and  the  one  sent  to  the  House  of  Cor 
rection,  should  have  been  sentenced  to  the  State 
Prison,  that  they  went  to  the  judge,  and  told  him 
if  he  did  not  reverse  his  sentences  they  would 
make  a  noise  about  it.  He  did  so.  I  could  not 
swear  that  this  is  so.  I  state  it  up.on  hearsay, 
and  do  not  vouch  for  its  accuracy ;  but  have 
reason  to  believe  the  statement  correct.  From 
such  a  case  we  see  the  necessity  of  the  pardoning 
power. 

I  rose  simply  to  make  this  explanation.     If  the 


Convention  deem  it,  under  the  circumstances, 
necessary  to  adopt  this  provision,  from  the  fact 
that  it  introduces  a  system  by  which  farther  in 
formation  can  be  gained,  I  do  not  see  fit  here 
publicly  to  oppose  it,  though  I  think  it  is  per 
fectly  unnecessary,  as  all  the  means  necessary  to 
find  out  the  facts  of  each  case  are,  under  the 
present  system,  put  in  requisition. 

Mr.  TRAIN,  of  Framingham.  Were  I  quite 
sure  of  the  feeling  of  the  Convention,  in  regard 
to  this  matter,  I  would  not  occupy  one  moment 
of  its  time.  But,  as  I  am  not  quite  sure,  and 
am  a  little  afraid  that  the  Convention  may  vote 
down  the  amendment,  I  hope  I  may  be  pardoned 
for  making  a  few  suggestions.  If  it  were  not  a 
foregone  conclusion,  I  should  be  happy  to  aid  in 
lopping  off  and  out  of  the  Constitution,  what  I 
consider  a  useless  portion  of  the  government  of 
the  State,  to  wit :  the  Executive  Council.  But 
that  has  gone  by,  and  therefore  I  will  not  trouble 
anybody  with  any  views  of  mine  upon  that 
point.  But  I  believe  this  to  be  a  matter  of  im 
portance,  because,  notwithstanding  the  argument? 
of  my  friend  for  Abington,  (Mr.  Iveyes,)  and 
those  of  other  gentlemen  who  have  addressed  the 
Convention  heretofore,  I  believe  that  the  pardon 
ing  power  has  been  exercised  in  a  manner  most 
prejudicial  to  the  interest  of  the  State.  If  gen 
tlemen  will  look  at  the  document  which  has  been 
furnished  us,  upon  the  motion  of  my  friend  from 
Lowell,  (Mr.  Butler,)  they  will  find  that  the 
number  of  pardons  granted  for  the  last  ten  years, 
averages  nearly  one  for  each  week.  Now,  Sir, 
either  the  pardoning  power  has  been  exercised  in, 
a  manner  unbecoming  and  improper,  or  else  the 
trial  by  jury  is  a  mockery,  and  courts  of  justice  a 
farce ;  because  it  cannot  be  true  that  it  should  be 
the  duty  of  jurors  to  convict,  and  courts  to  sen 
tence,  and  the  duty  of  the  Governor  and  Council 
to  pardon,  almost  in  the  same  breath.  At  this 
very  term  of  the  court  of  common  pleas,  in  the 
county  of  Middlesex,  I  understand  that  they  have 
tried  five  individuals,  who  have  been,  tried  and 
sentenced  before,  within  the  last  three  years,  and 
who  have  been  pardoned  within,  that  time,  and 
come  back  again,  to  use  the  expressive  language 
of  another  gentleman,  for  the  lawyers  to  have 
another  lick  at. 

Now,  it  is  for  the  Commonwealth  to  protect  the 
interests  of  society,  by  taking  care  of  those  who 
violate  its  laws,  and,  if  you  desire  that  the  best 
influence  should  be  exercised  upon  society,  you 
should  adopt  two  principles.  In  the  first  place 
it  should  be  settled,  that  conviction  shall  certain 
ly  follow  the  commission  of  a  crime,  and,  in  the 
next  place,  that  criminals  should  understand, 
that  as  certainly  as  they  are  convicted,  they  shall 


270 


THE    COUNCIL. 


[64th  day. 


Friday,] 


TKAIN  —  BRIGGS. 


[July  22d. 


serve  out  the  time  of  their  sentence.  In  this 
•\vay  you  have  an  influence  exerted  over  that  por 
tion  of  society  which  commit  crimes ;  but,  under 
the  sickly  sentimentality  which  some  gentlemen 
in  this  Commonwealth  cultivate,  the  man  who 
commits  a  crime  is  a  man  of  rather  more  import 
ance  than  an  honest  man.  These  are  general 
principles  which  ought  to  be  laid  down. 

Nobody  believes  but  that  the  Council  and  Gov 
ernor  undertake  to  exercise  their  powers  in  good 
faith,  but  the  trouble  has  been  that  they  have 
granted  pardons  in  cases  where  notice  has  not 
been  given  to  the  court,  and  the  prosecuting 
officers,  who  were  familiar  with  all  the  circum 
stances  of  the  case  ;  that  they  have  granted  par 
dons  upon  hearsay  testimony,  without  the  for 
mality  of  a  trial,  without  the  solemnity  which  is 
thrown  around  a  judicial  investigation,  and  have 
allowed  their  feelings  to  be  wrought  upon,  until 
they  believed  the  applicant  had  been  wrongfully 
punished,  or  that  he  would  be  a  better  man,  if 
discharged.  We  all  desire  to  have  the  pardoning 
power  preserved,  but  we  desire  to  have  it  proper 
ly  exercised.  The  amendment  contemplates  that 
when  an  application  shall  be  made  for  the  exer 
cise  of  the  pardoning  power,  the  legislature,  if  it 
shall  find  it  necessary,  shall  require  the  pardon 
ing  power  to  give  notice  to  those  who  may  be 
supposed  to  be  better  acquainted  with  the  case, 
and  from  whom  they  can  obtain  more  reliable 
information  than  they  can  possibly  get  from  the 
friends  of  the  criminal,  or  from  any  other  source. 

Let  me  say  here,  that  I  do  not  concur  in  the 
insinuations  which  have  been  thrown  out  here, 
upon  the  manner  in  which  the  judges  of  the 
courts  perform  their  duties  in  passing  sentences 
upon  criminals.  As  far  as  I  know,  the  courts 
have  performed  their  duties  faithfully,  and  have 
found  no  obstacle  but  what  has  been  thrown  in 
their  way  by  the  pardoning  power.  I  know  of 
no  State  in  which  the  law  is  administered  more 
faithfully  and  more  justly  than  in  Massachusetts. 
The  reformatory  power  in  the  courts,  is  exercised 
more  effectually  and  efficiently,  and  more  regu 
larly  there  than  elsewhere.  I  hope  the  amend 
ment  will  be  adopted  for  the  reasons  I  have  sug 
gested. 

Mr.  BRIGGS,  of  Pittsfield.  I  see  no  great 
objection  to  this  amendment,  though  I  do  not  see 
any  necessity  for  it.  If  gentlemen  apprehend  so 
much  danger  to  the  Commonwealth  from  the 
exercise  of  the  pardoning  power,  that  some  check 
should  be  placed  upon  it,  I  should  think  it  well 
to  confer  that  power  upon  the  legislature,  though 
not  for  the  reasons  alleged  by  my  friend  who  has 
just  set  down.  I  do  not  concur  in  what  seems 
to  be  his  intimation,  that  while  the  duties  of  the 


courts  are  performed  with  a  proper  regard  to  the 
public  interests,  the  duties  of  the  Council- Chamber 
are  not  performed  in  that  manner.  I  beg  leave 
to  express  my  opinion  as  to  the  performance  of 
those  duties,  with  one  exception,  to  which  it  is 
not  proper  for  me  to  refer.  I  do  not  believe  it 
can  be  shown  that  during  the  whole  history  of 
this  government,  there  has  been  any  abuse  of  the 
pardoning  power.  I  have  no  doubt  that  cases 
occur  frequently,  from  the  imperfection  of  human 
judgment  and  human  affairs,  in  which  the  power 
has  been  exercised  where  it  ought  not  to  have 
been,  but  never  under  circumstances  which  tend 
to  show  that  that  branch  of  the  government 
have  had  a  disposition  to,  or  that  they  have,  in 
fringed  upon  the  duties  of  the  courts,  or  inter 
posed  any  obstacle  to  the  carrying  out  the  judg 
ments  of  the  judicial  tribunals.  There  is  no 
motive  for  such  a  course  in  this  world.  Why,  in 
Heaven's  name,  should  they  do  it  ?  Who  are 
those  people  who  apply  to  them  for  pardon  r  They 
come  without  friends,  and  without  money.  They 
are  poor  and  helpless.  It  has  been  already  said 
that  their  cases  are  frequently  brought  before  the 
executive  by  the  officers  of  the  prison.  I  wish 
gentlemen,  could  see  the  records  of  the  doings  of 
the  pardoning  power,  and  read  the  history  of  the 
cases  presented  to  them  from  time  to  time,  and  I 
think  they  would  somewhat  change  their  opinions 
upon  this  subject.  But,  says  the  gentleman,  they 
follow  up  suddenly,  and  frequently  annul  the 
decisions  of  the  court,  and  release  convicts  from 
their  judgments.  Yes,  Sir,  they  do ;  but  they 
never  do  it,  when  in  their  judgment  there  is  not 
sufficient  reason  for  interposing  in  that  way.  A 
few  days  since,  I  heard  of  a  case  which  occurred 
in  an  adjoining  county,  and  that  is  only  one  of 
many  of  a  similar  character,  though  not  exactly 
like  it.  Some  boys  were  arrested  for  petty 
offences,  and  sent  to  the  House  of  Correction,  and 
among  those  boys  was  one  who  was  only  eight 
years  of  age.  He  was  tried  and  sent  to  the  House 
of  Correction  without  any  notification  to  his  pa 
rents.  There  the  poor  little  fellow  was,  moaning 
and  crying  from  morning  till  night,  and  wetting 
his  pillow  with  his  tears,  because  he  had  been 
taken  from  his  parents  and  sent  there.  The  case 
was  brought  before  the  Council,  by  the  keeper  of 
the  House  of  Correction,  and  I  understand  the 
pardoning  power  interposed.  What  kind  of  a 
pardoning  power  would  that  be  which  would 
not  interpose  under  such  circumstances  ?  It  is 
in  such  cases  as  these,  of  sentence  to  the  House 
of  Correction,  and  in  other  cases  where  the  time 
of  sentence  has  nearly  expired,  or  when  the 
health  of  the  prisoner  is  failing,  that  the  pardon 
ing  power  is  most  frequently  exercised.  It  is,  in 


64th  day.] 


THE   COUNCIL. 


271 


Friday,] 


BRIGGS  —  LORD  —  FRENCH  —  KEYES. 


[July  22d, 


these  latter  cases,  exceeding  proper,  that  the 
criminal  should  have  some  little  daylight  break 
in  upon  his  heart,  giving  him  some  reason  to 
feel  that  there  is  one  portion  of  the  government 
of  the  Commonwealth  which  regards  him  with 
humanity  and  kindness,  and  which  is  willing  to 
remit  the  few  remaining  days  of  his  imprison 
ment.  Who  can  tell  how  much  influence  such 
a  course  may  have  upon  the  convict  who  has  been 
confined  for  months  and  years.  They  go  out 
feeling  that  the  government  is  not  an  incorrigible 
tyrant. 

It  will  be  found,  on  consulting  the  records,  that 
there  are  many  more  cases  where  the  courts  and 
prosecuting  officers  are  consulted,  than  gentlemen 
are  aware  of.  The  case  mentioned  by  the  gentle 
man  for  Berlin,  (Mr.  Boutwell,)  is  one  of  that 
kind.  In  looking  over  a  few  cases  the  other  day, 
though  with  a  different  object  in  view,  I  found 
that  about  one-half  of  them  were  cases  where 
the  counsel  was  consulted.  One  of  those  cases 
was  that  of  a  man  who  was  sentenced  from  the 
county  of  Franklin,  to  the  State  Prison  for  life. 
The  report  states  that  at  the  time  of  the  convic 
tion,  the  government  attorney  assured  him  that 
he  would  aid  him  if  he  behaved  himself,  and 
when  an  application  for  pardon  was  made  by  a 
number  of  citizens,  the  prosecuting  attorney  did 
interpose,  with  other  citizens,  in  his  favor. 

As  I  said  before,  and  repeat  now,  I  do  not  be 
lieve  that  it  can  be  found,  in  looking  over  the 
history  of  the  Executive  Council,  that  any  abuse 
has  existed  in  the  exercise  of  this  power.  That 
there  have  been  mistakes,  I  have  no  doubt  at  all. 

The  gentleman  from  Salem,  (Mr.  Lord,)  has 
alluded  to  a  class  of  cases,  where  persons  have 
been  wrongfully  convicted.  Now,  by  law,  there 
is  a  limit  to  the  time  within  which  a  person  must 
apply  for  a  new  trial,  and  when  that  time  has 
expired,  there  is  no  remedy  for  a  person  in  pris 
on  under  sentence.  What  should  the  executive 
do  in  such  cases,  when  it  is  shown  beyond  reason 
able  doubt  that  the  person  has  been  wrongfully 
convicted,  and  the  day  for  moving  a  new  trial  has 
passed  by  ?  It  would  be  more  than  injustice  for 
the  executive  to  refuse  to  interfere.  It  would  be 
inhuman  ! 

Mr.  LOUD,  of  Salem.  I  ask  the  gentleman 
from  Pittsfield  to  allow  me  to  say,  that  a  part  of 
my  suggestion  was  that  the  Governor  and  Council 
should  not  pardon,  upon  the  ground  of  erroneous 
conviction,  but  that  the  legislature  should  extend 
the  time  within  which  a  new  trial  may  be  granted, 
in  order  to  provide  a  remedy  for  such  cases. 

Mr.  BRIGGS.  I  entirely  concur  in  the  gen 
tleman's  suggestion,  but  I  submit,  that  until  the 
legislature  make  provision  for  extending  the  time 


for  granting  a  new  trial,  the  Governor  and  Council 
should  be  allowed,  technically,  to  pardon  such 
persons.  Until  the  legislature  make  that  provis 
ion  this  will  be  the  only  remedy  which  can  be 
exercised. 

Mr.  FRENCH,  of  Berkley.  I  hope  I  shall 
not  be  considered  out  of  order  if  I  remind  the 
Convention  that  we  are  to  adjourn  to-morrow, 
for  I  believe  we  have  voted  to  do  so. 

SEVERAL  MEMBERS.     O,  no  ! 

Mr.  FRENCH.  Then  I  am  mistaken;  but 
that  was  the  Report  of  the  Committee  appointed 
upon  that  subject.  But,  Sir,  if  we  are  going  to 
take  up  the  time  of  the  Convention  in  debating 
questions  of  minor  importance — for  the  mover 
of  this  amendment  himself  says  it  is  not  a  matter 
of  much  importance — I  think  we  had  better  send 
home  for  our  winter  clothes,  [a  laugh,]  for  we 
shall  not  be  likely  to  get  through  before  winter. 

Now,  it  seems  to  me  that  this  pardoning  power 
must  be  deposited  with  somebody — it  must  be 
left  with  some  branch  of  the  government,  and  I 
know  of  no  better  power  to  leave  it  with,  than 
where  it  has  been  left  heretofore.  I  think  the 
Governor,  with  the  advice  of  his  Council,  will  be 
able  to  decide  correctly  upon  all  matters  of  pardon. 
I  know  it  is  the  nature  of  man  to  be  fallible,  and 
that  in  some  instances  even  with  all  the  wisdom 
of  the  Council,  the  Governor  may  make  mistakes. 

But,  Sir,  I  do  not  desire  to  discuss  this  ques 
tion.  I  want  that  the  question  should  be  dis 
posed  of,  in  some  way,  without  farther  debate.  I 
hope  the  amendment  will  be  rejected. 

[Cries  of  "  Question  !  "    "  Question  !  "] 

Mr.  KEYES,  for  Abington,  addressed  the 
President,  and  was  recognized. 

Mr.  ADAMS,  of  Lowell.  I  rise  to  a  question 
of  order.  The  gentleman  for  Abington  has  spo 
ken  two  or  three  times  upon  this  question,  and 
upon  that  ground  I  claim  the  floor. 

Mr.  KEYES.  I  will  yield  the  floor  to  the 
gentleman,  with  pleasure,  if  he  desires  to  speak. 

Mr.  ADAMS.  I  have  no  wish  to  consume 
more  of  the  time  of  the  Convention  upon  this 
subject.  I  move  the  previous  question. 

Mr.  KEYES.  I  was  legitimately  entitled  to 
the  floor,  but  having  before  spoken  upon  this 
subject,  I  yielded  it,  with  great  pleasure,  to  the 
gentleman  from  Lowell  to  speak,  but  not  to  move 
the  previous  question,  and  I  do  not  understand 
that  the  gentleman,  under  the  Rules,  can  take 
the  floor  from  me  for  any  such  purpose. 

The  PRESIDENT.  The  delegate  from  Lowell, 
(Mr.  Adams,)  and  the  delegate  for  Abington, 
(Mr.  Keyes,)  rose  simultaneously,  but,  inasmuch 
as  the  gentleman  for  Abington  had  tried  two  or 
three  times  to  get  the  floor,  the  Chair  awarded  it 


272 


THE   COUNCIL. 


[64th    day. 


Friday,] 


LOHD  —  KEYES. 


[July  22d. 


to  him.  The  gentleman  from  Lowell  then  claimed 
the  floor  upon  the  ground  that  the  gentleman  for 
Abington  had  already  spoken  upon  the  subject 
under  consideration.  Supposing  that  the  gentle 
man  from  Lowell  wished  to  speak  upon  the 
question,  the  Chair,  therefore,  awarded  the  floor 
to  him,  upon  that  ground,  as  he  was  compelled  to 
do  under  the  Rules  of  the  Convention,  and  the 
gentleman  then  moved  the  previous  question. 
The  Chair  believes  that  is  a  correct  statement  of 
the  case. 

Mr.  LORD,  of  Salem.  Before  the  President 
decides,  definitely,  the  question  of  order,  I  desire 
to  call  his  attention  to  the  23d  Rule,  which  is  the 
following  : — 

"  No  person  shall  speak  more  than  twice  upon 
one  question,  without  first  obtaining  leave  of 
the  Convention  ;  nor  more  than  once  until  other 
members  who  have  not  spoken,  shall  speak,  if 
they  desire  it." 

Under  this  Rule,  any  member  who  has  once 
spoken,  must  yield  to  another,  if  he  desires  to 
speak,  but  I  do  not  suppose  he  is  obliged  to  yield 
to  him  to  make  a  motion. 

The  PRESIDENT.  The  Chair  will  again  state, 
that  he  supposed  the  delegate  from  Lowell  had  a 
right  to  claim  the  floor  if  he  wished  to  speak,  the 
gentleman  for  Abington  having  once  spoken  upon 
the  question.  He,  therefore,  awarded  it  to  the 
gentleman  from  Lowell,  supposing  that  he  wished 
to  address  the  Convention  ;  he,  however,  is  con 
strained,  under  the  circumstances,  to  rule  the 
motion  made  by  that  gentleman  to  be  out  of  order. 

Mr.  KEYES.  I  wish  to  say  only  one  word. 
I  did  not  intend  to  have  troubled  the  Convention 
again  upon  this  subject.  I  was  very  anxious  that 
this  question  should  be  disposed  of  without  de 
bate  ;  and  although  this  is  a  subject  in  which  I 
have  taken  some  interest,  I  have  expressly  avoided 
saying  anything  which  should  elicit  debate. 

But  the  gentleman  from  Framingham,  (Mr. 
Train,)  has  seen  fit  to  come  out  with  one  of  the 
same  sort  of  speeches  which  we  have  heard — not 
only  upon  a  former  occasion  during  the  debate  on 
this  question,  but  which  we  have  heard  outside 
of  this  body — and  such  as  I  think,  ought  not  to  be 
made  anywhere.  I  can  see  no  reason  why  the 
gentleman  should  make  such  speeches,  for  I  be 
lieve  him  personally  to  be  one  of  the  kindest 
hearted  men  in  the  Convention,  and  I  can  only 
account  for  it  on  the  ground  of  the  butcher  busi 
ness  in  which  he  has  been  engaged.  I  can  think 
of  nothing  else  which  should  prompt  him  to  rise 
and  make  such  speeches. 

Sir,  I  undertake  to  say,  that  these  prosecuting 
officers  and  judges,  whose  business  it  is  to  convict 


and  sentence  criminals,  are  not  the  proper  men  to 
be  applied  to  for  opinions  in  relation  to  the  pardon 
of  those  convicts.  Having  once  expressed  their 
opinions  as  to  the  nature  of  their  guilt,  they  have 
some  pride  in  the  matter.  They  do  not  like  to 
have  their  decisions  reversed.  If  he  is  a  judge 
and  has  given  his  decision,  upon  a  full  knowledge 
of  the  circumstances  connected  with  the  trial, 
which  has  resulted  in  the  incarceration  of  a  man 
in  prison,  he  is  not  willing  to  turn  round  and  say 
that  his  sentence  was  too  severe,  and  that  the 
convict  should  be  liberated.  It  is  the  nature  of 
men  to  have  faith  in  the  cause  they  are  obliged  to 
maintain.  An  illustration  may  be  found  in  a 
debating  society,  where  a  man  taking  the  wrong 
side  of  a  question  for  the  sake  of  argument,  de 
fends  and  discusses  it  until  he  ends  in  believing 
that  to  be  right,  which,  at  the  outset,  he  honestly 
believed  to  be  wrong.  And  so  it  is  with  advo 
cates  who  argue  against  what  they  know  to  be 
the  plainest  evidence ;  they  argue  themselves  into 
the  belief  that  what  they  are  supporting  is  right. 

Now,  Sir,  these  very  judges  upon  the  bench,  in 
charging  the  jury,  generally  argue  the  question  in 
such  a  way  as  to  indicate  pretty  clearly  what 
their  opinions  are  in  relation  to  the  guilt  or  inno 
cence  of  the  accused,  and  in  nine  instances  out  of 
ten,  their  opinions  thus  given,  determine  the  ver 
dict  of  the  jury,  when  half  the  time  any  member 
of  the  jury  is  as  good  a  judge  of  what  is  justice 
and  equity  as  the  judge  himself.  The  idea  that 
judges  never  make  mistakes  is  a  false  one.  You 
cannot  go  into  any  county  court  in  the  State,  and 
examine  the  decisions  through  a  single  term  with 
out  finding  great  mistakes  committed.  There  is 
not  much  reason  or  common  sense  in  many  of 
their  sentences,  and  that  every-body  knows.  I  do 
not  mean  to  say  that  the  judges  mean  to  give 
wrong  decisions,  but  any  man  who  sits  upon  the 
bench  feels  differently  at  one  time  from  what  he 
does  at  others.  I  have  suffered  from  dyspepsia 
long  enough  to  know  that  sometimes  a  man  may 
feel  as  if  he  would  strangle  half  the  world,  if  he 
could  get  them  by  the  neck,  [laughter,]  and  at 
others,  as  if  he  would  shower  blessings  on  the 
whole  race.  I  believe  the  judges  perform  their 
duties  conscientiously,  and  as  well  as  they  are 
able  to,  but  they  are  not  infallible. 

But,  as  I  said  in  the  outset,  it  is  no  purpose  of 
mine  to  oppose  this  amendment.  If  people  think 
it  is  necessary,  let  them  have  it.  But  I  cannot 
subscribe  to  requiring  these  men,  who,  if  not 
hangmen,  are  only  one  remove  from  it,  and  who, 
by  means  of  their  profession,  have  acquired  to 
some  extent,  the  dispositions  of  butchers,  to  give 
their  opinions  upon  the  propriety  of  exercising 
the  pardoning  power. 


64th  day.] 


THE   COUNCIL. 


273 


Friday,] 


BATES  —  UPTON  —  BRIGGS. 


[July   22d. 


Mr.  BATES,  of  Plymouth,  When  the  discus 
sion  iirst  commenced  upon  this  question,  I  was  in 
favor  of  the  amendment  of  the  gentleman  from 
Milton,  (Mr.  Churchill).  But  when  I  heard  the 
argument  of  the  gentleman  from  Framingham, 
(Mr.  Train,)  I  was  opposed  to  it,  inasmuch  as  it 
put  it  upon  the  ground  that  the  Council  were  a 
set  of  scoundrels  who  were  unfit  for,  or  inca 
pable  of  taking  care  of  the  interests  of  the  State, 
with  regard  to  matters  committed  to  them.  But 
I  am  opposed  to  continuing  this  debate  farther. 
It  may  be,  if  it  were  to  continue,  that  arguments 
might  be  presented  which  would  lead  me  to  vote 
in  favor  of  the  amendment,  and  I  therefore  move 
the  previous  question. 

Mr.  UPTON,  of  Boston.  I  have  an  amend 
ment  which  I  desire  to  offer,  and  I  also  desire  to 
occupy  not  more  than  two  minutes  in  explaining 
it.  If  the  gentleman  will  withdraw  his  motion 
for  the  previous  question,  I  will  renew  it  before 
I  set  down. 

Mr.  BATES.  With  that  understanding,  I 
withdraw  my  motion  for  the  previous  question. 

Mr.  UPTON.  I  move  to  strike  out  the  second 
resolution  as  it  now  stands.  It  is  the  following  : 

Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution  as  to  provide  that  the  record  of  the 
proceedings  of  the  Council  shall  always  be  subject 
to  public  examination. 

Now,  Mr.  President,  one  single  word  to  explain 
my  object  in  making  that  motion.  These  reso 
lutions  provide  that  your  Council  shall  sit  in  judg 
ment  upon  criminals — that  is  to  say,  the  question 
of  pardon  is  to  come  before  them.  They  sit  in 
public,  but  still  the  records  of  their  proceedings, 
in  every  case,  are  to  be  made  subject  to  public 
examination. 

Now,  Sir,  in  the  case  of  an  examination  before 
a  jury,  of  a  criminal  offence,  if  there  is  any  dif 
ference  of  opinion  among  the  jurors,  where  the 
person  is  not  convicted,  the  opinions  of  those  ju 
rors  who  were  in  favor  of  conviction  are  never 
made  public.  Yet  it  is  proposed  to  provide  that 
the  proceedings  of  the  Council  shall  not  only 
be  open,  but  that  the  record  of  their  proceedings 
shall  be  kept  open  for  public  examination,  so 
that,  if  their  is  a  difference  of  opinion  among  the 
the  councillors  upon  a  question  of  pardon,  any 
one,  from  a  personal  or  other  motive,  can  go  to 
your  Council- Chamber,  and  ascertain  how  each 
councillor  voted.  Now,  Sir,  that  is  contrary  to 
the  principles  and  spirit  of  our  institutions.  You 
open  the  door  for  any  person  entertaining  feelings 
of  hostility  towards  any  particular  councillor,  to 
carry  them  into  effect,  by  ascertaining  from  the 
record  what  were  his  votes  in  relation  to  applica 


tions  for  pardon,  and  using  those  votes  to  secure 
his  own  private  ends.  You  open  the  door  for  re 
venge,  if  you  please.  Why  should  the  opinions  of 
jurors,  as  to  the  criminality  of  a  person  upon 
whom  they  are  called  to  decide,  be  kept  from  the 
public,  and  the  opinions  of  a  councillor,  who  is 
called  upon  to  decide  the  same  question,  upon  an 
application  for  pardon,  be  made  public  ? 

I  hope  the  resolution  will  be  stricken  out ;  and 
now,  in  accordance  with  my  promise,  I  move  the 
previous  question. 

The  previous  question  was  seconded,  and  the 
main  question  ordered  to  be  put. 

Mr.  BRIGGS,  of  Pittsfield.  I  do  not  wish  to 
say  one  word  upon  the  question  before  the  Con 
vention  ;  but,  having  heard  that  I  made  an 
erroneous  statement  in  relation  to  one  of  the  un 
fortunate  young  men  to  whom  I  alluded  when  I 
was  before  up,  I  wish,  in  justice  to  his  friends,  to 
correct  the  statement. 

The  PRESIDENT.  The  previous  question 
having  been  ordered,  the  gentleman  from  Pitts- 
field  can  only  proceed  by  unanimous  consent. 

There  was  no  objection  made,  and 

Mr.  BRIGGS  proceeded.  I  alluded  to  a  young 
man  by  the  name  of  Learned,  in  Worcester 
County,  who,  upon  the  recommendation  of  many 
of  the  citizens  of  that  county,  was  pardoned ;  and  I 
stated  that  he  turned  out  to  be  unworthy,  and  that 
he  had  since  been  tried  and  convicted  for  another 
offence  in  the  State  of  New  York. 

Sir.ce  making  that  statement,  a  gentleman  tells 
me  he  has  learned  that  the  young  man  has,  with 
in  a  few  days  past,  died  in  the  State  Prison  in  the 
State  of  New  York,  but  that  before  he  died, 
satisfactory  evidence  was  produced,  to  show  that 
he  was  wrongfully  convicted  ;  that  the  governor 
of  New  York  was  satisfied  of  that  fact,  and  sent 
him  a  pardon  ;  but  that  that  pardon  reached  the 
prison-house  two  hours  too  late  ;  and  that  in  his 
dying  moments  the  poor  fellow  protested  his  in 
nocence  of  the  offence  for  which  he  was  con 
victed. 

Sir,  that  young  man  may  have  a  mother,  he 
may  have  a  sister,  or  some  friend;  who  may  see  in 
print,  or  in  some  other  way  learn,  what  I  said  in 
relation  to  his  case.  I  desire,  therefore,  to  take  it 
all  back,  for  of  all  things,  I  would  not  do  injustice 
to  any  human  being  placed  in  such  a  situation,  or 
wound  the  feelings  of  his  friends.  I  understand 
that  the  evidence  was  satisfactory  that  he  was 
wrongfully  convicted. 

The  question  was  then  taken  on  Mr.  Churchill's 
amendment,  and  there  were — ayes,  135  ;  noes, 
115. 

So  the  amendment  was  adopted. 

The  question  then  recurring  upon  the  motion 


274                         PRESERVATION    OF  THE  RECORDS,   &c.            [64th  day. 

Friday,] 

HALLETT  —  GRISWOLD.                                                [July  22d. 

of  Mr.  Upton,  of  Boston,  to  strike  out  the  second 
resolution,  it  was  taken,  and  the  motion  was  not 
agreed  to — ayes,  97  ;  noes,  164. 

The  PRESIDENT.  The  question  now  is  upon 
ordering  the  resolves,  as  amended,  to  their  final 
passage. 

Mr.  HALLETT,  for  Wilbraham.  I  move  a 
reconsideration  of  the  vote  whereby  the  previous 
question  was  ordered.  I  desire  to  say  one  word 
as  a  reason  for  so  doing. 

Mr.'  E D  WARD S,  of  Southampton.  I  rise  to  a 
point  order.  I  would  inquire  of  the  Chair  if  it 
is  in  order  to  move  a  reconsideration  of  the  pre 
vious  question  after  we  have  proceeded  under 
the  operation  of  that  previous  question  and  taken 
votes  ? 

Mr.  HALLETT.     I  withdraw  my  motion. 

Mr.  GRISWOLD,  for  Erving.  There  is  one 
vote  taken  here  with  which  I  am  dissatisfied,  and 
I  will  venture  to  move  a  reconsideration  of  the 
vote  by  which  the  amendment  of  the  gentleman 
from  Milton  (Mr.  Churchill)  was  adopted. 

Mr.  SCHOULER,  of  Boston.  I  rise  to  a 
question  of  order.  My  point  of  order  is  that 
there  cannot  be  a  reconsideration  now,  after  the 
previous  question  is  ordered. 

The  PRESIDENT.  The  Chair  is  of  the 
opinion  that  the  motion  to  reconsider  is  not  in 
order ;  that  no  motion  to  amend  or  reconsider 
can  be  in  order,  the  main  question  having  been 
ordered. 

Mr.  SCHOULER.  The  gentleman  can  move 
a  reconsideration  after  we  have  got  through  with 
the  resolves. 

The  PRESIDENT.  The  question  now  is 
upon  ordering  the  resolutions  to  their  final  pas 
sage. 

Mr.  GRISWOLD.  I  had  supposed  that  the 
motion  I  made  was  in  order ;  but  as  it  has  been 
ruled  out  of  order,  I  call  for  a  division  of  the 
question. 

The  first  resolve  was  then  read,  as  follows  : — 

Resolved,  That  eight  councillors  be  elected  by 
by  the  people  in  single  districts,  each  district  to 
consist  of  five  contiguous  senatorial  districts. 

The  question  was  taken,  and  the  resolution  was 
agreed  to. 

The  second  resolution  was  read,  as  follows  : — 

Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution  as  to  provide  that  the  record  of  the 
proceedings  of  the  Council  shall  always  be  subject 
to  public  examination. 

The  question  was  taken,  and  the  resolve  was 
agreed  to. 

The  third  resolution  was  read,  as  follows  : — 


Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution  as  to  provide  that  no  councillor, 
during  the  time  for  which  he  shall  be  elected, 
shall  be  appointed  on  any  commission,  or  to  any 
place,  for  which  he  shall  receive  any  compensa 
tion  whatever,  other  than  that  which  he  receives 
as  councillor. 

The  question  was  taken,  and  it  was  a: reed  to. 
The  fourth  resolution  was  read,  as  follows  : — 

Resolved,  That  the  legislature  may  provide  by 
law  that  public  notice  shall  be  given  of  all  appli 
cations  to  the  Governor  and  Council  for  remission 
of  the  sentence  of  persons  imprisoned  for  crime. 

The  question  was  taken,  and  a  division  being 
called  for,  there  were — ayes,  129  ;  noes,  135. 

So  the  resolution  was  not  agreed  to. 

Mr.  HALLETT,  for  Wilbraham.  I  rise  for 
the  purpose  of  moving  a  reconsideration  of  the 
vote  just  passed. 

The  PRESIDENT.  The  motion  will  go  into 
the  Orders  of  the  Day  for  to-morrow. 

Mr.  BOUTWELL,  for  Berlin.  I  rise  to  a 
question  of  order.  I  wish  to  know  whether  the 
motion  can  be  made  at  this  time  ? 

The  PRESIDENT.  The  motion  cannot  be 
made  except  by  general  consent,  unless  the  Orders 
of  the  Day  be  first  laid  upon  the  table. 

Mr.  BOUTWELL  objected.- 

Mr.  HALLETT  moved  that  the  Orders  of  the 
Day  lie  upon  the  table. 

The  question  was  taken,  and  the  motion  was 
not  agreed  to. 

Preservation  of  the  Records. 

The  PRESIDENT.  The  next  matter  in  the 
Orders  of  the  Day  is  No.  6  in  the  calendar,  being 
the  resolves  on  the  subject  of  the  preservation  of 
the  records.  The  question  pending  is  upon  their 
final  passage. 

The  resolves  were  read,  as  follows : — 

Resolved,  That,  at  the  close  of  the  session,  the 
Secretaries  of  the  Convention  deposit  the  original 
journals,  together  with  the  papers  of  the  Conven 
tion,  in  the  office  of  the  Secretary  of  State. 

Resolved,  That  William  S.  Robinson  prepare  an 
index  to  the  journal,  and  procure  two  thousand 
copies  of  the  journal  and  index  to  be  printed  and 
bound,  on  such  terms  and  in  such  manner  as 
shall  be  approved  by  the  Committee  on  the  Pre 
servation  of  the  Records,  and  that  he  be  paid  four 
dollars  a  day  for  his  services  therein. 

Resolved,  That  his  Excellency  the  Governor  be 
requested  to  draw  his  warrant  on  the  treasury  for 
such  expenses  incurred  in  the  execution  of  the 
preceding  resolves,  as  shall  be  approved  by  the 
Committee  on  the  Preservation  of  the  Records. 

Resolved,  That  the  Secretary  of  the  Common 
wealth  be  requested  to  distribute  copies  of  the 
journal  to  each  member  of  the  Convention,  and 


64th  day.] 


ELECTIONS    BY   PLURALITY. 


275 


Fxiday,] 


BRIGGS  —  BIRD  —  HOOPER  —  DANA  —  SCHOULER. 


[July  22d. 


to  all  persons  and  public  bodies  mentioned  in 
chap.  2,  sec.  2,  of  the  Revised  Statutes,  excepting 
members  of  the  legislature. 

The  PRESIDENT.  The  question  is  upon  or 
dering  the  resolves  to  their  final  passage. 

Mr.  BRIGGS,  of  Pittsfield,  I  wish  to  make 
an  inquiry  in  regard  to  this  matter.  I  am  in 
formed  that  the  mode  of  doing  this  business  in  the 
House  of  Representatives  is  to  pay  a  certain  sum, 
say  one  hundred  or  one  hundred  and  fifty  dollars, 
for  the  work.  If  that  has  been  the  practice  here 
tofore,  I  wish  to  inquire  what  reason  there  was  for 
departing  from  it  in  this  case  ?  I  merely  ask  for 
information. 

Mr.  BIRD,  of  Walpole.  The  Committee  un 
derstood  that  the  practice  had  been  to  pay  four 
dollars  per  day  for  services  of  this  kind  rendered 
by  the  clerk ;  but  I  have  been  informed  by  gen 
tlemen  here  that  the  practice  has  been  to  pay  a 
round  sum,  one  hundred  or  one  hundred  and  fifty 
dollars,  as  the  case  might  be. 

Mr.  BRIGGS.  I  have  no  choice  about  it.  I 
merely  wanted  the  information. 

The  question  was  taken  on  the  resolutions  as  re 
ported  by  the  Committee,  and  they  were  agreed  to. 

Elections  by  Plurality. 

The  PRESIDENT.  The  matter  next  in  order 
is  No.  7  upon  the  calendar,  being  the  resolutions 
upon  the  subject  of  elections  by  plurality  and 
majority.  The  question  pending  is  upon  their 
final  passage. 

The  resolutions  were  read,  as  follows  : — 

Resolved,  That  it  is  expedient  to  provide  in  the 
Constitution  that  a  majority  of  all  the  votes  given 
shall  be  necessary  to  the  election  of  a  governor, 
lieutenant-governor,  secretary,  treasurer,  auditor, 
and  attorney- general  of  the  Commonwealth  :  pro- 
vided,  that  if  at  any  election  of  either  of  the  above- 
named  officers,  no  person  shall  have  a  majority 
of  the  votes  given,  the  House  of  Representatives 
shall,  by  a  majority  of  viva  voce  votes,  elect  two 
out  of  three  persons  who  had  the  highest,  if  so 
many  shall  have  been  voted  for,  and  return  the 
persons  so  elected  to  the  Senate,  from  which  the 
Senate  shall,  by  viva  voce  vote,  elect  one  who 
shall  be  governor. 

Resolved,  That  in  all  the  elections  of  senators 
and  councillors,  the  person  having  the  highest 
number  of  votes  shall  be  elected. 

Resolved,  That  in  the  election  of  representatives 
to  the  general  court  a  majority  of  all  the  votes 
given  in  shall  be  necessary  to  the  election  at  the 
first  ballot :  provided,  that  in  case  of  a  failure  of 
election  on  such  ballot,  the  person  having  the 
highest  number  of  votes  at  the  second  or  any 
subsequent  ballot,  shall  be  elected. 

Mr.  HOOPER,  of  Fall  River.  I  move  the 
previous  question. 


Mr.  DANA,  for  Manchester.  I  hope  the  pre 
vious  question  will  not  be  sustained,  for  I  have 
an  amendment  which  I  desire  to  propose. 

Mr.  SCHOULER,  of  Boston.  I  hope  the  pre 
vious  question  will  not  be  pressed,  because  I  shall 
feel  myself  under  obligation  to  move  a  reconsid 
eration,  and  I  do  not  think  we  shall  gain  any 
time  by  such  a  motion.  I  do  not  intend  to  dis 
cuss  this  matter,  but  I  intend  to  move  the  same 
amendment  which  I  offered  the  other  day.  The 
gentleman  for  Manchester  has  also  expressed  a 
desire  to  move  an  amendment.  I  do  not  know 
what  it  is,  but  I  think  that  opportunity  should  be 
afforded  to  any  gentleman  to  move  amendments. 
I  can  assure  the  gentleman  from  Fall  River,  (Mr. 
Hooper,)  that  I  do  not  intend  to  occupy  any 
time,  but  merely  to  offer  my  amendment.  If  the 
previous  question  should  be  sustained,  and  no 
opportunity  given  to  offer  amendments,  I  shall 
move  a  reconsideration.  I  call  for  the  yeas  and 
nays  upon  the  previous  question. 

The  yeas  and  nays  were  ordered. 

Mr.  HOOPER,  of  Fall  River.  I  will  with 
draw  the  motion  for  the  previous  question. 

Mr.  DANA,  for  Manchester.  I  propose  to 
amend  the  resolves  by  striking  out  all  after  the 
word  "  that,"  in  the  first  resolve,  and  inserting 
the  following  : — 

That  in  the  election  of  all  officers  required  by 
this  Constitution  to  be  elected  by  the  people,  ex 
cept  town  officers  and  representatives  to  the  gen 
eral  court,  the  person  having  the  highest  number 
of  votes  shall  be  deemed  elected.  In  the  election 
of  town  officers  and  representatives  to  the  general 
court,  a  majority  of  votes  shall  be  required,  unless 
otherwise  provided  by  the  legislature. 

I  wish  to  take  a  few  moments  of  the  time  of  the 
Convention  to  suggest  a  reason  or  two  in  favor  of 
this  amendment.  I  said,  day  before  yesterday, 
when  the  subject  of  the  judiciary  was  up,  that  I 
hoped  that  whatever  had  been  settled  by  a  test 
vote  would  be  treated  as  settled ;  and  that  I  would 
not  bring  forward  any  amendment  on  the  subject 
of  the  plurality,  if  the  amendment  on  the  subject 
of  the  judiciary  could  also  be  dropped  ;  but  as 
that  subject  was  reopened,  I  feel  myself  at  liberty 
to  bring  forward  this  amendment. 

The  Convention  will  allow  me  to  suggest  to 
them  the  state  of  this  question  now.  The  officers 
whom  the  people  elect  will  be  divided  into  three 
classes  :  first,  those  chosen  by  towns,  including 
representatives.  Now,  are  we  not  pretty  much 
all  agreed,  as  the  votes  show,  that  they  shall  be 
chosen  still  by  majorities,  and  at  the  same  time, 
that  the  hands  of  the  legislature  shall  not  be  tied, 
so  that  if  towns  think  it  expedient  to  have  the  right 


276 


ELECTIONS    BY   PLURALITY. 


[64th   day. 


Friday,] 


DANA. 


[July  22d. 


to  vote  by  plurality,  they  may  do  it.  Now  the  ob 
jection  to  the  Report  of  the  Committee  is,  that  it 
ties  the  hands  of  the  towns.  They  cannot  vote  on 
the  plurality  principle  on  the  first  trial,  if  they 
wish  to,  without  amending  the  Constitution.  My 
amendment  is  this:  that  in  the  town  meetings 
they  shall  vote  upon  the  majority  rule,  but  that 
the  legislature  may,  when  they  desire  it,  untie 
their  hands  and  allow  them  to  vote  by  the  plu 
rality  rule.  That  is  the  first  class  of  cases ;  and 
the  reason  why  I  think  it  expedient  that  towns 
should  vote  by  the  majority  rule  is,  that  they  are 
deliberative  assemblies,  and  can  vote  as  many 
times  in  a  day  as  they  please,  or  adjourn.  I 
suppose  that  we  pretty  much  agree  that  it  is  best 
to  leave  them  to  the  majority  principle,  with 
power  in  the  legislature  to  alter  it. 

With  regard  to  the  second  class  of  cases,  we  are 
all  agreed,  as  the  votes  show ;  that  is,  in  the 
county  and  district  elections,  including  council 
lors  and  senators,  the  plurality  rule  ought  to  pre 
vail.  My  amendment,  and  the  Report  of  the 
Committee,  therefore,  coincide  in  that  respect. 
Then,  Mr.  President,  is  it  not  true  that,  after  all, 
there  is  but  one  point  of  disagreement  here  ? 
Notwithstanding  all  the  discussion  we  have  had, 
when  we  come  to  get  at  the  bottom  of  the  matter, 
is  it  not  true  that  there  is  but  one  point  of  disa 
greement  here  ?  And  that  point  of  disagreement 
is  far  less,  too,  I  apprehend,  than  gentlemen  sup 
pose  ;  because,  on  that  point — that  is,  relating  to 
the  election  of  governor,  lieutenant-governor,  and 
other  general  officers — the  majority  principle  is 
abandoned.  Yes,  Sir,  the  majority  principle  is 
abandoned.  There  is  no  difference,  on  that  point, 
between  the  friends  of  the  majority  principle  and 
the  friends  of  the  plurality  principle  ;  because  it 
is  agreed,  on  all  hands,  that  there  shall  not  be  a 
second  trial.  Is  not  that  so  r  Is  it  not  agreed 
here,  by  the  friends  of  the  majority,  as  well  as  by 
the  friends  of  the  plurality,  that  there  shall  be  no 
second  trial  for  these  officers  ?  If  there  is  no  sec 
ond  trial,  then  the  majority  principle  is  abandon 
ed.  The  only  question,  then,  is,  whether,  in  case 
there  is  no  majority,  we  shall  take  the  plurality 
rule,  or  leave  it  to  the  legislature.  If  I  am  not 
right  in  that  statement,  I  would  like  to  have  some 
gentleman  say  why  I  am  not  right.  The  votes 
have  shown  that  we  do  not  intend  to  have  a  sec 
ond  trial  anywhere  but  in  towns.  No  second 
trial  for  the  State  officers,  no  second  trial  for  the 
councillors,  no  second  trial  for  the  senators,  or  for 
any  of  the  county  or  district  officers. 

Well,  if  there  is  no  second  trial,  the  majority 
principle  is  abandoned  ;  and  all  the  discussion  on 
the  subject  of  majority  and  plurality  is  entirely  ir 
relevant.  Then  the  real  question  is,  whether,  in 


case  you  have  no  second  trial,  and  there  is  no  ma 
jority  to  elect  the  general  officers,  the  election 
should  be  by  the  legislature  or  by  the  plurality  rule. 
I  take  it  that  the  plurality  principle  is  nearer  the 
majority  principle  than  the  vote  of  the  legislature 
can  be.  I  would  ask  the  friends  of  the  majority 
principle  to  look  at  the  position  which  they  assume, 
when  they  sustain  that  Report.  In  case  they  sus 
tain  the  majority  principle,  and  there  is  no  elec 
tion  by  the  people,  they  leave  it  for  the  House  of 
Representatives  to  choose  two  out  of  the  three 
highest,  and  that  House  of  Representatives  is  not 
based  upon  numbers.  Is  there  any  majority 
principle  in  that  ?  The  House  of  Representatives 
is  not  based  upon  numbers,  and  yet  a  friend  of 
the  majority  principle  leaves  it  to  the  House  of 
Representatives  to  select  two  out  of  three,  and 
then  he  is  to  be  chosen  by  the  Senate.  And  how 
is  the  Senate  chosen  ?  Not  by  a  majority  but  by 
a  plurality.  Now,  where  are  the  friends  of  the 
majority  principle  on  that  Report  ?  If  there  is  not 
a  choice  at  the  first  trial,  they  will  not  allow  a 
second  trial ;  and  they  then  leave  it  to  the  House 
of  Representatives  to  select  two,  that  House  of 
Representatives  not  being  based  upon  numbers. 
They  then  leave  it  to  the  Senate  to  make  the  final 
choice,  the  Senate  being  based  on  a  plurality. 
That  throws  out  the  majority  principle  entirely. 

The  real  question,  then,  is  not  between  a  ma 
jority  and  plurality,  but  between  a  majority  and 
the  legislature,  if  you  cannot  get  the  majority. 
That  is  the  real  question  ;  and  I  say  if  you  cannot 
get  the  majority,  take  the  plurality.  That  is  the 
most  democratic,  the  most  republican,  and  comes 
nearest  to  the  majority  principle. 

The  objections  to  trying  the  question  in  the 
legislature  are  numerous.  The  legislature  ought 
not  to  be  elected  with  reference  to  choosing  a  gov 
ernor,  but  for  a  very  different  purpose.  In  choos 
ing  a  governor  on  this  floor,  we  are  liable  to  the 
influence  of  the  arrangements  made  in  committee 
rooms,  of  coalitions  formed  here  which  are  not  so 
desirable  nor  so  dignified  as  those  formed  at  the 
polls.  If  we  are  to  have  them  I  would  rather 
have  them  formed  at  the  polls  than  in  the  com 
mittee  rooms. 

That  is  all  I  propose  to  say  on  the  main  ques 
tion.  I  think  it  raises  the  issue  fairly. 

I  wish  to  say  one  word  in  reply  to  the  gentle 
man  for  Abington,  who  did  me  the  honor  to  pay 
me  a  higher  compliment  on  this  subject  than  any 
he  had  paid  me  before — and  I  am  indebted  to  him 
for  two  or  three  compliments — for  all  of  which  I 
am  really  obliged  to  him,  because  they  had  the 
evidence  of  being  sincere,  as  everything  has 
which  comes  from  him.  But  this  compliment 
exceeded  them  all.  He  said  that  I  purposed 


64th  day.] 


ELECTIONS    BY   PLURALITY. 


277 


Friday,; 


DANA  —  KEYES. 


[July  22d. 


to  revive  the  dead  Whig  party.  I  did  not  know 
that  he  attributed  to  me  the  power  of  working 
miracles  before ;  but  it  is  quite  true,  that  with 
the  countenance  of  the  gentlemen  for  Berlin, 
(Mr.  Boutwell,)  the  gentleman  from  Springfield, 
(Mr.  Beach,)  and  the  gentleman  from  Lowell, 
(Mr.  Butler,)  the  gentleman  for  Otis,  (Mr.  Sum- 
ner,)  the gentlemanfrom Charlestown,  (Mr.  Froth- 
ingham,)  and  some  others,  I  did  try  to  revive  the 
Whig  party,  if  the  plurality  will  revive  it.  I 
wish  that  when  a  majority  cannot  be  obtained, 
and  we  cannot  have  a  second  trial,  to  say  that 
the  people  shall  elect  by  a  plurality. 

It  has  been  said  by  some  Whig  gentlemen,  that 
the  purpose  of  that  first  resolution  is  to  enable 
certain  parties  to  govern  the  State ;  and  by  other 
gentlemen — the  gentleman  for  Abington  among 
others — that  those  who  favor  the  plurality  prin 
ciple,  do  it  to  enable  another  party  to  govern  the 
State.  Now,  I  wish  to  put  the  question  to  my 
Democratic  friends  whether  they  have  so  little 
faith  in  their  principles,  so  little  confidence  in 
their  star,  as  to  sit  down  in  despondency,  in  the 
belief  that  the  Whig  party  is  always  to  be  the 
popular  party  in  this  Commonwealth ;  whether, 
with  a  popular  New  England  man  president,  who 
had  a  majority  of  the  voters  of  Boston  in  his 
favor,  with  the  prestige  of  almost  unbroken  suc 
cess  on  their  side  throughout  the  Union,  they 
will  sit  down  in  despondency  in  the  belief  that 
the  Whig  party  is  always  to  be  in  the  ascendant 
here  ?  I  wish  to  put  the  question  to  the  gentle 
man  for  Abington,  who  is  a  member  of  an  "  un 
healthy  organization," — and  better  be  unhealthy 
than  be  dead,  for  while  there  is  life  there  is  hope, 
— whether  the  party  to  which  we  belong  has  so 
little  faith  in  its  principles  as  to  believe  that  we 
are  never  to  prevail ;  whether,  with  principles 
which  both  the  other  parties  have  recognized  as 
true,  within  ten  years  ;  and  with  principles  which 
almost  all  the  leading  public  men  in  this  State 
have  recognized  within  ten  years,  at  some  time  or 
other,  to  be  true  ;  whether,  with  principles  in 
support  of  which  he  can  point  to  resolutions 
passed  unanimously,  or  nearly  unanimously,  by 
the  legislature  of  this  State,  within  ten  years  ;  he 
-will  sit  down  in  despondency,  and  make  his 
legislation  in  the  belief  that  his  party  will  never 
be  the  dominant  party  ?  I  would  ask  him  whether 
the  necessity  of  having  more  votes  than  both  the 
great  national  parties  together,  has  not  been  a 
discouraging  fact  in  our  history  ?  Whether  it 
has  not  operated  so,  and  whether,  under  the  plu 
rality  rule,  it  would  not  operate  otherwise  ? 

But,  I  ask  pardon  of  the  Convention  for  sug 
gesting  any  considerations  like  these.  I  do  it  in 
reply — and  I  wish  the  Convention  to  bear  me 


witness  that  I  do  it  in  reply — to  charges  made, 
that  gentlemen  are  governed  by  party  motives.  I 
wish  to  show  that  those  motives  are  too  unsound 
for  any  to  be  governed  by.  No  man  can  tell  who 
will  be  in  the  plurality  here  next  November,  and 
certainly  not,  a  year  from  next  November;  be 
cause  as  the  parties  are  now  constituted,  it  is  hard 
to  say  what  a  day,  and  much  more  what  a  year, 
will  bring  forth  ;  and  in  settling  these  great  con 
stitutional  questions  we  are  not  far-seeing  enough, 
and  I  trust  we  are  too  honest,  to  be  governed  by 
speculations  upon  the  future  state  of  parties.  I 
believe  the  plurality  principle  is  a  political  neces 
sity.  I  think  the  resolve  of  this  Committee  shows 
it  to  be  so  ;  for  this  Committee  have  abandoned 
the  majority  principle,  let  me  say  it  again,  in 
everything  but  the  towns  ;  and  the  only  question 
now,  is  between  the  legislature  and  the  people. 
That  is  the  only  question  ;  and  it  seems  to  me,  that 
in  a  question  like  that,  the  principle  is  clear ;  and, 
as  for  party  success,  we  must  trust  to  Providence 
for  that. 

Mr.  KEYES,  for  Abington.  The  gentleman 
for  Manchester,  says  I  have  paid  him  two  or  three 
compliments.  If  I  have,  certainly  they  were 
given  in  sincerity.  1  do  not  know  but  I  ought  to 
balance  the  account,  and  say  something  on  the 
other  side.  At  any  rate,  after  the  long  contest 
had  the  other  day,  when  there  was  a  full  house  ; 
when  we  talked  about  ending  debate  on  this  sub 
ject  ;  when  we  took  it  up,  item  by  item,  and 
discussed  it  thoroughly  and  understood  every  part 
of  it,  and  voted  in  detail  on  the  whole  of  it ;  I 
supposed  that  ended  the  whole  matter,  if  anything 
ever  can  end  a  matter  in  this  House.  Unless 
there  is  a  limit  somewhere,  how  shall  we  know 
when  we  are  beaten,  and  when  victorious  ;  where 
is  to  be  the  end  ?  It  has  been  said  of  some  of  our 
brave  and  popular  generals  that  they  never  knew 
when  they  were  beaten  ;  and  it  seems  the  gentle 
man  for  Manchester  is  in  the  same  category,  after 
the  contest  the  other  day,  when  we  made  a  fair 
fight  and  the  Report  was  victorious ;  that  ought  to 
have  been  the  end  of  the  debate.  If,  therefore, 
anybody  under  the  circumstances  should  be  per 
mitted  to  introduce  amendments,  it  should  not  be 
the  enemies,  but  the  friends  of  the  Report.  I 
have  no  sympathy  with  persons  who  attempt  to 
amend  and  prepare  for  the  people  articles  which 
they  utterly  oppose  from  beginning  to  end,  and 
which  they  mean  to  oppose  forever.  That  is  not 
the  way  ;  it  is  not  natural  that  they  should  care 
anything  about  the  condition  of  this  bantling, 
only  to  try  to  have  it  go  forth  in  the  most  monstrous 
shape  that  it  can. 

Now,  Sir,  the  gentleman  for  Manchester  is 
the  last  whom  I  should  suspect  of  improper 


278 


ELECTIONS    BY   PLURALITY. 


[64th  day. 


Friday,] 


KEYES  —  DANA  —  BIRD. 


[July  22d. 


motives ;  and  I  have  no  wish  to  arraign  the  motives 
of  anybody,  for  we  cannot  see  the  heart ;  but  it  is 
a  little  strange  that  he  should  be  so  anxious  for 
the  adoption  of  a  system  so  utterly  opposed  to  all 
the  sentiments  of  his  whole  life— a  system  which, 
if  it  should  prevail,  would  break  down  the  old 
landmarks  of  the  Constitution  and  utterly  revolu- 
tioni/e  the  government.  Sir,  if  this  policy  should 
be  adopted,  it  would  be  absurd  to  call  this  a  repub 
lican  government — there  is  no  such  definition  of 
the  word  in  any  of  the  dictionaries,  Latin,  Greek, 
French,  or  Sanscrit.  I  trust  that  if  this  Convention 
has  arrived  at  the  period  when  it  can  justify  itself  in 
limiting  speeches  to  fifteen  minutes,  it  can  assume 
authority  in  other  respects.  Although  originally 
opposed  to  the  previous  question,  still,  I  regard 
this  as  a  matter  which  has  been  fully  discussed 
and  settled  by  the  Convention ;  and  the  only  at 
tempts  which  are  now  made  to  make  a  change, 
are  by  its  bitterest  enemies  in  all  respects ;  and, 
therefore,  I  think  the  time  has  now  come  to  put 
the  screws  on. 

Mr.  DANA.  If  the  gentleman  will  allow  me, 
I  would  like  to  ask  him  one  question.  He  says 
that  if  we  adopt  the  plurality  rule  instead  of  the 
majority  rule,  there  is  no  republicanism.  I  want 
to  ask  him  what  remains  of  the  majority  rule  in 
that  Report  ? 

Mr.  KEYES.  I  am  perfectly  content  to  say, 
nothing  remains  ;  but  then,  if  he  thinks  that  this 
is  all  plurality,  wrhy  does  he  not  vote  for  it  ?  If 
it  is  all  plurality,  what  more  does  he  want  ? 
These  plurality  men  are  not  satisfied  with  that ; 
but  if  his  argument  is  good  for  anything,  they  are 
entirely  unjustifiable  in  making  any  objection  to 
it  at  all.  It  is  said  that  we  have  surrendered 
nothing  to  that  side  ;  but,  Sir,  it  seems  to  the  gen 
tleman  for  Manchester,  that  we  have  surrendered 
the  whole.  I  am  glad  that  he  has  reminded  me 
of  that  point,  for  I  had  nearly  forgotten  it,  al 
though  I  took  a  note  of  it  at  the  time.  Mr.  Presi 
dent,  we  have  surrendered  almost  everything,  and 
yet  they  are  not  satisfied  unless  they  get  more 
than  the  lion's  share,  Now,  I  ask  him  again,  if 
this  is  a  good  plurality  system,  why  is  he  not 
satisfied  with  it  ?  What  does  he  want  more  ? 
What  he  seems  to  desire  is  a  mere  forma  .ity,  and 
he  ought  to  be  willing  to  submit  to  a  fair  com 
promise,  for  the  harmony  of  the  Convention, 
which  is  almost  equally  divided  on  the  subject. 
Now,  I  am  strongly  in  favor  of  the  majority  sys 
tem  ;  and,  Sir,  we  have  the  gentleman's  own 
arguments  in  reference  to  all  other  subjects,  in 
its  favor;  the  history  and  experience  of  this 
country  is  in  its  favor ;  the  history  of  every 
country  that  is  not  disgraced  and  dishonored,  is  in 
its  favor.  Sir,  if  I  know  anything  about  politics, 


I  know  that  the  effect  of  the  plurality  system  is  to 
degrade,  to  demoralize,  and  dishonor  any  people, 
or  any  government,  where  it  is  adopted.  I  say 
that  this  change  which  is  proposed,  is  one  of  the 
most  radical  character ;  and  it  was  so  considered 
by  the  united  Whig  party  two  years  ago ;  and 
their  change,  in  this  respect,  has  neither  been  by 
reason,  or  common  sense,  or  justice.  It  has  been 
for  a  purpose — I  do  not  charge  anybody  with  im 
proper  motives,  or  with  any  motives  at  all — as  I 
said  before,  I  do  not  profess  to  look  at  the  heart ; 
the  motives  may  have  been  good,  or  they  may 
have  been  bad  ;  I  do  not  care  what  they  were,  I 
only  look  at  the  surface  of  things  ;  but  I  know,  and 
every  man  here  knows,  that  there  are  Democrats 
in  Massachusetts  who  have  done  nothing  else  but 
work  in  aid  of  the  Whig  party ;  they  want  to 
keep  the  Democratic  party  conveniently  small,  so 
that  they,  and  their  friends  may  absorb  all  the 
spoils  which  fall  to  the  State.  But  men  who  call 
themselves  Democrats,  vote  upon  the  other  side  ; 
that  particular  class  of  men  to  which  he  alluded, 
and  some  of  whom  he  pointed  out,  are,  at  heart, 
in  favor  of  this,  and  yet  have  voted  all  the  time 
in  aid  of  the  Whig  party.  Now,  I  do  not  wish 
to  act  in  such  company,  however  distinguished 
the  men  may  be.  I  do  not  suppose  that  any  gen 
tleman  can  find  himself  in  such  company  on  the 
ground  of  reason,  or  common  sense,  or  conscience. 
I  beg  to  be  understood  that  I  charge  no  improper 
motives  upon  any  one  upon  this  floor ;  but  the 
grand  argument  which  I  would  now  impress  upon 
the  minds  of  this  Convention  is,  that  this  thing  has 
been  discussed  over  and  over  again,  and  it  is  time 
that  the  discussion  was  brought  to  a  close.  I  hope, 
therefore,  that  we  shall  take  up  the  items  one  by 
one,  and  if  it  be  possible  to  gain  a  victory  upon 
this  Report,  that  we  shall  stand  by  it  under  all 
circumstances. 

Mr.  BIRD,  of  Walpole.  Mr.  President :  I 
move  to  amend  the  Report  by  striking  out  the 
third  resolution,  and  substituting  in  lieu  thereof 
the  following : — 

Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution  as  to  provide  that  a  majority  of  the 
votes  shall  be  necessary  for  the  election  of  repre 
sentatives  to  the  general  court,  until  otherwise 
provided  by  law. 

I  offer  this  amendment,  Mr.  President,  prin 
cipally  because  something  of  the  kind  is  neces 
sary,  in  order  to  make  this  proposition  at  all  of  the 
character  of  a  compromise.  A  great  deal  has  been 
said  about  compromise  in  this  resolution  ;  for  one, 
I  must  say,  in  relation  to  that,  that  I  do  not  see 
much  of  a  compromise  in  it ;  and  I  never  could 
give  my  support  to  such  a  resolution  as  this  upon 
the  ground  that  it  was  a  compromise. 


64th   day.] 


ELECTIONS    BY   PLURALITY. 


279 


Friday,] 


BIRD  —  GOOCH. 


[July  22d. 


I  do  not  know  as  anybody  has  told  us,  in  the 
course  of  this  debate,  what  the  compromise  con 
sisted  in.  It  has  been  intimated,  that  it  was  a 
compromise  which  was  concocted  in  an  eating- 
house,  or  that  some  arrangements  was  made  there 
which  foreshadowed  the  final  result  here.  All 
that  I  have  to  say  in  relation  to  that  matter,  is, 
that  I  know  of  no  such  arrangements,  and,  least 
of  all,  in  connection  with  this  matter.  The 
charge,  that  the  order  of  business  here  is  the  re 
sult  of  caucus  arrangements,  is  far  from  compli 
mentary  to  the  majority ;  for,  if  such  arrange 
ments  are  made,  nobody  adheres  to  them. 

I  do  not  regard  these  resolutions  as  being  any 
compromise  at  all,  as  they  give  absolutely  noth 
ing  to  the  friends  of  the  majority  system.  They 
provide  that  the  governor  and  other  State  officers 
shall  be  chosen  by  a  majority  at  the  first  ballot ; 
but  that  if  there  is  not  a  majority  at  this  popular 
election,  then  they  are  to  be  chosen  by  the  legis 
lature.  In  the  present  state  of  parties  in  this 
State,  these  six  State  officers  will  not  be  chosen 
by  a  majority  of  the  popular  vote  at  the  first 
election.  This  gives  us  nothing  at  all ;  because 
then  the  election  is  given  to  the  legislature.  The 
county  and  district  officers  are  all  to  be  elected  by 
a  plurality  ;  and  the  representatives  to  the  general 
court  are  to  be  chosen  by  a  majority  at  the  first 
trial,  and  the  plurality  system  at  the  second  ;  and 
this  is  what  they  call  a  concession  to  the  friends 
of  the  majority  system  !  Sir,  it  is  no  concession 
at  all.  E  very-body  knows  that  it  is  a  fact,  that 
the  election  of  representatives  in  a  majority  of 
towns,  is  not  ordinarily  made  at  the  first  ballot. 
I  do  not  say  that  it  is  not  made  on  the  first  day, 
but  not  at  the  first  ballot.  Now  as  a  party  man, 
if  I  am  going  to  have  the  plurality  system  at  all, 
I  want  to  have  it  at  the  first  ballot  rather  than 
the  second.  I  do  not  want  any  second  trial  by 
plurality  for  representatives  to  the  general  court. 

But  I  do  not  look  at  this  matter  in  a  party 
light  at  all.  I  want  to  establish  in  our  Consti 
tution,  some  sort  of  recognition  of  the  majority 
principle ;  and,  unless  we  adopt  the  amendment 
which  I  have  proposed,  I  think  we  shall  not  have 
it.  Although  I  should  prefer,  personally,  that 
the  majority  rule  should  apply  to  a  larger  num 
ber  of  officers  than  even  this  amendment  will 
include,  still  I  am  willing  to  go  with  our  friends 
who  are  in  favor  of  the  plurality  rule,  as  a  mat 
ter  of  compromise.  I  ask  nothing  unreasonable 
in  this  compromise ;  but  simply  that  you  will 
give  us  a  chance  to  elect  our  representatives  to 
the  general  court  by  the  majority  system  ;  and, 
if  afterwards,  the  people,  through  the  legislature, 
shall  decide  that  it  is  better  to  apply  the  plurality 
rule  to  the  election  of  representatives,  I  will  be 


willing  then  to  yield,  and  give  that  up  too.  I 
say  that  this  is  what  I  consider  a  fair  compromise. 
We  give  you  all  the  State  officers,  councillors, 
senators,  judges  of  probate,  county  commission 
ers  and  commissioners  of  insolvency,  and  all 
county  and  district  officers  ;  and,  all  that  we  ask, 
is  simply  the  concession  that  we  may  retain  the 
majority  system  for  the  election  of  representatives 
to  the  general  court. 

I  should  have  been  glad  to  have  adopted  the 
rule  indicated  by  my  friend  from  Melrose,  (Mr. 
Gooch,)  the  other  day  ;  and  that  is,  that  in  the 
election  of  the  law-making  power,  a  majority 
vote  should  be  required  in.  all  cases  ;  but,  in  the 
election  of  administrative  officers,  who  were  not 
to  make  laws,  but  merely  to  administer  them,  the 
plurality  system  should  be  adopted.  I  considered 
that  as  a  very  good  rule,  and  a  fair  compromise, 
that  the  governor,  lieutenant-governor,  senators, 
and  representatives — for  I  do  not  care  much  which 
rule  you  apply  to  the  secretary,  treasurer,  audi 
tor,  and  attorney- general,  whether  they  are  chosen 
by  plurality  or  not — should  have  been  chosen  by 
the  majority  system ;  but  I  am  willing  to  concede 
even  more  than  that.  I  am  not  willing,  however, 
to  go  farther  than,  the  amendment  which  I  have 
now  submitted,  indicates.  Until  the  people  shall 
decide  that  the  plurality  rule  shall  be  adopted,  I 
am  unwilling  to  yield  the  majority  principle.  I 
want  to  hold  on  to  that,  to  the  extent  that  we 
shall  at  least  have  one  branch  of  the  legislature — 
one  branch  of  the  law-making  power,  which  is 
to  choose  the  governor  under  certain  circum 
stances — elected  by  the  majority  principle. 

But  I  will  not  go  into  this  matter  at  length.  If 
gentlemen  are  not  disposed  to  yield  us  this  one 
point — of  applying  the  majority  principle  to  our 
representatives — I  do  not  suppose  they  can  be 
argued  into  it  by  anything  which  I  can  say.  I 
will  add,  however,  that  if  we  cannot  secure  this 
recognition  of  the  majority  principle  in  the  Con 
stitution  on  this  one  point,  rather  than  to  go  for 
the  Report  as  it  stands  now,  I  would  go  for  the 
plurality  rule  clean  through  from  top  to  bottom. 
Rather  than  accept  the  proposition  of  the  gentle 
man  for  Manchester,  I  would  give  up  entirely, 
and  let  the  plurality  principle  be  applied  to  every 
thing.  This  amendment,  which  I  have  offered, 
is  submitted  in  a  spirit  of  compromise,  and  I  am, 
willing  to  go  more  than  half  way  for  the  sake  of 
harmony  ;  but,  if  we  cannot  agree  upon  a  fair 
compromise,  in  God's  name  let  us  at  least  have  a 
principle,  or  something  that  looks  like  a  uniform 
rule,  to  stand  upon. 

Mr.  GOOCH,  of  Melrose.  I  wish  to  submit 
an  amendment  to  the  amendment  proposed  by 
the  gentleman  from  Walpole  ;  and  with  the  addi- 


280 


ELECTIONS  BY  PLURALITY. 


[64th   day. 


Friday,] 


DENTOX  —  GOOCII  —  HOOPER. 


[July  22d. 


tion  which  I  propose,  I  shall  be  in  favor  of  his 
amendment.  I  move  to  add,  at  the  end  of  the 
amendment,  the  following  proviso : — 

Provided,  that  no  law  on  this  subject  shall  take 
effect  until  two  years  after  its  passage. 

Mr.  DENTON,  of  Chelsea.  I  rise  to  a  ques 
tion  of  order.  I  will  inquire  if  the  gentleman  for 
Manchester  did  not  propose  an  amendment  to  the 
resolution,  and  if  the  gentleman  from  Walpole 
did  not  propose  an  amendment  to  his  amendment  r 
The  PRESIDENT.  The  Chair  will  state, 
for  the  information  of  the  gentleman,  the  position 
of  the  question.  The  delegate  for  Manchester 
moves  to  amend  by  striking  out  the  resolution 
and  inserting  another  resolution.  The  delegate 
from  Walpole  moves  to  amend  the  part  to  be 
stricken  out,  which  takes  precedence  of  the  motion 
to  strike  out.  The  vote  must  first  be  taken  on 
the  amendment  proposed  by  the  delegate  from 
Walpole,  to  amend  the  part  which  it  is  proposed 
to  strike  out;  and  the  delegate  from  Melrose 
moves  to  amend  that  amendment,  which  is  in 
order. 

Mr.  GOOCH.  The  reason  why  I  propose  the 
amendment  which  I  have  submitted,  is  this :  I 
think,  that  by  the  adoption  of  the  amendment 
proposed  by  the  gentleman  from  Walpole,  to 
gether  with  my  amendment,  the  matter  will  be 
placed  where  it  ought  to  be,  in  the  hands  of  the 
people.  It  will  be  placed  so  that  the  people  shall 
have  control  over  it.  No  one  legislature  can 
have  entire  control  over  the  matter,  but  it  will  be 
put  in  a  position  so  that  if  one  legislature  sees  fit 
to  change  the  present  rule  to  the  plurality  rule, 
and  the  people  see  fit  to  ratify  that  action,  it  can 
be  done ;  and  otherwise  it  cannot  be  done.  I  am 
willing  to  leave  the  matter  in  this  position.  If 
the  people  desire  that  the  majority  principle  may 
be  continued  for  the  election  of  their  representa 
tives,  then,  Sir,  with  this  provision,  they  have 
power  to  accomplish  their  object  whenever  they 
choose  to  do  so.  If  they  send  to  the  legislature 
men  who  pass  a  law  making  a  change  to  the  plu 
rality  system,  and  if  that  measure  is  not  repealed 
by  the  subsequent  legislature,  then  it  goes  into 
effect  as  a  law  of  the  Commonwealth,  and  the 
plurality  rule  is  established.  It  takes  it  out  of 
the  hands  of  any  political  party,  and  places  in  the 
hands  of  the  people ;  because,  if  the  legislature 
pass  a  law  changing  the  majority  rule,  then,  Sir, 
the  people,  if  they  do  not  approve  of  the  change, 
can  send  men  to  the  next  legislature  who  will 
repeal  the  law  making  the  change.  If  the  two 
amendments  are  adopted,  it  requires  two  years  to 
carry  the  law  into  effect,  and  another  legislature 
must  intervene  before  it  can  take  effect.  Then, 


Sir,  if  a  change  takes  place,  it  obtains  the  sanction, 
not  of  one  legislature  merely,  but  of  two  succes 
sive  legislatures ;  and  the  sanction  also  of  the 
people,  because  the  members  of  the  second  legis 
lature  will  be  chosen,  knowing  that  the  matter 
might  be  altered  or  changed  by  the  subsequent 
legislature ;  and  of  course,  if  the  people  are  op 
posed  to  it,  they  will  elect  members  to  the  legis 
lature  who  will  put  the  matter  right,  and  leave  it 
in  such  a  shape  as  the  people  desire  to  have  it 
stand.  I  hope  the  amendment  which  is  presented 
by  the  gentleman  from  Walpole,  and  the  amend 
ment  which  I  have  moved  to  that  amendment, 
may  both  be  adopted. 

Mr.  HOOPER,  of  Fall  River.  I  moved  the 
previous  question,  in  the  outset,  in  the  hope  that 
this  Report,  as  presented  here,  would  satisfy  all 
parties.  It  is  manifest  that  there  is  a  difference 
of  opinion  among  those  who  generally  act  together 
in  this  Convention,  and  it  is  necessary  that  some 
thing  should  be  conceded  on  both  sides.  I  am  in 
favor  of  the  plurality  system  throughout.  I  have 
been  so  from  the  beginning,  and  I  am  so  still ; 
but  I  find  other  gentlemen  are  opposed  to  it. 
There  are  certain  instances  in  which  I  am  desirous 
of  having  it  applied  more  than  in  others,  because 
the  convenience  and  the  wishes  of  my  constitu 
ents  require  it.  Now,  Sir,  I  am  willing  to  give 
up  something,  a  part,  to  obtain  the  remainder — I 
am  willing  to  give  up  what  the  Report  1ms  given 
up — the  election  of  those  officers  who  are  to  be 
elected  by  the  whole  people  at  large.  And  I  can 
the  more  readily  concede  this,  because  the  prin 
ciple  is  in  accordance  with  the  one  which  has 
been  suggested  by  the  gentleman  for  Manchester, 
(Mr.  Dana,)  and  other  gentlemen  here — that  the 
legislature,  or  those  persons  who  are  to  be  elected 
by  the  people  at  large,  can  exercise  those  dele 
gated  powers  as  well  as,  and  perhaps  better,  if 
their  doctrine  is  true,  than  the  people  themselves. 
He  goes  for  having  the  governor,  who  is  elected 
by  the  people  at  large,  appoint  the  judges. 
Others  contend  that  this  is  an  election  by  the 
people.  Now,  if  this  be  so,  why  is  it  not  as  well 
for  the  legislature,  elected  by  the  people  of  the 
State,  to  elect  those  officers  named  in  the  Report, 
to  be  elected  by  them  in  a  certain  contingency  ? 
It  is  a  business  they  have  been  accustomed  to  do 
in  part,  that  is,  to  elect  a  secretary,  treasurer,  and 
auditor,  and  a  governor  and  lieutenant-governor, 
frequently.  Now,  I  am  willing  to  let  the  whole 
matter  rest  where  the  Report  of  the  Committee 
leaves  it,  and  sustain  that  Report,  as  the  only 
safe  ground  on  which  we  can  stand,  under  exist 
ing  circumstances. 

But  it  is  proposed,  on  the  other  hand,  to  change 
the  election  of  representatives  and  town  officers. 


64th  day.] 


ELECTIONS    BY   PLURALITY. 


281 


Friday,] 


HOOPER  —  HITRLUUT. 


[July  22d. 


That  is  a  point,  of  all  others,  which  I  wish  to  re 
tain.  It  is  the  one  in  which  my  constituents  feel 
the  most  interest.  There  I  wish  to  have  the  plu 
rality  system  applied.  I  should  prefer  to  have  it 
in  the  first  instance ;  but  I  am  willing  to  concede 
something  even  there. 

Now,  this  Report  is  the  Report  of  a  Committee 
which  was  appointed  expressly  with  the  view  of 
making  a  compromise  report  upon  this  matter. 
Gentlemen  will  recollect  that  one  Report  that  was 
brought  in,  recommended  the  plurality  system 
throughout.  That  Report  was  in  part  accepted, 
and  in  part  rejected.  A  Committee  was  appointed 
to  draw  up  a  report  incorporating  the  different 
views  which  had  been  expressed.  They — the 
Committee — supposed  they  had  done  this;  and 
now  I  hope  that  gentlemen  will  stand  upon  the 
Report  as  it  is.  I  am  willing  to  stand  upon  it,  for 
one ;  but  if  this  amendment  is  adopted,  I  shall 
be  constrained  to  vote  against  that  Report  as  a 
whole.  Let  it  therefore  stand  as  it  is,  and  I  will 
go  for  it.  I  think  it  is  the  only  safe  ground  we 
can  take. 

Mr.  HURLBUT,  of  Sudbury.  Mr.  President : 
On  a  former  occasion,  I  expressed  my  views  upon 
this  subject.  Then,  I  attempted  to  show  that  the 
majority  principle  was  the  only  true  one.  My 
convictions  are  the  same  to- day.  Sir,  I  am  not 
prepared  to  stand  upon  this  Report,  and  for  this 
reason  :  we  are  called  upon  to  coir  promise  ;  and 
what  does  that  imply  ?  Why,  that  two  or  more 
parties  disagree,  and  that  each  shall  surrender 
something.  When  this  question  was  under  dis 
cussion  before,  so  nearly  were  the  Convention 
balanced  between  plurality  and  majority,  that 
neither  party  were  willing  to  press  the  matter. 
For  this  reason,  it  was,  Sir,  that  a  new  Commit 
tee  was  appointed,  with  the  understanding  that  a 
different  proposition  should  be  submitted,  recog 
nizing  the  two  principles  ;  not  that  one  should 
lose  all,  and  the  other  gain  everything ;  but  that 
each  should  yield  to  the  other — that  there  should 
be  mutual  concession.  And  now,  Sir,  what 
have  they  presented  us  ?  A  plan  by  which  plu 
rality  must  elect  every  department  of  the  govern 
ment.  I  submit,  Sir,  that  there  is  no  feature  of 
compromise  in  the  whole  bill.  There  is  running 
through  each  resolve  the  cry  of  "  give,  give." 
Sir,  I  am  prepared  to  yield  one-half,  yes,  more 
than  that,  much  more,  if  need  be ;  but  I  cannot 
surrender  everything ;  and  I  would  much  prefer 
to  remain  silent  in  my  seat,  did  I  not  believe 
gentlemen  to  be  deceived  in  this  matter.  I 
apprehend,  Sir,  that  the  third  resolve  has  quieted 
the  fears  of  gentlemen ;  that  they  do  not  fully 
understand  its  operation.  It  is  for  this  reason, 
that  I  rise,  to  save,  if  possible,  the  principle  of 

19* 


elections  by  majority  from  complete  and  perpet 
ual  ruin. 

Sir,  let  us  examine  the  several  resolutions  in 
their  order.  The  first  proposes  that  the  governor 
and  lieutenant-governor  shall  be  elected  by 
majority  ;  but,  Sir,  who  does  not  know  that  we  are 
to  have  but  one  trial,  and  in  case  there  is  no  choice 
of  State  officers,  provision  has  been  made  to  elect 
them  on  this  floor.  And  who  does  not  know, 
too,  that  the  people  have  failed  to  elect  such  offi 
cers  in  years  past,  and  in  all  probability  will  fail 
to  do  so  in  years  to  come  ?  Have  the  friends  of 
the  majority  principle  anything  to  expect,  then, 
from  such  an  arrangement  ?  Certainly  not.  It 
must  then  depend  upon  the  manner  of  choosing 
representatives  whether  your  State  officers  are 
elected  by  majority  or  plurality.  And  how  is  it 
in  regard  to  county  officers  ?  Why,  we  accede  to 
the  opposition  the  right  to  elect  on  the  first  ballot, 
and  by  plurality.  Now,  then,  we  come  to  town 
representation,  and  how,  I  ask,  do  the  Committee 
propose  to  elect?  By  plurality,  most  clearly — 
and  I  appeal  to  every  honest  gentleman  present, 
if  it  be  not  so  :  True,  they  say  we  may  elect  by 
majority,  if  we  can,  on  the  first  ballot.  Sir,  the 
first  ballot  is  only  the  bringing  forward  of  candi 
dates  ;  and  frequently,  perhaps  I  may  say  gen 
erally,  gentlemen  who  are  to  lead  off  in  the  seve 
ral  parties  are  not  named  till  declared  by  the 
chair.  Then  for  a  second  trial,  and  that  is  to 
decide.  The  party  then  which  happen  to  have  a 
plurality  of  voters  present,  though  it  be  a  small 
minority  in  the  city  or  town,  must  be  triumphant. 
Are  gentlemen  prepared  for  this  ?  I  trust  not. 
Let  us  not  be  deceived.  If  gentlemen  intend  to 
go  for  plurality,  let  it  be  done  fairly,  openly, 
manfully.  I  can  understand  how  gentlemen  may 
vote  on  that  principle.  I  can  understand  how 
they  may  vote  for  majority,  too,  and  I  can  see 
with  what  propriety  both  parties  may  meet  on  a 
common  platform  of  compromise  ;  but,  Sir,  I  do 
not  understand  why  we  should  adopt  these  reso 
lutions,  which  acknowledge  neither  plurality  or 
majoritjr,  and  are  wanting  in  every  important 
particular  of  a  fair  and  honest  compromise. 

Sir,  the  Report  is  without  principle.  I  want  a 
compromise,  or  else  I  want  to  vote  upon  princi 
ple,  and  only  upon  principle.  I  am  prepared  to 
vote  for  the  amendment  of  the  gentleman  from 
Walpole,  because  we  surrender  everything  but 
town  majorities,  and  if  we  can  secure  that  to  our 
towns,  we  have  a  compromise ;  not  such  as  in  my 
humble  judgment  we  had  a  right  to  expect,  but 
the  best  we  shall  be  likely  to  obtain,  at  this  late 
stage  of  the  bill.  Should  that  amendment  fail, 
then  I  will  vote  for  that  of  the  gentleman  for 
Manchester,  which,  in  my  judgment,  is  preferable 


282 


ELECTIONS    BY   PLURALITY. 


[64th  day. 


Friday,] 


HURLBTTT  —  STETSOX. 


[July  22d. 


to  the  resolutions  on  your  table ;  and  should  that 
fail,  then,  Sir,  I  shall  go  for  the  majority  principle 
entire.  It  seems  clear  to  my  mind,  that  if  we 
fail  to  sustain  the  first  amendment,  all  is  lost. 
Yes,  Sir,  everything.  Not  a  vestige  of  principle 
remains;  there  is  not  a  single  p'ece  of  broken 
plank  in  the  old  ship  big  enough  to  place  your 
foot  upon. 

Sir,  I  know  not  how  others  may  act ;  but  for 
myself,  I  see  only  one  course  to  pursue,  and  that 
is  the  straight  course.  I  do  not  say  that  I  will  have 
the  whole,  or  nothing.  No,  Sir.  But  I  do  de 
mand  something.  No  gentleman  has  attempted 
to  overthrow  the  great  majority  principle  only  on 
grounds  of  expediency.  Sir,  what  weight  ought 
such  arguments  to  have  ?  It  might  be  expedient 
to  establish  a  despotic  government,  for  ought  they 
show  to  the  contrary.  Certainly,  it  would  be 
more  convenient  oftentimes  ;  not  half  the  ma 
chinery  would  be  necessary  to  carry  it  on.  And 
for  such  a  reason  are  gentlemen  ready  to  make  the 
exchange  ?  "  Trust  it  not,  Sir,  'twill  prove  a  snare 
to  your  feet."  In  the  hands  of  the  people — the 
majority  of  the  people — our  institutions  are  safe  ; 
place  them  wherever  else  you  please,  and  they  are 
in  danger. 

Mr.  STETSON,  of  Braintree.     I  regret  that  I 
feel  it  my  duty  to  address  the  Convention  again 
upon  this  question.     I  do  not  now  propose  to 
argue  the  question,  because  the  Convention  are 
tired  of  it.     I  suppose,  that  in  the  long  and  able 
arguments  that  have  been  made  upon  this  bill, 
beginning  about  the   20th  day  of  May  last,  and 
occupying  the  attention  of  the  Convention  at  that 
time  for  nearly  five  days,  and  then  upon  taking  the 
question  the  majority  being  nearly  balanced  by  the 
minority,  that  we  would  have  definitely  settled  it 
before  this.     What  I  mean  by  the  majority  is  this : 
that  upon  certain  questions,  there  is  a  bare  major 
ity,  and  upon  others,  a  majority  one  way  at  one 
time,  and  another  way  at  another  time,  a  vacillat 
ing  sort  of  majority,  with  which  the  Convention 
is  not  satisfied,  and  of  which,  Sir,  I  venture  to 
say,  that  the  records  of  no   Convention  which 
ever  yet  met  together  upon  this  continent,  will 
show  the  like,  as  the  votes  will  show  during  the 
last  days  of  that  discussion.     Now,  Sir,  we  have 
spent  two  or  three  days  more  in  discussing  this 
matter,  as  reported  by  this  new  Committee.     It 
•was  given  out  by  the  leaders  of  this  Convention, 
that  a  Report  was  to  be  brought  in  which  would 
be  acceptable  to  all.      Well,  Sir,   after  several 
•weeks'  delay,  this  bill  was  brought  in,  and  was 
but  very  faintly  advocated  by  the  chairman  of  the 
Committee.     Its  provisions,  and  its  excellencies, 
•were  left  to  be  developed  by  other  means  than  those 
at  the  disposal  of  the  chairman  of  the  Committee. 


Now,  Sir,  I  will  ask,  if  the  time  which  has 
been  spent  in  this  session  of  the  Convention,  is  to 
be  charged  upon  a  majority  of  its  members  ?     I 
believe,  as  one  of  the  progressives,  that  the  blame 
of  some  little  portion  of  the  delay  rests  upon 
myself.     But,  Sir,  the  leaders  of  this  Convention 
have  declared,  from  time  to  time,  upon  this  floor, 
that  they  were  not  strenuous  about  carrying  any 
thing  which  the  people  did  not  seern  to  desire ; 
that  they  would  not  be  strenuous  in  maintaining 
any  measures,  if  they  could  be  carried  without 
their  assistance.      The  gentleman  from  Lowell, 
(Mr.  Butler,)  the  other  day,  said  he  had  no  desire 
to  be  pertinacious  in  regard  to  obtaining  measures 
to  suit  himself.  [Laughter.]     If  he  could  not  get 
what  he  wanted,  why  he  would  take  just  what 
the  Convention  would  give  him.     He  was  very 
humble,  and  everything  was  very  satisfactory  to 
him.     Very  well :  the   plurality  question  came 
up  the  other  day,  upon  its  final  passage  ;  and  I  do 
not  know  where  the  gentleman  from  Lowell  was 
at  that  time  ;  but  another  question  came  up  in 
relation  to  the  election  of  judges,  on  which  it  was 
understood  that  he  was  to  speak  ;  and,  I  believe 
he  did  speak  in  a  very  Immblc  manner  [laughter] 
and  gave  his  support  to  the  question  of  seven 
years'  appointments;  but  when  the  Convention 
ruled  to  change  the  term  to  ten  years,  the  gentle 
man  was   off;    he  would  not  support  the  bill. 
[Laughter.]     No,  not  he ;  he  would  not  support 
it.     He  entered  his  protest  against  it  upon  the 
record,  all  because  he  is  not  pertinacious  in  regard 
to  any  measure  which  he  deems  for  the  interest  of 
the  Commonwealth  !     [Laughter.]     Now,  Sir,  I 
went  for  that  proposition,  because  the  term  of  ten 
years  was  substituted  for  that  of  seven  years.     I 
voted  for  it  on  that  ground,  and  should  have  voted 
against  it  on  the  other ;  so  that  in  one  sense,  the 
gentleman    from  Lowell   and  myself  agree — to 
differ.    Sir,  I  doubt  if  you  can  produce  a  precedent 
on  record,  of  such  vacillating  legislation,  as  will 
hereafter  be  found  to  have  taken  place  here,  when 
the   reports  of  our  proceedings  are  fully  made 
up.     And,  on  which  side  is  it,  Sir  ?     Why,  Sir, 
upon  the  side  of  our  own  party ;  on  the  side  of 
those  who  call  themselves  progressionists,  dividing 
from  time  to  time,  and  each  claiming  the  lion's 
share.     I  know  that  it  is  said,  that  there  are  no 
parties   here.     In  one  sense,   perhaps   not;    but 
there  is  a  party  here  who  wish  to  take  another 
party  under  their  particular  care,  because  it  has 
been  a  declaration  of  the  Free  Democracy  for  years 
—and  they  have  stated  it  upon  this  floor — that 
the  Democratic  party  itself  had  110  character ;  and 
the  reason  why  they  wished  to  close  with   the 
Democratic  party  was,  that  they  might  take  them 
under  their  care,   and  give    them  a  character. 


64th  day.] 


ELECTIONS    BY   PLURALITY. 


283 


Friday,; 


STETSOX  —  WALKER  —  DANA. 


[July  22d. 


[Laughter.]  Now,  far  be  from  roe  any  such  char 
acter  as  they  will  give  me,  from  taking  me  under 
their  care.  I  do  not  wish  to  be  taken  under  the 
wing  of  the  Free  Democracy,  unless  they  will 
exhibit  some  straight- forwardness  of  purpose  ; 
some  manly,  open  and  independent  character, 
whereby  they  may  exist  as  a  party  and  maintain 
it;  that  is,  maintain  it  by  a  course  of  action 
which  shall  give  the  people  some  confidence  that 
they  are  acting  upon  principle.  And  I  am  free 
to  admit  myself,  that  I  believe  that  such  legisla 
tion  as  has  been  had  in  this  body  is  disreputable ; 
and  if  I  understand  anything  of  the  character  and 
feeling  of  the  people  of  Massachusetts,  they  will 
never  sanction  the  tergiversation  of  this  body. 
[Laughter.]  Now,  when  this  comes  before  the 
people,  I  think  they  will  judge  of  it,  and  investi 
gate  it,  and  I  hope  they  will  understand  its  char 
acter.  If  they  feel  confidence  in,  and  sanction 
all  the  doings  of  this  Convention,  they  are  made 
of  more  pliable  materials  than  I  have  thought  the 
Yankees  have  heretofore  been  made  of.  I  do  not 
believe  there  is  such  pliable  materials  in  the  Yan 
kee  character.  Sir,  the  changes  which  have  been 
made  upon  this  floor,  from  time  to  time,  by  the 
leaders  of  the  Free  Democracy  of  this  body,  and 
by  those  who  are  called  the  true  Democracy,  have 
been  such,  that  I  think  had  any  spectator  been  in 
the  gallery,  viewing  the  doings  of  this  Conven 
tion,  they  could  not  but  suppose  that  the  brains 
of  some  of  such  leaders  were  hung  upon  a 
weathercock.  It  seems  to  me  that  certain  mem 
bers  have  lost  sight  of  the  purposes  for  which 
they  were  sent  here.  They  appear  to  have  but 
one  purpose,  and  that  is,  the  making  of  political 
capital  for  themselves,  and  to  lose  sight  entirely  of 
the  objects,  or  the  purposes  for  which  this  Con 
vention  was  called. 

Now,  Sir,  I  have  not  spoken  to  the  question, 
and  I  stated  I  should  not.  I  did  not  pretend  to, 
but  I  want  to  speak  to  the  question,  now,  for  one 
moment,  and  that  is  to  say  that  after  a  full  and 
explicit  declaration,  by  a  larger  number  of  the 
members  of  this  Convention  than  have  voted 
upon  any  one  question  which  has  been  taken  by 
it,  on  this  plurality  question  ;  after  it  has  been  fully 
decided,  by  a  vote  of  193  to  188,  I  supposed  that 
this  body  would  not  again  revive  this  discussion. 
Now,  I  will  ask  from  what  quarter  does  this 
revival  come  ?  It  comes  from  one  quarter  ;  and 
that  is  from  the  quarter  which  pretends  to  hold 
the  balance  of  power,  and  who  hold  the  whole 
sovereignty  of  this  State,  or  pretend  to  do  so,  in 
their  own  hands.  And,  Sir,  they  say  they  will 
go  for  anything  except  for  electing  representa 
tives  by  plurality  at  the  second  trial.  I  suppose 
the  Convention  are  in  possession  of  the  -fact  that 


not  less  than  fifteen  or  twenty  amendments  have 
been  offered  to  this  resolution,  and  which  have 
been  voted  down  by  large  majorities ;  and  yet  this 
portion  of  this  Convention,  my  own  portion,  in 
part,  who  have  the  care  of  the  State  upon  their 
shoulders,  what  do  they  do  ?  Lengthen  out  debate, 
bring  up  every  sort  of  amendment,  and  put  them 
to  the  question  in  all  stages  of  the  debate,  from, 
the  beginning  to  the  end  of  the  chapter.  And 
after  that  they  move  a  reconsideration  at  every 
stage  which  will  admit  of  it. 

Now,  Sir,  I  claim  that  this  Convention  has 
acted  very  consistently ;  that  is,  that  they  have 
voted  every  way,  up  and  down,  perpendicularly 
and  triangularly.  [Laughter.]  And,  Sir,  if  they 
have  not  voted  enough  let  them  vote  this  resolu 
tion  down,  because  I  am  in  favor  of  getting  as 
much  as  I  can  in  regard  to  plurality.  I  know  it 
is  little ;  but  mind  you,  what  we  have  got,  if  not 
voted  down,  is  something  which  the  people  in  the 
country  would  like  to  have.  That  is,  all  except 
one  party,  because  it  treads  upon  its  toes,  and 
they  have  no  kind  of  consideration  for  the  State, 
and  no  consideration  for  anything  except  their 
own  interest  and  their  own  party.  These  are  the 
facts,  and  you  see  I  am  willing  to  say  all  I  have 
to  say,  and  keep  nothing  back.  I  hope  and  trust, 
that  if  this  Convention  has  any  principle  left  at 
all,  they  will  retain  that  little  by  saving  this  bill 
from  utter  destruction  by  the  Free  Democracy  of 
this  Convention. 

Mr.  WALKER,  of  North  Brookfield.  I  am 
very  glad  that  the  gentleman  for  Manchester, 
(Mr.  Dana,)  has  declared  so  frankly,  as  I  under 
stood  him,  that  he  has  made  his  motion  in  regard 
to  this  subject,  because  the  judiciary  question 
was  decided  contrary  to  his  wishes. 

Mr.  DANA.  With  the  permission  of  the  gen 
tleman,  I  desire  to  say  a  word  in  explanation. 
I  hope  the  gentleman  from  North  Brookfield  is 
the  only  one  who  misunderstood  me.  I  know 
he  misunderstood  for  otherwise  he  would  not 
have  misrepresented  me.  I  said,  the  other  day, 
when  the  judiciary  question  was  proposed  to 
be  taken  up,  I  moved  to  lay  it  upon  the  table, 
and  expressed  a  hope  that  the  Convention  would 
sustain  the  motion,  and  treat  all  decided  ques 
tions  as  bygones.  I  said  that  if  they  would  lay 
that  upon  the  table,  I  would  not  bring  up  my 
motion  on  the  subject  of  plurality,  but  would 
treat  that  as  bygone.  But  the  Convention  re 
fused  to  lay  that  upon  the  table,  and  did  recon 
sider  and  revise  their  action  upon  the  subject  of 
the  judiciary.  That  dissolved  me  from  my  offer 
not  to  bring  that  motion.  I  stated  this  morning 
that  I  felt  no  longer  bound  not  to  bring  forward 
my  resolution.  I  made  the  statement  in  order  to 


284 


ELECTIONS  BY  PLURALITY. 


[64th   day. 


Friday,] 


WALKEII  —  ELY  —  ABBOTT  —  CROWNINSIIIELD  —  YEAS. 


[July  22d. 


explain  the  reason  why  I  had  not  adhered  to  my 
offer. 

Mr.  WALKER.  I  hear  the  gentleman's  ex 
planation,  and  am  willing  he  should  have  all  the 
advantage  it  will  give  him.  I  know  he  was  partic 
ularly  sensitive  in  regard  to  the  judiciary  ;  and  I 
suppose  if  I  were  a  young  lawyer,  with  fine 
prospects,  admirable  abilities,  and  strong  con 
servative  tendencies,  I  should  be  in  favor  of  the 
judges  being  appointed  for  life.  But  since  I  am 
not,  I  have  no  such  opinion. 

Now,  as  to  the  measure  which  is  under  consid 
eration.  The  gentleman's  resolution  is  to  upset 
all  that  has  been  done  heretofore.  I  supposed 
that  we  had  made  a  compromise,  and  that  upon 
that  we  probably  would  stand.  For  the  motion 
which  has  been  made  by  the  gentleman  from 
Walpole,  (Mr.  Bird,)  I  shall  vote,  because  that  is 
right,  and  what  he  proposes  to  do  should  be 
done ;  and  if  that  is  not  carried,  then  I  shall 
vo'e  for  the  Report  of  the  Committee,  and  hope 
it  will  be  sustained,  so  that  we  shall  not  be  com 
pelled  to  go  over  the  whole  thing  again.  But  I 
cannot  concur  with  those  gentlemen  who  say 
that  if  they  cannot  got  what  they  want  by  way 
of  amendment,  they  will  vote  for  plurality  all 
through.  I  do  not  understand  how  gentlemen 
can  do  any  such  thing.  If  they  believe  it  is 
wrong  in  principle,  I  do  not  see  how  they  can 
vote  for  it  in  part  or  in  whole.  I  am  satisfied 
that  it  is  wrong  in  principle ;  that,  from,  my 
observation,  and  from  all  that  I  have  seen  and 
heard,  the  effect  of  it  is  pernicious,  and  only  per 
nicious,  in  its  operation,  and  therefore  I  cannot 
go  for  it  anywhere,  or  anyhow.  I  submit  to  it, 
if  necessary,  but  I  cannot  consent  to  it. 

Mr.  ELY,  of  Westlk-ld.  I  regret  to  make  the 
motion  I  am  about  to  make,  but  feel  compelled, 
by  a  sense  of  duty,  to  make  it.  I  do  not  wish  to 
cut  off  any  amendment,  but  I  do  wish  to  cut  off 
this  debate,  of  which  I  believe  this  Convention 
is  sick.  Therefore,  I  move  the  previous  question. 

The  question  was  taken  on  the  motion  for  the 
previous  question,  and  there  were — ayes,  172  ; 
noes,  44. 

So  the  previous  question  was  ordered. 

Mr.  ABBOTT,  of  Lowell,  called  for  the  yeas 
and  nays  upon  the  amendment  offered  by  Mr. 
Bird,  and  they  were  ordered. 

Mr.  CROWNINSIIIELD,  of  Boston,  called 
for  the  yeas  and  nays  upon  the  amendment  moved 
by  the  gentleman  for  Manchester,  (Mr.  Dana,) 
and  they  were  ordered. 

The  question  first  recurring  upon  the  amend 
ment  offered  by  the  gentleman  from  Melrose, 
(Mr.  Gooch,)  it  was  put,  and  decided  in  the  neg 
ative. 


So  the  amendment  was  rejected. 

The  question  next  recurred  upon  the  amend 
ment  offered  by  Mr.  Bird,  and  the  yeas  and  nays 
being  taken  thereon,  there  were — yeas,  187  ; 
nays,  166 — as  follows  : — 


Abbott,  Josiah  G. 
Adam-?,  Shubael  P. 
Allen,  Joel  C. 
Allen,  Parsons 
Allis,  Josiah 
Alvord,  D.  W. 
Austin,  George 
Ayres,  Samuel 
Ball,  George  S. 
Bartleit,  Sidney 
Barrett,  Marcus 
Bates,  Mosc;^,  Jr. 
Beal,  John 
Bennett,  Zephaniuh. 
Bigelow,  Jacob 
Bird,  Francis  W. 
Booth,  "William  S. 
Boutvvell,  George  S. 
Bout  well,  Sew  ell 
Bradford,  William  J.  A. 
Bronson,  Asa 
Brown,  Artemas 
Brown,  Hammond 
Brown,  Hiram  C. 
Brownell,  Joseph 
Bryant,  Patrick 
Burlingame,  Anson 
Butler,  Benjamin  F. 
Cacly,  Henry 
Caruthcrs,  William 
Case,  Isaac 
Chandler,  Amariali 
Chapin,  Ilenry 
Churchill,  J.  McKean 
Clark,  Henry 
Clark,  Ransom 
Clarke,  Sullmaii 
Cleverly,  William 
Crane,  George  B. 
Cressy,  Oliver  S. 
Cross,  Joseph  W. 
Cushman,  Ilenry  W. 
Cushman,  Thomas 
Cutler,  Simeon  N. 
Dana,  Richard  II.,  Jr. 
Davis,  Charles  G. 
Davis,  Ebenezer 
Davis,  Isaac 
Day,  Gilman 
Dean,  Silas 
Deming,  Elijah  S. 
Denton,  Augustus 
Da  Witt,  Alexander 
Duncan,  Samuel 
Dunham,  B  radish, 
Durgin,  John  M. 
Eames,  Philip 
Earle,  John  M. 
Edwards,  Samuel 


Fay,  Sullivan 
Fellows,  James  K. 
Fiske,  Emery 
Fisk,  Lyman 
Fitch,  Ezekiel  W. 
Foster,  Aaron 
Foster,  A  brain 
Fowle,  Samuel 
Freeman,  James  M. 
French,  Charles  A. 
French,  Rodney 
French,  Samuel 
Gale,  Luther 
Gardner,  Johnson 
Gates,  ELbridge 
Gilbert,  Wanton  C. 
Gilbert,  Washington 
Giles,  Charles  G. 
Giles,  Joel 
Gooch,  Daniel  W. 
Gooding,  Leonard 
G  raves,  John  W. 
Greene,  William  B. 
Griswold,  Josiah  W. 
Hadley,  Samuel  P. 
Hapgocd,  Lyman  W. 
Hapgood,  Seth 
Hathaway,  Elnathan  P. 
Hay  den,  Isaac 
Hazewell,  C.  C. 
Heath,  Ezra,  2d 
Hewes,  James 
Hillard,  George  S. 
Howard,  Martin 
Ilowland,  Abraham  H. 
Hunt,  Charles  E. 
Huntington,  Charles  P. 
Kurlbut,  Moses  C. 
Jacobs,  John 
Kendall,  Isaac 
Kimball,  Joseph 
Kingman,  Joseph 
Knight,  Jefferson 
Knowlton,  J.  S.  C. 
Knowlton,  William  H. 
Knox,  Albert 
Ladd,  Gardner  P. 
Langdon,  Wilber  C. 
Lawrence,  Luther 
Lawton,  Job  G.,  Jr. 
Lincoln,  Abishai 
Little,  Otis 
Loomis,  E.  Justin 
Marble,  William  P. 
Marvin,  Abijah  P. 
Mason,  Charles 
Header,  Rueben 
Merritt,  Simeon 
Morss,  Joseph  B. 


64th  day.] 

ELECTIONS    BY   PLURALITY. 

285 

Friday,] 

YEAS  —  NAYS  —  ABSENT. 

[July  22d. 

Moore,  James  M. 

Sanderson,  Ama«a                Gculd,  Robert 

Newman,  Charles 

Morton,  Elbridge  G. 

Sanderson,  Chester 

Goulding,  Dalton 

Noyes,  Daniel 

Morton,  Marcus,  Jr. 

Sherril,  John 

Goulding,  Jason 

Oliver,  Henry  K. 

Morton,  William  S. 

Simmons,  Perez 

Gray,  John  C. 

Orcutt,  Nathan 

Nash,  Hiram 

Simonds,  John  W. 

Green,  Jabez 

Paige,  James  W. 

Nichols,  William 

Smith,  Matthew 

Griswold,  Whiting 

Park,  John  G. 

Nute,  Andrew  T. 

Sprague,  Mel/ar 

Hale,  Artemas 

Parker,  Adolphus  G. 

Ober,  Joseph  E. 

Spooner,  Samuel  W. 

Hale,  Nathan 

Parker,  Joel 

Orne,  Benjamin.  S. 

Stevens,  Granville 

Hall,  Charles  B. 

Peabody,  George 

Packer,  E.  Wing 

Stevens,  William 

Hammond,  A.  B. 

Perkins,  Daniel  A. 

Paine,  Benjamin 

Stiles,  Gideon 

Harmon,  Phineas 

Perkins,  Jonathan  C. 

Paine,  Henry 

Strong,  Alfred  L. 

Haskell,  George 

Plunkett,  William  C. 

Parris,  Jonathan 

Swain,  Alanson 

Haskins,  William 

Pomroy,  Jeremiah 

Partridge,  John 

Taft,  Arnold 

Hawkes,  Stephen  E. 

Preston,  Jonathan 

Parsons,  Thomas  A. 

Thayer,  Willard,  2d 

Hayward,  George 

Putnam,  George 

Peabody,  Nathaniel 

Thomas,  John  W. 

Heard,  Charles 

Putnam,  John  A. 

Pease,  Jeremiah,  Jr. 

Thompson,  Charles 

Henry,  Samuel 

Read,  James 

Penniman,  John 

Tilton,  Abraham 

Hersey,  Henry 

Reed,  Sampson 

Perkins,  Jesse 

Turner,  David  P. 

Heywood,  Levi 

Rogers,  John 

Perkins,  Noah  C. 

Underwood,  Orison 

Hinsdale,  William 

Sargent,  John 

Phelps,  Charles 

Vinton,  George  A. 

Hohart,  Aaron 

Schouler,  William 

Phinney,  Silvanus  B. 

Wallace,  Frederick,  T. 

Hobart,  Henry 

Sikes,  Chester 

Pierce,  Henry 

Wallis,  Freeland 

Holder,  Nathaniel 

Sleeper,  John  S. 

Pool,  James  M. 

Walker,  Araasa 

Hood,  George 

Souther,  John 

Powers,  Peter 

Ward,  Andrew  II. 

Hooper,  Foster 

Stacy,  Eben  H. 

Rantoul,  Robert 

Weston,  Gershom  B. 

Hopkinson,  Thomas 

Stetson,  Caleb 

Rawson,  Silas 

Whitney,  Daniel  S. 

Hough  ton,  Samuel 

Stevens,  Joseph  L.,  Jr. 

Rice,  David 

Wilbur,  Daniel 

Hubbard,  William  J. 

Stevenson,  J.  Thomas 

Richards,  Luther 

Wilbur,  Joseph 

Hunt,  William 

Talhot,  Thomas 

Richardson,  Daniel 

Wilson,  Henry 

Huntington,  Asahel 

Taylor,  Ralph 

Richardson,  Nathan 

Winslow,  Levi  M. 

Jackson,  Samuel 

Tileston,  Edmund  P. 

Richardson,  Samuel  II. 

Wood,  Otis 

James,  William 

Tilton,  Horatio  W. 

Ring,  Elkanah,  Jr. 

Wood,  William  II. 

Jenkins,  John 

Train,  C.  R. 

Rockwood,  Joseph  M. 

Wright,  Ezekiel 

Jenks,  Samuel  H. 

Turner,  David 

Ross,  David  S. 

Kellogg,  Giles  C. 

Tvler,  John  S. 

Kellogg,  Martin  R. 

Upham,  Charles  W. 

NAYS. 

Kinsman,  Henry  W. 

Upton,  George  B. 

Adams,  Benjamin  P. 
Aldrich,  P.  Emory 
Allen,  James  B. 

Childs,  Josiah. 
Clarke,  Alpheus  B. 
Co°"<Tin,  Jacob 

Knight,  Hiram 
Knight,  Joseph 
Kuhn,  George  II. 

Walcott,  Samuel  B. 
Wales,  Bradford  L. 
Walker,  Samuel 

Alley,  John  B. 
Andrews,  Robert 
Aspinwall,  William 
Atwood,  David  C. 

Cogswell,  Nathaniel 
Cole,  Lansing  J. 
Conkey,  Ithamar 
Coolc   Oimrlcs  E* 

Leland,  Alden                  Warner,  Marshal 
Lincoln,  Frederic  W.,  Jr.  Weeks,  Cyrus 
Littleh'eld,  Tristram         Wetmore,  Thomas 
Livermore,  Isaac              Wheeler,  William  F. 

Bancroft,  Alpheus 
Barrows,  Joseph 
Bartlett,  Russel 

Cooledgc,  Henry  F. 
Crittenden,  Simeon 
Crockett   Geor<re  AV. 

Lothrop,  Samuel  K.. 
Loud,  Samuel  P. 
Lowell,  John  A. 

White,  Benjamin 
White,  George 
Wilder,  Joel 

Bates,  Eliakim  A. 

Crosbv,  Leander 

Marvin,  Theophilus  R. 

Wilkins,  John  II. 

Beach,  Erasmus  D. 

Crowell,  Seth 

Miller,  Seth,  Jr. 

Williams,  Henry 

Bell,  Luther  V. 

Crowninshield  F.  B. 

Mixter,  Samuel 

Williams,  J.  B. 

Bennett,  William,  Jr. 
Bigelow,  Edward  B. 
Bliss,  Gad  O. 

Cummings,  Joseph 
Davis,  John 
Davis,  Solomon 

Monroe,  James  L. 
Morey,  George 
Morton,  Marcus 

Winn,  Jonathan  B. 
Wood,  Charles  C. 
Wood,  Nathaniel 

Bliss,  William  C. 

Dawes,  Henry  L. 

Bradbury,  Ebenezer 

Denison,  Hiram  S. 

ABSENT. 

Braman,  Milton  P. 

Doane,  James  C. 

Abbott,  Alfred  A. 

Choate,  Rufus 

Breed,  Hiram  N. 

Dorman,  Moses 

Allen,  Charles 

Clark,  Salah 

Brcwster,  Osymn 

Euslaud,  Peter 

Appleton,  William 

Cole,  Sumner 

Brinley,  Francis 

Eaton,  Lilley 

Baker,  Hillel 

Copeland,  Benjamin  F. 

Briggs,  George  N. 

Edwards,  Elisha 

Ballard,  Alvah 

Curtis,  Wilber 

Brown,  Adolphais  F. 

Ely,  Joseph  M. 

Banks,  Nathaniel  P.,  Jr. 

Davis,  Robert  T. 

Brownell,  Frederick 

Ely,  Homer 

Beebe,  James  M. 

Dehon,  William 

Bullock,  Rut'us 

Eustis,  William  T. 

Bishop,  Henry  W. 

Easton,  James,  2d 

Bumpus,  Cephas  C. 

Farwell,  A.  G. 

Blagden,  George  W. 

Eaton,  Calvin  D. 

Carter,  Timothy  W. 

Fowler,  Samuel  P. 

Brown,  Alpheus  R. 

Gardner,  Henry  J. 

Chapin,  Chester  W. 

French,  Charles  II. 

Buck,  Asahel 

Greenleaf,  Simon 

Chapin,  Daniel  E. 

Frothingham,  R.,  Jr. 

Bullen,  Amos  II. 

Hallett,  B.  F. 

286                                    ELECTIONS   BY   PLURALITY. 

[64th  day. 

Friday,]                                                           YEAS  —  NAYS. 

[July  22d. 

Hewes,  William  H.          Royce,  James  C.                   Heard,  Charles 

Park,  John  G. 

Hobbs,  Edwin                  Sampson,  George  R. 

Henry,  Samuel 

Parker,  Adolphus  G. 

Hoyt,  Henry  K.               Sheldon,  Luther 

Hersey,  Henry 

Parker,  Joel 

Huntington,  George  H.  Sherman,  Charles 
Hurlburt,  Samuel  A.      Stevens,  Charles  G. 

Hewes,  James 
Heywood,  Levi 

Pcab:dy,  George 
Perkins,  Daniel  A. 

Hyde,  Benjamin  D.         Storrow,  Charles  S. 

Hillard,  George  S. 

Perkins,  Jonathan  C. 

Ide,  Abijah  M.,  Jr.          Stutson,  William 

Hinsdale,  William 

Plunkett,  William  C. 

Johnson,  John                  Sumner,  Charles 

Hobart,  Aaron 

Pomroy,  Jeremian. 

Keyes,  Edward  L.            Sumner,  Increase 

Holder,  Nathaniel 

Preston,  Jonathan 

Knowlton,  Charles  L.     Taber,  Isaac  C. 

Hooper,  Foster 

Putnam,  George 

Ladd,  John  S.                   Thayer,  Joseph 

Hopkinson,  Thomas 

Putnam,  John  A. 

Lord,  Otis  P.                    Tower,  Ephraim 

Houghton,  Samuel 

Rantoul,  Robert 

Marcy,  Laban                   Tyler,  William 

Hubbard,  William  J. 

Read,  James 

Nayson,  Jonathan            Yiles,  Joel 

Hunt,  William 

Reed,  Sampson 

Norton,  Alfred                 Warner,  Samuel,  Jr. 

Huntington,  Asahel 

Rogers,  John 

Osgood,  Charles               Waters,  Asa  H. 

Huntington,  Charles  P. 

Sampson,  George  R. 

Parker,  Samuel  D.          Whitney,  James  S. 

Jackson,  Samuel 

Sargent,  John 

Parsons,  Samuel  C.         Wilkinson,  Ezra 

James,  William 

Schouler,  William 

Payson,  Thomas  E.         Wilson,  M'lo 

Jenkins,  John 

Sikes,  Chester 

Prince,  F.  O.                    Wilson,  Willard 

Jenks,  Samuel  II. 

Sleeper,  John  S. 

Rockwell,  Julius              Woods,  Josiah  B. 

Kellogg,  Giles  C. 

Souther,  John 

Absent  and  not  voting,  66. 

Kellogg,  Martin  R. 
Kingman,  Joseph 

Stevens,  Granville 
Stevens,  Joseph  L.,  Jr. 

So  this  amendment  was  adopted. 
The  question  then  recurred  upon  the  amend 

Kinsman,  Henry  W. 
Knight,  Hiram 
Knight,  Jefferson 

Stevenson,  J.  Thomas 
Strong,  Alfred  L. 
Talbot,  Thomas 

ment  offered  by  Mr.  Dana,  and  the  yeas  and  nays 

Knight,  Joseph 

Taylor,  Ralph 

being  taken  thereon,  there  were  —  yeas,  169  ;  nays, 

Kuhn,  George  H. 

Thoma?,  John  W. 

182—  as  follows  :— 

Ladd,  John  S. 

Tileston,  Edmund  P. 

Lincoln,  Fred.  W.,  Jr. 

Tilton,  Horatio  W. 

YEAS. 

Littlefield,  Tristram 

Train,  Charles  R. 

Livermore,  Isaac 

Turner,  David 

Adams,  Benjamin  P.       Crockett,  George  W. 

Lord,  Otis  P. 

Tyler,  John  S. 

Aldrich,  P.  Emory          Crosby,  Leander 
Andrews,  Robert             Crowell,  Seth 
Aspinwall,  William         Crowninshield,  F.  B. 
Atwood,  David  C.            Cummings,  Joseph 
Austin,  George                Dana,  Richard  IL,  Jr. 

Lothrop,  Samuel  K. 
Loud,  Samuel  P. 
Lowell,  John  A. 
Marvin,  Theophilus  R. 
Meader,  Reuben 

TJpham,  Charles  W. 
LTpton,  George  B. 
Walcott,  Samuel  B. 
Wales,  Bradford  L. 
Walker,  Samuel 

Bancroft,  Alpheus           Davis,  John 

Miller,  Seth,  Jr. 

Weeks,  Cyrus 

Barrows,  Joseph               Davis,  Solomon 
Bartlett,  Russel                Dawes,  Henry  L. 
Bartlett,  Sidney                Dennison,  Hiram  S. 
Beach,  Erasmus  D.          Doanc,  James  C. 
Beebe,  James  M.              Dorman,  Moses 

Mixter,  Samuel 
Morey,  George 
Morss,  Joseph  B. 
Morton,  Marcus 
Morton,  Marcus,  Jr. 

Wetmore,  Thomas 
Wheeler,  William  F. 
White,  Benjamin 
White,  George 
Wilbur,  Daniel 

Bell,  Luther  V.                Easton,  James,  2d 
Bennett,  William,  Jr.      Eaton,  Lilley 
Bigelow,  Jacob                 Ely,  Homer 
Bliss,  Gad  O.                    Eustis,  William  T. 
Bliss,  William  C.             Farwell,  A.  G. 

Noyes,  Daniel 
Oliver,  Henry  K. 
Orcutt,  Nathan 
Osgood,  Charles 

I^HIT'      J^TYlP^s   "\V 

Wilder,  Joel 
Wilkins,  John  II. 
Williams,  Henry 
Wood,  Nathaniel 

Braman,  Milton  P.           Foster,  Aaron 

ai&c,  uaiii^ft    >»  . 

Breed,  Hiram  N.  -           Fowler,  Samuel  P. 

Brewster,  Osmyn            French,  Charles  H. 

Brinley,  Francis               Frothirgham,  R'd,  Jr. 

Abbott,  Josiah  G. 

Booth,  William  S. 

Briggs,  George  N.             Gilbert,  Wanton  C. 
Bullock,  Rufus                 Gould,  Robert 

Adams,  Shubael  P. 
Allen,  Joel  C. 

Boutwell,  Sewell 
Bradford,  William  J.  A. 

Bumpus,  Cephas  C.         Goulding,  Dalton 

Allen,  Parsons 

Bronson,  Asa 

Burlingame,  Alison,         Goulding,  Jason 

Alley,  John  B. 

Brown,  Hammond 

Carter,  Timothy  W.        Gray,  John  C. 

Allis,  Josiah 

Buck,  Asahel 

Chandler,  Amariah          Green,  Jabez 

Alvord,  D.  W. 

Butler,  Benjamin  F. 

Chapin,  Chester  W.         Griswold,  Whiting 

Ball,  George  S. 

Cady,  Henry 

Childs,  Josiah                   Hale,  Artemas 

Barrett,  Marcus 

Caruthers,  William 

Clarke,  Alpheus  B.          Hale,  Nathan 

Bates,  Eliakim  A. 

Case,  Isaac 

Coggin,  Jacob                   Hall,  Charles  B. 

Bates,  Moses,  Jr., 

Chapin,  Daniel  E. 

Cogswell,  Nathaniel        Hammond,  A.  B. 

Beal,  John 

Chapin,  Henry 

Cole,  Lansing  J.               Harmon,  Phineas 

Bennett,  Zephaniah 

Churchill,  J.  McKeau 

Conkey,  Ithamar              Haskcll,  George 

Bigelow,  Edward  B. 

Clark,  Henry 

Cook,  Charles  E.             Hawkes,  Stephen  E. 

Bird,  Francis  W. 

Clark,  Ransom 

Cooledge,  Henry  F.        Hayward,  George 

Boutwell,  George  S. 

Clarke,  Still  man 

64th  day.] 

ELECTIONS   BY   PLURALITY.                                    287 

Friday,] 

NAYS  —  ABSENT  —  HATHAWAY  —  LORD.                                 [July  22d. 

Cleverly,  William 

Knox,  Albert                        Warner,  Marshal             Wilson,  Willard 

Cole,  Sunnier 

Ladd,  Gardner  P. 

Warner,  Samuel,  Jr.       Winn,  Jonathan  B. 

Crane,  George  B. 

Langdon,  Wilber  C. 

Waters,  Asa  H.               Winslow,  Levi  M. 

Cressy,  Oliver  S. 

Lawrence,  Luther 

Weston,  Gershom  B.       Wood,  Charles  C. 

Crittenden,  Simeon. 

Lawton,  Job  G.,  Jr. 

Whitney,  Daniel  S.         Wood,  Otis 

Cross,  Joseph  W. 

Leland,  Alden 

Wilbur,  Joseph                Wood,  William  II. 

Cushman,  Henry  W. 

Lincoln,  Abi.shai 

Wilson,  Henry                 Wright,  Ezekiel 

Cushman,  Thomas 

Loomis,  E.  Justin 

Cutler,  Simeon  N. 

Marble,  William  P. 

ABSENT. 

Davis,  Charles  G. 

Mason,  Charles 

Davis,  Ebenezer 

Merritt,  Simeon 

Abbott,  Alfred  A.           Ide,  Abijah  M.,  Jr. 

Davis,  Isaac 

Monroe,  James  L. 

Allen,  Charles                  Johnson,  John 

Day,  Gilman 

Moore,  James  M. 

Allen,  James  B.               Keyes,  Edward  L. 

Dean,  Silas 

Morton,  Elbridge  G. 

Appleton,  William          Knowlton,  Charles  L. 

Deming,  Elijah  S. 

Morton,  William  S. 

Ayres,  Samuel                 Little,  Otis 

Denton,  Augustus 

Nash,  Hiram 

Baker,  Hillel                     Marcy,  Laban 

DeWitt,  Alexander 

Newman,  Charles 

Ballard,  Alvah                 Marvin,  Abijah  P. 

Duncan,  Samuel 

Nichols,  William 

Banks,  Nathaniel  P.,  Jr.  Nayson,  Jonathan 

Dunham,  Bradish 

Nute,  Andrew  T. 

Bishop,  Henry  W.           Norton,  Alfred 

Durgin,  John  M. 

Ober,  Joseph  E. 

Blagden,  George  W.        Parker,  Samuel  D. 

Eames,  Philip 

Orne,  Benjamin  S. 

Bradbury,  Ebenezer        Parsons,  Samuel  C. 

Earle,  John  M. 

Packer,  E.  Wing 

Brown,  Adolphus  F.       Payson,  Thomas  E. 

Easland,  Peter 

Paine,  Benjamin 

Brown,  Alpheus  R.         Prince,  F.  O. 

Edwards,  Elisha 

Paine,  Henry 

Brown,  Artemas              Rockwell,  Julius 

Edwards,  Samuel 

Parris,  Jonathan 

Brown,  Hiram  C.             Royce,  James  C. 

Ely,  Joseph  M. 

Partridge,  John 

Brownell,  Frederick        Sanderson,  Chester 

Fay,  Sullivan 

Parsons,  Thomas  A. 

Brownell,  Joseph             Sheldon,  Luther 

Fellows,  James  K. 

Peabody,  Nathaniel 

Bryant,  Patrick                Sherman,  Charles 

Fisk,  Lyman 

Pease,  Jeremiah,  Jr. 

Bullen,  Amos  II.             Stetson,  Caleb 

Fitch,  Ezekiel  W. 

Penniman,  John 

Choatc,  Rufus                  Stevens,  Charles  G. 

Foster,  Abram 

Perkins,  Jesse 

Clark,  Salah                      Storrow,  Charles  S. 

Fowle,  Samuel 

Perkins,  Noah  C. 

Copeland,  Benjamin  F.  Stutson,  William 

Freeman,  James  M. 

Phelps,  Charles 

Curtis,  Wilbur                 Sumncr,  Charles 

French,  Charles  A. 

Phimiey,  Sylvamis  B. 

Davis,  Robert  T.              Sumner,  Increase 

French,  Rodney 

Pierce,  Henry 

Dehon,  William               Taber,  Isaac  C. 

French,  Samuel 

Pool,  James  M. 

Eaton,  Calvin  D.             Tower,  Ephraim 

Gale,  Luther 

Powers,  Peter 

Fiske,  Emery                    Turner,  David  P. 

Gardner,  Johnson 

Rawson,  Silas 

Gardner,  Henry  J.           Viles,  Joel 

Gates,  Elbridge 

Rice,  David 

Greenleaf,  Simon             Yinton,  George  A. 

Gilbert,  Washington 

Richards,  Luther 

Haskins,  William            Whitney,  James  S. 

Giles,  Charles  G. 

Richardson,  Daniel 

Hobbs,  Edwin                  Wilkinson,  Ezra 

Giles,  Joel 

Richardson,  Nathan 

Huntington,  George  H.  Williams,  J.  B. 

Gooch,  Daniel  W. 

Richardson,  Samuel  H. 

Hurlburt,  Samuel  A.      Wilson,  Milo 

Gooding,  Leonard 

Ring,  Elkanah,  Jr. 

Hyde,  Benjamin  D.         Woods,  Josiah  B. 

Graves,  John  W. 
Greene,  William  B. 

Rockwood,  Joseph  M. 
Ross,  David  S. 

Absent  and  not  voting,  68. 

Griswold,  Josiah  W. 

Sanderson,  Amasa 

Hadlev,  Samuel  P. 

Sherril,  John 

So  the  amendment  was  not  agreed  to. 

Hallett,  B.  F. 

Simmons,  Perez 

The  question  then  recurring  upon  ordering  the 

Hapgood,  Lyman  W. 

Simonds,  John  W. 

resolves,  as  amended,  to  their  final  passage, 

Hapgood,  Seth 
Hathaway,  Elnathan  P 
Hay  den,  Isaac 
Hazewell,  Charles  C. 

Smith,  Matthew 
Sprague,  Melzar 
Spooner,  Samuel  W. 
Stacy,  Eben  H. 

Mr.  HATHAWAY  called  for  the  yeas  and 
nays  thereon,  and  they  were  ordered. 
The  PRESIDENT.  The  gentleman  from  Salem, 

Heath,  Ezra,  2d 

Stevens,  William 

(Mr.  Lord,)  has  asked  for  a  division  of  the  ques 

Hewes,  William  H. 

Stiles,  Gideon 

tion,  and  that  the  question  be  taken  separately 

Hobart,  Henry 

Swain,  Alanson 

upon  the  several  parts  thereof. 

Hood,  George 
Howard,  Martin 
Howland,  Abraham  H. 

Taft,  Arnold 
Thaver,  Joseph 
Thayer,  Willard,  2d 

Mr.  LORD.     In  order  to  avoid  any  imputa 
tion  of  an  intention  to  take  up  the  time  of  the 

Hoyt,  Henry  K. 

Thompson,  Charles 

Convention,  I  will  withdraw  my  call  for  a  division 

Hunt,  Charles  E. 

Tilton,  Abraham 

of  the  question,  and  have  the  vote  taken  upon 

Hurlbut,  Moses  C. 

Tyler,  William 

the  whole  at  once. 

Jacobs,  John 
Kendall,  Isaac 
Kimball,  Joseph 
Knowlton,  J.  S.  C. 

Underwood,  Orison 
Wallace,  Frederick  T. 
Wallis,  Freeland  ' 
Walker,  Amasa 

The  question  then  being  upon  ordering   the 
resolves,  as  amended,  to  their  final  passage,  and 
the  yeas  and  nays  being  taken  thereon,  there 

Knowlton,  William  H. 

Ward,  Andrew  H.               were—  yeas,  181  ;  nays,  120—  as  folio  ws  :— 

288 

ELECTIONS   BY   PLURALITY. 

[64th  day. 

Friday,] 

YEAS  —  NAYS. 

[July  22d. 

YEAS.                                            Rantoul,  Robert 

Thomas,  John  W. 

Rawson,  Silas 

Tilton,  Abraham 

Abbott,  Josiah  G. 

Gooch,  Daniel  W. 

Rice,  David 

Tilton,  Horatio  W. 

Adams,  Shubael  1*. 

Gooding,  Leonard 

Richardson,  Daniel 

Turner,  David  P. 

Allen,  James  J3. 

Graves,  John  W. 

Richardson,  Nathan 

Tyler,  William 

Allen,  Parsons 

Green,  Jabez 

Richardson,  Samuel  H. 

Underwood,  Orison 

Allis,  Josiah 

Greene,  William  B. 

Ring,  Elkanah,  Jr. 

Wallace,  Frederick  T. 

Alvord,  1).  W. 

Griswold,  Josiah  W. 

Rock  wood,  Joseph  M. 

Wallis,  Freelaud 

Ball,  George  S. 

Griswold,  Whiting 

Ross,  David  S. 

Walker,  Amasa 

Bancroft,  Alpheus 

Hadley,  Samuel  P. 

Sherril,  John 

Ward,  Andrew  H. 

Barrett,  Marcus 

Hall,  Charles  B. 

Sikes,  Chester 

Warner,  Samuel,  Jr. 

Bates,  Eliakim  A. 
Bates,  Moses,  Jr. 
Beach,  Erasmus  D. 
Bcal,  John 
Bennett,  Zephaniah 
Bigelow,  Edward  B. 
Bird,  Francis  W. 
Bliss,  Gad  0. 
Booth,  William  S. 
Boutwell,  George  S. 
Bout  well,  Sewell 
Bronson,  Asa 

Hallett,  B.  F. 
Ilapgood,  Lyman  W. 
Hapgood,  Seth 
Harmon,  Phineas 
Hawkes,  Stephen  E. 
Heath,  Ezra,  2d 
Hewes,  James 
Hewes,  William  H. 
Hobart,  Henry 
Holder,  Nathaniel 
Hood,  George 
Howard,  Martin 

Simmons,  Perez 
Simonds,  John  W. 
Smith,  Matthew 
Sprague,  Melzar 
Spooner,  Samuel  W. 
Stacy,  Ebcn  11. 
Stevens,  Graiiville 
Stevens,  Joseph  L.,  Jr. 
Stevens,  William 
Stiles,  Gideon 
Swain,  Alanson 
T'li't   -A.rnold 

Waters,  Asa  H. 
Weston,  Ger  shorn,  B. 
White,  George 
Whitney,  Daniel  S. 
Wilbur,  Joseph 
Wilson,  Henry 
Wilson,  Willard 
Winn,  Jonathan  B. 
Winslow,  Levi  M. 
Wood,  Charles  C. 
Wood,  Nathaniel 
W'ood   Otis 

Brown,  Adolphus  F. 
Brown,  Artemas 
Brown,  Hammond 

Rowland,  Abraham  II. 
Hovt,  Henry  K. 
Hunt,  Charles  E. 

Thayer,  Joseph 
Thayer,  WiUard,  2d 

Woods,  Josiah  B. 

Brownell,  Frederick 

Hurlbut,  Moses  C. 

Brownell,  Joseph 

Kendall,  Isaac 

NAitt. 

Bryant,  Patrick 

Kimball,  Joseph 

Adams,  Benjamin  P. 

Farwell,  A.  G. 

Butler,  Benjamin  F. 

Kingman,  Joseph 

Aldrich,  P.  Emory 

Fowler,  Samuel  P. 

Cady,  Henry 

Knight,  Jefferson 

Allen,  Joel  C. 

French,  Charles  H. 

Carruthcrs,  William 

Kiiowlton,  J.  S.  C. 

Andrews,  Robert 

Gilbert,  Wanton  C. 

Case,  Isaac 

Knowltoii,  William  H. 

Aspinwall,  William 

Giles,  Joel 

Chandler,  Amariah 

Knox,  Albert 

Atwood,  David  C. 

Gould,  Robert 

Chapin,  Henry 

Ladd,  Gardner  P. 

Austin,  George 

Goulding,  Dalton 

Churchill,  J.  McKeaii 

Lawrence,  Luther 

Barrows,  Joseph 

Goulding,  Jason 

Clark,  Henry 

Leland,  Alden 

Bartlett,  Russel 

Hale,  Artemas 

Clark,  Hansom 

Lincoln,  Abishai 

Beebe,  James  M. 

Hale,  Nathan 

Clarke,  Stillman 

Loomis,  E.  Justin 

Bell,  Luther  V. 

Hammond,  A.  B. 

Crane,  George  B. 

Marble,  William  P. 

Bennett,  William,  Jr. 

Hathawav,  Elnathan  P. 

Cressy,  Oliver  S. 

Mason,  Charles 

Blagden,  George  W. 

Hazewell",  Charles  C. 

Crittenden,  Simeon 

Header,  Reuben 

Bradbury,  Ebenezer 

Heard,  Charles 

Cross,  Joseph  W. 

Merritt,  Simeon 

Braman,  Milton  P. 

Henry,  Samuel 

Cushman,  Thomas 

Moore,  James  M. 

Brewster,  Osinyn 

Horsey,  Henry 

Cutler,  Simeon  N. 

Morss,  Joseph  B. 

Brinlcy,  Francis 

Hillard,  George  S. 

Davis,  Charles  G. 

Morton,  Elbridge  G. 

Briggs,  George  N. 

Hobart,  Aaron 

Davis,  Ebenezer 

Morton,  Marcus,  Jr. 

Bullock,  Rui'us 

Hopkinson,  Thomas 

Davis,  Isaac 

Morton,  William  S. 

Buinpus  Cephas  C. 

Hough  ton,  Samuel 

Dean,  Silas 

Nash,  Hiram 

Carter,  Timothy  W. 

Hubbard,  William  J. 

Den  ton,  Augustus 

Newman,  Charles 

Chapin,  Chester  W. 

Hunt,  William 

De  Witt,  Alexander 

Nichols,  William 

Chapin,  Daniel  E. 

Hunting-ton,  Asahel 

Dunham,  Bradish 

Nute,  Andrew  T. 

Coggin,  Jacob 

Jackson,  Samuel 

Durgin,  John  M. 

Ober,  Joseph  E. 

Cogswell,  Nathaniel 

James,  William 

Eames,  Pliilip 

Onie,  Benjamin  S. 

Conkey,  Ithamar 

Jenkins,  John 

Earle,  John  M. 

Osgood,  Charles 

Cook,  Charles  E. 

Jcnks,  Samuel  H. 

Easland,  Peter 

Packer,  E.  Wing 

Cooledge,  Henry  F. 

Kellogg,  Giles  C. 

Eaton,  Calvin  D. 

Paine,  Benjamin 

Crosby,  Leander 

Kinsman,  Henry  W. 

Edwards,  Elisha 

Parris,  Jonathan 

Crowell,  Seth 

Knight,  Hiram 

Edwards,  Samuel 

Peabody,  Nathaniel 

Dana,  Richard  II.,  Jr. 

Kuhn,  George  H. 

Fay,  Sullivan 

Pease,  Jeremiah,  Jr. 

Davis,  John 

Ladd,  John  S. 

Fisk,  Lymaii 

Penniman,  John 

Davis,  Solomon 

Lawton,  Job  G.,  Jr. 

Foster,  Aaron 

Perkins,  Jesse 

Dawes,  Henry  L. 

Lincoln,  F.  W.,  Jr. 

Fowle,  Samuel 

Perkins,  Noah  C. 

Denison,  Hiram  S. 

Livermore,  Isaac 

Freeman,  James  M. 

Phelps,  Charles 

Doaiie,  James  C. 

Lord,  Otis  P. 

French,  Rodney    . 

Phinney,  Silvaiius  B. 

Dorman,  Moses 

Lothrop,  Samuel  K. 

French,  Samuel 

Pierce,  Henry 

Easton,  James,  2d 

Loud,  Samuel  P. 

Gale,  Lather 

Pool,  James  M. 

Eaton,  Lilley 

Lowell,  John  A. 

Giles,  Charles  G. 

Powers,  Peter 

Ely,  Homer 

Miller,  Seth,  Jr. 

64th   day.]        AMENDMENTS   OF   THE    CONSTITUTION,  &c.                     289 

Friday,]                                     ABSENT  —  FAY  —  GRISWOLD  —  HALLETT.                                [July  22d. 

Monroe,  James  L.             Sanderson,  Amasa 

Royce,  James  C.               Tower,  Ephraim 

Morey,  George                  Sargent,  John 

Sanderson,  Chester          Tyler,  John  S. 

Morton,  Marcus                Schouler,  William 

Sheldon,  Luther               Tiles,  Joel 

Noyes,  Daniel                   Sleeper,  John  S. 

Sherman,  Charles             Yinton,  George  A. 

Oliver,  Henry  K.              Souther,  John 

Stetson,  Caleb                   W'alcott,  Samuel  B. 

Orcutt,  Nathan                 Stevenson,  J.  Thomas 

Stevens,  Charles  G.         Wales,  Bradford  L. 

Paige,  James  W.              Talbot,  Thomas 

Storrow,  Charles  S.          Whitney,  James  S. 

Park,  John  G.                  Tileston,  Edmund  P. 

Strong,  Alfred  L.             Wilbur,  Daniel 

Parker,  Adolphus  G.       Train,  Charles  R. 

Stutsoii,  William              Wilkins,  John  H. 

Peabodv,  George              Turner,  David 

Sumner,  Charles               Wilkinson,  Ezra 

Perkins,  Daniel  A.          Upham,  Charles  W. 

Sumner,  Increase             Williams,  Henry 

Perkins,  Jonathan  C.       Upton,  George  B. 

Taber,  Isaac  C.                 Williams,  J.  B. 

Plunkett,  William  C.      Walker,  Samuel 

Taylor,  Ralph                   Wilson,  Milo 

Pomroy,  Jeremiah            Warner,  Marshal 

Thompson,  Charles          Wood,  William  H. 

Putnam,  George               Weeks,  Cyrus 

Putnam,  John  A.             Wetmore,  Thomas 

Absent  and  not  voting,   118. 

Head,  James                      Wheeler,  William  F. 

Reed,  Sampson                 White,  Benjamin 

So   the   resolves   were   ordered  to   their  final 

Rogers,  John                    Wilder,  Joel 

passage. 

Sampson,  George  R.        Wright,  Ezekiel 

Mr.  FAY,  of  Southborough,  moved  that  the 

Orders  of  the  Day  be  laid  upon  the  table. 

ABSENT. 

The  motion  was  agreed  to. 

Abbott,  Alfred  A.            Gardner,  Henry  J. 

Allen,  Charles                   Gardner,  Johnson 

Alley,  John  B.                  Gates,  Elbridge 

Leave  of  Absence. 

Applcton,  William          Gilbert,  Washington 

Mr.  FAY,  from  the  Committee  upon  Leave  of 

Ayres,  Samuel                  Gray,  John  C. 
Baker,  Hillel                     Greenleaf,  Simon 

Absence,  reported  :  — 

Ballard,  Alvah                  Haskell,  George 
Banks,  Nath'l  P.,  Jr.      Haskins,  William 

COMMONWEALTH  OF  MASSACHUSETTS. 

Bartlett,  Sidney                Hayden,  Isaac 

In  Convention,  July  22,  1853. 

Bigelow,  Jacob                 Hayward,  George 

The  Committee  on  Leave  of  Absence  report, 

Bishop,  Henry  W.           Heywood,  Levi 

that  leave  of  absence  be  granted  to  Mr.  Meader, 

Bliss,  William  C.             Hinsdale,  William 

of  Nantucket,  and  Mr.  Cummings,  of  Ware,  for 

Bradford,  William  J.  A   Hobbs,  Edwin 
Breed,  Hiram  N.              Hooper,  Foster 

the  remainder  of  the  session. 

Brown,  Alpheus  R.         Huntiiigton,  Charles  P 

For  the  Committee, 

Brown,  Hiram  C.             Huntiiigton,  George  II. 

SULLIVAN  FAY,  Chairman. 

Buck,  Asahel                    Hurlburt,  Samuel  A. 

Bullen,  Amos  H.              Hyde,  Benjamin  D. 

The  Report  was  accepted  by  the  Convention, 

Burlingame,  Alison         Ide,  Abijah  M.,  Jr. 

and  agreed  to. 

Childs,  Josiah                   Jacobs,  John 

Choate,  Ruftis                   Johnson,  John 

Amendments  of  the  Constitution. 

Clarke,  Alpheus  B.          Kellogg,  Martin  R. 
Clark,  Salah                      Keyes,  Edward  L. 

Mr.  GRISWOLD.     I  move  that  the  Commit 

C;everly,  William            Knight,  Joseph 

tee  of  the  Whole  be  discharged  from  the  further 

Cole,  Lansing  J.               Knowlton,  Charles  L. 

consideration  of  the   resolves   upon  the  subject 

Cole,  Sumner                    Langdon,  Wilber  C. 

of  future  amendments  of  the  Constitution,  and 

Copeland,  Benjamin  F.  Little,  Otis 
Crockett,  George  W.        Littlefield,  Tristram 
Crowniiishield,  F.  B.       Marcy,  Laban 

that  they  be  placed  in  the  Orders  of  the  Day  next 
after  the  resolves  upon  the  subject  of  the  lieu 

Cummings,  Joseph           Marvin,  Abijah  P. 
Curtis,  Wilber                  Marvin,  Theophilus  R. 

tenant-governor. 
Mr.  HALLETT.     I  hope  the  motion  will  not 

Cushman,  Henry  W.      Mixter,  Samuel 

prevail,  and  that  the  gentleman  will  not  press 

Davis,  Robert  T.              Nayson,  Jonathan 

it.     1  do  not  see  why  we  should  not  have  the 

Day,  Gilman                     Norton,  Alfred 
Dehon,  William               Paine,  Henry 
Deming,  Elijah  S.            Parker,  Joel 

right  to  pursue  the  same  course  in  relation  to  this 
subject,  that  we  do  as  to  all  others.     No  subject 

Duncan,  Samuel              Parker,  Samuel  D. 

which  has  come  before  this  Convention,  has  been 

Ely,  Joseph  M.                 Parsons,  Samuel  C. 

taken  out  of  the  Committee  of  the  Whole,  until 

Eustis,  William  T.           Partridge,  John 

the  Committee  of  the  Whole  has  seen  fit  to  report 

Fellows,  James  K.           Parsons,  Thomas  A. 
Fiske,  Emery                    Payson,  Thomas  E. 
Fitch,  Ezekiel  W.            Preston,  Jonathan 

it  back  to  the  Convention.     I  regard  this  as  the 
most  important  fundamental  proposition  that  we 

Foster,  Abram                  Prince,  F.  O. 

can  put  into  the  Constitution.     It  will  be  very 

French,  Charles  A.          Richards,  Luther 

easy,  at  the  proper  time,  to  move  to  go  into  the 

Frothingham,  R.,  Jr.       Rockwell,  Julius 

Committee  of  the  Whole,  and  then  take  up  the 

290 


CONSTITUTIONAL   CONVENTIONS,   &c. 


[64th    day. 


Friday,] 


*GlUSWOLD  —  CUSHMAN  —  HALE  —  IlALLETT. 


[July  22d. 


subject,  consider  it,  and  then  report  it  to  the 
Convention. 

Mr.  GIIISWOLD.  I  supposed  I  had  the  con 
currence  of  the  gentleman  for  Wilbraham,  but  I 
see  I  have  not.  The  Convention  will  recollect 
that  we  have  been  in  the  Committee  of  the  Whole 
as  many  as  three  or  four  times  upon  this  subject ; 
and  it  seems  to  me  that  we  might  as  well  take  the 
remainder  of  the  discussion  upon  it  in  the  Con 
vention,  as  to  go  into  Committee  of  the  Whole 
again.  I  think  that  would  be  a  saving  of  time. 
I  did  not  make  the  motion  to  prevent  the  gentle 
man  from  offering  an  amendment,  but  because  I 
thought  we  might  dispose  of  it  in  that  way  sooner 
than  we  otherwise  could. 

On  motion  of  Mr.  WALKER,  the  Convention, 
at  five  minutes  before  two  o'clock,  P.  M.,  ad 
journed  until  three  o'clock,  P.  M. 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  three  o'clock. 

The  Convention  resumed  the  consideration  of 
the  Orders  of  the  Day,  the  next  item  being  the 
resolves  on  the  subject  of  the 

Lieutenant-  Governor, 

The  question  being  on  their  final  passage.  They 
are  as  follows  : — 

ART.  1.  There  shall  be  annually  elected  a  lieu 
tenant-governor  of  the  Commonwealth  of  Massa 
chusetts,  who  shall  be  qualified  in  the  same  man 
ner  with  the  governor  ;  and  the  day  and  manner 
of  his  election,  the  qualifications  of  the  voters,  the 
return  of  the  votes,  and  the  declaration  of  the 
election,  shall  be  the  same  as  in  the  election  of  a 
governor. 

And  the  lieutenant-governor  shall  hold  his 
office  for  one  year  next  following  the  first  Wed 
nesday  of  January,  and  until  another  is  chosen 
and  qualified  in  his  stead. 

^  ART.  2.  The  governor,  and  in  his  absence,  the 
lieutenant-governor,  shall  be  president  of  the 
Council,  but  shall  have  no  vote  in  Council ;  and 
the  lieutenant-governor  shall  always  be  a  member 
of  the  Council,  except  when  the  chair  of  the  gov 
ernor  shall  be  vacant. 

ART.  3.  Whenever,  by  reason  of  sickness  or 
absence  from  the  Commonwealth,  or  otherwise, 
the  governor  shall  be  unable  to  perform  his  offi 
cial  duties,  the  lieutenant-governor  for  the  time 
being  shall  have  and  exercise  all  the  powers  and 
authorities,  and  perform  all  the  duties  of  gover 
nor  ;  and  whenever  the  chair  of  the  governor 
shall  be  vacant,  by  reason  of  his  resignation, 
death,  or  removal  from  office,  the  lieutenant-gov 
ernor  shall  be  governor  of  the  Commonwealth. 

The  question  being  taken,  it  was  decided  in  the 
affirmative. 

So  the  resolutions  were  passed. 


Specie  Payments. 

The  next  item  on  the  calendar,  being  the  Report 
of  the  Committee  on  Banking,  that  it  is  inexpe 
dient  to  insert  in  the  Constitution  any  provision 
on  the  subject  of  the  suspension  of  specie  pay 
ments  by  banks,  was  taken  up  for  consideration. 

The  Report  was  concurred  in. 

Unrestricted    Representation. 

The  next  item,  being  the  Report  of  the  Com 
mittee  on  the  House  of  Representatives,  that  it 
is  inexpedient  to  insert  in  the  Constitution  a  pro 
vision,  declaring  that  towns  and  cities  may  be 
represented  by  any  citizens  of  the  Commonwealth, 
was  taken  up  for  consideration. 

The  Report  was  concurred  in. 

Quorum  of  the  House  of  Representatives. 

The  resolve  relating  to  this  subject,  was  next 
taken  up.  The  question  being  on  inserting  "  one 
hundred"  in  place  of  "a  majority  of  the  mem 
bers,"  as  the  number  which  should  constitute  a 
quorum. 

The  amendment  was  adopted,  and  the  resolve 
as  amended,  passed  to  a  second  reading. 

Pay  of  Officers. 

The  resolve  on  the  subject  of  the  pay  of  the 
officers  of  the  Convention,  was  next  taken  up, 
the  pending  question  being  on  its  final  passage. 

The  resolve  was  passed. 

Termination  of  Debate. 

On  motion  of  Mr.  CUSHMAN,  of  Bernards- 
ton,  it  was  ordered,  that  debate  on  the  resolves 
on  the  subject  of  future  amendments  to  the  Con 
stitution,  cease  in  one  hour  after  the  Convention 
shall  again  go  into  Committee  of  the  Whole  on 
that  subject. 

Constitutional  Conventions. 

On  motion  of  Mr.  CUSHMAN,  the  Conven 
tion  resolved  itself  into 

COMMITTEE    OF   THE   WHOLE, 

On  the  resolves  on  the  subject  of  Conventions 
for  amending  the  Constitution,  Mr.  Griswold,  for 
Erving,  in  the  chair,  the  pending  question  being 
on  the  amendment  proposed  by  the  gentleman 
for  Wilbraham,  (Mr.  Hallett). 

The  amendment  was  read  by  the  Secretary. 

Mr.  HALE,  of  Bridgewater,  gave  notice  that 
he  should  offer  an  amendment  to  the  third  re 
solve  of  the  original  Report,  as  soon  as  he  could 
get  the  floor  for  that  purpose. 

Mr.  HALLETT,  for  Wilbraham.  I  have  ex 
plained  this  proposition  at  some  length,  upon  a 


64th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


291 


Friday,] 


HALLETT. 


[July  22d. 


former  occasion,  and  I  do  not  mean  to  go  over 
any  ground  that  I  can  possibly  avoid.  I  desire, 
simply  desire,  to  ask  those  members  of  the  Con 
vention,  who,  in  the  first  week  of  our  existence 
here,  authorized  the  election  of  a  member  for 
Berlin,  and  proclaimed  the  constitutionality  of 
this  Convention,  beyond  the  power  of  legislative 
action  or  repeal,  whether  they  mean  now  to  con 
form  to  that  doctrine,  in  making  this  Constitu 
tion,  or  whether  they  intend  to  deny  it  r 

The  proposition,  as  it  has  been  reported  by  the 
Committee,  does  not  conform  to  that  doctrine ; 
for  the  reason  that  it  makes  it  dependent  upon 
the  action  of  the  legislature,  whether  the  people 
shall  have  a  Convention  in  future,  or  not.  Nei 
ther  does  the  proposition  of  the  gentleman  from 
Boston,  (Mr.  Giles,)  who  has  very  honorably 
maintained  the  principle,  meet  that  issue,  because 
it  says  the  people  may  meet,  according  to  their 
will,  legally  expressed ;  but,  when  you  come  to 
carry  out  the  phraseology,  you  find  that  the  will 
of  the  people  "  legally  expressed,"  must  mean  a 
declaratory  act  of  the  legislature. 

The  second  proposition  of  the  gentleman  from 
Boston  in  relation  to  holding  a  Convention  every 
twenty  years,  is  also  objectionable,  for  the  reason 
that  it  makes  the  people  elect  delegates  and  hold 
a  Convention,  whether  they  desire  it  or  not.  Now, 
I  do  not  suppose  we  want  a  provision  that  shall 
compel  the  people  to  hold  a  Convention,  until 
they  have  declared  their  wish  to  hold  one.  These 
are  my  objections  to  the  propositions  of  the  gen 
tleman  from  Boston,  though  in  other  respects,  I 
agree  with  the  general  proposition  he  has  laid 
down. 

Now,  Sir,  I  desire  to  remark,  in  relation  to 
the  proposition  which  I  have  had  the  honor  to 
present,  and  which  is  now  before  the  Committee 
for  their  consideration,  that  it  has  been  concocted 
after  a  good  deal  of  deliberation,  and  after  con 
sultation  with  a  good  many  gentlemen  who  wish 
to  meet  the  difficulty  presented  in  this  question, 
which  is,  in  fact,  the  Rhode  Island  question  as 
to  the  right  of  the  people  to  make  their  own  Con 
stitutions.  It  is  a  question  involving  the  doctrine 
whether  the  sovereignty  is  with  the  people  or 
with  the  legislature  ;  and  the  proposition  I  have 
presented,  is  one  which,  I  think,  I  can  satisfy 
the  Convention,  meets  the  question  fully. 

The  proposition  now  before  us  is  this  :  that  at 
the  general  election,  in  1873,  and  every  twentieth 
year  thereafter,  the  people  shall  give  their  votes 
upon  the  question  whether  there  shall  be  a  Con 
vention  to  be  held  in  conformity  to  the  Act  of 
1852  ?  If  there  are  any  town  meetings  held  in 
1873  for  the  election  of  governor,  then  the  same 
rules  and  regulations  which  apply  to  that  election 


will  also  apply  in  talcing  this  vote.  These  votes 
are  to  be  received,  returned,  counted,  and  declared, 
and  if  there  be  found  a  majority  in  favor  of  call 
ing  a  Convention,  then  your  Constitution  will 
declare  that  to  be  the  will  of  the  people,  and  a 
Convention  must  be  held  accordingly.  The  dele 
gates  are  then  to  be  chosen  the  first  Monday 
of  the  March  next  ensuing,  and  are  to  meet  at 
the  State  House  on  the  first  Wednesday  in  May 
ensuing,  with  all  the  powers,  and  under  the  same 
regulations,  as  are  provided  in  the  Act  of  1852. 

There  you  have  the  whole  matter  in  your  Con 
stitution,  entirely  independent  of  the  legislature 
or  any  other  power,  to  repeal  it  or  interfere  with 
it  in  any  manner.  It  is  to  be  in  conformity  to  the 
Act  of  1852,  which,  as  we  all  know,  provides 
that  the  delegates  shall  be  chosen  in  the  same 
manner  precisely  as  the  representatives  are  chosen ; 
so  that  if  there  are  members  of  the  House  of 
Representatives  chosen  under  the  Constitution, 
there  will  be  delegates  to  the  Convention  chosen 
in  the  same  manner.  This  Act  also  provides 
for  the  promulgation  of  the  Constitution  to  the 
people,  and  for  every  proceeding,  precisely  like 
the  Act  under  which  the  Convention  of  1820  was 
called.  Now,  this  Act  has,  during  the  last  forty 
years,  grown  into  common  law ;  and  there  need 
be,  therefore,  no  apprehension  that  it  will  not  be 
quite  sufficient  to  meet  the  wants  of  the  case 
twenty  years  hence. 

The  first  resolution  proposed  to  be  adopted, 
provides  for  submitting  the  question  to  the 
people  every  twenty  years  ;  and  if  gentlemen 
want  to  give  the  people  the  power  to  call  a  Con 
vention  which  it  is  not  in  the  power  of  the  legis 
lature  to  repeal  or  to  interfere  with,  here  is  such 
a  provision. 

The  next  resolution  provides  that  the  legisla 
ture  shall  have  power  to  submit  the  question 
whether  there  shall  be  a  Convention  at  any  other 
time  than  at  the  regular  period  of  twenty  years. 
The  present  legislature  have  no  power  to  call  a 
Convention.  It  is  not  in  the  Constitution.  They 
assumed  the  power  under  the  authority  of  that 
provision,  which  says  the  legislature  may  pass 
laws  for  the  general  welfare ;  but  we  surely  do 
not  mean  that  the  legislature  shall  pass  laws  or 
submit  propositions  which  are  not  authorized  in 
the  Constitution,  in  future.  We  want  to  place 
the  question  of  the  constitutionality  of  the  legis 
lature  to  call  a  Convention  beyond  a  doubt,  by 
placing  a  provision  directly  to  that  effect  in  the 
Constitution  ,  and  here  it  is  in  this  second  reso 
lution.  Well,  Sir,  when  the  legislature  puts  out 
a  proposition  for  calling  a  Convention,  and  the 
people  accept  it,  do  you  want  to  place  it  in  the 
power  of  the  next  legislature  to  come  in  and 


292 


CONSTITUTIONAL    CONVENTIONS. 


[64th  day. 


Friday/ 


HALLETT. 


[July  22d. 


upset  all  the  people  have  done  ?  We  denied  that 
doctrine  here  in  this  Convention  ;  we  said  that 
the  legislature  had  no  right  to  repeal  what  a 
former  legislature  had  done,  after  the  people  had 
given  vitality  to  the  proposition  by  their  accept 
ance  of  it.  But,  Sir,  what  said  the  learned  gen 
tleman  from  Boston,  (Mr.  Choate,)  when  the 
Convention  had  the  Berlin  matter  under  consid 
eration,  on  the  12th  of  last  May.  Let  me  quote 
from  the  remarks  of  that  learned  gentleman  : — 

"  I  repeat  it,  then  :  the  historical  fact  is,  that 
the  people  expressed  themselves  in  favor  of  a 
Convention,  and  there  they  paused.  What  does 
that  pause  imply  ?  This  exactly — that  they  there 
upon  leave  it  to  their  actual  legislature,  xmder 
the  existing  Constitution,  to  go  on,  in  its  own 
way,  on  its  own  responsibility,  and  to  make  a 
law  or  laws,  by  which  the  popular  vote  for  a 
Convention  may  be  carried  out.  Under  that 
repose,  under  that  inaction  of  the  people,  after 
that  manifestation  of  their  will  in  that  general 
form,  it  became  a  matter  for  mere  law  in  its  ordi 
nary  course,  to  devise  and  enact  details ;  and 
thereupon  the  legislature  made  a  law  of  details; 
amendable,  like  any  other  law,  by  another  legis 
lature  ;  their  successors  amended  it,  and  under 
the  law  thus  amended,  we  are  here  to-day." 

That  is  the  view  taken  by  the  gentleman  from 
Boston ;  that  when  the  legislature  put  out  this 
proposition,  and  the  people  said  "  ye.s,"  it  was 
simply  saying  that  they  would  have  a  Conven 
tion,  and  that  they  then  left  it  to  the  legislature 
to  regulate  its  details,  and  that  therefore,  it  being 
a  simple  law,  a  subsequent  legislature  might 
amend,  or  might  repeal  it. 

Now,  what  does  the  still  more  learned,  though 
not  so  eloquent,  gentleman  from  Cambridge,  (Mr. 
Parker,)  the  able  professor  of  Harvard  College, 
say  ?  In  what  way  did  he  meet  our  arguments 
in  support  of  the  validity  of  this  Convention? 
lie  said : — 

"  What  is  the  consequence  of  this  ?  Just  the 
whole  matter  in  dispute,  Sir.  I  do  not  under 
stand  the  honorable  member  for  Wilbraham  to 
maintain  that  this  Act  is  a  part  of  the  Constitu 
tion,  or  that  it  stands  as  an  amendment  to  the 
Constitution ;  but  he  says  that  it  is  something 
which  the  legislature  cannot  touch,  because  the 
people  have  acted  upon  the  subject.  Well,  Sir, 
if  I  am  correct  in  what  I  have  said ;  if  it  stands 
as  a  law  of  the  legislature ;  if  it  was  a  law  of  the 
legislature  in  its  inception,  and  is  nothing  more 
than  a  law  of  the  legislature  still,  notwithstand 
ing,  by  its  terms,  it  required  the  answer  of  the 
people  before  the  last  part  of  it  should  take  effect, 
and  have  any  efficacy  at  all;  if  it  stands,  like 
other  laws  of  the  legislature,  as  a  constitutional 
law,  then,  Sir,  it  is  in  the  power  of  the  legisla 
ture,  just  like  other  laws.  The  people  of  this 
Commonwealth  have  constituted  the  legislature 


their  agents,  for  the  purpose  of  enacting  laws, 
and  for  the  purpose  of  repealing  laws." 

Again,  he  says  : — 

"  I  say  it  was  legally  competent  for  the  legisla 
ture,  at  the  time  they  modih'ed  that  law,  to  have 
repealed  it  totally,  so  far  as  it  stood  a  law  upon 
the  statute  book,  to  have  put  an  end  to  all  farther 
action  under  it.  It  might  have  been  done  legally. 
I  do  not  say  that  a  revolution  might  not  have 
occurred  in  consequence  of  such,  a  proceeding ; 
that  is  another  tiling.  I  am  aware,  Sir,  that  such 
a  disregard  of  the  will  of  the  people  might  justify 
a  resort  to  force ;  but  that  is  another  thing.  As 
a  law  upon  the  statute  book,  having  the  force 
and  vigor  of  a  law  upon  the  statute  book,  and  no 
more,  the  legislature  have  the  same  power  over 
it  which  they  have  over  any  other  law,  and  they 
might  have  repealed  it  if  they  had  seen  fit  to  do 
so.  Why  did  they  not  do  it?  Because  they 
ought  not  to ;  because  it  was  not  proper,  under 
the  circumstances,  that  they  should  exercise  that 
power,  and  they  exercised  their  power  in  a  way 
that  they  did  think  proper.  I  maintain  farther, 
Sir,  and  I  am  willing  to  place  myself  upon  the 
issue,  that  this  Convention  sits  here  to-day  under 
that  as  a  statute  law,  and  nothing  more ;  and  the 
legislature  being  still  in  session  here,  may  consti 
tutionally  and  legally  put  an  end  to  the  existence 
of  this  Convention  as  a  body  assembled  under  the 
Constitution  and  under  law,  before  that  session 
closes.  [Sensation.]" 

Here  the  reporter  well  says,  "  sensation" 
There  was  a  sensation.  When  the  learned  pro 
fessor  announced  that  the  legislature  then  in  ses 
sion  had  the  power,  by  a  repeal  of  the  Act  calling 
the  Convention,  to  turn  us  out  of  doors,  there 
was  a  great  sensation  in  this  body.  But  now, 
when  we  come  in  here  and  propose  a  remedy  for 
such  a  state  of  things  occurring  in  the  future,  the 
only  sensation  it  produces  seems  to  be  to  have  the 
subject  disposed  of  as  soon  as  possible.  Sir, 
ought  we  to  leave  the  Constitution  without  some 
provision  clearly  defining  what  are  the  powers  of 
the  legislature  upon  this  subject  ?  When  a  learned 
professor  of  law  comes  in  here,  and,  with  his  legal 
reputation,  asserts  that  the  Convention  are  mere 
puppets  in  the  hands  of  the  legislature,  to  be 
turned  out  of  doors  at  the  pleasure  of  our  masters, 
it  follows,  if  you  pass  only  the  provision  reported 
by  your  Committee,  that  the  Convention  intends 
to  legalize  the  argument ;  for  if  the  legislature  are 
to  pass  a  law  to  provide  for  a  Convention,  it  fol 
lows  that  they  merely  pass  a  law  which  any  sub 
sequent  legislature  may  repeal ;  and  if  it  be  so, 
does  it  not  place  the  Convention  in  the  hands  of 
that  subsequent  legislature?  We  held,  in  the 
Berlin  argument,  that  if  the  legislature  submitted 
a  proposition  for  holding  a  Convention,  to  the 
people,  which  the  people  accepted,  by  their  votes 
of  yea  upon  it— then  it  was  not  a  repealable  law, 


64th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


293 


Friday,] 


HALLETT. 


[July  22d. 


but  the  will  of  the  people  collected,  and  that  a 
subsequent  legislature  could  not  touch  it  or  repeal 
it.  But  if  you  take  the  proposition  as  it  stands 
in  the  Report  of  the  Committee,  which  leaves  it 
for  the  legislature  to  submit  the  proposition  to 
the  people  in  the  first  place,  and  then  leaves  it  to 
the  legislature  to  provide  for  holding  the  Conven 
tion,  it  will  also  leave  it  in  the  power  of  the  legis 
lature  to  repeal  the  Act  calling  the  Convention, 
if  they  think  proper.  Do  gentlemen  mean  to  do 
that  ?  I  think  not.  No\v,  my  substitute  says 
that  the  question  shall  go  to  the  people  as  a  whole. 
If  the  people  vote  affirmatively  upon  it,  there  is 
an  end  of  the  matter.  The  Convention  lives. 
The  action  is  complete,  and  the  legislature  can 
usurp  no  power  whatever  over  it. 

Then,  the  third  clause  provides  for  the  general 
security  of  the  right  of  the  people  to  hold  a  Con 
vention,  merely  negativing  any  concession  of  that 
right,  and  that,  I  think,  covers  the  whole  ground. 

Now,  Mr.  Chairman,  there  is  a  very  high  legal 
decision  upon  this  point,  which  we  must  either 
resist  by  force  of  arms  hereafter,  or  we  must 
amend  our  Constitution  so  as  to  preserve  this 
right,  which  the  court  practically  has  denied, 
or  give  up  the  right  of  the  people  to  hold  Con 
ventions  without  the  previous  consent  of  the  leg 
islature.  We  must  amend  the  Constitution,  in 
order  to  secure  the  people  against  that  decision  of 
the  United  States  court.  We  must  do  it,  or  the 
people  have  lost  the  power  of  calling  a  Conven 
tion  without  the  consent  of  the  legislature.  Un 
less  you  put  this  or  a  similar  provision  in  your 
Constitution,  you  recognize  the  doctrine  of  the 
United  States  supreme  court,  that  the  people  have 
lost  the  power  of  calling  a  Convention,  without 
the  consent  of  the  legislature.  I  state  this  point 
distinctly,  from  the  record.  A  case  arose  in  the 
supreme  court  of  the  United  States,  in  1849, 
which  will  decide  the  matter  now  before  us,  against 
the  people,  unless  we  make  provision  to  the  con 
trary.  The  case  in  point  has  occurred  where 
there  were  two  governments  in  existence,  as  there 
were  in  llhode  Island  ;  one  a  government  of  the 
freeholders,  which  persisted  in  holding  its  power 
against  the  people,  under  the  old  Charter  of  the 
King  of  England,  and  the  other  a  Constitution  and 
government  framed  by  a  Convention  called  by  a 
large  majority  of  the  whole  voters  and  of  the 
whole  people— where  there  were  two  Constitu 
tions  and  two  legislatures  ;  and  there  the  question 
was,  which  was  the  legal  government?  Well, 
Sir,  how  did  they  proceed  ?  The  advocates  of  the 
people's  government  went  before  the  court  and 
showed  that  a  majority  of  seven  thousand  of  the 
people  of  Rhode  Island  had  voted  in  favor  of  that 
new  Constitution,  and  they  offered  to  produce  the 


testimony  or  deposition  of  every  voter,  in  proof. 
But  what  did  the  supreme  court  say  to  that  ? 
They  said,  all  that  might  be  very  true,  but  it 
could  not  be  admitted  as  entitled  to  any  weight 
in  deciding  the  question,  because  there  was  no 
law  and  no  Constitution  under  which  that  vote 
was  taken.  There  was  no  authentic  Act  by  law 
to  collect  the  will  of  the  people,  and  therefore  the 
people  could  never  legally  show  they  had  any 
will! 

That  was  the  argument  of  the  counsel  for  the 
charter  government  against  the  people,  and  it  was 
an  argument  which  the  court  evaded,  by  disclaim 
ing  jurisdiction,  while  at  the  same  time  they  vir 
tually  affirmed  it,  and  thus  assumed  that  there 
must  be  some  law  or  some  constitutional  pro 
vision  to  collect  the  will  of  the  people,  or  they 
cannot  speak.  The  will  of  the  people  is  supreme, 
they  all  say,  whenever  you  find  it  out ;  but  in 
order  to  find  it  out,  you  must  get  a  grant  of  a 
previous  law  from  the  legislature,  or  put  some 
provision  in  your  Constitution  to  collect  it.  If  you 
have  no  such  law,  the  will  of  the  people  goes  for 
nothing.  They  can,  in  fact,  have  no  will.  Hence, 
unless  you  put  into  your  organic  law  a  provision 
to  collect  the  will  of  the  people,  it  is  all  nonsense 
about  making  government,  that  you  read  111  the 
Bill  of  Rights ;  and  the  courts  and  bayonets 
will  put  it  down  if  you  move  a  step.  Now,  do 
we  wish  to  have  a  Constitution  that  is  liable  to 
any  such  legal  construction  r  Why,  Sir,  if  the 
person  had  been  president  of  the  United  State?, 
who  failed  of  being  elected  in  1852— if  General 
Scott  had  been  president  of  the  United  States,  the 
law  by  which  this  Convention  is  sitting  here  to 
day  would  have  been  repealed  by  the  legislature 
of  last  winter,  who  went  as  far  as  they  could  go, 
without  resort  to  arms ;  and  if  the  people  had 
undertaken  to  have  elected  their  delegates,  and 
those  delegates  had  met  here  in  the  State  House, 
the  governor  of  the  Commonwealth,  who,  in  his 
message,  declared  the  Convention  unconstitu 
tional,  or  at  least  of  doubtful  constitutionality, 
would  have  called  upon  the  president  of  the 
United  States,  and  officially  informed  him  that 
there  was  an  insurrection  here,  and  the  army  and 
navy  of  the  United  States  would  have  been  sent 
here  to  put  it  down,  and  we  should  not  have  had 
a  Convention,  unless  we  fought  for  it.  That  is 
what  the  supreme  court  of  the  United  States  have 
adopted  as  the  rule  of  the  judicial  power  follow 
ing  the  political  power.  It  all  depends  upon  who 
is  president. 

Now,  do  you  want  to  leave  posterity  in  the 
same  condition,  subject  to  the  military  despotism 
of  a  president  of  the  United  States  ?  If  you  do, 
say  so.  Say  it  fairly,  out  and  out,  and  provide 


294 


CONSTITUTIONAL   CONVENTIONS. 


[64th  day. 


Friday,] 


HALLE  rx  —  BURLIXGAM  3. 


[July  22d. 


that  the  people  shall  hold  Conventions  only  ac 
cording  to  the  sovereign  will  of  the  legislature, 
and  strike  that  unmeaning  article  about  the 
right  to  frame  government,  out  of  the  Bill  of 
Eights. 

Now  here  is  a  principle  which  was  laid  down 
by  the  United  States  court,  though  dissented 
from,  in  effect,  by  the  learned  judge,  now  no 
more — Judge  Woodbury — but  carried  out  by  the 
majority  of  the  court.  It  is  a  principle  which 
would  leave  us  nothing  but  simple  revolution, 
to  reform  or  change  government,  under  our  pres 
ent  Constitution.  They  admit,  the  judges  admit 
the  power  of  the  people,  but  how  do  they  say  it 
must  be  exercised?  I  read  from  Howard's  Re 
ports  of  the  Supreme  Court  of  the  United  States, 
the  note  of  the  points  in  the  two  cases  of  "  Mar 
tin  Luther  vs.  Luther  M.  Borden,  et  al,"  and 
"  Rachel  Luther  vs.  Borden." 

"  At  the  period  of  the  American  Revolution, 
Rhode  Island  did  not,  like  the  other  States,  adopt 
a  new  Constitution,  but  continued  the  form  of 
government  established  by  the  Charter  of  Charles 
II.,  making  only  such  alterations,  by  acts  of  the 
legislature,  as  were  necessary  to  adapt  it  to  their 
condition  and  rights  as  an  independent  State. 

"But  no  mode  of  proceeding  was  pointed  out 
by  which  amendments  might  be  made. 

"  In  1841,  a  portion  of  the  people  held  meetings, 
and  formed  associations  which  resulted  in  the 
election  of  a  Convention  to  form  a  new  Constitu 
tion,  to  be  submitted  to  the  people  for  their  adop 
tion  or  rejection. 

"  The  Convention  framed  a  Constitution,  di 
rected  a  vote  to  be  taken  upon  it,  declared  after 
wards  that  it  had  been  adopted  and  ratified  by  a 
majority  of  the  people  of  the  State,  and  was  the 
paramount  law  and  Constitution  of  Rhode  Island. 

"Under  it,  elections  were  held  for  governor, 
members  of  the  legislature  and  other  officers,  who 
assembled  together  in  May,  1842,  and  proceeded 
to  organize  the  new  government. 

"But  the  charter  government  did  not  acquiesce 
in  these  proceedings.  On  the  contrary,  it  passed 
stringent  laws,  and  finally  passed  an  act  declaring 
the  State  under  martial  law. 

"  In  May,  1843,  a  new  Constitution  which  had 
been  framed  by  the  charter  government,  went 
into  operation  and  has  continued  ever  since." 

I  now  read  from  the  opinion  of  the  court,  as 
far  as  it  can  be  said  to  be  an  opinion,  delivered  by 
chief  justice  Taney  : — 

"  No  one,  we  believe,  has  ever  doubted  the 
proposition,  that,  according  to  the  institutions  of 
this  country,  the  sovereignty  of  every  State  resides 
in  the  people  of  the  State,  and  that  they  may 
alter  and  change  their  form  of  government  at 
pleasure.  But  whether  they  have  changed  it  or 
not,  b;  abolishing  an  old  government,  and  estab 
lished  a  new  one  iu  its  place,  is  a  question  to 
be  settled  by  the  political  po  *  er.  And  when 


that  power  has  decided,  the  courts  are  bound  to 
take  notice  of  its  decision  and  folio  wit." 

Again,  it  is  said  in  that  report,  as  a  consequence 
of  the  above  : — 

"  If  it  be  asked,  what  redress  have  the  people, 
if  wronged  in  these  matters,  unless  by  resorting 
to  the  judiciary,  the  answer  is,  they  have  the  same 
as  in  all  other  political  matters.  In  those  they 
go  to  the  ballot-boxes,  to  the  legislature,  or 
executive,  for  the  redress  of  such  grievances  as 
are  within  the  jurisdiction  of  each;  and,  to 
such  as  are  not,  to  Conventions  and  amend 
ments  of  Constitutions.  And  when  the  former 
fail,  and  these  last  are  forbidden  by  statutes,  all 
that  is  left  in  extreme  cases,  where  the  suffering 
is  intolerable,  and  the  prospect  is  good  of  relief 
by  action  of  the  people  without  the  forms  of  law, 
is  to  do  as  did  Hampden  and  Washington,  and 
venture  action  without  these  forms,  and  abide  the 
consequences." 

Now,  Sir,  I  do  not  want  that  the  people  of 
Massachusetts  should  hereafter  be  compelled  to 
resort  to  any  such  measures  as  that ;  and  I  have, 
therefore,  submitted  this  series  of  provisions, 
recognizing  the  right  of  the  people  to  alter  and 
amend  their  Constitution  without  any  previous 
action,  or  subsequent  interference  of  the  govern 
ment.  There  is  the  whole  argument.  I  have 
not  time  to  dwell  any  longer  upon  this  subject 
than  to  say  that  the  doctrine  of  the  supreme 
court  of  the  United  States,  and  many  very  emi 
nent  and  learned  lawyers  of  this  State  is,  that 
the  people  cannot  take  the  first  step  in  reforming 
the  Constitution,  or  holding  a  Convention,  unless 
they  get  a  grant  of  an  act  from  the  legislature,  or 
incorporate  such  a  provision  in  their  Constitutions 
as  is  here  proposed  ;  and  that  if  they  move  with 
out  that  first  step  emanating  from  the  legislature, 
unless  it  is  provided  for  in  detail  in  the  Constitu 
tion,  they  move  in  rebellion  or  revolution.  This 
provision,  then,  wholly  independent  of  legislation, 
is  the  only  peaceful  mode  of  reaching  that  result. 
There  is  110  inconvenience  that  will  follow  from 
it  whatever.  It  gives  you  all  you  desire,  for  re 
forming  the  Constitution,  and  there  leaves  it.  I 
do  earnestly  hope  that  there  will  be  no  hesitation 
on  the  part  of  the  majority  of  this  Convention, 
in  placing  that  amendment  in  the  Constitution, 
if  they  mean  to  stand  upon  the  principles  that 
moved  the  people  to  call  this  Convention,  and 
thereby  to  recognize,  in  the  organic  law,  practically, 
as  well  as  by  a  theory  which  the  courts  construe 
away,  the  legitimate,  inalienable,  and  operative 
sovereignty  of  the  people. 

Mr.  BURL1NGAME,  for  Northboro'.  Mr. 
Chairman :  Since  our  sittings  commenced,  we  have 
had  under  consideration  a  great  number  of  grave 
questions  ;  questions  involving  the  power  ot  this 


64th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


295 


Friday,! 


BuilLINGAME. 


[July  22d. 


Convention,  derivative,  and  inherent;  questions 
touching  the  quality  of  a  legislative  enactment ; 
questions  touching  the  nature  of  a  fundamental 
law  ;  questions  as  to  how  these  differ,  how  one 
transcends  the  other,  as  the  Creator  transcends  the 
creature.  But  I  maintain  that  this  is  the  grand 
est  question,  in  some  respects,  upon  which  we 
have  been  called  to  pass  since  our  deliberations 
commenced ;  and  yet  we  have  but  one  hour,  in 
which  to  consider  it. 

As  I  differ  upon  this  subject,  from  some  gen 
tlemen  who  have  preceded  me,  I  wish  to  have 
that  difference  known.  I  wish  to  give  some  rea 
sons,  to  show  why  we  ought  to  adopt  the  amend 
ment,  proposed  by  my  friend  for  Wilbraham, 
(Mr.  Ilullett).  And  preliminary,  I  start  with  the 
great  doctrine,  that  the  people  are  the  source  of 
power.  I  hope  the  Committee,  when  I  say  this, 
will  not  tremble,  because  they  may  fear  a  speech 
upon  abstractions.  When  I  say  the  people  are 
the  source  of  power,  I  mean  the  term  "  people  " 
shall  include  every  human  being  in  whom  the 
good  God  has  breathed  the  breath  of  life.  If  it 
is  admitted  that  the  people  are  the  source  of  pow 
er — and  anybody  who  denies  this,  Mr.  Webster 
said,  must  argue  without  an  adversary — then  the 
next  question  is,  how  shall  this  power  flow  forth 
from  the  people  into  practical  government?  In 
the  first  place,  as  the  people  cannot  act  in  their 
primary  capacity,  it  is  necessary  to  delegate  their 
power  ;  and  in  the  absence  of  government,  and 
when  it  has  been  overthrown  by  revolution,  they 
must  act  by  spontaneous  movement,  according  to 
their  common  sense,  and  according  to  the  meas 
ure  of  their  civilization.  They  must  delegate 
their  power,  and  they  must  clothe  their  agents 
with  authority,  and  charge  them  with  the  great 
duty  of  giving  their  collected  will  expression  in 
a  Constitution.  When  they  have  done  tins,  and 
when  the  work  which  these  agents  may  do,  shall 
have  been  accepted  by  the  people,  it  becomes  the 
fundamental  law  of  the  state. 

Now,  we  have  the  machinery  of  government. 
According  to  the  delegate  system  on  the  Ameri 
can  principle,  that  the  people  are  the  source  of 
power,  how  shall  we  put  it  into  operation  ?  Ne 
cessity  gave  birth  to  another  American  idea — the 
representative  system.  The  representative  is 
inferior  to  the  delegate,  in  that  he  is  charged 
•with  the  duty  of  performing  ordinary  legislation  ; 
and  all  he  does,  he  must  do  under,  and  in  obedi 
ence  to  the  Constitution,  which  the  delegates,  rep 
resenting  the  will  of  the  people,  have  made.  We 
have,  then,  two  great  American  systems  upon  the 
American  principle — that  the  people  are  the  source 
of  power.  So  far,  I  suppose  we  all  go  along  togeth 
er.  Here,  our  paths  must  separate.  The  question 


now  arises,  how  are  the  people  to  change  their 
fundamental  law,  when  it  is  thus  established  ? 
There  are  two  schools  in  this  country,  and  this 
is  the  doctrine  of  one  of  them  :  inasmuch  as  the 
people  are  the  source  of  power,  inasmuch  as  the 
people  are  sovereign,  inasmuch  as  that  sovereignty 
cannot  be  alienated  by  them,  in  such  a  manner 
that  it  cannot  be  resumed  when  the  safety  of  the 
state  shall  require  it,  then,  I  say,  it  is  for  the 
people  to  determine  in  what  manner,  and  at  what 
time,  they  shall  change  their  fundamental  law. 
That  is  the  doctrine  of  one  school — the  Democratic 
school — and  it  is  the  doctrine  to  which  I  give  my 
hearty  assent.  On  the  other  hand,  there  is  an 
other  school  in  this  country,  and  there  always 
has  been,  and  there  always  will  be,  probably, 
which,  while  it  admits  in  the  abstract,  that  the 
people  are  the  source  of  power,  and  are  sovereign, 
yet  denies  the  right  to  that  sovereign  power,  prac 
tically  to  act  in  a  sovereign  manner. 

The  doctrine  of  this  party  was  stated  most 
clearly  by  Mr.  Webster,  in  the  great  Khode  Isl 
and  case,  with  the  power  of  statement  peculiar 
to  that  man.  This  is  the  doctrine  of  that  party, 
as  stated  by  him  :  the  collected  will  of  the  people 
is  sovereign — as  sovereign,  he  said,  as  the  will  of 
the  Czar  of  Muscovy,  when  it  is  ascertained,  and 
this  is  his  rule  for  ascertaining  it.  The  will  must 
be  collected  legally,  by  some  rule  prescribed  by 
previous  law.  Do  you  not  see,  at  a  glance,  that 
a  wide  ocean  rolls  between  these  two  doctrines  ? 
One  places  the  power  to  initiate  a  change  in  the 
fundamental  law,  in  the  legislature ;  and  the  other 
places  it  with  the  people. 

One  is  the  doctrine  as  laid  down  by  the  allied 
sovereigns  at  Laybac,  when  they  contended  that 
all  reforms  must  proceed  from  the  ruler  ;  and  they 
had  the  impiety  to  say  that  they  had  the  Divine 
authority  for  withholding  or  granting,  all  rights 
and  privileges,  from,  and  to,  the  people.  The 
other  is  the  American  doctrine,  born  here  on  this 
continent,  on  board  the  Mayflower,  a  little  more 
than  two  hundred  years  ago,  when  it  fluttered  its 
weary  wing  into  Massachusetts  Bay.  The  other 
is  as  old  as  tyranny  ;  it  has  stained  a  thousand 
years  with  its  crimes,  and  cannon  may  be  thun 
dering  to-day  on  the  banks  of  the  Danube,  in 
its  defence.  Gentlemen  may  say  that  you  can 
leave  this  matter  safely  to  the  legislature.  They 
say  when  the  people  wish  a  change  of  their  laws, 
the  legislature  will  understand  it,  and  will  sub 
mit  the  question  to  the  people.  It  has  become 
convenient,  I  confess,  in  this  country,  to  allow 
the  legislature  to  collect  the  popular  will,  and 
that  mode  will  probably  be  adhered  to.  But 
suppose  the  legislature  refuse  to  collect  the  pop 
ular  will,  then  what  are  you  to  do  ?  You  say  it 


296 


CONSTITUTIONAL   CONVENTIONS. 


[64th  day. 


Friday,] 


BUIILINQAME. 


[July  22d. 


will  not  refuse.  I  say  it  may,  and  there  is  a 
precedent  that  it  will  sometimes  do  so ;  I  refer  to 
the  case  of  Rhode  Island.  There  the  people 
struggled  for  sixty-five  years,  to  get  a  change  of 
their  Constitution,  but  the  power  being  in  the 
hands  of  a  few  landholders,  the  legislature  re 
fused  perpetually  to  act.  They  were  driven  to 
act  outside  of  the  Constitution.  They  collected  the 
will  of  the  majority  of  the  legal  voters,  and  seven 
thousand  majority  of  the  adult  male  population  ; 
but  then  the  court,  subsequently,  when  the  case 
was  tried,  said  it  could  not  take  evidence  of  these 
irregular  proceedings. 

There  happened  to  be,  at  that  time,  as  the  gen 
tleman  for  Wilbraham  said,  an  accidental  presi 
dent  in  the  chair  at  Washington ;  and,  what  is 
of  much  more  consequence,  he  had  at  his  right  ear 
a  man  with  brains  enough  to  have  made  ten  thou 
sand  such  accidental  presidents,  belonging  to  the 
opposite  school  upon  this  subject ;  and  by  his 
advice  the  president  of  the  United  States  instructed 
the  officers  of  the  United  States  government  to 
sustain  the  old  government  in  Rhode  Island ; 
and  when  this  was  done — when  the  United  States 
came  with  its  whole  po  vver — the  arm  of  democ 
racy  in  that  State  was  unnerved  ;  though  if  one 
gun  had  been  iired,  the  whole  country  might  have 
rallied  to  its  defence.  It  may  be  better  that  they 
yielded — that  they  bided  their  time,  and  sought  a 
peaceful  solution  of  their  difficulties.  In  the  case 
of  Michigan,  when  that  hardy  Democrat,  General 
Jackson,  occupied  the  chair  of  state,  the  territorial 
government  refused  to  call  a  Convention,  and 
the  people  assembled  in  their  counties ;  they 
elected  delegates ;  they  had  a  Convention ;  they 
made  a  Constitution ;  they  inaugurated  a  gov 
ernment  under  it.  The  government  of  the  Uni 
ted  States  sent  a  governor  there,  but  they  did 
not  heed  him ;  they  laughed  him  out  of  the  State, 
and  he  has  never  been  heard  of  since.  Then  they 
applied  to  the  general  government  for  admission 
into  the  Union — at  that  time  I  was  a  resident  of 
of  the  State — General  Jackson  commended  the 
course  pursued  by  us,  and  the  Democrats  of  the 
United  States  Senate,  twenty- seven  in  all,  under 
the  lead  of  Old  Bullion,  backed  up  the  conduct 
of  the  people  of  Michigan,  and  she  was  admitted 
as  a  State ;  and  I  remember  with  what  pride  I 
saw  her  beautiful  banner  unfurled  for  the  first 
time,  bearing  the  somewhat  boastful  motto, 
though  veiling  it  under  a  dead  language:  ",SY 
quarts  Peninsulam  amocnam  circumspice"  which 
freely  rendered,  is,  "  If  you  seek  a  beautiful 
peninsula,  look  around  you."  I  have  now  stated 
the  two  opposing  doctrines,  and  I  have  given  you 
two  precedents  illustrating  them. 

You  have  in.  the  Rhode  Island  case  the  decision 


of  the  supreme  court,  inclining  to  the  federal 
side  upon  this  subject.  Yet,  in  the  face  of  all 
this,  gentlemen  may  say  that  there  is  no  necessity 
for  incorporating  such  a  provision  as  is  heie  pro 
posed,  into  the  Constitution  ;  that  it  is  enough  to 
acknowledge  that  the  people  are  the  source  of 
power ;  that  they  are  sovereign ;  but  I  say  it  is 
of  no  earthly  use — and  I  say  this,  having  refer 
ence  to  the  decision  of  the  supreme  court  in 
the  Rhode  Island  case— unless  you  determine 
how  this  sovereignty  shall  exercise  that  power. 
It  is  because  of  these  things,  that  I  am  in  favor  of 
the  amendment  proposed  by  the  delegate  for 
Wilbraham,  (Mr.  Hallett).  I  desire  to  incorpo 
rate  into  the  fundamental  law,  I  desire  to  put 
into  the  unbending  text,  something  that  shall  be 
so  clear  and  certain  upon  this  sxibject  that  there 
cannot  be  any  constitutional  doubt  about  it ;  so 
that  we  shall  not  hold  our  Conventions  upon  any 
such  accidental  circumstance,  as  whether  General 
Scott  or  Franklin  Pierce  happens  to  be  president 
of  the  United  States ;  so  that  we  shall  not  have 
held  over  us,  in  tcrrorem,  the  opinion  of  a  su 
preme  court  in  this  State,  ready  to  give  the  benefit 
of  that  doubt  to  the  doubter.  I  am,  therefore,  in 
favor  of  placing  in  the  Constitution,  in  substance, 
the  amendment  of  the  delegate  for  Wilbraham 
(Mr.  Hallett). 

The  first  part,  if  I  understand  it,  executes  itself. 
If  the  selectmen  of  any  town  refuse  to  receive 
my  vote,  or  the  vote  of  any  man,  they  are  liable 
to  punishment.  The  second  part  of  the  resolve 
clothes  the  legislature  with  the  power  of  submit 
ting  to  the  people  the  proposition  for  a  Conven 
tion.  It  does  not  limit  the  people,  but  only  the 
servants  of  the  people,  as  the  people  cannot  limit 
themselves.  It  gives  the  legislature  power  to 
submit  the  question  to  the  people,  and  that  will 
be  its  warrant  for  acting ;  and  when  the  question 
is  submitted,  and  the  people  have  voted,  that 
closes  the  question  as  far  as  the  legislature  is  con 
cerned.  Then  men  cannot  come  here  in  the  face 
of  this  language  and  say  that  they  have  a  right  to 
repeal  that  enactment  or  fundamental  law  of  the 
people,  and  force  the  people  of  Massachusetts 
into  revolution.  By  adopting  this  proposition,  we 
shall  have  a  peaceful  and  proper  mode  by  which 
we  can  change  our  fundamental  law.  The  last 
part  of  the  proposition  is  of  more  importance,  it 
may  be,  than  all  the  other  propositions. 

It  declares,  clearly  and  distinctly,  the  doctrine 
of  the  democratic  school  for  the  first  time  in 
Massachusetts ;  that  the  people  are  the  source  of 
power  ;  that  they  cannot  alienate  that  power  ;  and 
that  it  is  for  them  to  determine  at  what  time  and 
in  what  manner  they  will  change  their  funda 
mental  law.  Men  may  say  that  it  is  not  neces- 


64th  day.] 


CONSTITUTIONAL    CONVENTIONS. 


297 


Friday,] 


BURLINGAME HALE  BRIGGS. 


[July  22d. 


sary  to  declare  this  great  right  of  the  people. 
That  it  exists.  Then  I  submit  that  it  was  not 
necessary  to  have  the  Magna-Charta,  the  Bill  of 
Rights,  or  Declaration  of  Independence.  I  say 
it  is  necessary,  when  the  people  have  achieved  a 
right,  to  put  it  into  the  unbending  text,  so  that 
men  who  believe  in  law  merely  because  it  is  law, 
will  not  deny  it,  and  so  that  others  may  stand  by 
it  because  of  its  merits. 

I  do  not  wish  to  prolong  my  remarks.  I  have 
taken  up  too  much  time  already,  but  it  seems  to 
me  this  is  the  most  important  question,  in  some 
respects,  that  we  have  had  before  us.  I  am 
earnestly  desirous  that  the  proposition  of  the 
delegate  for  Wilbraham,  (Mr.  Hallett,)  in  some 
form,  should  pass. 

Mr.  HALE,  of  Bridgewater.  This  question, 
Mr.  Chairman,  has  assumed  more  importance 
than  was  contemplated,  I  apprehend,  by  the  Con 
vention,  when  they  decided  to  limit  the  discussion 
to  one  hour.  I  believe  three- fourths  of  that  time 
has  already  expired ;  taken  up  by  two  gentlemen 
in  favor  of  the  amendment  proposed  by  the  gen 
tleman  for  Wilbraham,  which  he  stated  the  other 
day  was  a  vital  one  to  be  decided  by  this  Conven 
tion.  I  presume  that  the  Convention  do  not  de 
sire  to  determine  this  question  under  the  discus 
sion  which  has  been  had.  I  therefore  move  that 
the  Committee  now  rise  and  report  progress,  for 
the  purpose  of  moving  a  reconsideration  of  the 
vote  limiting  the  debate  to  one  hour.  I  trust 
that  the  Convention  will  see  the  propriety  of 
adopting  that  course,  so  as  to  give  some  opportu 
nity,  at  least,  to  discuss  a  question  of  this  magni 
tude. 

The  motion  that  the  Committee  rise  was  not 
agreed  to. 

Mr.  HALE.  I  now  propose,  if  it  is  in  order, 
to  move  an  amendment  to  the  third  resolution. 
I  do  not  propose  to  discuss  it.  I  move  to  strike 
out  the  word  "majority,"  wherever  it  occurs, 
and  insert  the  words  "  two-thirds." 

The  language  of  the  resolution  is,  "  a  majority 
of  the  whole  number  of  senators  and  representa 
tives."  That,  I  suppose,  would  be  a  majority  of 
the  whole  number  assembled  in  Convention.  I 
propose  to  strike  out  the  word  "  majority  "  and 
insert  "  two-thirds,"  so  that  it  will  be  two-thirds 
of  the  senators  and  of  the  representatives. 

Mr.  B1UGGS,  of  Pittsfield.  Does  not  that 
open  up  the  whole  question  ? 

The  CHAIRMAN.     I  suppose  it  does. 

Mr.  BRIGGS.  I  concur  in  the  view  taken  by 
the  two  gentlemen  who  have  preceded  me,  in  the 
idea  that  this  is  an  important  question,  and  one 
which  we  ought  to  enter  upon  with  great  gravity, 
and  candor,  and  consideration.  We  propose  here, 

20 3 


as  in  other  parts  of  the  Constitution,  not  only  to 
bind  ourselves,  but  to  bind  those  who  shall  come 
after  us,  and  prescribe  the  manner  in  which  that 
sovereign  will  of  the  people,  that  has  been  so  often 
alluded  to,  shall  be  exercised.  The  Report  of  the 
Committee — and  I  very  much  regret  that  the 
chairman  is  not  here — prescribes  one  mode  of  ob 
taining  future  amendments  of  the  Constitution. 
The  gentleman  for  Wilbrahara,  (Mr.  Hallett,) 
prescribes  another  mode.  What  are  they  ?  The 
first  prescribes  that  in  twenty  years  from  this 
time,  and  in  each  succeeding  twenty  years,  the 
question  shall  be  submitted  to  the  people,  "  Shall 
there  be  a  Convention  to  revise  and  alter  the  Con 
stitution  ?  "  that  if  the  people  so  determine,  their 
legislature — their  legislature — shall  call  a  Conven 
tion  in  such,  manner  as  they  shall  deem  wise 
and  proper.  Lest  under  any  circumstances  the 
legislature  should  fail  to  do  its  duty,  the  second 
resolution,  provides  the  manner  in  which  that 
purpose  shall  be  accomplished.  Then  there  is  a 
third  resolution,  that  provides  that  the  legislature 
may  propose  amendments  to  the  people,  there 
being  a  majority  in  favor  of  it  for  two  successive 
years,  and  that  the  people  shall  act  upon  these 
propositions ;  and,  if  adopted,  their  amendments 
shall  become  part  of  the  Constitution  of  the  Com 
monwealth. 

The  gentleman  for  Wilbraham  provides,  by  his 
amendment,  that  once  in  twenty  years  the  people 
shall  be  called  upon  to  vote  on — what  ?  Mark,  Sir, 
— and  I  call  upon  every  gentleman  who  hears  me, 
to  mark  and  note  in  what  respect  we  propose  to 
hold  the  opinions  of  those,  and  the  rights  of  those, 
that  shall  succeed  us, — not  merely  that  they  shall 
have  a  Convention,  but  shall  have  a  Convention 
to  be  held,  not  as  their  legislature  may  prescribe,, 
but  as  the  legislature  of  1852  have  prescribed. 
That  is  the  regard  which  is  had  for  the  opinions 
and  rights  of  the  people.  Sir,  with  one  effort  it  is 
proposed  to  do  what,  so  far  as  I  know,  never  has 
been  done  by  any  body  like  this — to  incorporate 
into  a  Constitution,  the  fundamental,  lasting  law 
of  your  land,  an  entire  statute.  What  becomes 
of  the  will  and  independence  of  that  people  of 
whom  my  young  friend  from  Northborough  dis 
coursed  so  eloquently  ?  You  may  have  a  Conven 
tion  if  you  will  have  it  according  to  the  law  of 
1852.  And,  perhaps  there  is  a  construction  of 
this  provision  which  makes  it  include  the  amend 
ment  of  that  law  passed  last  winter.  The  gen 
tleman  did  not  mean  to  do  that ;  but,  perhaps, 
by  a  construction  of  that  Constitution,  as  courts 
construe  statutes,  it  might  perchance  impose  upon 
the  people  the  duty  of  holding  the  Convention  ac 
cording  to  both  statutes ;  for  one  is  an  amendment 
of  the  other,  and,  in  law,  a  part  of  the  statute. 


298 


CONSTITUTIONAL   CONVENTIONS. 


[64th   day. 


Friday,; 


BlUGGS. 


[July  22d. 


Now,  shall  we  do  tins  ?  I  appeal  through  you, 
Mr.  Chairman,  to  every  delegate  who  hears  me, 
whether  he  intends,  by  his  vote  here,  to  impose 
upon  those  who  shall  succeed  us  when  we  shall 
be  silent  in  the  grave,  a  condition  that  if  they 
want  a  Convention  to  amend  the  Constitution,  it 
shall  be  held  according  to,  and  in  compliance  with, 
a  statute  of  Massachusetts  passed  in  1852  r  Sir, 
•was  such  a  thing  ever  heard  of  ?  I  hope  gentle 
men  will  pause  before  they  undertake  to  lay  such 
a  burden  as  this  upon  those  who  are  to  come  after 
us.  I  say  nothing  of  the  wisdom  of  that  statute,  or 
otherwise.  That  is  immaterial.  It  may  be  the 
wisest  statute  ever  passed ;  but,  if  succeeding  gen 
erations  want  a  Convention  to  alter  their  Constitu 
tion,  provide  for  them  the  greatest  facilities  to  get 
it ;  but  in  Heaven's  name  leave  to  them  and  their 
own  legislature  to  provide  in  what  manner  they 
will  have  it,  and  how  it  shall  be  brought  on  ;  leave 
open  before  them,  in  the  broadest  possible  manner, 
every  right  and  every  facility  to  call  a  Convention 
and  alter  their  Constitution  in  any  mode  they 
please ;  but  do  not  undertake  to  impose  upon  them 
a  statute — an  entire  statute — with  all  its  pro 
visions,  as  one  of  the  conditions  under  which  that 
Convention  is  to  be  held. 

The  gentleman  points  to  a  provision  here  as  to 
the  number  of  delegates  that  towns  shall  be  en 
titled  to,  not  exceeding  the  number  of  representa 
tives  to  which  each  town  or  city  was  entitled  last 
year.  So,  Sir,  of  all  these  provisions,  as  I  said 
before — I  do  not  care  what  they  are — was  it  ever 
heard  from  the  beginning  of  free  governments  to 
this  time,  that  a  Convention  should  undertake  to 
impose  upon  those  that  should  come  after  them, 
not  only  that  they  should  have  a  right  to  have  a 
Convention,  but  how  that  Convention  should  be 
called,  by  whom  the  delegates  should  be  chosen, 
and  all  the  arrangements  about  it?  And,  jet, 
Sir,  here  you  have  it ;  and  you  have  it  from  a 
gentleman  who  proclaims  over  and  over  again  his 
regard  for  the  sovereign  rights  of  the  people  ;  and 
he  proposes  to  protect  the  sovereign  rights  of  future 
people  by  providing  that  they  shall  never  have  a 
Convention  except  they  comply  with  the  statute 
of  18 o  2.  Well,  gentlemen,  in  the  name  of  reason, 
in  the  name  of  that  liberty  of  which  gentlemen 
talk,  in  the  name  of  that  sovereignty  before  which 
they  bow,  I  ask  whether  you  will  do  this  ? 

Then,  Sir,  the  gentleman's  amendment  provides 
that  each  legislature,  every  year,  may,  if  they 
choose,  put  the  question  to  the  people,  whether 
they  will  have  an  alteration  of  the  Constitution. 
Well,  Sir,  that  is  providing  facilities  by  which 
every  change  of  party,  every  swelling  political 
wave  that  changes  the  administration  of  the  gov 
ernment  of  the  State,  may  lead  to  a  call  upon  the 


people  to  say  whether  they  will  alter  their  fun 
damental  law.  If  you  think  that  better  and 
wiser,  than  to  have  the  legislature  propose  amend 
ments  between  these  periods  of  twenty  years,  I  am 
content  with  it. 

Mr.  HALLETT.  Will  the  gentleman  allow 
me  to  ask,  whether  I  understood  him  to  say  that 
we  do  not  allow  the  legislature  to  pass  amend 
ments  ? 

Mr.  BRIGGS.  No,  Sir.  It  allows  the  legis 
lature  to  submit  to  the  people  the  question  of  a 
Convention  every  year.  It  says  :  — 

The  foregoing  resolution  shall  in  no  wise  re 
strain  or  impair  the  reserved  right  of  the  people, 
in  their  sovereign  capacity,  at  all  times  to  alter 
and  change  their  Constitution  and  frame  of  gov 
ernment. 

In  the  name  of  common  sense,  what  does  this 
mean?  Here  you  say  that  once  in  twenty  years, 
about  half  way  in  a  generation,  the  question  shall 
be  submitted  to  the  people,  whether  they  will 
have  a  Convention.  Then  you  provide  that  their 
legislature  may  put  the  question  annually  to  them, 
and  then  you  resolve  that  by  their  reserved  sov 
ereignty  they  shall  have  this  right.  What  does 
that  mean  ?  I  confess  I  do  not  know.  In  rap 
tures,  almost,  my  young  friend,  (Mr.  Burlingame,) 
breaks  out  in  encomiums,  in  unkiiown  strains, 
upon  this  new  declaration  of  the  rights  of  man. 
For  the  first  time  on  this  earth,  I  understood  him 
to  say,  this  right  is  embodied  in  a  Constitution. 
Sir,  I  commend  to  my  young  friend  to  look  into 
that  glorious  old  Bill  of  Rights,  drawn  tip  by  a 
man — no  summer  soldier,  or  summer  patriot; 
drawn  up  by  a  man  under  sentence  of  a  government 
against  which  he  had  rebelled ;  drawn  up  by  a 
man  and  passed  by  a  body  of  men  who  had  been 
bapti/ed  in  blood,  and  whose  patriotism  was  pu 
rified  by  the  fires  of  the  Revolution — a  man,  Sir, 
who,  when  he  penned  that  declaration,  and  that 
Bill  of  Rights,  knew  not  whether  he  should  suffer 
as  a  traitor,  suspended  between  the  heavens  and 
the  earth,  or  receive  from  future  generations  the 
gratitude  of  freemen.  See  whether  this  man,  and 
those  who  acted  with  him,  had  any  such  concep 
tion  as  this : — 

"  Government  is  instituted  for  the  common 
good;  for  the  protection,  safety,  prosperity  and 
happiness  of  the  people ;  and  not  for  the  profit, 
honor,  or  private  interest  of  any  one  man,  family, 
or  class  of  men  ;  therefore,  the  people  alone  have 
an  incontestible,  unalienable,  and  indefeasible 
right  to  institute  government;  and  to  reform, 
alter,  or  totally  change  the  same,  when  their  pro 
tection,  safety,  prosperity  and  happiness  requir  it." 

Sir,  what  are  the  last  few  words  of  that  third 


64th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


299 


Friday,] 


BRIGGS  —  HALE  —  HALLETT  —  SIMMONS  —  UPTON  —  SARGENT  —  COLE.        [July  22d. 


resolution,  but  an  echo  of  these  glorious  sentiments, 
these  great  principles  of  human  rights,  planted  as 
deep,  and  as  firm  and  everlasting  as  the  granite 
rocks  of  the  native  town  of  their  author  ?  What 
else  is  it  ?  And  yet  this  amendment  is  declared 
to  be  the  first  proclamation  of  these  noble  senti 
ments.  And  in  what  manner  does  my  young 
friend,  and  my  friend  for  Wilbraham,  propose  to 
carry  out  this  provision  ?  Why,  Sir,  that  those 
who  are  to  succeed  us  may  have  a  right  to  alter 
or  amend  in  any  manner  they  please,  the  Consti 
tution  and  Frame  of  Government  ?  No,  Sir,  no ; 
they  may  have  a  right  to  call  a  Convention  if  they 
will  do  it  in  the  manner  prescribed  in  the  statute 
of  1852  ;  and  not  in  any  manner  that  they  shall 
please.  But  they  may  vote  on  the  question 
whether  they  will  have  a  Convention  according  to 
the  act  of  1852.  And  this  is  carrying  out  the 
principle  that  they  may  alter  and  amend  the  Con 
stitution  when  and  how  they  please. 

Sir,  this  is  a  great  question.  I  will  not  go  into 
the  question  at  all  whether  the  people  are  the 
fountain  of  power.  Sir,  who  doubts  it  ?  I  could 
not  discover  where  my  young  friend  drew  the 
dividing  line  between  the  different  opinions  of 
what  he  calls  the  two  schools,  held  in  tlvis  coun 
try,  notwithstanding  the  keenness  of  my  young 
friend's  remark,  unless  this  was  it 

[The  hour  for  closing  debate  having  arrived, 
the  remarks  of  the  gentlemen  were,  at  this  point, 
interrupted.] 

Mr.  HALE,  of  Bridge  water,  modified  his  mo 
tion  so  that  a  majority  of  the  Senate  and  two- 
thirds  of  the  House  of  Representatives  should  be 
required  to  ratify  the  amendments  to  the  Consti 
tution. 

The  question  being  taken  upon  the  motion  of 
Mr.  Hale,  as  modified,  it  was  not  agreed  to. 

Mr.  HALLETT  modified  his  amendment  by 
adding  after  the  words  "  March  next  succeeding," 
the  words,  "  in  conformity  with  the  law  then  in 
force  for  the  election  of  representatives,"  so  that 
the  clause  would  read  as  follows  : — 

And  thereupon  delegates  shall  be  chosen  on 
the  first  Monday  of  March  next  succeeding,  in 
conformity  with  the  law  then  in  force  for  the 
election  of  representatives,  and  such  delegates 
shall  meet  in  Convention  in  the  State  House  on 
the  fir.st  Wednesday  of  May  succeeding,  in  the 
same  manner  and  with  the  same  authority  as  is 
provided  in  the  second,  third,  and  fourth  sections 
of  said  Act. 

Mr.  SIMMONS,  of  Hanover,  moved  to  amend 
the  substitute  proposed  by  Mr.  Hallett  as  an 
amendment,  by  adding  thereto  the  following  : — 

And  it  shall  be  the  duty  of  magistrates  and 
persons  in  authority,  to  verify  and  recognize  the 


proceedings  of  all  meetings  of  the  people  holden 
for  that  purpose,  to  the  end  that  the  will  of  the 
majority  may  be  ascertained  and  obeyed  by  the 
constitutional  authorities. 

The  question  being  taken  on  this  amendment, 
it  was  not  agreed  to. 

Mr.  TJPTOX,  of  Boston,  moved  to  amend  the 
resolve,  by  striking  out  the  words  "  1873,  and  in 
each  twentieth  year  thereafter,"  and  inserting  in 
lieu  thereof,  the  words  "  1858,  and  in  each  fifth 
year  thereafter." 

The  question  being  taken  on  this  amendment, 
it  was  not  agreed  to. 

Mr.  SARGEXT,  of  Cambridge,  moved  to 
amend  the  resolution,  by  striking  out  the  words 
"  1873,  and  in  each  twentieth  year  thereafter," 
and  inserting  in  lieu  thereof,  the  words  "  1860, 
and  in  each  tenth  year  thereafter." 

The  question  being  taken,  upon  a  division,  there 
were — ayes,  48  ;  noes,  178 — so  the  motion  was 
not  agreed  to. 

Mr.  COLE,  of  Cheshire,  moved  to  amend  the 
resolution  by  striking, out,  after  the  word  "Con 
stitution  "  in  the  tenth  line,  the  following  words  : 
"  in  conformity  to  the  provisions  of  the  Act  of 
1852,  chapter  188,  relating  to  the  calling  a  Con 
vention  of  delegates  of  the  people,  for  the  pur 
pose  of  revising  the  Constitution,"  so  that  the 
resolution,  as  amended,  would  read  as  follows  : — 

Resolved,  That  it  is  expedient  to  provide  in  the 
Constitution,  that  a  Convention  to  revise  or 
amend  this  Constitution,  may  be  called  and  held 
in  the  following  manner.  At  the  general  election 
which  shall  be  in  the  year  eighteen  hundred  and 
seventy-three,  and  in  each  twentieth  year  there 
after,  the  qualified  voters  in  State  elections  shall 
give  in  their  votes  to  be  received,  counted,  re 
turned  and  declared,  in  the  same  manner  as  by 
law  is  provided  in  the  choice  of  general  officers 
at  such  election ;  upon  the  question,  "  Shall  there 
be  a  Convention  to  revise  the  Constitution  r"  and 
if  it  shall  appear,  by  the  returns  made,  that  a 
majority  of  the  qualified  voters  throughotit  the 
State,  who  shall  assemble  and  vote  thereon,  are 
in  favor  of  such  revision,  the  same  shall  be 
deemed  and  taken  to  be  the  will  of  the  people  of 
the  Commonwealth,  that  a  Convention  should 
meet  accordingly,  &c. 

The  question  being  taken  upon  the  amend 
ment,  it  was  not  agreed  to. 

Mr.  HALE,  of  Bridgewater,  moved  to  amend 
the  resolution,  by  striking  out  the  last  clause,  as 
follows  : — 

The  foregoing  provisions,  shall  in  no  wise  re 
strain  or  impair  the  reserved  right  of  the  people 
in  their  sovereign  capacity,  at  all  times,  to  reform, 
alter,  or  totally  change  their  Constitution  and 
Frame  of  Government. 


300 


CONSTITUTIONAL    CONVENTIONS. 


[64th  day. 


Friday,] 


PARKER  —  BRIGGS  —  UPTON. 


[July  22d. 


And  inserting  in  lieu  thereof,  the  following  :— 

And  the  right  of  the  people  at  all  times,  to 
amend  their  Constitution  of  Government,  by 
Convention,  or  otherwise,  according  to  their  will, 
legally  expressed,  shall  never  be  restrained  or 
obstructed  in  this  Commonwealth. 

Mr.  PARKER,  of  Cambridge.  As  the  order 
which  has  been  adopted  precludes  farther  debate, 
I  will  ask  whether  the  Chair  gives  the  privilege 
of  inquiry  for  the  purpose  of  ascertaining  con 
struction  ?  If  I  may  be  allowed,  I  wish  to  make 
an  inquiry  as  to  the  effect  of  the  amendment 
which  is  proposed  by  the  gentleman  for  Wil- 
braham ;  but  if  not,  I  must  reserve  my  inquiry 
until  the  next  stage. 

The  CHAIRMAN.  The  Chair  thinks  that  no 
debate  will  be  in  order. 

Mr.  PARKER.  If  no  debate  is  in  order,  I 
desire  to  know  whether  that  precludes  an  inquiry  ? 

The  CHAIRMAN.  It  depends  very  much 
upon  what  the  inquiry  is. 

Mr.  PARKER.  The  inquiry  relates  to  the 
construction  of  the  amendment — the  effect  of  it. 

The  CHAIRMAN.  The  Chair  thinks  that 
would  lead  to  debate,  as  it  would  require  an 
answer. 

The  question  being  then  taken  on  the  amend 
ment  proposed  by  Mr.  Hale,  it  was  not  agreed  to. 

The  question  then  recurred  on  the  amendment 
of  Mr.  Hallett,  being  to  substitute  his  resolution 
as  modified,  for  the  resolutions  reported  by  the 
Committee,  and  the  resolution  was  read. 

The  question  being  taken,  on  a  division,  there 
were — ayes,  158  ;  noes,  101 — so  it  was  agreed  to. 

Mr.  BUTLER,  of  Lowell,  moved  that  the 
Committee  rise,  and  report  the  substitute  to  the 
Convention,  with  a  recommendation  that  it  ought 
to  be  adopted. 

The  motion  was  agreed  to. 

The  President  pro  tern.,  having  resumed  the 
chair  of 

THE    CONVENTION, 

The  chairman,  Mr.  Griswold,  for  Erving,  re 
ported  that  the  Committee  of  the  Whole  had  had 
under  consideration  the  Report  of  the  Committee 
and  resolves  on  the  subject  of  amendments  to 
the  Constitution,  and  that  they  had  instructed 
him  to  report  the  same  back  to  the  Convention, 
with  amendments.  The  Committee  of  the  Whole 
had  amended  the  Report,  by  striking  out  the  sec 
ond  resolution,  and,  afterwards,  by  substituting 
another  in  lieu  of  the  remaining  resolutions. 

The  question  was  first  stated  on  concurring 
with  the  Report  of  the  Committee  of  the  Whole, 
to  strike  out  the  second  resolution,  as  follows  : — 


Resolved,  That  it  is  expedient  farther  to  pro 
vide  in  the  Constitution,  that,  whenever  the  leg 
islature  shall  fail  to  submit  to  the  people,  at  the 
periods  designated  in  the  foregoing  resolve,  the 
question  of  calling  a  Convention  for  the  purposes 
indicated  therein,  the  qualified  voters  in  State 
elections,  in  the  several  cities  and  towns,  may,  at 
the  next  general  election  thereafter,  and  upon 
notice  of  such  failure  by  the  Secretary  of  the 
Commonwealth,  whose  duty  it  shall  be  to  issue 
such  notice,  proceed  to  vote  upon  said  question 
as  though  it  had  been  propounded  by  the  legisla 
ture  ;  and  if,  upon  a  return  to  the  Governor  and 
Council,  of  the  vote  so  given,  it  shall  appear  that 
a  majority  have  voted  in  favor  of  the  proposition, 
the  Governor  shall  forthwith  issue  his  proclama 
tion,  calling  upon  the  voters  of  said  cities  and 
towns,  at  meetings  legally  warned  for  that  pur 
pose,  to  elect  delegates  to  such  Convention  ;  the 
time  and  place  for  holding  its  session,  being  ex 
pressed  therein. 

The  question  being  taken,  the  amendment  of 
the  Committee  of  the  WThole  was  concurred  in. 

The  question  was  then  stated,  on  the  next 
amendment  reported  from  Committee  of  the 
WThole,  being  to  strike  out  all  the  resolves  report 
ed  by  the  Committee  on  Amendments  and  En 
rolments  of  the  Constitution,  and  to  insert  in 
lieu  thereof,  the  resolution  submitted  by  Mr.  Ilal- 
lett. 

Mr.  BRIGGS,  of  Pittsfield,  moved  to  amend 
the  amendment,  by  striking  out  the  following 
words  in  the  tenth,  eleventh,  twelfth,  and  thir 
teenth  lines,  viz.  :  "In.  conformity  to  tiie  pro 
visions  of  the  Act  of  1852,  chapter  188,  relating 
to  the  calling  a  Convention  of  delegates  of  the 
people  for  the  purpose  of  revising  the  Constitu 
tion,"  and  also,  by  striking  out  the  following 
words  at  the  close  of  the  same  paragraph  :  "  same 
manner  and  with  the  same  authority  as  is  pro 
vided  in  the  second,  third,  and  fourth  sections  of 
said  Act,"  and  inserting  in  lieu  thereof,  the  fol 
lowing:  "manner  to  be  provided  for  by  the  leg 
islature,  to  be  chosen  at  said  election,"  so  that  the 
latter  part  of  the  paragraph,  as  amended,  would 
read  as  follows  : — 

And,  thereupon,  delegates  shall  be  chosen  on 
the  first  Monday  of  March  next  succeeding,  in 
conformity  with  the  law  then  in  force  for  the 
election  of  representatives,  and  such  delegates 
shall  meet  in  Convention  in  the  State  House  on 
the  first  Wednesday  of  May  succeeding,  in  the 
manner  to  be  provided  for  by  the  legislature,  to 
be  chosen  at  said  election. 

Mr.  BRIGGS  asked  for  the  yeas  and  nays  on 
this  amendment,  and  they  were  ordered. 

Mr.  UPTON,  of  Boston.  The  Convention  seem 
to  have  determined  to  adopt  this  substitute  which 
was  introduced  by  the  gentleman  for  Wilbraham  ; 


64th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


301 


Friday,] 


UPTON  —  BUTLER. 


[July  22d. 


and  although  I  had  the  honor  to  be  a  member  of 
the  Committee  which  reported  the  original  reso 
lutions,  the  chairman  of  which  is  not  now  in  his 
place,  I  do  not  propose  to  inflict  any  speech  on 
the  Convention.  I  should  have  liked  to  have 
rei'erred,  for  the  information  of  the  Convention, 
to  the  Constitutions  of  several  of  the  other  States, 
in  regard  to  this  subject ;  and  principally  for  the 
purpose  of  showing  to  this  body,  that  it  is  pro 
posed  to  insert  into  the  Constitution  of  Massa 
chusetts — if  the  amendment  of  the  member  for 
"VVilbraham  is  adopted — something  which  is  con 
tained  in  that  of  no  other  State  in  the  Union. 
The  Report  of  the  Committee,  which  I  hold  to 
be  better  than  the  substitute,  states  the  question 
to  be  proposed  to  the  people :  "  Shall  there  be  a 
Convention  to  revise  the  Constitution,  and  amend 
the  same  ?  "  That  is  the  simple  question  to  be 
submitted  to  the  people  ;  and  the  other  matter  of 
fixing  the  proper  basis  of  that  Convention,  is  to 
be  left  to  the  legislature ;  and  I  appeal  to  the 
members  of  this  Convention,  whether  it  is  not 
best  to  leave  the  basis  to  the  legialature.  When 
ever  it  is  determined  that  it  is  necessary  to  call  a 
Convention,  the  legislature  for  the  time  being 
may  submit  the  question  to  the  people  :  "  Shall 
there  be  a  Convention  to  revise  the  Constitution, 
and  amend  the  same  ?  "  They  will  also  have  the 
power  to  put  the  question  of  basis,  which  they 
might  do  in  two  forms,  thus :  Shall  the  dele 
gates  to  the  Convention  be  chosen  in  the  same 
manner  ;  that  the  then  existing  House  of  Repre 
sentatives  is  chosen  ;  or  shall  the  delegates  to  the 
Convention  be  chosen  by  districts  made  by  dividing 
the  senatorial  districts,  by  a  representation,  in 
one  word,  of  the  people  of  the  Commonwealth, 
and  not  of  town  corporations,  for  the  purpose  of 
revising  the  Constitution  of  the  Commonwealth  ? 
That  is  the  question,  and  that  is  the  whole  ques 
tion.  The  Report  of  your  Committee  covers  that 
ground,  and  it  also  covers  another  ground — that 
is,  in  regard  to  future  Conventions,  whether  you 
shall  have  a  representation  of  town  corporations, 
and  town  corporations  merely ;  whether  one- 
fourth  part  of  the  people  of  this  Commonwealth, 
representing  a  majority  of  the  House  of  Repre 
sentatives  shall  say,  that  hereafter  in  this  Com 
monwealth,  no  Convention  shall  ever  be  called, 
unless  they  give  their  free  will  and  assent  to  the 
same ;  or  whether  the  matter  shall  be  left  to  the 
whole  people  of  the  Commonwealth  to  decide, 
through  a  majority  of  the  people,  represented  by 
a  majority  of  the  legal  voters  of  the  Common 
wealth.  That  is  the  question.  And  when  my 
friend  from  Michigan  undertakes  to  tell  us  what 
the  State  of  Michigan  did,  why  did  he  not  tell  us 
that  the  representation  in  that  State  is  by  the 


people  assembled  in  districts  ?  I  say,  Mr.  Presi 
dent,  that  as  a-delegate  in  this  Convention,  I  am 
ready  to  meet  that  question,  and  I  am  ready  that 
our  Constitution  shall  be  amended  so  as  to  have 
the  question  submitted  every  year  to  the  people  : 
"  Does  our  Constitution  need  amending  r"  And, 
if  they  decide  it  does,  let  a  delegation  of  the  peo 
ple — not  a  delegation  of  the  town  corporations  of 
the  Commonwealth — but  a  delegation  of  the  peo 
ple  of  the  Commonwealth,  here  assemble  and  pre 
pare  the  necessary  amendments.  I  say,  Sir,  that 
the  Report  of  your  Committee  covers  the  demo 
cratic  ground,  and  the  only  democratic  ground ; 
it  leaves  the  question  open,  to  be  submitted  to 
the  people.  First,  submit  the  question,  whether 
a  Convention  shall  be  called  ;  and  then,  what  shall 
be  the  basis  upon  which  your  delegates  shall  be 
chosen  ?  But,  if  it  is  proposed  to  say  to  the  peo 
ple  of  this  Commonwealth,  that  the  delegates  to 
that  Convention  shall  be  chosen  on  the  basis  of 
the  House  of  Representatives,  and  on  that  basis 
only,  then  it  will  not  be  a  Convention  called  on 
democratic  principles,  but  it  will  be  a  representa 
tion  of  town  corporations,  and  not  of  the  people. 
As  a  member  of  the  Committee,  I  feel  bound  to 
define  my  position,  and  having  done  so,  I  take 
my  seat. 

Mr.  BUTLER,  of  Lowell.  I  am  sorry,  Sir, 
that  the  gentleman  from  Boston  should  have 
undertaken  to  have  started  off  upon  the  idea  that 
this  was  a  foregone  conclusion,  and  that  it  really 
was  a  case  for  the  exhibition  of  heat  and  temper, 
rather  than  the  exhibition  of  argument.  He 
spoke  so  rapidly,  under  his  excited  feelings  upon 
the  subject — and  doubtless  he  was  well  excited  in 
view  of  the  tremendous  consequences  which  he 
foresees — I  say  he  spoke  so  rapidly,  that  I  some 
what  doubt  whether  I  exactly  understood  him. 
If,  however,  I  did  understand  him,  it  was  to 
this  effect :  that  if  we  pass  this  amendment  as  it 
came  from  the  Committee  of  the  Whole,  we  shall 
provide  that  the  Constitution  shall  be  hereafter 
amended  by  the  towns  ;  in  other  words,  that  the 
towns  are  to  elect  delegates  to  any  future  Con 
vention  which  may  be  held.  If  that  is  really  so, 
it  would  be  a  pretty  strong  argument,  I  grant ; 
and  I  think  the  Convention  would  go  with  him. 
If  he  really  thinks  it  is  so,  I  do  not  blame  him 
for  the  heat  which  he  has  manifested.  I  should 
get  hot  myself ;  I  should  warm  up  considerably, 
if  that  were  the  case.  But,  the  difficulty  is,  that 
the  gentleman  does  not  seem  to  have  read  the 
provision  with  due  care.  It  provides  that  in  each 
twentieth  year  the  question  shall  be  submitted  to 
the  qualified  voters  of  the  State,  whether  we  shall 
have  a  Convention  in  a  certain  manner,  to  revise 
the  Constitution  ;  and  if  they  say  that  we  shall, 


302 


CONSTITUTIONAL  CONVENTIONS. 


[64th  day. 


Friday,] 


UPTON  —  BUTLER  —  LORD. 


[July  22d. 


then  the  delegates  shall  come  together  on  the 
basis  of  representation,  as  it  shall  then  be  estab 
lished.  Well,  Sir,  if  the  people  in  the  mean 
time  shall  have  thought  that  the  basis  is  an  un 
just  one,  they  will  undoubtedly  adopt  another 
basis — perhaps  the  district  system. 

Mr.  UPTON.  I  will  ask  the  gentleman 
whether,  by  this  amendment,  whenever  a  Con 
vention  shall  be  called,  it  will  not  be  called  upon 
the  basis  which  we  now  establish ;  and  whether 
that  is  not  a  basis  of  town  representation,  and  not 
a  representation  of  the  whole  people  of  the  State  ? 

Mr.  BUTLER.  It  will  undoubtedly  be  called 
upon  the  basis  which  we  have  now  made.  It 
will  be  submitted  to  the  qualified  voters  ;  and  if 
they  should,  in  the  mean  time,  say  that  this  sys 
tem  of  town  representation  is  so  intolerable  as  not 
to  be  borne,  they  will,  undoubtedly,  propose  to 
change  it,  and  refuse  to  endure  it  any  longer. 
Then  the  delegates  will  come  together,  and  the 
majority  of  the  whole  people  will  alter  the  Con 
stitution.  Town  delegates  may  propose  this  or 
that ;  but  unless  it  is  a  proposition  which  to  the 
whole  people  seems  necessary  to  be  adopted,  it 
cannot  become  a  provision  in  the  Constitution. 
How  shall  we  stand  then?  The  whole  people 
will  have  adopted  the  Constitution,  which  cannot 
be  altered  but  by  the  whole  people.  And  now  if 
the  people  should  adopt  this  form  of  government, 
that  form  will  stand  till  when  ?  Why,  Sir,  till 
the  whole  people  get  ready  to  alter  it.  And  if  all 
the  towns  should  agree  but  one,  and  that  one 
town  should  contain  a  majority  of  the  population, 
it  cannot  be  changed  until  the  majority  in  that 
town  agree  to  it.  It  is  a  majority  of  the  whole 
people.  The  gentleman  shakes  his  head  as  if  he 
did  not  believe  it.  I  should  like  to  know  how  it 
can  be  otherwise  ?  You  cannot  have  a  Convention 
till  the  majority  of  the  people  say  so  ;  and  when 
they  do  say  so,  then  a  Convention  can  come  here 
and  sit  as  long  as  we  have  done — very  much  too 
long,  I  i'ear,  for  the  good  of  the  Commonwealth— 
and  then,  after  all,  it  is  the  whole  people  who 
must  make  any  change  in  the  Constitution. 

Mr.  UPTON.  Will  the  gentleman  from  Low 
ell  allow  me  one  word  ? 

Mr.  BUTLER.  O  yes,  Sir;  a  thousand,  if 
you  choose. 

Mr.  UPTON.  I  only  mean  to  say,  that  by  a 
corporate  representation,  you  cannot  get  the  opin 
ion  of  the  whole  people  through  their  delegates. 
It  is  a  town  system  of  representation,  and  not  a 
system  based  upon  population.  That  is  what  I 
mean  to  say.  It  provides  that  the  delegates  shall 
be  chosen  under  a  town  representation,  and  not 
by  the  whole  people  of  the  Commonwealth. 

Mr.  BUTLER.     The  difficulty   under  which 


the  gentleman  is  laboring,  is,  in  the  first  place, 
that  he  mistakes  the  temper  of  the  Convention  for 
his  own,  [a  laugh,]  and  in  the  second  place,  that 
he  mistakes  the  fact,  that  the  people  live  in  towns. 
What  is  a  commonwealth  r  It  is  not  at  one  time 
a  commonwealth,  and  at  another  time  a  town.  A 
commonwealth  is  made  up  of  towns.  There  is 
no  commonwealth  without  totnis.  Strike  out  of 
existence  all  the  towns,  and  there  will  be  no 
commonwealth  here.  The  difficulty  of  the  gen 
tleman  is,  that  we  do  not  provide,  in  some  way  or 
other,  a  district  system  of  representation. 

And  now  I  have  got  at  what  the  gentleman 
wished.  When  he  made  the  amendment  which 
seemed  to  me  to  be  altogether  more  progressive 
than  even  that  of  my  friend  for  Northborough, 
when  he  proposed  that  we  should  have  a  Conven 
tion  in  1858,  and  every  fifth  year  afterwards,  I 
understand  what  he  wants  to  get  at ;  he  is  in 
hopes  of  getting  some  district  system  by  which 
he  can  so  alter  the  Constitution  as  to  get  a  com 
plete  district  system  for  all  time  to  come.  I  saw 
what  he  was  after — like  the  nurse  that  wanted  to 
kill  the  child  in  her  arms  by  stuffing  it  with 
sweet- cake.  He  professes  to  be  conservative ; 
but,  Sir,  I  am  a  great  deal  more  conservative  than 
he  is.  He  is  one  of  the  conservatives  of  the 
"Young  American"  people,  while  I  am  getting 
to  be  an  "Old  Fogy"  on  this  question  ! 

Sir,  I  see  no  difficulty  in  this  matter  whatever. 
We  must  make  some  basis'  of  representation.  The 
Commonwealth  must  be  represented,  and  repre 
sented  in  a  way  which  the  Convention  say  is  the 
proper  one,  or  else  the  people  will  not  be  repre 
sented  at  all.  If  the  amendment  is  adopted,  and 
the  Constitution  accepted  by  the  people,  we  shall 
then  have  a  Constitution  under  which  the  people 
of  the  Commonwealth  agree  to  live ;  and  it  will 
remain  in  that  form  until  a  majority  of  the  peo 
ple  agree  to  alter  it,  and  that  is  all  there  is  of  it. 

Now,  one  word  upon  the  amendment  of  the 
gentleman  from  Pittsneld.  If  I  understood  it,  it 
is  the  same  amendment  which  was  offered  by  the 
gentleman  from  Cheshire,  except  that  it  provides 
that  the  legislature  shall  fix  upon  the  manner  in 
which  the  Convention  shall  be  held. 

Mr.  LORD,  of  Salem.  I  desire  that  the  gen 
tleman  from  Lowell  would  allow  me  to  ask  him 
whether,  if  a  Convention  is  called  in  1873,  there 
might  not  be  just  as  many  delegates  as  there  are 
in  this  Convention,  chosen  from  the  same  local 
ities,  whatever  the  population  of  these  localities 
may  be  at  the  time  ?  On  reading  carefully  the 
proposition  of  the  gentleman  for  Wilbraham,  I 
think  he  will  come  to  that  conclusion. 

Mr.  BUTLER.  I  had  thought  so.  It  struck 
me  in  the  same  way  that  it  seems  to  have  struck 


64th  day.] 


CONSTITUTIONAL    CONVENTIONS. 


303 


Friday,] 


BUTLER. 


[July  22d. 


the  gentleman  from  Salem,  until  I  looked  at  it 
more  carefully.  It  provides  that  "  thereupon  the 
delegates  shall  be  chosen  on  the  first  Monday  of 
March  next  succeeding,  in  conformity  with  the 
provisions  of  law  for  then  electing  members  of  the 
House  of  Representatives."  I  do  not  know  that 
I  quote  the  words  exactly.  I  speak  from  mem 
ory  ;  but  that  is  the  substance  of  the  amendment, 
at  any  rate.  It  will  be  as  "then"  in  force  ;  so 
that  it  must  be  exactly  as  the  House  of  Repre 
sentatives  is  based  in  1873,  and  every  twenty 
years  thereafter  ;  and  if  there  is  anything  wring 
about  this,  the  legislature  will  have  a  right,  each 
year,  to  ask  the  people  to  call  a  Convention  to 
gether,  until  they  get  it  righted ;  so  that  if  this 
great  wrong  has  been  done,  which  has  excited  my 
friend  from  Boston  so  much,  he  can  get  it  righted 
by  the  people,  between  now  and  then. 

Now,  Sir,  I  was  going  to  refer  for  a  moment  to 
the  amendment  of  the  gentleman  from  Pittsfield, 
who  seems  to  have  adopted  the  child  of  the  gen 
tleman  from  Cheshire,  probably  because  he  had 
none  of  his  own.  And  what  is  it  ?  It  is  a  prop 
osition  that  the  legislature  shall  prescribe  the 
mode  in  which  the  Convention  shall  be  called.  If 
the  people  agree  that  a  Convention  shall  be  called, 
then  I  believe  that  the  legislature  is  to  prescribe 
the  manner  in  which  it  is  to  be  called.  I  believe 
I  have  got  it  right. 

Mr.  BRIGGS.  The  proposition  is,  that  it 
shall  be  held  in  a  manner  provided  by  certain 
sections  of  that  law. 

Mr.  BUTLER.  I  want  the  Convention  to  see 
the  exact  difference  between  the  two  propositions. 
The  proposed  amendment  provides,  that  after  the 
people  have  called  a  Convention,  it  shall  be  held 
in  such  a  manner  as  the  then  legislature  shall 
provide.  This  proposition  is  to  have  a  Conven 
tion  in  a  given  manner,  whether  the  legislature 
are  willing  or  unwilling ;  that  we  should  have 
just  such  a  body  as  this,  always,  of  course,  with 
more  talent  and  ability,  and  temper,  which  they 
will  get  so  much  better  twenty  years  hence ;  but 
we  are  to  have  just  such  a  body,  constituted  and 
held  just  in  the  same  way  as  this  body  is. 

Now  I  understand  this  to  be  the  radical  differ 
ence  between  the  two  propositions  :  one  of  them 
puts  into  the  fundamental  law  that  the  Conven 
tion  shall  be  held  without  a  reference  to  the 
actual  powers  that  be,  so  that  no  question  of 
license  law,  or  fugitive  slave  law,  or  one  law  or 
another  law,  or  presidential  election  ;  or  so  that 
no  bolting  out  of  a  small  faction,  on  this  side  or 
on  that  side ;  so  that,  in  short,  no  extraneous 
influence  can  put  an  accidental  majority  into  the 
legislature,  which  shall  have  any  power  ~to  con 
trol  the  action  of  the  people ;  so  that  the  same 


thing  shall  never  again  be  witnessed  in  this  Com 
monwealth,  which  we  saw  here  last  winter ;  that 
it  shall  be  among  the  things  that  were,  never  to 
be  seen  again — that  of  the  legislature  assuming 
the  power  to  interfere  with  the  whole  people  in 
regard  to  their  Convention.  That  is  the  exact 
difference,  if  I  understand  it,  between  the  two 
propositions.  One  is  to  provide,  by  the  funda 
mental  law,  irrepealable,  and  not  to  be  construed 
away  by  anybody,  not  to  be  touched  by  any  leg 
islature  ;  such  as  cannot  be  interfered  with  by  any 
legislature  ;  in  a  Convention  of  the  people,  when 
ever  they  will  it — to  have,  in  fact,  what  we  have 
now  in  theory,  the  vox  populi  second  only  to  the 
vox  Dei — that  the  legislature  shall  not  interfere. 
That  is  just  the  difference  which  I  wish  to  im 
press  upon  the  Convention,  and  then  I  have 
urged  all  I  wish  to  say  upon  the  proposition  of 
the  gentleman  from  Pittsfield. 

Now,  I  take  it  that  every  man  who  desires  that 
the  legislature  hereafter  may  have  power  to  inter 
fere  with  the  will  of  the  people  upon  a  call  for  a 
Convention,  will  vote  for  the  amendment  of  the 
gentleman  from  Pittsfield.  Every  man,  on  the 
other  hand,  who  desires  that  future  Conventions 
shall  be,  as  I  trust  and  believe  this  to  have  been, 
above  and  beyond  the  reach  of  any  legislative 
action,  will  vote  for  the  proposition  as  it  stands. 
Sir,  it  is  quite  plain  that  we  can  get  here  and 
express  the  will  of  the  people  without  the  inter 
ference  of  the  legislature.  Why  do  we  want  the 
legislature  to  tinker  upon  the  matter  ?  When  the 
people  have  spoken  and  said  that  they  will  have 
a  Convention,  why  do  we  want  the  legislature  to 
prescribe  the  means,  or  to  refuse  to  prescribe  the 
means,  by  which  it  shall  be  held  ?  Why  should 
we  give  them  the  power  to  say  :  "You  may  have 
a  Convention,  but  that  Convention  shall  sit  upon 
the  top  of  the  Hoosac  Mountain,  or  underneath  it, 
if  you  please."  Why  give  them  the  right  to  say  : 
"  You  shall  have  a  Convention  ;  but,  if  you  do 
have  it,  you  shall  sit  without  any  pay ;  you  shall 
sit  having  about  you  the  safeguards  of  the  law. 
You  shall  have  a  Convention,  but  every  one  who 
comes  to  it  shall  come  in  a  particular  way,  and 
be  dressed  in  a  particular  uniform,  and  inarch 
through  a  particular  line  of  sentinels,  and  come 
in  at  a  particular  door."  Some  gentleman  near  • 
me  whispers  that  no  legislature  will  ever  be  so 
foolish  as  to  do  such  a  thing  as  that.  Sir,  to  what 
extent  the  folly  of  the  legislature  may  can-y  them, 
the  gentleman  from  Salem  and  myself  would  not 
disagree  in  saying — on  whatever  else  we  might 
disagree— that  that  point  was  without  a  limit. 
We  should  probably  disagree  as  to  the  side  on 
which  that  folly  would  exist,  but  we  should  not 
disagree  as  to  the  fact  that  it  might  be  without  a 


304 


CONSTITUTIONAL    CONVENTIONS. 


[64th  day. 


Friday,] 


LORD. 


[July  22d. 


limit.  I  should  be  of  opinion  that  the  legislature 
•which  would  coolly  discuss  the  basis  of  the  regu 
lations  under  which  delegates  should  be  chosen— 
and  I  will  commend  to  the  consideration  of  gentle 
men  here,  the  legislative  caucus  of  last  winter, 
where  the  question  of  complying  with  the  peo 
ple's  will  was  discussed,  and  only  defeated  by  a 
majority  of  five — I  say,  after  that,  no  man  can 
say  to  what  extent  the  folly  of  the  legislature 
may  go,  and  we  are  only  to  put  safeguards  about 
it.  Suppose  that  five  had  voted  the  other  way, 
where  should  we  have  been  now  ?  We  should 
have  been  sitting  here,  but  under  the  strong  hand. 
I  do  not  wish  to  leave  anything  to  the  future 
legislature,  and,  therefore,  I  am  constrained  to 
vote  against  the  proposition  of  the  gentleman 
from  Pittsficld,  (Mr.  Briggs). 

Mr.  LORD.  When  I  arose  to  make  the  in 
quiry  of  the  gentleman  from  Lowell,  I  was  not 
aware  that  the  proposition  had  been  modified,  and 
I  agree  with  him,  that  with  that  modification,  the 
representation  in  the  Convention  would  be  ac 
cording  to  the  basis  of  representation  existing  at 
the  time  when  the  Convention  would  be  called. 
But  it  becomes  us  to  look  and  see  what  that  basis 
is.  Is  that  a  representation  of  the  people  as  it 
nowr  stands  ?  Now,  Sir,  we  have  adopted  a  mode 
of  representation  in  the  House  of  Representatives, 
and  that  plan  would  not  have  been  carried,  in  my 
judgment,  except  for  the  plausible  speech  of  the 
distinguished  delegate  who  represents  Berlin, 
(Mr.  Boutvvell).  It  was  put  in  that  speech,  that 
this  was  not  a  representation  of  the  people,  but 
that  it  was  a  representation,  to  some  extent,  justi 
fied  as  a  compensation  for  the  mode  of  fixing  the 
basis  of  the  Senate ;  that  the  Senate  should  have 
been  based  upon  legal  voters,  instead  of  being 
based  upon  population  ;  and  that  being  the  case, 
it  became  necessary  to  make  the  House  of  Repre 
sentatives  such — no,  I  will  not  do  the  gentleman 
for  Berlin  the  injustice  to  say  it,  because  he  did 
not  undertake  to  justify  it  upon  that  ground — but 
he  said  it  was  not  quite  so  bad,  considering  that 
it  might  be  looked  upon  as  a  compensation. 

Now,  Sir,  the  great  question  which  presents 
itself  to  us  here,  is  this :  shall  we,  by  a  constitu 
tional  enactment,  provide  that  the  next  Constitu 
tional  Convention  which  is  called,  shall  not  be 
composed  of  persons  who  shall  represent  an  equal 
proportion  of  people  r  Shall  we  provide  here  in  the 
Constitution,  as  matter  of  fundamental  law,  that 
the  people  of  this  Commonwealth  shall  not  be 
equally  represented  in  the  Constitutional  Conven 
tion  ?  That  is  the  question.  There  is  no  man 
that  pretends  that  the  people  are  equally  repre 
sented  in  the  House  of  Representatives,  upon  the 
basis  which  we  have  fixed.  Now,  shall  we  say, 


as  a  matter  of  constitutional  law,  that  when  the 
people  speak,  they  shall  send  delegates  who  do 
not  represent  the  people  equally  ?  And,  Sir,  I 
I  want  to  know;  with  that  amendment  adopted 
— and  I  think  it  will  require  the  astuteness,  not 
only  of  the  gentleman  from  Lowell,  (Mr.  Butler,) 
but  also  that  of  the  gentleman  for  Wilbraham, 
(Mr.  Hallett,)  to  tell  me— what  representation 
those  sixty-four  towns  are  entitled  to  in  that  Con 
stitutional  Convention,  when  they  are  not  entitled 
to  half  a  representative  each  in  the  House  of  Rep 
resentatives  ? 

Mr.  SIMMONS,  of  Bedford,  (in  his  seat). 
Entitled  to  somebody  here  half  the  time. 

Mr.  LORD.  The  gentleman  near  me  says  they 
may  have  somebody  here  half  the  time. 

A  VOICE.     Six-tenths  of  the  time. 

Mr.  LORD.  So  it  is.  I  accept  of  the  amend 
ment.  We  are  providing  here,  not  by  hasty  leg 
islative  act,  a  fundamental  law  which  shall  fix  the 
basis  upon  which  all  future  Conventions  shall  be 
called ;  because,  Sir,  I  submit  that  no  Conventions 
can  be  called  hereafter,  except  by  force  and  vio 
lence,  unless  it  is  called  according  to  that  basis  to 
which  I  have  referred ;  for  the  very  provision 
which  says  that  the  legislature  may  call  a  Con 
vention  in  other  years  besides  the  years  which  the 
Constitution  provides,  says,  also,  that  it  shall  be 
called  in  the  same  manner,  and  upon  the  same 
basis.  Therefore,  you  can  get  no  law  through, 
the  legislature,  except  in  violation  of  the  Consti 
tution,  that  does  not  provide  that  the  people  shall 
not  be  equally  represented  in  a  Convention,  which 
undertakes  to  report  a  constitutional  amendment 
to  the  people.  And,  Sir,  the  argument  which  the 
gentleman  from  Lowell  makes,  that  there  is  110 
Convention  to  be  called  without  a  majority  of  the 
people  in  favor  of  it  in  the  first  place,  and  no 
amendment  to  be  adopted  unless  a  majority  of  the 
people  concur  in  it  afterwards,  is  of  no  force  what 
ever  ;  because,  if  that  has  any  force,  why  not  say 
that  the  county  commissioners  of  the  county  of 
Berkshire  shall  have  the  power,  in  the  first  place, 
of  submitting  amendments  to  the  people,  because, 
unless  the  people  choose  to  ratify  them  they  do 
not  become  a  part  of  the  Constitution  ?  The  diffi 
culty  is,  we  cannot  get  an  amendment  before  the 
people,  if  you  make  a  constitutional  provision 
which  does  not  provide  for  an  equal  representa 
tion  of  the  people.  How  else  can  we  get  amend 
ments  before  the  people  ?  The  people  of  this 
Commonwealth  this  day  demand  equal  represen 
tation  ;  but  they  cannot  get  it,  and  why  ?  Because 
the  people  are  not  equally  represented  here. 
Should  every  man  in  it,  from  every  quarter  of 
this  Commonwealth,  demand  equality  of  repre 
sentation,  you  will  not  let  them  vote  upon  that 


64th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


305 


Friday,] 


LORD  —  PARKER. 


[July  22d. 


question.  Why  ?  Simply  because  you  do  not 
represent  the  people.  The  majority  of  this  Con 
vention  is  chosen,  as  every-body  knows,  and  as 
has  been  charged  over  and  over  again,  by  a  third 
part  of  the  legal  voters  of  this  Commonwealth. 
Then,  how  are  the  people  to  amend  the  Constitu 
tion,  if  you  are  not  to  allow  them  to  speak  in  Con 
vention  ? 

Now,  Sir,  it  is  pretty  unimportant,  in  my  judg 
ment,  whether  the  gentleman  from  Lowell,  (Mr. 
Butler,)  and  myself,  think  the  legislature  will  act 
foolishly  or  not.  I  think,  as  Constitution  makers, 
we  are  bound  to  presume  that  future  legisla 
tures  will  act  according  to  the  Constitution ; 
we  are  bound  to  presume  that  the  people  will 
select  such  agents  and  such  representatives  as  will 
properly  carry  into  effect  their  views.  I  have  no 
such  distrust  of  the  people  as  to  suppose  that  they 
will  send  up  here  representatives  who  will  not 
conform  to  their  will.  If  they  do,  the  evil  is  only 
temporary,  because  the  same  constituency  which 
sent  them  up,  can  instruct  them  while  they  are 
here, — unless  we  have  taken  that  good  old  pro 
vision  from  the  Constitution,  and  I  hope  we  have 
not, — and  if  they  do  not  like  their  doings  while 
they  are  here,  they  can  send  others  to  take  their 
places.  Now,  I  say,  it  is  entirely  unimportant 
how  gentlemen  who  will  be  so  little  known  in 
1873,  and  so  little  cared  for  at  that  time,  as  the 
gentleman  from  Lowell,  (Mr.  Butler,)  and  my 
self,  think  the  legislature  will  manage  if  they  have 
the  power.  I  do  not,  however,  propose  at  all  to 
enter  upon  the  discussion  of  that  point. 

I  think,  Sir,  if  our  fathers  had  told  us,  in  1820, 
that  we  should  not  hare  had  a  Convention  unless 
we  had  delegates  chosen  just  as  they  should  pre 
scribe,  that  once  in  a  while  we  should  hear  it  said 
that  it  was  not  in  the  power  of  one  generation  to 
undertake  to  bind  down  and  enchain  their  suc 
cessors  and  posterity  to  all  future  times.  I  think 
it  would  have  been  said  here,  and  said  with  a 
great  deal  more  force,  and  certainly  with  a  great 
deal  more  truth,  than  many  things  which  have 
been  advanced  here  politically,  that  if  they  had 
undertaken  to  say  that  when  the  people  chose, 
through  their  constituted  organ,  to  select  a  Con 
vention  to  revise  the  Constitution,  they  had  not 
the  power  to  say  how  they  should  be  represented. 
That  would  have  been  a  "fossil,"  indeed,  which 
thirty  years  ago  should  have  undertaken  to  say  to 
us  of  to-day,  that  we  should  not  have  a  Conven 
tion  unless  we  should  stick  to  the  old  property 
qualification  in  the  voter  and  in  the  delegate. 
Suppose,  in  1820,  that  the  Convention  had  said, 
that  hereafter  no  Convention  should  be  called, 
except  by  a  majority  of  those  voters  who  had  a 
freehold  estate,  should  not  we  have  called  that  a 


"  fossil "  ?  that  they  had  undertaken  to  bind  their 
successors,  and  that  they  had  no  such  power  ? 

Sir,  I  do  not  profess  to  be  remarkably  progres 
sive,  but  I  hold  that  in  making  a  Constitution,  we 
should  exercise  such  powers  as  we  have  ;  not  only 
to  make  a  Constitution  which  shall  meet  the  exi 
gencies  of  the  day,  but  one  which,  according  to 
human  judgment,  and  so  far  as  we  can  bring 
human  foresight  to  bear  upon  it,  shall  meet  the 
exigencies  of  the  future.  But  to  undertake  to  say 
that  our  successors,  when  we  are  slumbering,  and 
the  mould  "  shall  have  gathered  upon  our  memo 
ries,  as  it  will  have  gathered  upon  our  tombs," 
shall  not  have  a  Constitutional  Convention,  or  a 
Constitution,  unless  they  take  them  according  to 
the  opinions  of  those  who,  living  in  1853,  profess 
to  be  wiser  than  those  who  may  come  after  them, 
is,  in  my  opinion,  a  great  mistake.  I  am  willing 
to  declare  that  the  people  have  a  right  to  have  a 
Convention.  There  is  no  difficulty  in  the  people's 
having  a  Convention  when  they  want  it,  and 
there  is  no  difficulty  in  putting  that  into  the  Con 
stitution. 

Mr.  PARKER,  of  Cambridge.  I  proposed, 
while  this  subject  was  before  the  Committee  of 
the  Whole,  if  it  had  been  in  order,  to  make  an 
inquiry  for  the  purpose  of  ascertaining  the  true 
construction  of  the  proposed  amendment.  Hav 
ing  no  opportunity  at  that  time,  under  the  rules, 
I  desire  now  to  call  the  attention  of  the  Conven 
tion  to  it  as  adopted  and  reported  by  the  Com 
mittee,  with  the  same  view.  It  provides  that  in 
1873,  and  in  every  twentieth  year  thereafter,  the 
question  shall  be  submitted  to  the  people  "  Shall 
there  be  a  Convention  to  revise  the  Constitution 
in  conformity  to  the  provisions  of  the  Act  of 
1852,  chapter  188,  relating  to  calling  a  Conven 
tion  of  delegates  of  the  people,  for  the  purpose  of 
revising  the  Constitution  ?  "  That  is  the  ques 
tion  which  is  to  be  submitted  to  the  people,  and 
upon  that  their  vote  is  to  be  required.  If  they 
vote  in  the  affirmative,  then  there  are  certain  other 
provisions. 

Now,  Sir,  the  Act  of  1852  contains,  among 
other  things,  a  provision  that  in  case  the  answer 
shall  be  in  the  affirmative,  the  inhabitants  of  the 
Commonwealth,  "  now  entitled"  (that  is,  enti 
tled  in  1852,)  in  any  one  year  to  send  one  or 
more  representatives  to  the  general  court,  shall, 
on  the  first  Monday  of  March,  &c.,  elect  one  or 
more  delegates,  not  exceeding  the  number  of 
representatives  to  which  each  town  or  city  "  was 
entitled  in  the  last  year,"  (that  is,  in  1852)  ; 
and  it  provides  "  that  at  a  meeting  of  the  inhabi 
tants  for  that  purpose,  every  person  entitled  to 
vote  for  representatives  in  the  general  court,  shall 
have  the  right  to  vote  in  the  choice  of  delegates  ; 


306 


CONSTITUTIONAL   CONVENTIONS. 


[64th   day. 


Friday,] 


PARKER. 


[July  22d. 


and  the  same  officers  of  the  several  cities  and 
towns  shall  proceed  in  such  election,  as  they  now 
proceed  in  the  election  of  representatives  to  the 
general  court,  and  that  the  votes  shall  be  received 
in  the  same  manner  as  noio  provided  in  case  of 
representatives  to  the  general  court ;  and  that  the 
same  laws  now  in  force  regulating  the  duties  of 
town  and  city  officers,  shall  apply  and  be  in  full 
force  and  operation  as  to  all  meetings  held  under 
this  Act,"  &c.  The  inquiry  which  I  wish  to  make 
is,  whether,  as  a  matter  of  legal  construction,  if 
this  question  is  submitted  to  the  people,  and 
they  answer  in  the  affirmative,  they  will  not  have 
responded  that  the  Convention  should  be  called 
precisely  according  to  the  terms,  and  under  the 
terms  of  the  Act  of  1852  ;  whether  all  the  provis 
ions  of  that  Act,  and  all  the  references  made  by 
that  Act,  to  other  laws  in  force  at  that  time,  will 
not  become  stereotyped,  and  be  part  and  parcel 
of  the  Constitution,  so  that  reference  must  be 
made  to  them  in  1873,  and  in  every  twentieth 
year  thereafter,  in  order  to  ascertain  how  the 
delegates  are  to  be  chosen,  and  their  number, 
and  the  laws  which  shall  govern  their  election  ? 
If  I  understand  the  true  construction  of  this 
clause,  it  makes  all  the  provisions  of  the  Act  of 
1852  a  part  of  your  constitutional  law  upon  this 
subject,  and  more  than  that,  it  makes  all  the  acts 
referred  to  in  that  Act— all  the  existing  laws  which 
were  in  force  for  the  election  of  delegates  to  this 
Convention— also  a  part  of  the  Constitution  ;  so 
that  sixty,  eighty,  or  one  hundred  years  hence,  if 
this  clause  shall  still  remain,  the  people  must  refer 
to  the  Act  of  1852,  and  hunt  up  the  laws  then  in 
existence  to  which  that  Act  refers,  before  they  can 
know  how  to  proceed  in  calling  their  Convention. 
Well,  Sir,  as  this  amendment  was  originally  sub 
mitted  by  the  gentleman  for  Wilbraham,  all  the 
proceedings  were  to  be  in  perfect  conformity 
with  that  Act.  It  provided  that  if  the  people 
voted  to  call  a  Convention,  the  delegates  should 
be  chosen  on  the  first  Monday  in  March,  next 
succeeding,  and  that  they  should  meet  at  the 
State  House,  on  the  first  Wednesday  of  May 
next  succeeding,  in  the  same  manner  and  with 
the  same  authority  as  is  provided  in  the  second, 
third  and  fourth  sections  of  said  Act— that  is,  ac 
cording  to  the  provisions  of  the  Act  of  1852. 

But  the  proposition  was  modified  afterwards  in 
Committee,  and  another  provision  inserted,  which 
is  substantially  this  : — 

Thereupon,  delegates  shall  be  chosen  on  the 
first  Monday  of  March  next  succeeding,  in  con 
formity  icith  the  laws  then  in  force  for  the  election 
of  representatives. 

Now,  Sir,  I  wish  to  know  how  far  this  pro 


vision  will  or  will  not  be  in  conflict  with  the 
question  put  to  the  people,  and  answered  by  them  ? 
Will  the  election,  if  made  in  conformity  with  the 
laws  then  in  force  for  the  election  of  representa 
tives,  be  made  as  the  people  have  willed  that  it 
shall  be  done,  by  answering  the  question  submit 
ted  to  them  in  the  affirmative  ?  If  it  will  not, 
then  these  two  provisions  are  in  conflict  with  each 
other.  The  people  say  they  will  have  a  Conven 
tion  according  to  the  Act  of  1852,  with  all  its 
references  to  other  acts  then  in  force  ;  whereas  a 
subsequent  part  of  the  same  proposition  requires 
that  the  Convention  shall  be  called,  and  delegates 
chosen,  in  the  manner  then  provided  for  the  elec 
tion  of  representatives. 

If  there  be  this  conflict,  then  I  would  inquire 
which  part  is  to  stand  ?  Is  a  construction  to  be 
put  upon  the  question  submitted  to  and  answered 
by  the  people,  to  make  it  conform  to  this  subse 
quent  provision,  or  is  a  construction  to  be  put 
upon  that  subsequent  provision,  to  make  it  con 
form  to  the  question  ? 

But  there  is  something  more  here  which  seems 
to  me  to  need  explanation.  This  modification 
which  has  been  inserted,  makes  the  latter  part 
of  the  provision  read  in  this  way  : — 

And,  therefore,  delegates  shall  be  chosen  on 
the  first  Monday  of  March  next  succeeding,  in 
conformity  to  the  laws  then  in  force  for  the  elec 
tion  of  representatives,  and  such  delegates  shall 
meet  in  the  State  House,  on  the  first  Wednesday 
of  May  succeeding,  in  the  same  manner,  and 
with  the  same  authority,  as  is  provided  in  the  2d, 
3d,  and  4th  sections  of  said  Act. 

Now,  can  this  provision  stand  with  all  its  parts, 
in  consistency  with  each  other,  or  is  the  first  por 
tion  of  it,  which  was  originally  drawn  in  con 
formity  with  the  question  to  be  put  to  the  people, 
in  conflict  with  the  modification  which  has  been 
made,  so  that  the  election  of  delegates  must  be  in 
accordance  with  the  then  existing  laws,  and  yet 
in  conformity  with  the  Act  of  1852  ? 

Again,  the  first  part  of  the  amendment  provides 
that,  "  at  the  next  general  election  which  shall 
be  in  the  year  1873,  and  in  each  twentieth  year 
thereafter,  the  qualified  voters  shall  give  in  their 
votes,"  &c.  Now,  the  qualified  voters  in  State 
elections,  according  to  the  provisions  which  it  is 
proposed  to  incorporate  into  the  Constitution  at 
this  time,  will  not  be,  or  may  not  be,  persons  of 
the  same  description  as  those  who  were  the  quali 
fied  voters  in  1852.  If  the  amendment  which 
you  have  already  adopted  is  ratified,  the  payment 
of  a  tax  will  not  be  required  to  qualify  a  \  erson. 
to  vote.  This  amendment  will,  therefore,  pro 
vide  that  one  set  of  voters,  all  persons  qualified 


64th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


307 


Friday,] 


BIRD  —  HALLETT. 


[July  22d. 


by  residence,  &c.,  whether  they  have  paid  a  tax 
or  not,  may  vote  upon  the  question  :  "  Shall  there 
be  a  Convention  held  according  to  the  provisions 
of  the  Act  of  1852  ? "  But,  in  the  choice  of  dele 
gates,  the  election  being  according  to  the  provis 
ions  of  the  Act  of  1852,  and  the  laws  then  in 
force,  another  set  of  voters,  those  only  who  have 
paid  a  tax,  can  vote.  So  that  you  will  submit 
to  one  class  of  men  the  question  whether  a  Con 
vention  shall  be  called,  and  to  another  class  of 
men,  the  choice  of  delegates  to  the  Convention. 

These  are  questions  of  legal  construction,  and 
before  the  Convention  proceeds  to  make  this  prop 
osition  a  part  of  the  Constitution,  they  should  be 
satisfac  torily  ans  wered . 

Mr.  BIRD,  of  Walpole.  I  have  not  much  to 
say  upon  the  subject  before  the  Convention,  ex 
cept  that  I  shall  call  for  a  division  of  the  question 
when  the  vote  is  taken.  I  am  willing  and  desirous 
to  vote  for  the  first  proposition  of  the  gentleman 
from  Pittsfield,  (Mr.  Briggs).  I  do  not  like  to 
vote  against  the  proposition  of  the  gentlemen  for 
"Wilbraham,  (Mr.  Hallett,)  because  I  generally 
agree  with  him  upon  matters  of  democratic  prin 
ciple,  but  I  am  not  willing  to  incorporate  into 
the  fundamental  law  of  the  Commonwealth,  a 
provision  which  shall  bind  the  people  in  1873  in 
relation  to  the  details  of  calling  a  Constitutional 
Convention.  The  Act  of  1852  worked  very  well 
last  year ;  it  might  not  work  so  well  twenty  years 
hence. 

In  relation  to  the  other  part  of  the  amendment 
presented  by  the  gentleman  from  Pittsfield,  I  hope 
it  will  be  withdrawn,  or  if  it  is  not,  that  it  will  be 
rejected.  I  understand  the  gentleman  is  not  par 
ticularly  tenacious  about  retaining  the  latter  part 
of  his  proposition,  and  I  would,  therefore,  sug 
gest  that  all  after  the  word  "  succeeding,"  be 
stricken  out.  That  clause  of  the  proposition 
would  then  read  : — 

And  thereupon  delegates  shall  be  chosen  on 
the  first  Monday  of  March  next  succeeding,  in 
conformity  with  the  existing  laws,  in  relation  to 
the  House  of  Representatives  ;  and  such  delegates 
shall  meet  in  Convention  in  the  State  House  on 
the  first  Wednesday  of  May  succeeding. 

I  would  omit  the  remainder  of  the  paragraph. 
It  will  then  provide  that  the  question  of  calling  a 
Convention  shall  be  taken  every  twenty  years  ; 
and  if  there  be  a  majority  of  the  people  of  the 
State  in  favor  of  calling  a  Convention,  then  the 
delegates  shall  be  chosen  on  the  first  Monday  of 
March  next  succeeding,  and  they  shall  meet  in  the 
State  House  the  first  Wednesday  of  May  next 
succeeding. 

Gentlemen  may  say  that  with  the  proposition 


left  in  this  shape,  the  legislature  in  the  mean  time, 
then  in  session,  may  pass  acts  virtually  repealing 
the  calling  the  Convention,  or  such  as  will  render 
their  meeting  extremely  difficult.  Now,  Sir,  I 
have  no  fear  of  that.  I  believe  that  when  we 
have  provided  in  our  organic  law  that  the  ques 
tion  shall  be  submitted  to  the  people,  whether 
there  shall  be  a  Convention  called,  and  when  a 
majority  of  the  people  have  voted  in  the  affirma 
tive,  no  legislature  will  be  found  to  contravene 
the  will  of  the  people.  I  do  not  think  we  need 
make  any  provision  to  prevent  it.  Certainly, 
while  the  memory  of  the  last  legislature  lives,  no 
future  legislature  will  try  the  experiment.  I  there 
fore  hope  the  first  part  of  the  amendment  of  the 
gentleman  from  Pittsfield  will  be  adopted,  and  the 
last  part  stricken  out. 

Mr.  HALLETT.  In  regard  to  the  suggestions 
made  by  the  learned  gentleman  from  Cambridge, 
(Mr.  Parker,)  I  am  very  glad  he  has  shown  that 
by  applying  his  astute  mind  to  the  criticism  of 
this  proposition,  it  results  in  producing  nothing 
against  it.  If  the  learned  gentleman  were  now 
upon  the  bench,  and  a  question  of  the  constitu 
tionality  of  this  provision  should  come  before  him, 
and  no  stronger  reasons  could  be  adduced  to 
prove  its  invalidity  than  he  has  suggested  against 
the  proposition,  he  would  have  too  much  respect 
for  public  sentiment  and  for  justice,  to  decide 
otherwise  than  in  favor  of  its  fair  construction. 
He  objects,  very  technically,  that  there  is  some 
thing  said  in  the  Act  of  1852,  about  the  laws 
"  now  "  in  force,  and,  therefore,  the  construction 
must  apply  to  the  laws  in  force  in  1852.  Why, 
Sir,  he  might  just  as  well  have  gone  back  to  the 
Act  of  1820  for  holding  a  Convention,  for  there 
was  something  said  in  that  Act  about  the  laws 
"  now  "  in  force.  In  this  resolution  now  under 
consideration,  it  is  provided  that  the  election  of 
delegates  to  a  Convention  in  1873,  shall  be  carried 
on  in  conformity  with  the  laws  "  then- ''  in  force. 
That  construes  and  applies  the  law  to  1873.  The 
Act  of  1820  is  the  same — verbatim,  almost — as 
that  of  1852,  which  has  answered  every  purpose 
now,  after  a  period  of  thirty-three  years  ;  and  yet 
when  we  talk  of  using  it  for  twenty  years  more 
to  call  Conventions,  in  the  same  general  manner, 
gentlemen  try  to  terrify  us  by  apprehensions  of 
binding  the  people  to  carry  into  effect  in  1873,  a 
law  of  1853. 

The  learned  gentleman  from  Cambridge,  (Mr. 
Parker,)  represents  these  provisions,  the  law  of 
1852,  and  the  contemplated  action  of  1873,  as 
being  in  conflict  with  each  other,  and  wants  to 
know  which  we  will  take.  I  can  see  no  difficulty 
or  doubt  in  the  matter.  I  should  like  to  ask  any 
judge  upon  the  bench,  whether,  if  he  had  a  statute 


308 


CONSTITUTIONAL   CONVENTIONS. 


[64th  day. 


Friday,] 


HALLETT. 


[July  22d. 


before  him  declaring  that  such  a  thing  should  be 
done  in  accordance  with  the  law  "  now  "  in  force, 
that  is,  in  1820  or  1852,  and  also  a  plain  constitu 
tional  provision  before  him,  saying  that  the  same 
thing  shall  be  done  in  accordance  with  the  law 
"then"  in  force  in  1873,  which  he  would  take, 
the  "  now  "  of  1852,  or  the  "  then  "  in  the  con 
stitutional  provision  ?  I  think  it  is  too  plain  to 
need  an  explanation. 

The  rule  of  construction  is,  that  the  Constitu 
tion  is  the  paramount  law,  and  is  to  be  so  con 
strued  as  to  carry  out  the  will  of  the  people,  as 
the  law-making  power  expressed  in  their  Consti 
tution,  and  to  make  all  the  provisions  of  law 
conform  to  that.  Now,  what  do  we  propose  to 
enact  in  this  provision  ?  Simply  a  constitutional 
provision  by  which  the  people  can  hold  a  Conven 
tion,  without  being  tied  down  to  ask  the  consent 
of  the  legislature,  subject  to  the  arrogant  assump 
tion  that  the  legislature  can  repeal  the  law  call 
ing  a  Convention,  and  send  the  delegates  home. 
I  have  studied  this  subject  for  ten  years.  Its 
importance  in  elementary  government,  cannot  be 
over  estimated.  Have  other  gentlemen,  who 
object  here,  studied  it  ?  If  they  have,  let  them 
show  me  that  they  understand  it,  and  mean  to 
gxiard  the  rights  of  the  people  against  the  usur 
pations  of  a  legislature,  and  I  will  take  their 
opinions.  It  is  a  very  important  matter,  I  admit ; 
but  I  cannot  see  the  judgment  or  propriety  cf 
gentlemen  who  have  scarcely  spent  a  thought 
upon  the  subject,  endangering  so  great  a  protec 
tion  to  the  people,  by  hasty  suggestions,  all  of 
which  go  to  take  this  inherent  power  away  from 
the  people  and  give  it  to  the  legislature.  If  they 
have  examined  it,— and  they  are  just  as  capable 
of  examining  it  as  I  am, — I  am  willing  to  defer 
to  them  ;  but  if  they  have  not  examined  a  ques 
tion  so  delicate  and  difficult,  they  are  no  more 
competent  to  point  out  what  should  be  done, 
than  they  would  be  to  navigate  a  ship  to  Califor 
nia,  without  having  studied  the  art  of  navigation 
for  an  hour. 

As  regards  this  technical  question  of  construc 
tion,  I  apprehend  no  man  who  desires  to  secure  the 
object  I  have  in  view,  will  fairly,  soberly,  and 
honestly,  have  a  moment's  difficulty  with  regard 
to  it.  The  only  question  before  us  is,  will  you 
so  amend  your  Constitution  as  to  provide  a 
fundamental  organic  law  for  holding  Conventions, 
which  executes  itself,  without  the  aid  of  the 
legislature  ;  or  will  you  lay  down  the  principle 
that  the  people  can  amend  their  Constitution  only 
through  the  previous  consent  of  the  legislature  ? 
That  is  precisely  the  question  upon  which  we  are 
called  to  act.  And  here  is  the  basis  of  a  provis 
ion  for  the  new  Constitution,  that  will  execute 


itself  without  the  aid  of  the  legislature ;  and  I 
undertake  to  say,  the  people,  when  they  want 
another  Convention  in  twenty  years,  will  find  no 
difficulty  at  all  in  construing  it.  None  whatever. 
Let  me  assure  those  who  are  sincerely  in  favor  of 
the  rights  of  the  people  in  this  respect,  that  they 
will  find  no  difficulty  from  the  lawyers,  and 
none  from  the  judges,  when  we  once  get  it  into 
the  Constitution ;  but  before  we  get  it  there,  all 
manner  of  troubles,  and  all  manner  of  doubts,  and 
all  manner  of  technicalities,  will  be  thrown  in 
the  way  of  its  adoption  by  the  Convention,  and 
by  the  people.  I  never  knew  or  read  of  an 
instance  where  the  people  were  struggling  to  get 
back  their  lost  rights,  either  through  a  Constitu 
tion,  a  legislature,  or  a  government,  in  this  coun 
try,  or  under  the  despotisms  of  the  old  world,  but 
there  were  found  lawyers  who  fear  the  ignorance 
of  the  people,  and  were  always  interposing  diffi 
culties,  raising  technicalities,  and  placing  every 
possible  inconvenience  in  the  way,  until  the  peo 
ple  have,  in  many  instances,  become  alarmed,  or 
embarrassed,  and  been  driven  from  their  rights. 
I  conjure  the  friends  of  the  great  rights  of  the 
people  in  this  Convention  not  to  be  alarmed 
at  the  difficulties  which  have  been  attempted  to 
be  thrown  around  this  provision.  I  tell  them 
there  is  no  difficulty  in  relation  to  the  matter  at 
all.  The  simple,  plain  proposition,  is,  that  the 
towns  which  are  entitled  to  send  representatives 
to  the  general  court  in  1873,  if  the  people  of  the 
Commonwealth  decide  to  hold  a  Convention, 
will  elect  delegates  to  the  Convention  in  con 
formity  with  the  law  then  in  existence  for  the 
election  of  representatives.  The  resolution  of 
amendment  says  :  "  in  conformity  with  the  law 
then  in  force,"  and  whatever  is  the  law  then  in 
force  with  regard  to  representatives,  it  will  apply 
to  delegates  to  the  Convention.  I  should  like  to 
extend  it  still  farther,  but  that  might  fail ;  and  if 
it  is  not  explicit  enough,  you  may  add  the  basis 
in  the  year  when  the  valuation  of  estates  was  last 
settled. 

The  same  idea  is  already  twice  expressed  in  the 
amendment ;  but  in  order  that  it  may  be  so  ex 
plicit  that  no  lawyer  can  give  it  a  wrong  construc 
tion,  I  propose,  at  a  proper  time,  to  offer  this 
amendment,  or  what  is  equivalent  to  it.  I  think 
the  construction  is  perfectly  clear  as  it  now 
stands,  and  lean  see  no  reason  for  anything  farther. 
But  I  would  omit  the  reference  to  the  Act  of  1852, 
and  incorporate  all  the  powers  of  the  Convention, 
which  is  the  same  thing,  even  if  it  should  take  up 
a  dozen  pages  in  the  Constitution,  for  the  purpose 
of  securing  the  rights  of  the  people,  rather  than 
that  those  rights  should  be  lost,  and  the  calling 
of  a  Convention  be  placed  in  the  power  of  the 


64th    day.] 


CONSTITUTIONAL   CONVENTIONS. 


309 


Friday,] 


HALLETT  —  PAHKER. 


[July  22d. 


legislature,  for  want  of  a  proper  construction  of 
the  Constitution.  I  want  it  to  be  so  explicit  that 
there  can  be  no  getting  round  it ;  for  if  we  fail 
now,  there  will  be  no  meetings  of  the  people  in 
Convention  for  generations  to  come.  I  want  the 
people  should  have  the  power  of  amending  their 
own  Constitution  as  they  may  see  fit,  without  doing 
it — as  the  United  States  court  has  declared  they 
must — with  a  rope  round  their  necks.  Our  Bill  of 
Rights  says  that  "  the  people  alone  have  an  incon- 
testible,  inalienable,  and  indefeasible  right  to  in 
stitute  government,  and  to  reform,  alter,  or  totally 
to  change  the  same."  Now,  Sir,  that  is  a  funda 
mental  right  which  overrides  all  limitations  upon 
the  part  of  the  people,  and  I  want  to  make  pro 
vision  in  this  Constitution  so  that  they  may  ex 
ercise  it ;  for  it  amounts  to  nothing  more  now,  as 
the  supreme  court  of  the  United  States  have 
evasively  decided  in  the  Rhode  Island  causes, 
than  simply  saying  that  the  people  may  do  it,  if 
their  legislature  and  their  court,  and  the  president 
of  the  United  States  will  let  them  ;  but  if  they 
undertake  it  without  the  consent  of  their  rulers, 
they  are  to  be  hanged  as  rebels. 

The  gentleman  from  Cambridge  says  that  if  we 
insert  this  provision  in  the  Constitution,  we  de 
prive  the  people  of  the  right  of  amending  their 
Constitution  in  the  way  they  would  like  here 
after  ;  when  he  knows  that  means  they  cannot 
amend  it  without  a  law ;  and  thus  he  joins  in  that 
very  cry  which  has  come  to  us  from  the  supreme 
court  of  the  United  States,  from  federal  lawyers, 
from  every  man  opposed  to  the  practical  sover 
eignty  of  the  people,  who  has  taken  up  this  sub 
ject,  and  who  contends  that  the  people  shall  not 
amend  their  Constitution  without  the  legislature 
will  give  them  permission  !  The  gentleman  says 
farther,  "  do  not  insert  this  provision,  because  you 
are  undertaking  to  say  what  the  people  in  1873 
shall  do  towards  amending  their  Constitution  !  " 
But  what  can  they  do  without  it,  according  to  his 
doctrine  ?  If  we  do  not  incorporate  such  a  pro 
vision  into  our  fundamental  law,  he  maintains, 
the  United  States  court  maintain,  and  all  lawyers 
who  deny  the  people's  sovereignty  in  practice, 
hold,  that  at  the  first  step  the  people  take  for 
calling  a  meeting  for  a  Convention,  or  for  deposit 
ing  votes  for  delegates,  the  legislature  has  the 
power  to  pass  an  act  declaring  it  a  riotous  pro 
ceeding  ;  and  the  military,  and  the  army  and  navy 
of  the  United  States  may  be  called  out  to  put  it 
down.  Now,  instead  of  the  revolution  of  blood 
which  the  learned  gentleman  from  Cambridge, 
(Mr.  Parker,)  allows  the  people  as  their  only 
remedy,  I  want  a  revolution  of  peaceful  change, 
when  the  people  desire  to  reform  government ; 
and  for  the  sake  of  securing  that  object,  now 


denied  by  the  judges  and  lawyers,  I  desire  to  see 
incorporated  in  the  Constitution  the  amendment 
I  have  offered,  or  one  to  the  same  effect,  for  I  go 
for  the  substance  only. 

For  the  sake  of  the  present  generation,  for  the 
sake  of  the  reaffirmation  of  a  great  truth  now 
denied,  and  for  the  sake  of  posterity,  I  hope  it 
may  be  inserted  in  this  Constitution  as  a  funda 
mental  law,  and  become  a  precedent  for  all  peo 
ple  who  mean  to  guard  their  inalienable  rights 
against  constructive  usurpation. 

Mr.  PARKER,  of  Cambridge.  I  misunder 
stood  the  gentleman  for  Wilbraham,  (Mr.  Hal- 
lett,)  or  he  misunderstands  me.  I  certainly  have 
given  no  indication  of  any  wish  to  confound  the 
people  with  technicalities.  If  that  was  my  desire 
I  should  leave  this  provision  to  be  adopted,  and 
leave  the  people  to  be  confounded  in  their  attempts 
to  ascertain  its  meaning.  On  the  contrary,  I 
desire  if  possible,  that  whatever  provisions  are 
inserted  in  the  Constitution,  shall  be  so  free  from 
technicalities  that  there  will  be  no  doubt  respect 
ing  their  meaning,  and  no  difficulty  in  readily 
understanding  them.  I  have  opposed  nothing, 
nor  have  I  advocated  anything.  I  rise  merely 
for  the  purpose  of  pointing  out  for  the  considera 
tion  of  the  members  of  the  Convention  the  lan 
guage  as  it  stands,  and  to  inquire  what  construc 
tion  is  to  be  placed  upon  it ;  indicating,  perhaps, 
the  opinion  that  the  response  of  the  people  to  the 
question  sent  to  them,  if  that  is  to  be  regarded  as 
the  effective  thing  in  the  calling  of  the  Conven 
tion,  will  confine  the  number  of  delegates  and 
the  manner  of  choc  sing  them  to  the  mode  pro 
vided  by  the  Act  of  1852 ;  and  then  adding  the 
inquiry  whether  there  had  been  anything  inserted 
in  the  proposition  which  provides  for  a  different 
rule  of  representation  ;  and  if  so,  whether  that 
was  not  contrary  to  the  question  submitted  to  the 
people,  and  their  response,  and  to  other  provis 
ions  immediately  connected  with  it  ? 

The  gentleman  speaks  of  the  Act  of  1820,  and 
says  that  the  language  of  the  Act  of  1852  is  iden 
tical  with  that  of  the  Act  of  1820.  What  of  that  ? 
There  is  nothing  in  the  Constitution  referring  to 
the  Act  of  1820,  and  it  is  not  proposed  to  insert 
anything  referring  to  that  Act.  The  point  of  the 
inquiry  is,  what  will  be  the  effect  of  this  pro 
vision  referring  to  the  Act  of  1852,  if  inserted  in 
the  Constitution  ?  The  Act  of  1852,  as  I  said 
before,  required  the  election  in  1853  to  be  accord 
ing  to  the  provisions  of  the  laws  then  in  force. 
It  has  been  contended  here  that  the  response  of 
the  people  to  the  question  in  the  Act  of  1852,  "  Is 
it  expedient  that  delegates  be  chosen?"  &c., 
adopted  all  the  provisions  of  that  Act  in  such  a 
manner,  that  whether  regarded  as  a  law  or  as  a 


310 


REPORT   FROM   A   COMMITTEE. 


[65th  day. 


Saturday," 


PARKER  —  HALLETT  —  BATES  —  BUTLER. 


[July  23d. 


"  proposition,"  the  legislature  could  not  change 
them  at  all ;  that  the  response  of  the  people  gave 
life  and  efficacy  to  the  Act ;  and  that  it  was  not  in 
the  power  of  the  legislature  to  modify  it.  I  con 
tended  that  the  legislature  had  such  power,  and 
power  to  repeal  it,  because  it  was  but  a  law ;  and 
that  the  vote  of  the  people  being  merely  that  it 
was  expedient  that  delegates  should  be  chosen 
without  any  declaration  respecting  time  or  man 
ner,  had  no  operation  to  change  the  character  of 
the  Act  itself;  and  I  am  ready  to  stand  by  that 
opinion,  notwithstanding  all  which  has  been  urged 
against  it. 

But  if  this  provision  is  made  a  part  of  the  Con 
stitution,  the  legislature  cannot  repeal  or  modify 
it ;  and  if  the  question  is  put  whether  a  Conven 
tion  shall  be  called  in  a  particular  manner,  and 
answered  in  the  affirmative,  the  effect  of  that 
response  may  be  conclusively  to  determine  the 
mode  and  manner.  Then  comes  the  question,  is 
the  provision  referring  to  the  laws  in  force  at  the 
time,  for  the  election  of  representatives,  consis 
tent  with  such  a  response  ?  And  farther,  is  that 
provision  consistent  with  what  is  immediately 
connected  with  it,  viz. :  that  delegates  shall  be 
chosen  to  meet  in  Convention  in  the  same  man 
ner  as  is  provided  in  the  2d,  3d,  and  -1th  sections 
of  the  Act  of  1852. 

Mr.  HALLETT.  Does  it  say  that  they  must 
be  chosen  in  the  same  manner  as  by  the  Act  of 
1852  ?  I  will  ask  the  gentleman  if  the  2d,  3d, 
and  4th  sections  of  the  Act  of  1852  are  inconsis 
tent  with  this  provision  ?  whether  they  do  not 
relate  to  the  meeting  and  the  powers  of  the  dele 
gates  ? 

Mr.  PARKER.  ;  The  gentleman  introduces 
another  question  of  construction.  The  2d  sec 
tion  of  the  Act  of  1852,  has  nothing  in  relation  to 
the  meeting  of  delegates  in  Convention,  or  their 
powers  ;  and  I  think  that  it  relates  exclusively  to 
the  manner  of  their  choice.  I  ask,  then,  whether 
the  last  part  of  the  proposition,  as  amended,  is 
consistent  with  itself;  and  whether  the  whole 
proposition  must  not  be  construed  together  in 
such  a  manner,  that  the  elections  will  have  to  be 
made  in  conformity  with  the  2d  section  of  the  Act 
of  1852,  and  whether  the  new  matter  introduced, 
providing  for  conformity  with  the  laws  in  force  at 
the  time,  for  the  election  of  representatives,  must 
not  be  rejected  on  account  of  its  inconsistency 
with  the  other  provisions.  It  only  shows  that  we 
are  involved  still  farther  in  difficulties  respecting 
the  construction  and  meaning  of  this  proposition. 

Mr.  BRIGGS.  I  suppose  the  Convention  will 
hardly  take  the  vote  upon  this  question  to-night. 
I  move,  therefore,  that  the  Convention  do  now 
adjourn. 


The  question  was  taken  on  the  motion,  and  it 
was  agreed  to. 

So  the  Convention  adjourned  until  to-morrow 
at  nine  o'clock,  A.  M. 


SATURDAY,  July  23,  1853. 

The  Convention  assembled  pursuant  to  adjourn 
ment,  and  was  called  to  order  by  the  President 
pro  tempore,  at  9  o'clock. 

Prayer  by  the  Chaplain. 

The  journal  of  yesterday's  proceedings  was  read. 

Report  from  a  Committee. 
Mr.  BATES,  of  Plymouth,  from  the  Committee 
on  Reporting  and  Printing,  submitted  the  follow 
ing  Report : — 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  23. 

The  Committee  on  Reporting  and  Printing,  to 
whom  was  referred  the  subject  of  reporting  and 
publishing  the  proceedings  and  debates  of  this 
Convention,  have  considered  the  same  and  report : 
Inasmuch  as  much  of  the  labor  of  printing,  pub 
lishing  and  binding  the  Reports  will  not  be  com 
pleted  until  after  the  Convention  shall  have  closed 
its  labors,  the  Committee  recommend  the  adop 
tion  of  the  following  resolution. 
For  the  Committee, 

M.  BATES,  JR.,  Chairman. 

Resolved,  That  the  Committee  appointed  to  su 
perintend  the  publication  of  the  reports  of  the 
debates  and  proceedings  of  this  Convention,  be 
authorized,  in  connection  with  the  President  and 
State  Auditor,  to  allow  the  accounts  for  such 
service,  and  the  Governor  is  hereby  requested  to 
draw  his  order  on  the  treasury  for  the  payment 
of  the  same. 

The  resolution  was  ordered  to  a  second  reading 
to-morrow. 

Judicial  Tenure  of  Office. 

Mr.  BUTLER,  of  Lowell.  I  ask  leave  to  in 
troduce  a  resolve,  which  I  will  move  to  refer  to 
the  Committee  of  the  Whole. 

The  resolve  was  read  as  follows  : — 

Resolved,  That  all  judicial  commissions  which 
shall  issue  to  any  person  from  and  after  the  first 
day  of  August,  in  the  year  one  thousand  eight 
hundred  and  fifty-three,  shall  confer  no  greater 
tenure  of  office  than  the  term  of  ten  years. 

Mr.  BUTLER.  The  Convention  having 
adopted  a  resolution  that  hereafter  the  term  of 
judicial  office  shall  be  ten  years,  and  having 
adopted  another  rule,  to  wit :  that  all  judges  now 


65th  day.] 


JUDICIAL   TENURE    OF   OFFICE. 


311 


Saturday," 


BUTLER —  SCHOULER. 


[July   23d. 


in  commission  shall  hold  their  offices  for  life, 
and  as  this  Constitution  cannot  be  adopted  and 
go  into  effect  until  some  future  day,  the  office  of 
the  resolve  which  I  have  now  introduced,  is  to 
do  what  must  be  done  by  design,  or  happen  by 
accident,  to  wit :  limit  the  term  of  office  of  those 
judges  who  may  receive  their  commissions  before 
the  Constitution  goes  into  effect.  By  a  well- 
known  mle  of  construction,  the  term  would  refer 
to  the  day  on  which  the  Constitution  shall  go 
into  effect,  or  be  ratified  by  the  people,  as  for 
example,  say  the  first  day  of  January  next.  Now 
suppose  that  between  this  and  the  first  day  of 
January,  three  or  more  of  the  judges  should  die 
or  resign  ;  then,  Sir,  we  must,  as  in  the  case  of 
judge  of  probate,  appoint  some  live  young  Whig, 
I  suppose,  who  might  outlive  all  of  us.  To  avoid 
this,  I  propose  this  resolution  ;  and  I  hope  it  will 
meet  the  concurrence  of  all  those  who  wish  to 
deal  fairly  in  this  matter.  And  now  that  I  am 
upon  this  topic,  let  me  say  a  word  concerning  the 
judge  of  probate  for  Essex  County. 

The  PRESIDENT.  The  Chair  must  interrupt 
the  gentleman.  It  is  not  in  order  to  discuss  the 
general  question  of  the  judiciary  upon  this  mo 
tion,  but  only  the  propriety  of  referring  this  reso 
lution  to  the  Committee  of  the  Whole. 

Mr.  BUTLER.  I  desire  to  show  the  necessity 
for  the  adoption  of  this  resolution ;  and  I  intend 
to  ask  a  suspension  of  the  rule,  so  that,  dispensing 
with  the  formality  of  sending  it  to  the  Committee 
of  the  Whole,  it  may  at  once  pass  to  a  second 
reading.  And  without  meaning  to  say  anything, 
of  course,  against  the  present  judiciary,  supposing 
they  would  do  as  all  others  would  under  like 
circumstances,  I  say,  suppose  either  from  acci 
dent,  or  necessity,  or  design,  there  should  be  a 
vacancy,  and  nothing  should  be  done  to  alter  the 
tenure  of  office  while  this  Convention  is  going 
into  effect,  how  would  the  matter  stand  ?  In  one 
of  the  States  of  this  Union,  when  an  alteration 
was  made  in  the  Constitution  of  the  State,  which 
provided  that  the  commission's  of  the  then  exist 
ing  judiciary  should  expire,  and  that  they  should 
not  be  eligible  to  reappointment,  but  that  new 
judges  should  be  appointed  to  hold  office  for 
twelve  years,  an  old  and  shrewd  judge  resigned 
his  commission  just  before  the  Constitution  took 
effect,  so  that  he  was  no  longer  judge,  and  as  soon 
as  it  went  into  operation  he  was  reappointed,  and 
had  twelve  years  more  added  to  his  judicial  life, 
and  actually  died  in  office. 

Mr.  HOPKINSON,  of  Boston.  He  must  have 
been  a  Democrat. 

Mr.  BUTLER.  I  supoose  he  must  have  been 
for  this  reason,  that  he  had  all  the  qualities  of 
mind  to  make  a  good  Democrat,  except,  perhaps, 


honesty  of  purpose.  He  had  great  ability,  and  if 
he  had  had  honesty,  he  would  have  been  a  good 
Democrat.  I  move  you,  Sir,  that  the  rule  be  sus 
pended,  and  that  this  resolution  be  put  upon  its 
second  reading. 

Mr.  SCHOULER,  of  Boston.  I  do  not  know 
as  I  understand  the  intent  or  purpose  of  the  reso 
lution  which  has  just  been  submitted  by  the 
gentleman  from  Lowell ;  and  I  desire  to  ask  that 
gentleman,  whether  he  intends  to  incorporate  that 
resolution  into  the  Constitution,  or  whether  it  is 
to  be  a  law  outside  of  that  instrument  ?  I  should 
like  to  know  if  we  have  any  right  to  make  laws 
in  this  Convention  r  By  the  Constitution  of  the 
State  it  is  required,  that  the  Senate  and  House  of 
Representatives  shall  make  the  laws;  and  as  I 
understand  this  resolution  to  be  no  more  nor  less 
than  a  law,  I  want  to  be  informed  from  what 
quarter  this  body  obtains  the  power  to  act  upon 
it  ?  If  the  gentleman  intends  to  incorporate  it 
into  the  Constitution,  it  is  another  matter.  I 
should  like  to  hear  the  resolution  read  once  more. 

The  resolution  was  accordingly  read. 

Mr.  SCHOULER.  I  would  inquire  if  it  is 
not  of  the  character  of  an  ex  jiost  facto  law  r  It 
does  not  propose  any  amendment  to  the  Constitu 
tion, — for  we  have  already  acted  upon  that  part  of 
the  Constitution,  relating  to  the  judiciary, — but 
is  distinctly  in  the  shape  of  a  resolve,  and  must 
be  acted  upon  as  a  law. 

Mr.  BUTLER.  With  a  view  simply  of  reply 
ing  to  the  gentleman  from  Boston,  I  would  say, 
that  I  have  submitted  this  resolve  to  the  best 
lawyers  of  the  Convention,  and  they  have  been 
unanimous  in  the  expression  of  their  sentiments 
in  its  favor ;  and,  if  necessary,  I  will  call  on  any 
one  of  those  gentlemen  to  say,  whether  any  such 
difficulty  exists,  as  has  been  suggested  by  my 
friend. 

The  PRESIDENT.  The  Chair  would  inform 
the  gentleman  from  Lowell,  that  all  debate  upon 
this  question  is  oi;t  of  order,  although  explana 
tions  may  be  allowed  to  be  made. 

Mr.  SCHOULER.  As  I  desire  to  examine  this 
subject  more  particularly,  I  ask  that  the  resolu 
tion  may  be  placed  in  the  Orders  of  the  Day,  for 
to-morrow. 

The  PRESIDENT.  The  question  is  on  the 
motion  of  the  gentleman  from  Lowell,  to  suspend 
the  rules. 

The  question  then  being  taken  upon  the  motion 
to  suspend  the  rules,  it  was,  upon  a  division — 
ayes,  141 ;  noes,  52 — decided  in  the  affirmative. 

The  question  then  recurred  on  the  motion  of 
Mr.  Schouler,  to  place  the  resolution  in  the  Orders 
of  the  Day,  for  to-morrow,  and  it  was  decided  in 
the  affirmative. 


312 


CONSTITUTIONAL   CONVENTIONS,  &c. 


[65th  day. 


Saturday,] 


CUSHMAN  —  GRISWOLD  —  BIUGGS. 


[July  23d. 


Submission  of  Amendments  to  the  Constitution  to 

the  People. 

On  motion  by  Mr.  CTJSHMAN,  of  Bernards- 
ton,  it  was 

Ordered,  That  the  Committee  on  Reducing 
Amendments  to  the  Constitution  to  a  suitable 
form  to  be  submitted  to  the  people,  be  requested 
to  prepare  an  Address  to  the  people  to  accompany 
the  Revised  Constitution. 

Orders  of  the  Day. 

On  motion  by  Mr.  GRISWOLD,  for  Erving, 
the  Convention  proceeded  to  the  consideration  of 
the  Orders  of  the  Day,  the  first  item  being  the 
subject  of 

Amendments  to  the  Constitution. 

The  pending  question  being  on  Mr.  Briggs' 
amendment  to  the  amendment  of  the  gentleman 
for  Wilbraham,  (Mr.  Hallett). 

Mr.  BRIGGS,  of  Pittsfield.  I  said,  last  eve 
ning,  when  I  moved  an  adjournment,  that  I 
wished  to  say  a  few  words  upon  this  subject ; 
and  I  now  embrace  this  opportunity  of  present 
ing  a  few  thoughts  for  the  consideration  of  the 
Convention,  assuring  them  that  I  will  occupy  but 
a  few  minutes  of  their  time.  The  gentleman 
from  Lowell,  (Mr.  Butler,)  and  the  gentleman 
for  Wilbraham,  (Mr.  Hallett,)  said,  that  the 
issue  presented  upon  the  amendment  I  offered, 
was  this  :  whether  the  question  should  be  left 
open  without  any  provision,  as  to  the  manner  in 
which  the  Convention  should  be  called,  the  man 
ner  in  which  it  should  be  conducted,  or  whether 
we  should  settle  these  matters.  I  agree  with  these 
gentlemen,  so  far  as  my  proposition  is  concerned, 
that  this  is  the  precise  point,  and  they  met  that 
point  manfully  and  directly  in  their  arguments. 
As  to  the  character  of  the  existing  law  of  1852, 
its  meaning,  and  the  construction  which  should 
be  given  to  it,  the  gentleman  for  Wilbraham, 
(Mr.  Hallett,)  and  the  gentleman  from  Cambridge, 
(Mr.  Parker,)  differ  widely.  Then  let  me  ask  in 
the  outset,  would  it  be  wise  to  incorporate  into  the 
Constitution  a  law  about  which  legal  gentlemen 
upon  this  floor  differ,  and  -which  is  to  be  binding 
upon  the  people  in  all  future  time  ?  I  do  not  dis 
pute  that  it  may  be  right  to  provide,  in  the  most 
general,  clear,  and  positive  terms,  that  the  legis 
lature  hereafter  may  yearly,  if  they  please,  sub 
mit  the  question  to  the  people  ;  and  that  once  in 
twenty  years  the  people  shall,  without  the  inter 
ference  of  the  legislature,  vote  directly  upon  the 
question  whether  they  will  have  a  Convention 
or  not;  but  I  do  not  think  it  wise  or  just,  that 
they  shall  be  compelled  to  vote,  whether  they 
will  have  a  Convention  or  not,  formed  in  a  par 


ticular  way,  under  a  law  which  has  been  made 
by  a  legislature  years  and  generations  past ;  and 
that  they  shall  not  be  left  themselves  to  make 
their  own  provision,  through  their  own  legisla 
ture,  chosen  by  themselves.  I  do  think,  as  I 
said  before,  that  it  infringes  upon  that  great  right 
which  the  gentleman  for  Wilbraham  is  so  anxious 
to  preserve ;  and  it  confines  the  people  down  to  a 
particular  form  in  which  they  shall  vote  upon  the 
question  of  calling  a  Convention.  It  says  to 
them,  you  may  have  a  Convention  if  you  choose 
to  vote  for  having  it  called  in  a  specified  manner, 
and  under  a  law  regulating  the  particular  mode 
in  which  that  Convention  is  to  be  organized.  It 
seems  to  me  if  gentlemen  will  reflect  upon  the 
subject,  they  will  see,  that  it  is  infringing  upon 
the  rights  of  those  who  are  to  follow  us.  It  is 
placing  chains  and  fetters  about  them  so  far  as 
the  mode  of  calling  a  Convention  is  concerned,  and 
so  far  as  concerns  all  the  steps  which  the  legisla 
ture  must  take  in  regard  to  it.  Is  it  right  so  to 
do  ?  The  amendment  I  have  offered,  proposes 
to  leave  this  subject  open.  It  proposes  to  do  sub 
stantially,  what  the  Report  of  the  Committee  pro 
poses  to  do.  I  say  while  I  prefer  my  own 
amendment,  or  that  of  the  gentleman  from 
Cheshire,  (Mr.  Cole,)  to  the  other  amendments 
which  have  been  offered,  I  should  much  prefer  to 
take  the  resolutions  reported  by  the  Committee, 
which  it  seems  to  me,  present  the  matter  clearly, 
distinctly,  and  simply,  of  submitting  the  question 
to  the  people,  whether  they  will  have  a  Conven 
tion  ;  and  if  they  decide  to  have  it,  a  legislature 
chosen  by  themselves  shall  pass  all  the  necessary 
measures  in  order  to  carry  out  that  expression  of 
the  people. 

Then,  Sir,  as  I  said  before,  I  do  not  understand 
precisely  what  my  friend  for  Wilbraham  means 
by  that  portion  of  the  Bill  of  Rights  which  he 
has  appended  to  his  proposition.  He  says,  in 
reference  to  my  reading  of  the  Bill  of  Rights 
here,  that  I  seemed  to  have  overlooked  the  fact 
that  that  Bill  of  Rights  furnishes  no  means  for 
carrying  itself  out.  What  does  his  amendment 
do  ?  It  provides  two  modes  in  which  the  people 
may  have  an  opportunity  to  vote  on  the  question 
of  calling  a  Convention  ;  a  specific  mode  for  call 
ing  a  Convention,  and  then  it  declares  that  this 
shall  not  be  an  infringement  of  that  reserved, 
sovereign  right,  which  the  people  have  to  alter, 
amend,  or  change  their  form  of  government  as 
they  please. 

Well,  Sir,  if  he  means  by  that,  that  it  shall  be 
an  effective,  operative  proposition,  what  is  it  ? 
He  has  provided  two  modes  for  calling  a  Conven 
tion,  and  then  declares  that  shall  have  no  effect 
whatever ;  that  the  people  are  not  bound  by  it. 


65th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


313 


Saturday,] 


BBIGGS. 


[July   23d. 


They  may  regard,  or  disregard  it.  They  may  rise 
up  in  their  sovereign  capacity,  and  constitutionally 
too,  and  amend  the  Constitution  in  any  manner 
which  they  see  fit.  As  I  have  often  said,  I  be 
lieve  in  the  sovereignty  of  the  people,  in  their 
right  and  power  to  do  as  they  please  ;  and  those 
people  have  a  right  to  make  a  Constitution,  and 
when  they  have  made  that  Constitution  they  are 
bound,  all  the  people  of  the  State  are  bound  by 
the  Constitution  which  they  make,  until  it  shall 
be  altered,  changed,  or  abolished,  in  just  such  a 
mode  as  they  shall  provide  that  it  may  be  altered, 
changed,  or  abolished.  Is  this  an  infringement  of 
the  sovereignty  of  the  people  ?  Sir,  what  do  you 
want  of  a  Constitution  ?  It  is,  to  be  sure,  to  pro 
vide  a  government ;  but  that  government  is  to 
make  laws,  and  those  laws  are  to  bind  the  people 
who  have  made  the  Constitution,  and  who  will 
be  the  law-makers.  And  all  the  people,  as  well 
as  every  individual  of  the  people,  are  bound  by 
the  laws  made  in  conformity  to  the  Constitution, 
are  bound  by  that  Constitution  itself,  which  they 
have  adopted  and  confirmed.  And,  whenever  the 
people,  whether  in  a  republican  government,  or  a 
despotic  government,  take  the  matter  into  their 
own  hands  in  a  way  not  provided  in  the  Consti 
tution,  and  undertake  to  change  the  Constitution, 
whether  by  the  peaceable  mode  of  the  ballot-box, 
or  amidst  the  clash  of  arms,  it  is  a  revolution. 
And,  whenever  the  people  choose  to  have  a  revo 
lution,  they  may  have  one  if  there  are  enough  of 
them  to  carry  it  through.  But,  we  propose  to  do 
things  differently  ;  we  are  a  constitutional  people 
as  well  as  a  free  people. 

Now,  Sir,  the  proposition  of  the  gentleman 
provides,  that  the  legal  voters  shall,  at  stated 
periods,  express  their  wish  upon  the  subject  of  a 
Convention  ;  but  his  last  proposition  is,  that  the 
people,  whenever  they  please,  may  as  they  please, 
amend,  change,  or  abolish  their  government. 
Does  he  mean  by  that  clause  the  legal  voters,  or 
does  he  extend  his  proposition  farther,  and  go 
with  my  joung  friend  who  spoke  yesterday,  (Mr. 
Burlingarne,)  and  say  that  the  people  include 
every  human  being  in  whose  bosom  God  has 
planted  a  rational  and  immortal  soul  ? 

Sir,  the  Rhode  Island  case  has  been  referred  to 
— a  case  in  which  my  friend  for  Wilbraham  has 
been  once  a  legal  actor,  and  which  he  has  studied 
deeply,  and  made  himself  acquainted  with  the 
great  principles  of  freedom  applied  to  it.  The 
Rhode  Island  case  is  precisely  this  :  the  legal 
voters  of  Rhode  Island  refused  to  alter  their  Con 
stitution  ;  but  a  large  class  of  citizens  of  Rhode 
Island,  from  whom  this  privilege  of  voting,  was 
withheld  by  the  existing  Constitution,  took  it  into 
their  own  hands,  with  a  portion  of  the  legal 

21 3 


voters,  to  change  their  government ;  and  they  did 
\tproforma,  and  organized  a  government.  That 
was  the  time  when  it  was  said,  that  the  accidental 
president  interposed  against  liberty,  and  in  behalf 
of  the  existing  government.  That  question  was 
taken  up  to  the  highest  tribunal  in  the  land — and, 
let  me  tell  my  young  friend,  a  Democratic  tribunal 
— and  they  declared,  what  ?  They  declared  the 
great  principle,  that  the  regularly  constituted  con 
stitutional  government  could  not  be  overthrown, 
except  through  constitutional  and  legal  means. 

Now,  suppose  that  the  legislature  intermediate 
between  these  two  periods  of  twenty  years,  should 
refuse  to  put  the  question  to  the  people,  and  that 
the  men  of  Massachusetts,  not  the  legal  voters 
alone,  but  these  thousands  and  thousands  of 
foreigners  who  are  daily  corning  in  among  us  from 
the  land  of  oppiession  and  wrong,  should  take  it 
their  into  heads  to  say,  this  is  our  home,  we  have 
come  here  to  live,  we  do  not  approve  of  your 
naturalization  laws  ;  we  are  men,  and  the  moment 
that  we  tread  your  soil  we  claim  the  right  to  par 
ticipate  in  your  government.  Now,  suppose  a  suf 
ficient  number  of  legal  voters  join  with  them  to 
make  a  majority  of  the  men  of  Massachusetts, 
and  they  should  rise  up  in  their  majesty,  and 
reform  and  alter  our  government,  and  take  pos 
session  of  it  through  their  appointed  ofiicers. 
Would  that  be  a  legal  government  ?  Does  the 
gentleman  mean,  by  his  declaration  of  rights,  to 
embrace  such  a  case  as  that  ? 

Sir,  another  case  has  been  alluded  to,  the  case 
of  Michigan.  Little  territorial  Michigan  undertook 
to  form  a  State  government — unlike  anything 
which  took  place  in  Rhode  Island.  Michigan 
was  a  territory  of  the  United  States.  Formerly 
the  mode  of  forming  a  State  government  in  a  ter 
ritory,  was  this :  congress  passed  a  law  author 
izing  the  people  of  the  territory  to  choose  their 
officers  and  organize  a  government.  But  in  later 
times  that  ceremony  has  been  omitted ;  and  the 
people,  self-moved,  in  these  territories,  chose  their 
officers,  appointed  their  delegates,  framed  their 
Constitution,  and  then  went  and  asked  to  be- 
admitted  as  a  State  into  the  Union  ;  and  if  they 
had  conformed  essentially  with  the  requisitions 
which  had  theretofore  been  observed,  congress 
uniformly  has  admitted  them  into  the  family  of 
States.  That  was  the  case  with  Michigan.  My 
young  friend  paid  a  compliment  to  that  sturdy  old 
veteran  and  patriot,  Gen.  Jackson,  and  contrasted 
him  with  the  accidental  president,  in  the  case  of 
Rhode  Island.  He  represented  him  as  interfering 
and  leading  little  Michigan,  from  her  territorial 
condition,  and  placing  her  among  the  family  of 
States.  Sir,  my  young  friend  is  a  little  mistaken 
about  this  matter.  Gen.  Jackson  had  nothing 


314 


CONSTITUTIONAL   CONVENTIONS. 


[65th  day. 


Saturday, 


BKIGGS  — HALLETT  —  FIIENCH. 


[July  23d. 


more  to  do  with  admitting  Michigan  into  the 
Union,  or  forming  her  Constitution,  than  Bolivar, 
in  South  America.  I  remember  something  about 
that,  and  how  little  Michigan  came  to  congress 
•with  her  representatives  and  senators 

Mr.  HALLETT.  I  wish  to  correct  one  state 
ment  of  fact,  if  the  gentleman  pleases,  at  this 
point.  I  understood  the  gentleman  to  say,  that 
a  majority  of  the  people  of  Ilhode  Island,  did 
not  vote  for  forming  a  new  Constitution. 

Mr.  BHIGGS.  I  stated  that  there  was  not  a 
majority  of  the  legal  voters. 

Mr.  HALLETT.  Yes,  Sir ;  there  was  a  ma 
jority  of  the  legal  voters,  and  of  the  male  popula 
tion.  There  was  a  majority  of  three  thousand 
freeholders,  and  a  majority  of  the  population. 

Mr.  BPJGGS.  Then  I  was  mistaken  on  that 
point.  I  remember  when  little  Michigan  came 
and  knocked  for  admission,  and  I  remember  when 
the  door  was  slammed  in  her  face  for  many  long 
weeks,  if  not  months.  And,  I  can  tell  you  why 
it  was  so.  It  was  so,  because  the  three  great 
States  that  lay  south  of  her,  claimed  a  portion  of 
her  territory,  and  refused  to  vote  for  her  admission, 
until  that  question  was  settled.  And  what  was 
the  result  ?  With  the  same  lawless  thirst  for  ter 
ritory,  and  disregard  for  rights  and  law,  that  those 
despots  of  the  European  continent  manifested 
when  they  cut  up  and  divided  poor  mangled  Po 
land,  they  persisted  in  their  rapacity  until  they 
accomplished  their  purpose.  I  remember  on  an 
occasion  of  a  debate  on  that  question,  of  hearing 
that  "  old  man  eloquent,"  that  just  and  great  man 
who  now  sleeps  at  Quincy,  say  upon  this  ques 
tion:  "How  stands  it,  who  are  the  parties  ?  On 
the  one  side  are  twenty-seven  representatives  from 
three  States,  holding  more  than  thirty  electoral 
votes  in  their  hands,  and  all  the  force  of  this  great 
republic,  demanding  territory  from  Michigan. 
On  the  other  hand,  stands  the  little  territory  in 
point  of  numbers,  with  one  delegate  on  this  floor, 
with  a  voice,  but  without  a  vote,  and  the  princi 
ples  of  eternal  justice  on  his  side.  But,  Sir,  such 
are  the  indications  here,  that  no  one  can  doubt 
•what  will  be  the  result."  And  what  was  the  re 
sult  r  Michigan  was  shorn  of  a  portion  of  her 
fairest  territory  ;  it  was  cut  off  and  given  to  the 
spoilers,  and  then  Michigan  was  permitted  to  come 
into  the  Union.  That  is  not  a  case  at  all  parallel 
in  support  of  the  case  which  my  young  friend  so 
eloquently  advocated  on  this  floor. 

Now,  without  going  into  the  question  as  to 
the  difficulty  which  will  be  encountered  by  the 
construction  to  be  put  upon  the  law  which  it  is 
proposed  to  incorporate  into  the  Constitution,  let 
me  ask  you — for  we  all  have  one  interest  in  this 
matter  ;  few  of  us  who  act  here  will  ever  be  con 


cerned  in  another  Convention  such  as  this ;  the 
white  and  whitening  heads  around  me  admonish 
us  that  most  of  us,  before  that  twenty  years  shall 
come,  will  have  passed  to  our  account — then  let 
me  ask  each  of  my  associates  here,  if  he  thinks 
he  is  authorized  to  impose  conditions  upon  those 
who  are  to  come  after  us,  as  to  the  mode  and 
manner  in  which  they  may  hold  a  Convention  ? 

Sir,  there  is  another  difficulty.  "What  do  we 
propose  to  do  ?  Sir,  what  are  the  provisions  of 
the  law  which  we  intend  to  incorporate  here  ? 
Who  knows  what  they  are  ?  Who  can  rise  up 
and  tell  us  what  he  is  voting  upon  when  he 
votes  to  adopt  this  provision,  which  requires  that 
when  the  people  wish  to  call  a  Convention  to 
alter  their  Constitution,  they  shall  do  it  in  con 
formity  with  a  certain  law,  and  of  course,  in  con 
formity  with  all  the  laws  which  that  refers  to  r 
Who  is  there  who  can  rise  up  and  tell  us  what 
the  law  proposes  to  do  in  its  specific  provisions  ? 
We  know  what  the  proposition  of  the  gentleman 
is  outside  of  that  law.  Suppose  a  gentleman 
should  vote  for  this,  and  it  should  be  adopted  into 
the  Constitution  ;  when  his  constituents  meet  on 
the  first  of  November  and  they  call  on  him  to 
know  why  he  voted  for  this  amendment,  and  ask 
him  what  he  voted  for,  when  he  voted  for  the 
law  of  1852,  can  he  tell  them  ?  Then  they  may 
inquire,  why  did  you  vote  for  it  ?  Suppose  my 
constituents  ask  me,  why  did  you  vote  against  it  ? 
did  you  know  what  it  is  ?  I  should  say  no.  I 
voted  against  it  because  I  held  that  we  had  no 
right  to  impose  any  such  conditions,  as  binding 
upon  succeeding  generations  in  calling  a  Conven 
tion,  and  I  did  not  care  what  its  provisions  were, 
whether  wise  or  unwise.  But  my  objection  was, 
that  we  had  no  right  to  impose  such  conditions  ; 
that  I  preferred  the  course  marked  out  by  the 
Committee  who  reported  the  resolution  before  us, 
that  we  should  put  the  question  to  the  people 
whether  they  would  have  a  Convention,  and  if 
they  chose  to  have  one,  they  could  judge  quite 
as  well  as  we  can,  what  sort  of  law  they  wanted 
to  govern  it,  and  much  better ;  and,  therefore,  I 
voted  against  it.  But  those  who  vote  for  it,  can 
give  no  such  reason. 

As  I  have  said  before,  I  should  prefer  the  prop 
osition  of  the  Committee  to  the  amendment. 
The  amendment  which  I  offer,  only  restores  the 
amendment  of  the  gentleman  for  Wilbraham,  to 
the  form  of  the  original  proposition  of  the  Com 
mittee. 

Mr.  FRENCH,  of  New  Bedford.  I  simply 
wish  to  say,  that  I  am  in  favor  of  the  proposition 
of  the  gentleman  for  Wilbraham.  I  desire  that 
there  should  be  incorporated  into  the  Constitu 
tion  an  article  that  will  enable  the  people  to  have 


65th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


315 


Saturday,] 


FRENCH  —  DAWES. 


[July  23d. 


a  Convention  without  the  interference  of  a  sub 
sequent  legislature. 

Being  reminded,  yesterday,  by  the  gentleman 
for  Wilbraham,  (Mr.  Ilallett,)  that  if  another 
party  were  in  power  at  Washington,  that  if  Gen 
eral  Scott  had  been  elected,  this  Convention 
might  not  have  had  the  opportunity  of  revising 
the  Constitution,  and,  remembering  the  effort 
that  was  made  by  the  late  legislature  to  repeal 
the  Act  calling  this  Convention,  and,  remember 
ing  also,  the  opinions  which  have  been  expressed 
upon  this  floor,  of  a  distinguished  gentleman  in 
this  Convention  from  Cambridge,  (Mr.  Parker,) 
that  the  legislature,  even  after  we  had  assembled, 
had  a  right  to  repeal  that  Act  under  which  we 
were  convened,  and  send  us  home,  or  turn  us 
out  of  doors,  I  think  it  is  worth  while  that  we 
should  incorporate  something  into  the  new  Con 
stitution,  that  will  obviate  that  difficulty  in  fu 
ture.  We  know  the  reverence  that  some  very 
learned  and  distinguished  gentlemen  in  this 
country  have  had,  for  law  and  power,  when  it 
was  on  their  side  of  the  question,  and  how  they 
have  expressed  themselves  with  regard  to  it  when 
it  was  opposed  to  them. 

In  the  campaign  of  1840,  what  did  we  witness  ? 
A  large  and  powerful  party  coming  into  that  con 
test  with  this  motto  upon  their  tongues  and  upon 
their  BANNEHS  :  "  Peaceably  if  we  can,  forcibly  if 
we  must."  They  entered  into  that  contest,  and 
their  organs  and  their  speakers  put  forth  these 
sentiments  :  we  will  appeal  to  the  ballot-box  once 
more,  and  if  that  is  not  successful,  then  blood 
will  flow. 

We  will  appeal  to  the  ballot-box  this  time,  and 
if  we  do  not  succeed,  blood  will  flow.  That  was 
the  language  of  speakers  high  in  authority  in  the 
United  States ;  that  was  the  doctrine  which  they 
put  forth.  They  went  on  to  say  that  the  ad 
ministration  had  "ruined  the  country."  I  will 
quote  their  language,  Sir.  "  We  will  make  one 
more  appeal  at  the  ballot-box,  and  if  that  does  not 
prove  successful,  we  will  march  to  Washington 
and  drive  out  these  marauders  by  force."  Do  gen 
tlemen  deny  that  ?  If  they  do,  I  will  put  in  the 
proof.  Now,  Sir,  when  we  are  revising  our  Con 
stitution,  remembering  these  things,  I  ask  you, 
Sir,  if  it  does  not  become  us  to  put  the  citizens  of 
Massachusetts  beyond  the  reach  of  such  men  and 
such  a  party.  Therefore,  Sir,  let  us  incorporate 
into  this  Constitution  a  self-acting  clause,  as  it 
is  termed,  not  for  the  purpose  of  putting  limits 
upon  the  people,  as  has  been  remarked  by  the 
gentleman  who  preceded  me,  but  for  the  purpose 
of  enabling  the  people  to  have  a  Convention  to 
revise  their  Constitution  if  they  wish,  accidental 
legislatures  or  accidental  governments  which 


may  be  in  power  to  the  contrary  notwithstand 
ing. 

Now,  Mr.  President,  the  simple  proposition  is 
this  :  shall  we  put  into  the  Constitution  an  arti 
cle  that  will  enable  the  people,  in  a  plain,  legal, 
constitutional  manner,  to  have  a  Convention  to 
revise  their  Constitution,  without  reference  to  the 
party  that  may  be  in  power  at  the  time  ?  That  is 
the  length  and  breadth  of  it ;  and  I  earnestly  de 
sire  that  every  gentleman  will  weigh  this  matter — 
remembering  the  past,  and  casting  his  imagina 
tion  forward  to  the  future — and  on  this  occasion 
do  something ;  yes,  Sir,  do  just  that  which  shall 
retain — or  rather  leave  where  we  find  it — in  the 
hands  of  the  people,  the  power  to  call  a  Conven 
tion  to  revise,  alter,  or  abolish  the  Constitution 
that  we  may  form  for  them,  should  they  accept  it, 
without  the  interference  of  any  subsequent  legis 
lature — any  subsequent  body  of  men,  acting  as  a 
party,  or  as  a  State  or  General  Government. 

Mr.  D AWES,  of  Adams.  I  think,  Mr.  Presi 
dent,  that  we  are  in  danger  of  overdoing  this  mat 
ter.  I,  tor  one,  am  disposed  to  go  for  the  largest 
liberty  ;  but,  Sir,  I  cannot  go  quite  so  far  as  the 
gentleman  for  Wilbraham  is  desirous  of  going. 
We  are  told  by  him,  and  the  gentleman  for  North- 
borough,  (Mr.  Burlingame,)  that  there  are  two 
schools  of  politics  in  this  matter ;  one  is  the  school 
to  which  the  gentleman  says  he  belongs,  of  those 
who  desire  to  give  force  to  the  will  of  the  people, 
no  matter  how  it  is  expressed ;  and  the  other  is 
the  school  which  would  give  the  will  of  the  people 
force  when  legally  expressed.  The  one  has  charms 
about  it  which  attracted  my  friend  for  North- 
borough  and  the  gentleman  for  Wilbraham ;  but 
the  other  strikes  them  as  horrid.  I  have  nothing 
to  say  about  those  schools,  but  I  think  this  dis 
cussion  has  developed  the  fact  that  there  are  two 
more  schools ;  and,  for  my  own  part,  I  wish  to 
have  it  put  upon  record  to  which  of  these  schools 
I  belong.  One  of  these  schools  is  of  those  who 
say  that  we  must  take  care  of  posterity,  and  the 
other  school  believe  in  letting  posterity  take  care 
of  themselves.  For  one,  I  prefer  to  let  posterity  take 
care  of  themselves  ;  I  am  desirous  of  letting  them 
have  the  largest  liberty,  untrammelled  by  any  re 
strictions  of  our  day  and  generation ;  and  when 
we  shall  have  provided  in  the  Constitution  that  we 
shall  submit  to  the  people,  that  the  people  may 
call  a  Convention  just  when  they  please,  to  alter 
their  Constitution,  I  think  that  we  shall  have  done 
all  that  can  be  expected  of  us  by  those  who  shall 
come  after  us.  But,  Sir,  when  we  undertake  to 
provide  for  them  the  form  and  the  method  of  their 
proceeding,  and  say  that  all  the  wisdom  that  is  to 
be  hereafter  in  Massachusetts,  is  to  be  as  nothing 
in  comparison  with  the  wisdom  which  existed  in 


316 


CONSTITUTIONAL    CONVENTIONS. 


[65th  day. 


Saturday,] 


DAWES. 


[July  23d. 


185 2  or  1853, 1  think  we  are  going  a  little  too  far. 
We  provide  in  one  part  of  this  resolution  that  the 
people  shall  vote  on  a  call  for  a  Convention  just 
when  they  please ;  and  then  we  also  say  that  they 
shall  vote  on  one  once  in  tvven  ty  years,  whether  or 
no.  This  reminds  me  of  the  clergyman  who  made 
an  appointment  in  this  manner :  "On  the  next 
Sabbath  I  shall  preach  in  this  place,  Providence 
permitting ;  and  I  shall  preach  here  two  weeks 
from  this  time,  whether  or  no  !  "  [Laughter.]  Let 
us  content  ourselves  with  providing  in  the  Consti 
tution  that  the  people  shall  have  the  right  to  alter 
their  Constitution  by  a  Convention  if  they  please, 
and  just  when  they  please  ;  and  having  provided 
that,  what  in  the  name  of  reason  is  the  use  of 
saying  that  every  twenty  years  they  shall,  whether 
they  will  or  not,  assemble  and  vote  whether  they 
will  have  a  Convention  according  to  a  particular 
form?  Do  our  friends  distrust  the  people  that 
are  to  come  after  us  ?  It  seems  to  me  that  this  is  all 
lip-service.  Why,  Sir,  of  all  the  gods  men  wor 
ship,  no  one  is  put  off  with  so  much  pharisaical 
outside  show  and  lip-service,  as  this  god,  the 
people.  Men  have  been  continually  getting  up — 
I  do  not  mean  here,  particularly — and  calling  on 
the  people,  saying,  "  Lord,  Lord,  have  we  not 
prophesied  in  thy  name  ;  and  in  thy  name  cast 
out  devils  ;  and  in  thy  name  done  many  wonder 
ful  works  ?  "  Have  we  not  done  this  and  done 
that  for  the  dear  people  ?  Sir,  it'  we  let  the  dear 
people  alone,  they  will  take  care  of  themselves. 
Are  gentlemen  afraid  that  in  twenty  years  from 
this  time,  the  people  will  be  so  contrary  that  they 
will  not  do  as  they  have  a  mind  to  ?  For  my 
own  part,  I  am  willing  to  trust  them.  When  we 
provide  that  they  shall  have  a  Convention,  I  am 
not  afraid  that  any  legislature  that  shall  come 
after  us  will  trouble  them.  This  very  cry  of  our 
friends  the  last  winter,  that  the  legislature  had 
an  idea  in  their  minds  that  they  would  trouble 
the  Convention,  as  my  friend  for  Northborough 
will  remember,  raised  "  the  rattling  thunder  of  the 
people  about  their  ears,  and  brought  down  an 
avalanche  of  indignation  upon  them."  Why, 
Sir,  it  scared  them  almost  out  of  house  and  home, 
when  the  people  rose  in  their  majesty.  Now,  are 
our  friends  afraid  to  trust  the  people  or  the 
legislature  who  shall  come  after  us  ?  If  the  peo 
ple  want  a  Convention  to  amend  their  Constitu 
tion,  we  can  here  provide  for  that  in  the  Consti 
tution  which  we  submit  to  them.  When  that  is 
done,  I  am  willing  to  risk  them,  and  rest  there.  I 
would  like  to  see  the  legislature  that  would  at 
tempt  to  interfere  with  the  voice  of  the  people, 
thus  expressed.  That,  Sir,  is  a  phantom  that 
cannot  be  raised.  We  know  what  awful  conse 
quences,  a  few  months  ago,  within  the  recollec 


tion  of  all  of  us,  visited  those  against  whora  the 
cry  was  raised,  though  false,  that  they  intended  in 
the  legislature,  to  interfere  with  the  will  of  the  peo 
ple  in  respect  to  this  Convention.  But,  Sir,  is  it  any 
worse — supposing  they  should  attempt  it — is  it 
any  worse  for  the  legislature  of  1873  to  undertake 
to  control  this  matter,  than  for  us  to  control  it  by 
the  Act  of  the  legislature  of  1852  ?  Is  the  legis 
lature  of  1852  all  that  is  left?  Are  they  the  only 
minds  that  can  provide  for  arranging  the  neces 
sary  details  of  a  Convention  ?  But,  to  go  back  to 
what  I  said  in  the  first  place,  what  is  the  need  of 
going  farther  than  this,  and  saying  that  for  all 
coming  time  the  people  of  this  Commonwealth, 
whenever  they  like  it  —on  the  first  Monday  in 
November,  or  the  first  Monday  in  June,  if  you 
please— when  they  shall  have  so  voted,  may  have 
a  Convention  to  alter  their  Constitution  ?  If  you 
are  going  to  direct  that  they  shall  do  it  so  and  so, 
you  might  as  well  undertake  to  provide  that 
the  gentleman  who  now  presides  over  this  body, 
shall  be  the  president  of  the  next  Convention,  or 
that  my  honorable  friend  for  Wilbraham  shall 
represent  Wilbraham  then  !  There  is  a  great 
variety  of  details  into  which  there  is  just  as  much 
propriety  and  necessity  for  entering,  as  there  is 
that  we  should  enter  into  the  details  that  we  are 
providing  for  in  this  resolution.  Take  the  four 
first  sections  of  that  Act;  and  what  do  they 
provide  for  ?  Why,  Sir,  they  branch  out  into 
details  and  ramifications  of  every  kind. 

I  want  to  know  by  what  sort  of  patent  right 
this  legislature  of  1852  had  the  exclusive  monop 
oly  of  deciding  the  method  in  which  the  Consti 
tution  shall  be  amended.  And  this  is  declared 
by  those  who  say  that  they  want  to  set  the  ex 
ample  here.  They  say  that  this  is  the  first  time 
and  the  only  time  that  they  shall  have ;  if  they 
omit  to  do  it  then,  they  omit  it  forever  to  say  that 
the  people  shall  alter  their  Constitution  as  they 
please.  Now,  Sir,  the  only  way  to  provide  that 
the  people  shall  alter  their  Constitution  as  they 
please,  is  to  say  so.  The  only  way  to  make  it 
secure  and  certain  that  the  people  may  alter  it  by 
a  Convention,  untrammelled  by  legislative  action, 
is  to  say  so ;  but  do  not,  in  the  very  voice  in 
which  you  say  so,  require  them  to  do  it  in  a  par 
ticular  form,  for  fear  that  the  legislature  chosen 
by  the  same  votes  that  shall  call  the  Convention, 
may  do  what  it  was  so  falsely  said  that  the  legis 
lature  of  the  past  winter  entertained  a  serious 
idea  of  doing,  but  were  frightened  out  of  by  the 
voice  of  the  people.  Sir,  I  belong  to  that  school — 
if  my  friend  from  Lowell  will  permit  me  to  say  so 
—that  school  of  "live  young  men  "  who  are  willing 
to  let  posterity  take  care  of  themselves  when  they 
want  a  Convention,  and  are  not  troubled  about 


65th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


317 


Saturday,] 


DAWES  —  GKISWOLD  —  NAYSOX  —  HALLETT. 


[July  23d. 


the  way  they  will  do  it.  My  impression  is,  Sir, 
that  we  are  not  the  wisest  body  that  ever  assem 
bled,  or  that  ever  will  assemble.  I  apprehend, 
Sir,  that  there  may  be  such  a  thing  as  a  legisla 
ture  in  1873,  as  wise  as  the  legislature  of  last 
year,  and  that  it  is  among  the  possibilities  that 
there  may  be  a  Convention  in  that  year,  as  wise 
as  this  Convention.  When  we  shall  have  pre 
pared  and  submitted  to  the  people  a  Constitution 
that  shall  answer  the  exigencies  of  1853,  and 
meet  the  present  wants  of  the  people  of  this  State, 
we  shall,  it  appears  to  me,  have  accomplished  all 
for  which  we  have  been  sent  here.  We  shall 
have  done  our  duty  and  may  be  permitted  to  lay 
off  the  robes  of  office  and  meet  the  welcome, 
"  Well  done  !  good  and  faithful  servants."  But, 
Sir,  if  we  undertake  to  make  a  Constitution,  not 
only  for  to-day,  but  for  all  coming  time,  and  to 
put  into  our  Constitution  of  to-day  that  whoever 
undertakes  hereafter  to  improve  upon  it,  shall  do 
it  in  a  particular  form,  it  seems  to  me  that  we  are 
departing  from  the  programme  which  has  been 
alluded  to  so  often  here.  We  do  not  find  any 
such  authority  as  this  laid  down  there  ;  and  we 
shall  have  gone  beyond  our  commissions  if  we 
trouble  ourselves  about  those  who  are  abun 
dantly  able  to  take  care  of  themselves.  I  think  we 
have  provided  already  the  method  of  revising  the 
Constitution  hereafter.  We  simply  say  that  the 
people  of  this  Commonwealth  shall  have  power,  at 
all  times,  when  they  shall  so  choose,  to  amend 
their  Constitxition  by  a  Convention  or  otherwise, 
as  shall  be  legally  provided.  If  anybody  desires 
to  have  the  Constitution  amended  illegally,  he 
might  wish  a  farther  provision.  I  think  it 
is  just  as  much  as  we  can  do  to  meet  the  ex 
igencies  of  the  present  time,  without  troubling 
ourselves  at  all  about  what  those  who  shall 
live  twenty  years  from  this  time  shall  think 
ought  to  be  done,  or  the  best  method  of  doing 
it. 

Mr.  SIMMONS,  of  Hanover,  obtained  the 
floor,  but  gave  way  to 

Mr.  GUIS  WOLD,  for  Erving.  I  understand, 
Mr.  President,  that  gentlemen  who  have  charge 
of  this  subject,  are  preparing  and  intending  to 
submit  some  modification  of  the  substitute  upon 
which  we  are  now  acting  ;  and  if  this  proposition 
is  to  be  modified  hereafter  before  it  shall  finally 
be  adopted,  it  seems  to  me  that  we  are  merely 
discussing  an  irrelevant  issue,  and  the  time  which 
•we  spend  in  discussing  the  subject  now  may 
therefore  be  lost.  I  rise,  not  for  the  purpose  of 
entering  into  debate,  but  for  the  purpose  of  mov 
ing  that  the  farther  consideration  of  this  subject 
be  postponed  until  Monday  next,  at  ten  o'clock, 
in  order  to  give  the  friends  of  this  measure  time 


to  put  their  views  into  such  shape  as  may  be  ac 
ceptable  to  the  Convention. 

Mr.  NAYSON.  I  desire  to  say  a  single  word, 
Mr.  President,  in  reference  to  the  motion  just 
made  by  the  gentleman  representing  Erving.  I 
understood  the  gentleman  to  suggest  as  a  reason 
why  this  subject  should  be  postponed,  the  fact 
that  gentlemen  who  were  supposed  to  have  this 
matter  in  charge,  had  agreed  to  a  modification  of 
the  proposition  now  under  discussion,  and  that 
sufficient  time  had  not  elapsed  to  allow  that  mod 
ification  to  assume  a  definite  shape  to  be  presented 
to  the  Convention.  I  wish  merely  to  say,  that  if 
the  remark  of  the  gentleman  for  Erving  was  un 
derstood  to  apply  to  the  chairman  of  the  Com 
mittee  to  whom  that  matter  was  referred,  or  to 
any  members  of  that  Committee,  the  gentleman 
is  mistaken  in  his  supposition.  I  wish  to  say  in 
justice  to  my  colleagues  upon  that  Committee, 
that  so  far  as  I  have  been  able  to  ascertain,  the 
views  which  that  Committee  have  presented,  and 
which  are  contained  in  document  No.  75,  are  still 
entertained  without  any  change  by  that  Com 
mittee.  Although  the  Committee  of  the  Whole 
has  seen  fit  to  substitute  for  that  Report  the  prop 
osition  submitted  by  the  gentleman  for  Wilbra- 
ham,  the  members  of  the  Committee  have  not 
changed  their  views,  nor  is  there  any  probability 
that  any  such  change  will  take  place  in  the  future 
discussion  of  this  subject.  I  do  not  mention  this 
as  a  circumstance  of  any  importance,  but  merely 
in  order  to  prevent  a  false  impression  being  de 
rived  from  the  remarks  of  the  gentleman  for  Erv 
ing.  So  far  as  I  have  been  able  to  observe,  the 
Committee  concurred  entirely  in  the  Report,  and 
whatever  may  be  the  ultimate  action  of  the  Con 
vention  in  regard  to  it,  no  change  has  taken  place 
in  the  mind  of  any  single  member  of  that  Com 
mittee. 

Mr.  GRISWOLD.  I  wish  simply  to  state 
that  I  did  not  allude  to  the  chairman,  of  the  Com 
mittee,  nor  to  any  members  of  that  Committee. 
I  believe  the  proposition  now  under  discussion  is 
the  substitute  proposed  by  the  gentleman  for 
Wilbraham.  I  referred  more  particularly  to  him 
and  to  those  who  were  in  favor  of  his  proposition. 

Mr.  HALLETT.  I  understand  the  sugges 
tion  of  the  gentleman  for  Erving  to  be,  to 
postpone  the  consideration  of  this  question  until 
ten  o'clock,  on  Monday.  If  there  is  any  diffi 
culty  in  the  minds  of  gentlemen  as  to  the  people 
having  a  right  to  change  the  Constitution,  with 
out  reference  to  the  legislature,  so  that  they  sup 
pose  that  anything  else  can  be  presented,  so  as  to 
give  them  that  power,  I  have  no  objection  to  this 
postponement.  I  have  no  doubt,  however,  that 
the  resolves,  as  they  stand  now,  are  perfectly 


318 


BANKING,  &c. 


[65th   day. 


Saturday,] 


DUXCAX  —  SCHOULEII  —  HALLETT  —  DANA  —  FllOTHIXGHAM. 


[July  23d, 


practicable,  and  involve  a  principle,  which  I  be 
lieve  the  Convention  is  disposed  to  adopt.  But, 
if  gentlemen  are  alarmed  at  the  provisions  of 
these  resolutions,  I  have  no  objection  to  their 
postponement  until  Monday  next,  when  we  may, 
probably,  have  a  fuller  house.  If,  on  the  other 
hand,  a  majority  of  the  Convention  present  think 
that  the  Convention  is  ready  for  the  question,  I 
should  like  to  have  it  taken  now,  so  that  the 
matter  may  be  finally  disposed  of.  I  think,  upon 
full  examination,  the  resolves  will  be  found  to  be 
perfectly  satisfactory. 

The  motion  to  postpone  the  farther  considera 
tion  of  the  resolutions,  until  Monday  next,  was 
agreed  to. 

Quorum  of  the  House  of  Representatives. 

The  Convention  next  proceeded  to  the  consid 
eration  of  the  resolve  on  the  subject  of  a  Quorum 
of  the  House  of  Representatives ;  the  question 
being  on  the  final  passage  of  the  resolution, 

Mr.  DUNCAN,  of  Williamstown,  moved  to 
lay  the  Orders  of  the  Day  upon  the  table. 

The  motion  was  rejected. 

Mr.  SCHOULEII,  of  Boston,  moved  to  amend 
the  resolution,  by  striking  out  the  words  "  one 
hundred,"  and  inserting  the  word  "  sixty,"  so 
that  sixty  members  should  constitute  a  quorum. 

The  amendment  was  not  agreed  to. 

The  resolution  was  then  finally  passed. 

Counting  and  Recording  of  Votes. 

Mr.  DUNCAN,  of  Williamstown,  submitted 
the  following  resolution  : — 

Resolved,  That  the  Constitution  ought  to  be  so 
amended  as  to  make  provision  for  securing,  as 
sorting,  counting,  and  recording  of  votes,  uni 
formly,  in  the  elections  of  all  officers  throughout 
the  State. 

The  resolution  was  referred  to  the  Committee 
of  the  Whole. 

Motion  to  Reconsider. 

Mr.  HALLETT,  for  Wilbrahara,  moved  to 
reconsider  the  vote  of  yesterday,  by  which  the 
Convention  passed  the  resolutions  in  relation  to 
the  Council. 

The  motion  was  placed  among  the  Orders  of 
the  Day. 

Committee  on  the  Preservation  of  the  Records. 

Mr.  DANA,  for  Manchester,  asked  to  be  ex 
cused  from  serving  on  the  Committee  on  the 
Preservation  of  Records,  being  upon  two  other 
Committees. 

The  request  was  granted,  and  Mr.  Ilazewell, 


of  Concord,  was  appointed,  by  the  Chair,  to  sup 
ply  the  vacancy  thus  created  in  that  Committee. 

^Banking. 

Mr.  GRISWOLD,  for  Erving.  I  move  that 
the  Convention  resolve  itself  into  Committee  of 
the  Whole,  on  the  resolves  on  the  subject  of 
Banking. 

The  motion  was  agreed  to,  and  the  Convention 
resolved  itself  into 

COMMITTEE    OP   THE   WHOLE, 

Mr.  Butler,  of  Lowell,  in  the  chair. 

The  resolutions  were  read  by  the  Secretary,  as 
follows  : — 

Resolved,  That  it  is  expedient  to  insert  into 
the  Constitution  articles  providing 

1.  That  the  legislature  shall  have  no  power  to 
pass   any   act   granting   any  special   charter  for 
banking  purposes,  or  any  special  act  to  increase 
the  capital  stock  of  any  charter  bank  ;  but  corpo 
rations  may  be  formed  for  such  purposes,  or  the 
capital  stock  of  charter  banks  may  be  increased, 
under  general  laws. 

2.  That  the  legislature  shall  provide  by  law 
for  the  registry  of  all  notes  or  bills,  authorized 
by  general  laws  to  be  issued,  or  put  in  circulation 
as  money ;  and  shall  require  ample  security  for 
the  redemption  of  such  notes,  in  specie. 

Mr.  FROTHINGHAM,  of  Charlestown.  Mr. 
Chairman  :  I  will  not  waste  words  in  urging 
before  this  Committee  that  the  subject  of  the 
currency  is  one  of  great  magnitude.  It  is  suffi 
cient  to  say  that  it  is  a  question  of  so  large  a 
character,  that  I  willingly  would  have  avoided 
the  duty  of  meeting  it,  and  have  seen  it  in  the 
hands  of  others.  But  gentlemen  whose  good 
opinion  I  value,  did  me  the  honor  to  request  me 
to  bring  this  matter  to  the  notice  of  the  Conven 
tion  ;  and  as,  in  view  of  the  action  that  was 
thought  to  be  necessary,  only  a  portion  of  the 
great  question  would  have  to  be  reviewed,  and  as 
the  principles  of  this  portion  were  simple  in  their 
character,  and,  as  I  apprehend,  as  to  the  action 
contemplated,  could  be  easily  and  successfully 
defended,  I  agreed  to  comply  with  the  request. 
Hence  resolves  on  this  subject  were  introduced. ' 
These  were  referred  to  a  Special  Committee.  This 
Committee  has  on  it  gentlemen  of  much  experi 
ence  in  banking,  who  take  one  side  or  the  other 
of  this  question.  After  much  deliberation,  they, 
with  great  unanimity — I  may  say  that  only 
three  voted  against  its  adoption — agreed  to  the 
Report  that  is  now  under  consideration. 

And,  in  the  first  place,  the  action  recommended 
by  the  Committee  does  not  propose  to  interfere 
with  existing  banks,  only  so  far  as  to  prevent,  by 
special  acts,  an  increase  of  their  capital  stock,  but 


65th  day.] 


BANKING. 


319 


Saturday, 


FROTHINGHAM. 


[July  23d. 


it  leaves  them  to  be  dealt  with  by  the  legislature. 
In  the  next  place,  in  relation  to  an  opinion  prev 
alent  among  the  members,  allow  me  to  say,  that 
the  prior  action  of  the  Convention,  in  the  matter 
of  the  formation  of  corporations,  does  not,  I 
apprehend,  so  much  as  touch  the  main  and  vital 
point  of  this  Report. 

The  Report  of  the  Committee  proposes  to 
prohibit  the  legislature  from  granting  special 
charters  for  banking  purposes,  and  to  prohibit 
the  increase  of  the  capital  stock  of  any  char 
tered  bank  by  any  special  act ;  but  to  allow  banks 
to  form,  or  the  capital  stock  of  banks  to  be  in 
creased,  under  general  laws.  It  proposes,  also, 
to  make  it  obligatory  on  the  legislature,  in  any 
general  laws  they  pass  in  reference  to  the  issue  of 
circulating  notes,  to  require  ample  security  that 
such  notes  shall  be  redeemed  in  specie.  These 
are  the  propositions ;  and  the  question  is,  shall 
they  be  incorporated  into  the  organic  law  of  the 
Commonwealth  ? 

The  consideration  of  these  propositions  opens 
up  the  whole  question  of  the  currency.  To  treat 
this  elaborately,  it  might,  perhaps,  be  considered 
not  only  not  irrelevant,  but  proper  and  even  nec 
essary,  to  go  somewhat  over  the  history  of  bank 
ing  in  the  old  world,  and  show  how  it  has  been 
in  times  past,  and  how  it  exists  there  to-day. 
But  this  is  not  essential  to  the  purpose  of  explain 
ing  the  views  of  the  Report,  and  will  be  passed 
over.  And  it  might  not  be  deemed  out  of  place, 
to  trace  somewhat  at  length  the  footsteps  of 
banking  in  our  own  country,  and  view  it  as  it 
has  been  in  the  different  States  from  the  adoption 
of  the  Constitution  down  to  the  present  time.  It 
would  be  no  hard  task  to  go  over  the  many 
speeches  and  statistical  tables,  on  this  topic,  and 
present  pregnant  facts  to  show  our  large  experience 
in  banking.  But  this,  too,  is  not  necessarily 
connected  with  the  question  immediately  before 
the  Committee.  But  the  same  remark  will  hardly 
apply  to  the  history  of  paper  issues  in  our  own 
Commonwealth.  It  may  be  deemed  almost  a 
dereliction  of  duty  not  to  go  minutely  over  this 
history.  But  a  brief  glance  at  this  past,  and  a  re 
mark  upon  it,  are  all,  however,  considering  the 
time  allotted,  that  I  shall  venture  to  attempt. 

Review  the  currency  question  here,  on  this 
soil,  from  the  commencement  of  colonization 
down  to  the  adoption  of  the  present  Constitution, 
and  it  will  be  found  that  there  has  been  every 
variety  of  experience,  in  the  use  and  the  abuse  of 
a  paper  circulation.  For  a  generation  our  fa 
thers  got  along  with  a  variety  of  articles  for 
money,  among  which  figured  the  simple  wamp- 
umpeage  of  the  Indians.  Then  came  the  attempt, 
in  1652,  to  supply  coin  from  their  own  mint.  A 


private  bank  was  proposed  in  1685.  In  1690  the 
colonists  first  set  the  example,  in  their  province 
bills,  of  a  paper  issue,  which  they  kept  up  for 
sixty  years.  To  this  succeeded  the  famous  silver 
scheme  of  the  merchants,  and  the  no  less  cele 
brated  land  bank  scheme  of  speculators.  And 
this  colonial  experience  was  ended,  in  the  paper 
issue  during  the  Revolution.  Surely  here  is  ma 
terial  for  a  history  of  no  small  interest,  and  one 
that  might  be  scanned  with  no  little  profit.  Here 
are,  indeed,  most  useful  lessons.  But  I  shall  not 
go  over  this  detail. 

Take  next  what  immediately  concerns  the  ac 
tion  of  to-day — the  origin  and  progress  of  our 
present  system  of  banking — or  the  history  of 
paper  issues  from  1780  to  our  own  time.  A  brief 
sketch  is  all  that  time  will  allow  me  to  make.  It 
was  amidst  the  suffering  and  ruin  occasioned  by 
the  existing  paper  money  that  the  present  system 
of  banking  commenced.  Let  those  who  think 
that  this  suffering  was  light,  go  into  an  investiga 
tion  of  the  matter.  Look  at  the  record  ;  look  at 
the  facts  that  are  thereto  be  found,  a1  d  say  whether 
the  suffering  was  light  or  not.  The  State  com 
menced  chartering  bank  capital  here  in  1781,  first 
with  the  old  Massachusetts  Bank,  and  then  with 
the  Union  Bank  in  1792.  In  1802,  the  banking 
capital  was  $2,225,000.  In  1816  it  was  $11,- 
475,000.  In  1829,  it  was  $20,420,000.  In  1837, 
it  was  $38,250,000.  In  1852,  it  was  $43,270,000  ; 
'and  in  1853,  it  is  $53,830,000,  withapower  of  issue 
equal  to  $67,000,000.  Such  is  a  glance  at  the 
progress  of  banking,  and  the  existing  capital  in 
banking  in  this  Commonwealth. 

And  in  reference  to  the  whole  of  it,  com 
mencing  with  the  commencement  of  Massachu 
setts  history  and  coming  down  to  our  own  times, 
it  may  be  remarked,  that  whatever  may  be  the 
benefits  that  accrue  to  commerce  and  to  the  com 
munity  from  paper  money  in  all  its  various  kinds, 
Massachusetts  has  experienced  those  benefits. 
And  whatever  evils  there  have  been  in  the  world, 
whatever  robbery  of  labor,  whatever  the  mercan 
tile  community  have  experienced  in  the  matter  of 
fluctuations— all  the  evils  have  been  experienced 
here  on  the  soil  of  Massachusetts.  Take,  for  in 
stance,  the  period  before  the  adoption  of  the  Con 
stitution.  We  had  our  continual  and  periodical 
reversions  in  trade  ;  and  they  were  almost  inva 
riably  traced,  directly  or  indirectly,  to  the  emis 
sion  of  paper.  Take  the  experience  we  have  had 
since  the  adoption  of  the  Constitution,  and  who 
is  there  who  will  not  admit  that  our  commercial 
interests  have  been  put  in  jeopardy  by  the  enor 
mous  inflations,  and,  at  times,  by  the  alarming 
insecurity  of  our  paper  issues?  Need  I  quote 
the  melancholy  statistics  of  1837  ?  Need  I  quote 


320 


BANKING. 


[65th    day. 


Saturday,] 


FttOTHINGHAM. 


[July  23d. 


later  or  earlier  similar  statistics  ?  Is  not  this  fact 
admitted  by  one  and  all  ?  In  reference  to  this 
experience  of  Massachusetts  alone,  allow  me  to 
quote  the  words  of  one  whose  words  are  apt  to 
be  regarded,  even  by  those  who  may  not  take  the 
same  view  of  this  matter  that  the  Committee 
take,  and  apply  them  to  it.  It  was  in  1841  that 
Daniel  Webster  said,  in  one  of  his  remarkable 
speeches : — 

"  We  are  well  instructed  by  experience — let  us 
not  be  lost  to  experience.  Let  not  all  the  good, 
all  the  comforts,  all  the  blessings,  which  now 
seem  in  prospect  for  all  classes,  be  blighted, 
ruined,  and  destroyed,  by  running  into  danger 
which  we  may  avoid.  The  rocks  before  us  are 
all  visible — all  high  out  of  water.  They  lift 
themselves  up,  covered  with  the  fragments  of  the 
awful  wrecks  and  ruin  of  other  times.  Let  us 
avoid  them.  Let  the  master,  and  the  pilot,  and 
the  helmsman,  and  all  the  crew  be  wideawake, 


This  is  an  injunction  which  this  Convention 
may  deign  to  respect. 

In  reference  to  the  whole  of  this  experience, 
too,  permit  me  to  make  another  brief  remark.  I 
am  sure  it  would  surprise  even  the  intelligent 
members  of  this  Convention,  if  they  would  go 
back  and  read  the  communications  which  have 
been  made,  both  to  our  ancient,  great  and  general 
court,  and  to  our  modern  legislature,  by  patriotic 
men  who  have  been  placed  at  the  head  of  affairs. 
They  have  often,  from  their  high  and  indepen 
dent  and  impartial  seat  of  power,  discharged  their 
duty  to  the  people  of  this  Commonwealth,  in 
tliis  matter  of  banking.  They  have  called  their 
attention  repeatedly,  to  the  exorbitant  paper 
issues,  and  recommended  the  duty  of  imposing 
severer  restrictions  upon  them.  But  I  have  not 
time  to  quote  even  these  to  any  extent. 

Let  me  refer  but  to  one.  Governor  Davis,  in 
1834,  only  three  years  before  the  great  bank  ex 
plosion,  gave  advice  as  sound  as  could  be  given 
on  the  subject  of  banking,  to  the  legislature.  He 
dwelt  on  the  inadequacy  of  the  specie  basis,  pre 
dicted  loss  to  bill-holders,  and  recommended 
"  some  way  of  giving  greater  stability  to  the  local 
currency."  And  what  was  the  effect  of  that 
warning  ?  How  was  it  heeded  ?  Let  the  batch  of 
banks  that  immediately  followed,  attest.  It  fell, 
like  a  thrice-told  tale  upon  drowsy  ears.  It  was 
not  heeded  by  the  representatives  of  the  people, 
when  they  should  have  looked  to  the  interests  of 
the  people.  There  is  one  extract  from  these  gub 
ernatorial  messages,  that  will  be  quoted,  because 
it  seems  to  meet  the  present  state  of  things  pre 
cisely,  both  as  to  the  danger  there  was  and  is,  and 
as  to  the  plain  duty  there  is  now  before  us.  I 


allude  to  another  gentleman  whose  name  will  be 
received  by  this  Convention,  with  respect — 
Hon.  Edward  Everett ;  and  I  refer  to  what 
he  said  to  the  legislature,  in  his  message  of  1838. 
I  ask  the  attention  of  the  Convention  to  his  few, 
concise,  and  true  words.  It  was  after  the  crash  of 
1837,  when  millions  of  bank  capital  were  sunk, 
and  hundreds  and  thousands  of  laboring  men, 
and  of  others,  suffered  in  consequence  of  enor 
mous  defalcations.  He  says,  in  his  message  of 
1838  :— 

"  In  the  system  on  which  our  banks  are  con 
ducted,  the  general  soundness  of  a  great  majority 
of  them  is  not  inconsistent  with  the  impending 
insolvency  of  individual  banks,  kept  up  to  the 
last  moment  by  possessing  a  credit  with  their  as 
sociates,  and  then  sinking  at  once,  to  the  heavy 
loss  of  the  unwary,  and  of  those  least  able  to  bear 
it.  The  possibility  of  occurrences  like  these  ought 
to  be  prevented." 

Here  is  a  precise  statement  of  the  working 
of  the  system,  and  its  dangers;  and  here,  too,  is 
a  true  statement  of  the  duty  of  the  people.  The 
possibility — mind  the  word — the  possibility  of  oc 
currences  like  what  then  had  just  been  witnessed, 
ought  to  be  prevented. 

Now,  let  me  ask  legal  gentlemen  upon  this 
floor,  let  me  ask  bank  directors  upon  this  floor, 
let  me  ask  one  and  all,  to  point  to  a  clause 
upon  the  statute  book  that  will  be  efficient  to 
prevent  the  possibility  of  future  occurrences  just 
like  those  which  we  have  had  in  the  past  of  Mas 
sachusetts  ?  Are  we  not  just  as  likely  to  have 
them  in  the  future  of  Massachusetts  ?  There  are 
no  such  provisions  of  law.  There  is  no  adequate 
preventive  security.  There  is  the  same  system 
and  the  same  danger. 

Now,  assuming  that  it  has  been  proved,  or  that 
it  is  a  fact  that  cannot  be  denied,  that  there  has 
been  a  great  evil  in  the  Commonwealth,  I  take  it 
there  may  be  a  reform  work  here  at  least  in  ref 
erence  to  the  future. 

If  reformers  desire  to  do  something,  here  is  an 
opportunity.  They  will  endeavor  to  do  what  can 
be  done  to  prevent  the  future  occurrence  of  such 
evils.  And,  perhaps,  no  Convention  called  to 
revise  the  Constitution  of  Massachusetts,  could 
have  been  called  between  the  year  1837,  and  any 
future  time,  when  this  question  of  the  duty  of  the 
people,  acting  in  their  sovereign  capacity,  in  refer 
ence  to  banks  and  banking,  would  not  have  come 
up,  and  would  not  have  been  obliged  to  have  been 
met.  How  shall  this  Convention  meet  this  duty  ? 
Will  they  meet  it  boldly,  like  men  who  feel  that 
something  should  be  done  to  benefit  the  people, 
and  protect  them  ?  Will  they  meet  it  like  men 


65th  day.] 


BANKING. 


321 


Saturday,] 


FROTIIINGHAM. 


[July  23d. 


ready  and  willing  to  stand  on  sound  principle,  and 
let  consequences  take  care  of  themselves  ?  Or 
will  they  meet  it  timidly,  and  as  though  they 
were  afraid  to  trust  the  people,  as  though  they 
were  not  ready  for  a  sound  principle  and  safe 
practice  ?  That  is  the  question. 

And  the  next  thing  is,  what  ought  the  govern 
ment  to  do  in  its  capacity  of  agent  of  the  people ; 
and  what  ought  the  people,  acting  as  sovereigns, 
to  put  into  their  organic  law,  as  guide  and  direc 
tion  to  their  agents,  in  relation  to  banks  and  bank 
ing  ?  How  shall  the  Convention  meet  this  duty  ? 

To  answer  this  question  properly,  it  may 
be  well  to  keep  in  view  two  things ;  one  is  the 
trade  in  money,  and  the  other  is  the  making  of 
money.  One  ia  the  use  of  an  article  as  it  is,  and 
the  other  is  the  production  of  an  article.  In  other 
words,  it  may  be  well  to  keep  in  view,  clearly  and 
distinctly,  the  difference  between  these  two  func 
tions  of  banking,  to  wit :  one  that  of  deposit  and 
loans,  and  the  other  that  of  the  issue  of  bills. 
Now  there  may  be  banks  of  deposit  and  loan,  of 
heavy  capital,  without  their  having  a  dollar  of 
issue,  and  therefore,  without  the  danger  of  their 
doing  any  injury  to  commerce  or  to  the  people. 
There  are  banks  out  of  the  Commonwealth,  for 
instance,  which  have  a  large  deposit  and  exchange 
business,  and  which  do  not  issue  a  dollar  of  paper 
money.  It  is  apprehended  that  the  duty  of  the 
government  in  relation  to  these  two  species  of 
banks,  is  widely  different. 

Take  the  banks  of  deposit  and  loan.  Our 
merchants  desire  to  use  a  bank  for  the  purpose  of 
placing  their  money  in  it  for  safe  keeping.  They 
look  around  and  find  an  institution  which  suits 
them,  as  to  character,  locality,  integrity  of  the 
board  of  directors,  as  to  prospects  of  getting  facil 
ities  for  business,  and  they  choose  this  bank  for 
their  accommodation  and  become  depositors  in  it. 
The  bank  acts  on  this  principle,  that  though  the 
deposits  are  liable  to  be  drawn  out  at  any  time 
by  the  individuals  who  deposited  them,  yet  that 
they  will  not  be  all  drawn  out  on  one  day,  but 
that  a  certain  average  amount  will  always  be  left 
in  the  bank.  On  this  average  amount  they  safely 
make  loans,  and  derive  their  profits  from  them. 
This  custom  of  deposit  and  loan  is  carried  out  by 
almost  all  in  transactions  between  man  and  man. 
Let  the  large  brokers  in  State  Street,  who  do  a 
business  larger  than  some  of  the  banks,  testify  to 
the  extent  to  which  this  business  of  deposit  and 
loans  is  carried  on.  Now,  is  it  the  duty  of  the 
government  to  come  in  and  guarantee  to  the  indi 
vidual  who  lends  money  in  this  wray  to  another 
individual,  that  it  shall  be  repaid  ?  I  think  not. 

Nor  has  there  been  any  difficulty  in"  rela 
tion  to  that  species  of  banks.  They  do  not  add 


at  all  to  paper  expansion  and  its  varied  evils. 
Take,  for  an  illustration,  the  Scotch  banks,  though 
I  am  aware  that  these  banks  have  the  power  of 
issue.  There  has  been  a  system  of  banking  in 
Scotland  for  one  hundred  and  fifty  years.  And 
it  is  an  established  fact,  that  it  has  stood  through 
rebellions,  through  the  suspension  of  specie  pay 
ment  by  the  bank  of  England,  through  all  com 
mercial  fluctuations ;  and  during  all  that  period 
the  people  of  Scotland  have  not  lost  so  much  by 
the  failure  of  banks,  as  Massachusetts  has  in  one 
year ;  to  say  nothing  of  other  States.  And  what 
is  a  distinguishing  feature  of  the  Scotch  system  of 
banking  ?  It  is  the  practice  of  receiving  depos 
its,  which  has  contributed  much  to  make  them  so 
safe.  They  bank,  to  a  very  great  extent,  on  exist 
ing  capital.  Now  banks  of  that  sort — banks  purely 
of  deposit  and  loan — perform  a  great  and  beneficial 
part  in  the  great  business  of  society.  Sound  pol 
icy  requires  that  they  should  be  interfered  with 
as  little  as  possible.  Let  this  business  regulate 
itself.  Therefore,  the  resolve  on  your  table  pro 
poses  to  leave  that  deposit  and  loan  business  en 
tirely  alone.  It  does  not  touch  it.  It  proposes 
no  restrictions  on  it,  but  leaves  it  to  the  legisla 
ture  ;  and  those  who  go  into  it  will  have  all  the 
security  which  is  afforded  by  the  existing  laws. 

The  function  of  banks  on  which  I  next  propose 
to  remark,  is  that  of  making  issues  or  of  supplying 
a  paper  circulation,  ir  relation  to  which  there  has 
been  and  is  such  endless  speculation.  It  is  the 
peculiar  character  of  this  species  of  credit — the 
character  that  law  has  given  to  it,  that  makes  the 
interference  of  government  necessary. 

Here  it  is  well  to  look  at  things,  not  theoreti 
cally,  but  practically,  and  to  consider  certain 
questions  as  settled.  It  is  no  longer  an  open 
question,  whether  the  State  has  the  constitutional 
power  to  authorize  a  paper  currency,  for  the 
power  is  in  full  exercise.  It  is  no  longer  an  open 
question,  whether  there  shall  be  a  mixed  circula 
tion,  composed  of  paper  and  coin,  for  this  now 
mingles  in  all  the  daily  round  of  business.  Nor 
is  it  a  question,  whether  individual  credit  shall 
be  allowed  its  natural  advantages ;  that  is,  whether 
individuals  of  established  character  for  personal 
integrity  and  pecuniary  responsibility,  shall  be 
allowed  the  full  benefit  of  such  reputation,  to  put 
out  their  notes  to  go  as  money.  Existing  penalties 
have  long  existed  that  cut  off  this  natural  right, 
and  create  a  different  credit,  that  goes  as  money. 
In  a  word,  a  system  has  had  full  play  for  eighty 
years,  and  every  measure  tending  to  reform, 
should  have  reference  to  it. 

Here,  then,  exists,  in  Massachusetts,  as  in  other 
States,  a  species  of  credit  that  is  made  by  law 
different  from  individual  credit.  It  is  a  paper 


322 


BANKING. 


[65th  day. 


Saturday,] 


FROTHINGHAM. 


[July  23d. 


currency,  authorized  by  the  State,  and  which  the 
State  considers  it  to  be  its  duty  to  watch  over  and 
protect.  And  what  is  this  currency  ?  It  consists 
of  notes  or  bills,  payable  in  specie,  at  the  place  of 
issue,  by  the  power  that  issues  them,  without  in 
terest,  at  the  will  of  the  holders  of  them.  It  is 
vital  that  these  bills  possess  this  convertible  power, 
and  that  there  should  be  confidence  that  this 
power  is  a  real  power.  Now,  this  element  of 
convertibility  is  acknowledged  to  be  a  vital  ele 
ment  throughout  the  world,  or  wherever  sound 
banking  principles  are  recognized  and  acted  on. 
And  the  public  good  requires  that  this  confidence 
should  be  based  on  substantial  foundations  ;  and 
hence  every  proper  method  should  be  taken  to 
secure  an  ability  to  exercise  this  power.  For  the 
people  have  no  choice  as  to  the  use  of  what  exists 
as  currency.  Every  one  who  does  business — and 
who  here  does  not  do  business — is  obliged  to 
make  use  of  the  existing  circulating  medium,  or 
his  business  can  hardly  go  on.  Thus  paper  money 
has  become  interwoven  into  the  daily  transactions 
of  life.  With  the  coin  it  makes  the  currency. 
And  this  is  the  life-blood  of  commerce.  If  it  circu 
lates  through  the  body  politic,  sound  and  healthy, 
it  will  exercise  a  sound  and  healthy  influence  ;  if 
it  is  corrupt  and  becomes  stagnant,  it  vitiates  the 
commercial  world,  and  indeed  affects  the  interests 
of  the  whole  public.  This  cannot  be  denied. 
Hence  consists  the  magnitude  of  this  question. 
Indeed,  the  regulation  of  the  currency,  or  fixing 
the  value  of  coin,  is  universally  regarded  as  an 
attribute  of  sovereignty  ;  and  the  emission  of  paper 
issues  has  much  to  do  with  this  value.  Again,  I 
remark,  that  as  to  the  use  of  a  currency,  the  peo 
ple  have  no  choice.  They  are  obliged,  of  neces 
sity,  to  make  use  of  the  existing  supply. 

Now,  the  State  has  assumed  the  duty  of  supply 
ing  this  currency ;  but  instead  of  supplying  it  by 
itself  directly,  it  delegates  this  attribute  of  sov 
ereignty,  this  power  to  make  money,  to  private  cor 
porations  ;  and  it  is  the  connection  of  these  institu 
tions  with  this  delegated  power,  that  furnishes  a 
justification  for  the  whole  entangling  code  of  laws, 
in  relation  to  banks,  with  which  the  statute  books 
are  filled.  There  is  nothing  else  that  would  jus 
tify  such  a  code.  And  the  whole  purpose  of  these 
laws  is,  to  secure  the  convertibility,  at  the  will  of 
the  holder,  of  a  piece  of  bank  paper,  at  all  times, 
into  cash.  That  is  the  end  and  aim  of  the 
whole. 

Now,  need  facts  be  adduced  to  prove  that  while, 
tinder  the  present  safeguards,  this  convertibility 
is  obtained  in  times  of  prosperity,  yet  that  it  has 
not  been  secured  in  periods  of  commercial  revul 
sion  ?  Need  time  be  spent  to  prove  how  much 
the  people  have  suffered  from  depreciated  paper  ? 


Need  it  be  shown,  that  in  other  times  than  those 
of  commercial  revulsion,  that  in  individual  cases, 
this  object  has  not  been  reached  ?  Indeed,  who 
will  contend  that  this  vital  point  has  been  guarded 
as  it  ought  to  have  been  ?  Who  cannot  recall, 
without  the  aid  of  statistics,  the  losses,  the  enor 
mous  evils,  that  have  flowed  from  a  neglect  of 
this  point — losses  and  demoralization  experienced 
in  this  State  alone,  to  say  nothing  of  what  has 
been  seen  in  other  States  ?  It  is  a  lamentable 
fact,  that  evidences  of  the  want  of  proper  care  on 
this  point  are  continually  multiplying.  Within 
a  short  time,  close  by  us,  in  the  State  of  Connect 
icut,  several  banks  have  exploded,  and  what 
security  have  the  bill-holders  that  the  bills  will 
not  depreciate,  or  even  that  ultimately  they  could 
be  converted  into  cash  ? 

Now,  on  what  principle  has  the  State  acted  in 
reference  to  a  proper  and  efficient  security  for  the 
convertibility  of  paper  into  specie  ?  It  has  passed 
certain  laws,  such  as  they  are, — it  would  be  easy 
to  enumerate  them, — but  it  has  left  the  execution 
of  these  laws  in  the  hands  of  the  banks.  They 
determine  whether  they  shall  be  observed  or  not. 
Take,  for  illustration,  one  which  is  considered  to 
be  the  best  of  all  the  laws  in  reference  to  bank 
ing—that  vital  law,  which  requires  that  there  shall 
be  a  deposit  of  fifty  per  cent,  of  the  capital  stock 
in  specie,  before  a  bank  can  go  into  operation 
and  issue  bills.  Is  it  not  well  known  that  it  has 
been,  and  is,  systematically  violated  ? 

But,  in  the  next  place,  if  these  laws  were  ob 
served,  they  would  not  afford  efficient  protection, 
because  they  do  not  meet  the  precise  point  of  se 
curity.  Besides,  they  are  based  upon  a  wrong 
principle.  The  principle  ought  to  be,  that  when 
such  a  high  power  as  that  of  sovereignty  is  dele 
gated  to  individuals  or  corporations,  the  State 
should  take  into  its  own  hands  security  that  that 
power  will  not  be  abused.  It  should  require  a 
bond  for  good  behavior.  This  it  has  failed  to  do. 
It  leaves  the  fulfilment  in  the  hands  of  the  banks, 
and  hence  it  is  that  there  has  been  so  much  of 
insecurity  and  loss  in  connection  with  these  insti 
tutions. 

Now,  this  second  provision  in  the  resolve 
under  consideration,  is  designed  to  make  it 
obligatory  on  the  legislature  to  require  security. 
It  proposes  to  the  people  to  say  to  the  legisla 
ture  :  "If  you  charter  any  banks,  if  you  allow 
any  paper  money  to  be  issued  by  the  banks,  it 
shall  be  your  duty  to  require  that  a  register  of 
all  such  money  shall  be  kept,  and  that  ample 
security  shall  be  furnished  that  all  such  money 
shall  be  convertible  into  specie  whenever  it  may 
be  required."  That  is  in  the  nature  of  a  simple 
rule.  It  leaves  all  matters  of  detail  entirely  in 


65th  day.] 


BANKING. 


323 


Saturday,] 


FROTHINGHAM. 


[July  23d. 


the  hands  of  the  legislature.  This  power  is  left  to 
devise  ways  and  means  relative  to  what  that  se 
curity  shall  be. 

But,  the  question  may  be  asked,  what  does  the 
phrase  "  ample  security  "  mean  ?  Does  it  mean 
that  there  shall  be  a  deposit  of  stocks,  of  real 
estate,  of  bonds  and  mortgages,  or  of  specie  in  the 
hands  of  the  authorities  of  the  Commonwealth  ? 
The  answer  is,  that  it  leaves  the  whole  matter  to 
the  legislature.  We  merely  say  that  if  they 
authorize  banks  to  issue  bills,  they  must  see  to 
it  that  they  take  ample  security  that  the  public 
do  not  suffer,  and  are  not  even  liable  to  suffer,  by 
their  issue.  I  ask  if  that  is  not  right  in  princi 
ple  ?  Is  it  asking  more  than  a  reasonable  and 
just  requirement  from  those  to  whom  is  delegated 
such  a  splendid  privilege  ?  Is  it  too  much  to 
ask,  from  currency  makers,  a  bond  of  indemnity  ? 
Such  a  bond,  the  honest  will  not  object  to  giv 
ing,  while  in  case  of  fraud,  it  ought  by  all  means 
to  be  held  by  the  public. 

In  the  second  place,  this  security  principle  is  in 
accordance  with  sound  commercial  principles.  It 
will  make  the  notes  issued  by  banks  resemble  bills 
of  exchange,  by  means  of  which  such  an  immense 
business  is  done.  Now,  what  is  it  that  makes 
bills  of  exchange,  in  general,  so  convenient  and 
safe  ?  Why  is  it  that,  comparatively  speaking, 
they  perform  their  office  so  regularly,  without 
interference  by  government,  and  subject  only  to 
the  laws  that  govern  trade  ?  It  is  this  :  because 
behind  each  bill  of  exchange  there  is  property 
against  which  the  bill  is  drawn,  and  which  accom 
panies  it  to  the  place  of  destination,  and  the 
sale  of  which  satisfies  the  face  of  the  bill.  That 
is  the  whole  of  it.  It  is  upon  this  principle  that 
the  whole  export  and  import  trade  of  the  country 
is  carried  on.  It  is  upon  this  principle  that  the 
immense  inland  trade  along  the  great  lakes,  and 
up  and  down  the  Mississippi,  and  to  and  from 
the  ports  of  the  Atlantic  and  Pacific,  is  carried 
on.  When  the  total  of  all  this  is  added  up, 
the  amount  will  be  found  to  be  enormous.  It 
cannot  be  less  than  ten  or  twelve  hundred  mil 
lions  annually.  And  all  this  immense  transfer  goes 
on  regularly,  safely,  each  bill  of  exchange  con 
tinuing  to  be  good  as  long  as  the  property  behind 
it  is  good.  In  this  way  the  bill  quietly  performs 
the  function  of  money. 

Now,  the  benefits  of  bills  of  exchange,  no  one 
will  deny.  Nor  are  these  benefits  counterbalanced 
by  enormous  evils,  as  in  the  case  of  bank  issues. 
But  why  is  it  that  the  ruinous  fluctuations  in 
trade,  and  commercial  revulsions  are  never 
ascribed  to  the  operation  of  these  bills  ?  Who 
ever  hears  such  mischief  laid  to  their  door  ?"  Why 
is  it  that  this  cannot  justly  be  done  ?  Here  in 


this  country  alone,  is  paper  of  this  sort  to  an  an 
nual  sum  of  a  thousand  millions  of  dollars,  and 
yet  no  one  talks  of  its  being  an  inflated  paper.  It 
is  because  such  bills  are  not  all  credit.  It  is  be 
cause  have  behind  them  a  basis  of  value.  As  long 
as  the  property  behind  bills  continues  its  value, 
the  bills  will  be  good.  Hence  it  is  that  they  can 
not  be  the  cause  of  the  fluctuations  of  trade. 
Now,  compared  with  the  amount  of  bills  of 
exchange,  the  paper  circulation  is  small ;  and  yet 
it  is  to  the  working  of  this,  to  this  paper  issue, 
that  these  fluctuations  and  revulsions  are  almost 
exclusively  and  justly  charged.  This  is  because 
these  bank  issues  are  based  on  credit,  and  not  on 
property.  They  are  based  on  mercantile  paper. 
Now  in  this,  one  piece  of  property,  in  its  various 
exchanges  as  it  passes  from  hand  to  hand,  often 
becomes  the  basis  of  several  pieces  of  discounted 
paper,  each  of  the  same  value  as  the  first;  or 
worse  still,  they  are  based  on  accommodation 
notes,  made  without  the  transfer  of  a  dollar  of 
property.  Now,  can  there  be  any  other  differ 
ence  between  the  two,  bank  notes  and  bills  of 
exchange  ?  Bills  of  exchange  have  behind  them 
property  upon  which  they  are  based,  while  paper 
money  is  based  upon  credit,  and  often  credit 
extended  to  its  utmost  bounds.  That  is  the  differ 
ence,  and  that  is  the  only  difference  between 
them.  Therefore,  to  make  paper  circulation  as 
safe  as  bills  of  exchange,  it  is  necessary  to  have 
it  based  upon  the  same  principle.  If  it  be 
required  that  property,  that  value,  to  the  amount 
of  the  paper  circulation  issued,  shall  be  deposited, 
as  a  collateral  bond  of  security,  there  will  be  no 
more  trouble  in  relation  to  it.  That  is  the  princi 
ple  upon  which  the  paper  circulation  of  Massa 
chusetts  ought  to  rest.  It  is  a  sound  principle. 
It  is  an  impregnable  one.  Let  it  be  proposed  to 
the  people.  When  they  have  adopted  it  and  when 
it  comes  to  be  acted  on  by  their  agents,  they  will 
be  secured  against  the  immense  losses  by  this 
paper  circulation  such  as  they  have  suffered  in 
the  past ;  and  if  they  will  look  into  it  and  under 
stand  it,  they  will  sanction  the  principle. 

And  such  is  the  growing  demand  for  bank 
capital,  that  the  adoption  of  it,  or  of  some  re 
straint,  has  got  to  be  a  matter  of  absolute  neces 
sity.  There  is  a  strong  tendency  to  the  creation 
of  bank  capital  in  times  of  inflation.  Such  times 
now  exist.  In  this  State,  the  increase  has  been 
very  great.  In  1851,  there  were  seven  millions 
authorized ;  in  1853,  ten  millions.  Is  it  neces 
sary  to  go  into  details  as  to  the  manner  in  which 
this  increase  is  commonly  obtained  ?  At  the  last 
session,  such  was  the  predicted  effect  of  previous 
grants  of  capital,  eighteen  millions  of  capital  were 
applied  for,  and  ten  of  it  Avere  granted.  But  who 


324 


BANKING. 


[65th  day. 


Saturday,] 


FfiOTHINGHAM. 


[July  23d. 


justifies  the  legislature  in  granting  such  an  in 
crease  ?  Did  the  public  good  demand  it  ?  Is 
this  the  opinion  of  our  soundest  commercial  men  ? 
Is  it  the  general  opinion  that  this  was  a  wise 
policy  ?  Is  this  the  language  heard  on  every 
side,  in  the  streets,  in  the  press  of  all  parties  ? 
Then  why  was  the  grant  made?  Because  the 
power  of  interest  was  too  strong  for  the  resistance 
of  principle.  The  advocates  for  a  sound  policy 
were  powerless  before  the  fearful  combination 
arrayed  against  them.  And  so  it  will  be  sure  to 
be  in  the  future.  The  great  boon  is  to  obtain 
the  power  of  issues,  and  this,  too,  in  such  a  way 
that  individual  credit  may  be  turned  into  the 
article  called  a  currency.  This  paper  money  is 
the  insane  root  that  takes  the  reason  prisoner. 
It  is  this  that  utters  the  horseleech  cry.  The 
more  bank  capital  of  this  sort  there  is  created,  the 
more  paper  issue  there  is  authorized,  the  greater 
will  be  the  demand  for  more.  This  is  the  natural 
law  of  credit.  It  is  imperious  in  its  demand.  Its 
condition  must  be  complied  with.  Nothing  is 
more  certain  than  this  :  that  the  more  paper  issue 
there  is  authorized,  the  more  there  will  be  called 
for,  and,  in  fact,  obliged  to  be  authorized.  That 
is  the  developed  law  elsewhere.  That  has  been 
the  developed  law  here,  on  this  soil,  and  from 
the  beginning  of  the  paper  career  in  Massachu 
setts,  down  to  this  hour.  Will  any  say  that 
it  will  be  safe  to  go  on  ?  But  how  can  it  be 
checked  ?  If  any  mode  can  be  devised  to  do  it, 
will  it  not  be  wise  for  the  people,  in  their  sover 
eignty,  to  adopt  it  ? 

The  only  practicable  thing  that  promises  to 
check  it,  is  for  the  people  to  make  a  rule  that, 
in  future,  their  agents,  the  legislature,  when 
they  delegate  this  attribute  of  their  sovereignty 
of  making  money,  shall  require  a  bond  of  indem 
nity  for  a  faithful  execution  of  the  trust.  It  is 
to  require  them  to  take  ample  security  that  what 
they  authorize,  and  assume  to  protect,  as  money, 
shall,  under  no  circumstances,  become  depreciated 
and  valueless.  Unless  the  people  say  to  their 
agents  "  you  shall  not  allow  any  more  paper 
money  to  be  issued,  unless  you  take  from  those 
you  allow  to  issue  it,  ample  security,"  you  will 
have  this  creation  of  more  and  more  paper  money 
going  on,  from  year  to  year,  until  there  is  another 
revulsion,  another  scattering  of  wreck  and  ruin, 
another  general  burst  of  indignation,  throughout 
the  Commonwealth,  against  those  who  have  falsi 
fied  their  pledges,  and  who  have  proved  recreant 
to  the  trusts  committed  to  them  of  protecting  the 
rights  of  the  people. 

Mr.  Chairman  :  The  advantages  of  the  adop 
tion  of  the  security  principle  as  against  the  credit 
principle  would  be  numerous.  It  would  tend  to 


secure  for  paper  issues  a  foundation  of  solid 
capital ;  it  would  constitute  a  salutary  restraint 
against  extravagant  expansion  ;  it  would  secure, 
in  its  mode  of  registry,  a  more  careful  way  of 
making  issues  ;  it  would  be  more  safe  for  the 
stockholders  ;  it  would  be  more  secure  to  the  de 
positors  ;  it  would  be  more  beneficial  to  the  pub 
lic  ;  it  would  maintain  confidence  in  the  banks 
in  times  of  peril ;  it  would  give  to  each  bank  an 
individual  character,  and  abasis  of  independence  ; 
it  would  tend  to  impel  an  increase  of  specie  ; 
and  in  its  general  feature  of  caution  and  safety, 
promote  honesty,  and  thus  guard  against  that 
demoralization  that  has  so  marked  the  history  of 
banking  ;  while,  under  general  laws,  it  would  de 
prive  banking  of  its  monopoly  feature,  and  would 
here,  as  it  does  wherever  the  security  principle 
has  been  tried,  allow  capital  to  go  into  bank  busi 
ness,  and  out  of  it,  as  the  wants  of  trade  dictate. 

This  policy  would  guarantee  the  public  that 
paper  issues  were  on  solid  capital,  upon  actual 
value,  that  could  not  be  disputed.  Supposing 
that  the  ample  security  which  the  legislature 
would  require  would  be  a  deposit  of  value,  as 
a  condition  for  the  emission  of  paper,  as  it  is 
wherever  this  principle  has  been  applied,  then 
this  would  be  a  requirement  which  those  that 
issue  paper  could  not  evade.  They  must  provide 
fixed  capital  before  bills  can  be  obtained,  and  no 
subsequent  mismanagement  will  be  able  to  scat 
ter  this  cnpital,  because  it  will  be  out  of  the  power 
of  the  banks.  Nor  can  the  same  deposit  answer 
for  half  a  dozen  institutions.  Now  take  the  law 
as  to  specie,  and  who  does  not  know  that  this 
is  systematically  violated  ?  But  those  who  started 
such  banks,  in  too  many  instances,  have  not  been 
capitalist*,  but  money  borrowers.  They  borrow 
the  very  capital  on  which  their  banks  are  estab 
lished.  There  is  reason  to  believe  that  no  small 
portion  of  late  applicants  for  banks,  have  been  of 
this  class.  Take  the  last  application  for  eighteen 
millions  of  bank  capital.  Who  supposes  that 
there  was  this  amount  of  funds  unemployed,  and 
ready  to  be  invested  in  banks  ?  No  one.  A 
portion  of  it  may  have  been  ready  for  such  invest 
ment.  I  do  not  deny  this.  It  is  difficult  to  de 
termine,  however,  how  great  a  portion.  But  few 
will  deny  that  the  balance  would  have  been  bor 
rowed  capital.  Now  if  the  applicants  for  new 
banks  were  required  to  deposit  actual  value  be 
fore  they  made  issues,  it  would  do  away  with  this 
evil  of  credit  banking. 

This  policy  will  be  a  restraint  on  bank  ex 
pansion.  That  such  restraint  would  be  salutary, 
few  will  deny;  that  it  would  prove  a  perfect 
check  on  expansions,  is  not  pretended.  Such  an 
issue  has  been  a  great  and  overpowering  evil 


65th    day.] 


BANKING. 


325 


Saturday,] 


FK.OTHINGHAM. 


[July  23d. 


throughout  the  whole  of  our  banking  experience. 
It  has  been  this  that  has  fostered  speculation, 
laid  the  foundation  of  sudden  changes,  raising 
prices  one  day  and  lowering  them  the  next  day, 
and  thus  creating  those  fluctuations  that  are  the 
bane  of  trade.  It  is  this  that  has  created  that 
feeling  of  insecurity  which  has  existed  in  relation 
to  banks.  Now,  upon  what  calculation  is  it  that 
banks,  with  so  small  an  amount  of  specie,  issue 
such  Hoods  of  paper  ?  Why,  upon  the  calcula 
tion,  the  hope,  the  belief,  that  they  will  never  be 
called  on  to  redeem  this  paper  in  specie — that 
they  never  will  be  required  to  redeem  their  obli 
gations.  How  many  banks  expect  to  be  called 
on  to  redeem  its  issues,  in  specie  ?  Is  this  the 
principle  on  which  those  who  are  to  supply 
so  important  an  article  as  currency  should  act  ? 
The  calculation  ought  to  be  a  widely  different 
one.  If  this  Report  be  accepted,  and  the  people 
put  it  in  the  Constitution,  they  will  lay  down  a 
rule  that  will  require  a  different  policy.  They 
will  require  the  banks  to  make  their  issues  on 
the  principle  that  they  will,  at  every  hazard,  be 
required  to  redeem  their  issues,  in  specie,  and 
they  must  make  their  calculations  accordingly. 
This  will  make  the  banks  more  cautious,  and 
better  prepared  to  meet  their  issues,  when  they 
return  upon  them.  Instead  of  taking  every  means 
to  push  out  their  circulation,  they  will  await  a 
legitimate  demand  for  it.  Such  a  restraint  could 
not  fail  to  be  a  salutary  one. 

This  policy  would  be  more  safe  to  stockhold 
ers.  The  lessons  they  have  received  have  been 
severe  ones.  Let  me  refer  to  the  millions  of  bank 
capital  that  have  been  sunk,  either  by  weak  or  by 
fraudulent  management.  Take  the  immense 
losses  suffered  by  the  badness  of  mercantile  paper 
in  1837.  Would  not  such  a  principle  as  this 
now  advocated,  have  been  a  salutary  check  on 
the  whole  of  this  business  ?  In  the  first  place, 
the  securities  could  not  have  been  wasted.  So 
much  as  was  represented  in  bills  would,  at  least, 
have  been  secure.  Then,  in  the  next  place,  the, 
means  could  not  have  been  had  to  carry  on  such 
immense  defalcations.  In  every  way  in  which, 
this  can  te  viewed,  this  would  have  proved  safer 
to  stockholders.  Now  who  are  the  stockholders 
of  the  Massachusetts  banks  ?  The  stock  gradual 
ly  passes  from  first  hands  into  those  of  actual 
investors.  But  these,  to  a  great  extent,  are  not 
heavy  capitalists,  the  millionaires.  I  now  read 
from  a  Lite  report  of  the  bank  commissioners  of 
1851  :  The  total  number  of  shares  then,  was 
411,700;  and  of  shareholders,  25,781.  Of  these, 
6,648  were  women,  who  had  58,548  shares ; 
2,623  were  trustees,  who  had  46,035  shares  ;  and 
333  were  guardians,  and  savings  institutions, 


holding  27,837  shares.  The  commissioners,  on 
this,  remark  :  "  The  stock  is  widely  scattered  into 
almost  every  village  in  the  State ;  and  but  a 
small  comparative  amount  is  held  by  capitalists, 
or  by  persons  engaged  in  heavy  mercantile  opera 
tions,  in  the  large  towns  and  cities."  But  take 
the  case  of  an  individual  bank.  The  directors 
of  the  State  Bank,  in  a  memorial,  in  1836,  state 
that  of  30.000  shares,  13,139  were  owned  in  Bos 
ton,  and  16,861  in  the  country.  The  Savings 
Bank  was  the  largest  stockholder.  Out  of  808 
small  shareholders,  354  were  females.  There 
were  holden  by  various  societies,  colleges,  schools, 
executors,  children,  and  trustees,  8,229  shares, 
amounting  to  $493,540. 

These  are  the  persons  who  are  largely  stock 
holders  in  the  banks.  These  are  the  persons 
who  pay  the  bank  tax — a  tax  founded,  in  my 
judgment,  upon  a  wrong  principle,  by  which 
the  capitalists  get  clear  of  their  just  amount  of 
taxation,  while  those  who  have  less  means,  are 
made  to  pay  the  greater  proportion — in  a  word,  a 
tax  upon  the  industry,  the  commerce,  the  best 
interests  of  the  Commonwealth.  These  may 
not  be  palatable  truths,  but  they  are  nevertheless 
truths ;  and  when  the  community  come  to  un 
derstand  them,  it  is  hoped  there  will  be  a  sounder 
system  of  taxation  adopted. 

But  to  return  :  Now  I  ask  what  system  will  be, 
I  do  not  say,  be  immediately  the  most  profitable, 
but  the  soundest,  the  healthiest,  and  will  furnish 
to  the  stockholders  of  the  banks  the  greatest  se 
curity  ;  and  in  the  long  run,  after  all,  be  the  most 
profitable  to  them  and  the  public.  Is  it  that  sys 
tem  which  places  in  the  hands  of  "  Itichard  lloe 
and  John  Doe,"  without  security,  the  privilege 
to  furnish  the  currency  for  the  people  of  the  Com 
monwealth,  which  to-day  may  be  good  and  to 
morrow  may  be  worthless  ?  Or  is  it  that  system 
which  requires  a  pledge  of  fixed  value  to  be  placed 
in  the  hands  of  the  authorities  of  the  State  for  the 
redemption  of  every  dollar  of  paper  money 
issued  ? 

The  adoption  of  this  security  principle  as  to 
paper  issues,  would  produce  a  great  reform  with 
regard  to  the  mode  of  issue  of  a  currency.  Take 
the  existing  mode  of  these  issues,  independent  of 
security.  The  State  have  delegated  to  the  banks 
the  power  of  supplying  the  currency  of  the  Com 
monwealth,  and  the  banks  exercise  that  power  at 
discretion.  Now  take  the  revelations  of  1836, 
in  relation  to  this  one  point  of  making  paper 
issues,  and  if  anything  in  the  mercantile  history 
of  Massachusetts  can  be  found  more  disreputable 
than  the  practices  in  relation  to  it,  I  should  like 
to  see  it.  The  facts  are  of  record.  Why,  there 
were  instances  where  the  president  of  a  bank 


326 


BANKING. 


[65th  day. 


Saturday,] 


FROTHINGHAM  —  SCHOULEU. 


[July  23d. 


issued  paper  without  keeping  a  record  of  the 
amount  he  issued,  and  at  the  same  time  when  the 
cashier  issued  paper  without  keeping  any  record 
of  the  amount  he  issued;  so  that  neither  the 
president  knew  how  much  the  cashier  issued,  nor 
the  cashier  how  much  the  president  issued.  Other 
instances  might  be  adduced  where  issues  were 
shamefully  made.  And  yet,  that  paper  circu 
lated  among  the  people,  and  was  supposed  by 
them  to  be  issued  under  the  protection  of  efficient 
law,  and  that  the  State  watched  it  and  guarded 
it !  That  was  the  credit  which  was  constituted 
money  by  penal  laws  !  Now  this  was  one  of  the 
very  first  evils  which  the  bank  commissioners 
endeavored  to  remedy.  Look  through  their  re 
ports  and  see  if  what  has  been  stated  is  not  true 
to  the  letter. 

This  looseness  of  paper  issue  was  one  of  the 
first  things  they  commented  upon.  What  do 
they  say  in  1840  ?  These  commissioners,  by  the 
way,  have  been  independent  and  honest- minded 
men,  looking  out  for  the  benefit  and  protection 
of  the  Commonwealth.  These  are  their  words : — 

"  Two  things  ought,  at  least,  to  be  considered 
indispensable.  The  evidence  of  the  amount  of 
issues  and  destructions  should  never  rest  upon 
records  made  and  signed  by  the  cashier  alone ; 
and  the  president  of  the  bank  should  always  have 
in  his  own  possession,  the  means  of  knowing  the 
exact  amount  of  bills  of  the  bank  in  existence. 
These  precautions  are  equally  important  to  the 
bank  and  the  cashier." 

Did  the  legislature  then  make  any  law,  or 
have  they  made  any  to  this  day,  in  relation  to  the 
mere  form  of  issue  ?  No.  It  is  a  fact  that  able 
and  competent  men  have  been  made  bank  com 
missioners  ;  they  have  been  paid  thousands  of 
dollars  to  go  into  the  banks  and  reveal  all  the 
violations  of  law  which  occur,  and  they  have  made 
their  reports.  And  committees  of  the  legislature, 
acting  upon  the  information  furnished  in  this 
way,  have  brought  in  salutary  bills,  but  those 
bills  have  been  driven  out  by  bankdom  enthroned 
in  the  halls  of  legislation.  I  see  before  me  the 
chairman  of  one  of  the  banking  committees  who 
introduced  an  act,  considered  by  an  able  com 
mittee  to  be  necessary  to  protect  the  public  in 
relation  to  banks,  and  based  on  a  commissioners' 
report,  and  I  saw  that  bill,  so  assailed  by  the 
plausible  sophistry  of  bankdom  that  it  was  voted 
down.  Now  in  reference  to  this  very  point  of 
loose  issue,  what  do  the  banking  commissioners 
in  1851  say  ?  These  are  their  words  : — 

"  In  many  banks,  no  record  is  kept  by  any 
officer  except  the  cashier,  of  the  bills  issued,  so 
that  if  any  fraudulent  entries  are  made  in  the 
books  of  the  bank  in  relation  to  such  issues, 


there  is  no  effectual  check  to  prevent  the  most 
injurious  consequences,  which  might  be  avoided, 
if  the  president  had,  under  his  personal  control, 
a  register  of  bills  signed  and  delivered  by  him, 
and  of  the  balance  outstanding." 

So  the  same  evil  existed  in  1851  that  existed  in 
1836  !  But  not  a  motion  has  been  made,  not  a 
step  has  been  taken,  to  remedy  the  evil.  Now 
this  same  looseness,  and  this  same  insecurity,  have 
been  seen  in  other  places.  What  has  been  done 
in  several  States  of  this  Union  in  view  of  this 
matter?  They  have  provided  that  bills  which 
are  issued  and  protected  by  the  State  as  money, 
should  be  obtained  from  Jhe  State  auditor,  from 
the  State  authorities,  whether  they  furnish  secu 
rity  or  not.  The  great  State  of  New  York  a  few 
years  ago,  passed  a  law  calling  in  every  dollar  of 
money  issued  by  the  banks,  and  requiring  it  to 
be  replaced  by  bills  registered  by  the  auditor  of 
accounts.  In  relation  to  this  whole  difficulty  and 
danger  of  bank  issues,  many  of  the  new  States 
have  adopted  into  their  Constitutions  provisions 
protecting  the  people  against  fraudulent  banking. 
New  York,  Ohio,  Louisiana,  Illinois,  Indiana, 
California,  and  other  States,  have  found  it  neces 
sary  to  protect  the  people  from  banking  issues — 
by  putting  a  provision  of  this  kind  into  their 
Constitutions.  [Here  the  hammer  fell.] 

Mr.  SCIIOULER,  of  Boston.  I  have  listened 
with  great  attention  to  the  remarks  made  by  the 
gentleman  from  Charlestown,  (Mr.  Frothingham,) 
but  I  do  not  intend  to  make  an  argument  by  way 
of  reply,  or  discuss  the  question  at  all.  I  rise 
merely  to  ask  whether  the  resolve  passed  the 
other  day,  and  which  was  reported  by  the  gentle 
man  from  Con  way,  (Mr.  Whitney,)  which  for 
bids  the  legislature  from  incorporating  any  special 
corporations  for  all  time  to  come,  does  not  cover 
the  whole  ground  presented  by  the  resolution  of 
the  gentleman  from  Charlestown.  It  seems  to 
me,  that  the  order  we  have  been  discussing  to 
day  is  altogether  unnecessary,  because  it  covers 
the  same  ground  with  that  adopted  the  other  day. 
I  would  ask  the  gentleman  if  the  present  resolu 
tion  does  not  cover  the  same  ground  precisely 
with  that  passed  the  other  day,  prohibiting  the 
legislature  from  passing  any  acts  establishing 
private  incorporations. 

Mr.  FROTHINGHAM.  Perhaps  the  gentle 
man  was  not  present,  but  I  think  I  alluded  to 
that  matter  in  the  outset  of  my  remarks,  when  I 
said  that  in  my  judgment  the  action  already  had 
by  the  Convention  did  not  touch  the  very  thing, 
the  vital  principle,  the  core  of  the  whole  matter — 
the  principle  of  security. 

Mr.  SCHOULER.  I  supposed  it  was  vital 
and  right  to  the  core  of  the  thing,  to  prohibit  the 


65th  day.] 


BANKING. 


327 


Saturday,] 


SCHOULEK  —  HOOPER. 


[July  23d. 


legislature  from  making  any  new  banks ;  and  I 
think  the  resolution  adopted  the  other  day,  will 
have  that  effect.  Two  years  ago  we  rechartered 
all  the  banks  then  in  existence  in  Massachusetts, 
and  I  believe  the  gentleman  from  Charlestown 
voted  for  those  banks.  The  same  year  we  passed 
a  general  banking  law,  similar  in  principle  to 
that  which  the  gentleman  has  so  ably  advocated 
to-day.  It  was  considered  a  sort  of  compromise 
with  the  bank  people;  but  it  is  rather  singu 
lar,  nevertheless,  that  the  very  legislature  which 
passed  this  general  banking  law,  also  rechartered 
every  bank  which  was  in  existence  in  Massachu 
setts,  for  twenty  years  ;  and  the  charter  of  every 
bank  now  in  existence  runs  on  until  the  year 
1870.  As  it  is,  you  must  remember  that  we  may 
have  one  or  two  Conventions  to  revise  the  Con 
stitution  before  that  time  arrives  ;  and  I  would 
advise  gentlemen  to  keep  this  matter  out  of  the 
Constitution.  Let  us  go  on  as  we  have  done, 
and  not  incorporate  a  provision  into  the  Consti 
tution  which  will  deprive  the  legislature  of  char 
tering  any  more  new  banks,  thus  giving  the 
banks  now  in  existence,  a  perfect  monopoly  of 
the  whole  business  until  1870.  The  banks  that 
are  rechartered,  are  subject  to  all  the  duties,  lia 
bilities,  requirements,  and  restrictions,  contained 
in  such  acts  as  are  now  in  force,  and  such  other 
acts  as  may  hereafter  be  passed  by  the  general 
court  in.  relation  to  banks.  I,  however,  do  not 
intend  to  oppose  this  resolution,  because  if  I 
oppose  it,  it  will  be  very  sure  to  go  ;  neither  will 
I  give  it  my  support,  because  then  it  might  be 
lost.  I  have  always  considered,  that,  under  this 
general  banking  law,  the  whole  issue  of  a  bank 
is  founded  upon  credit,  just  the  same  as  in  banks 
specially  incorporated,  only  that  it  is  a  different 
kind  of  credit.  Under  the  general  law,  what  are 
called  state  and  city  stocks  are  used,  but  they  are 
merely  the  representatives  of  wealth,  and  are 
merely  notes  payable  at  the  expiration  of  a  cer 
tain  time  ;  so  it  is  with  the  paper  which  banks 
discount.  I  have  no  doubt  that  the  notes  of  cer 
tain  merchants  in  this  city  for  $2,000,  are  just 
as  good  as  the  scrip  or  paper  of  a  State.  But  I 
did  not  intend  to  make  a  speech,  and  must  close 
my  remarks.  I  merely  rose  to  suggest  that  the 
resolution  which  we  passed  the  other  day,  cov 
ered  the  whole  ground ;  and  if  so,  I  do  not  see 
any  necessity  for  incorporating  into  the  Constitu 
tion  another  provision  of  a  similar  character, 
unless  gentlemen  desire  to  make  the  matter 
doubly  sure,  that  the  banks  now  in  existence 
shall  have  a  monopoly  of  the  business  until  1870. 
Mr.  HOOPER,  of  Fall  River.  The  second 
resolution,  the  gentleman  from  Boston,  (Mr. 
Schouler,)  will  find,  embraces  a  subject  which 


the  resolution  passed  the  other  day  does  not 
touch.  The  first  resolution  covers  the  same 
ground,  perhaps.  I  wish  to  offer  the  following 
amendment  in  the  shape  of  a  proviso  to  the  sec 
ond  resolution — the  most  important  one  now 
under  consideration  : — 

Provided,  that  no  note  or  bill  of  less  denomi 
nation  than  $10,  may  be  issued  as  currency  after 
the  year  18GO. 

While  I  most  fully  concur  in  the  remarks  of 
the  gentleman  from  Charlestown,  (Mr.  Frothing- 
ham,)  it  appears  to  me  that  the  resolutions  do 
not  go  far  enough,  that  they  do  not  remedy  the 
evils  which  he  has  pointed  out  so  forcibly,  the 
evils  arising  from  a  paper  currency. 

I  would  also  suggest  to  him,  that  the  amount 
of  stocks  of  a  character  that  may  be  pledged  for 
the  redemption  of  bills,  will  not,  in  all  probability, 
be  more  than  sufficient  to  serve  as  a  basis  of  a 
sufficient  issue  of  bills  of  the  denomination  of 
ten  dollars  and  upwards,  to  answer  the  demands 
of  mercantile  transactions.  The  suppression  of 
bills  of  a  lower  denomination,  and  a  substitu 
tion  of  specie  to  be  used  in  the  minor  transactions 
of  business,  would  go  far  towards  producing 
steadiness,  and  remedying  those  evils.  If  the 
banks  are  to  go  on  as  they  now  do,  I  think  we 
shall  have  all  the  evils  over  again  that  have  ever 
attended  the  issues  of  a  redundant  paper  cur 
rency. 

It  strikes  me,  that  our  friends  of  late  years 
have  lost  sight  of  what  was  a  few  years  ago  a 
leading  principle  with  the  reform  party  of  the 
United  States,  and  that  was,  to  infuse  into  the 
circulation  a  larger  amount  of  metallic  currency. 

We  have  seen  the  paper  currency  constantly 
increasing,  and  we  have  seen  the  effects  of  it. 
We  have  seen  a  constant  increase  in  the  price  of 
the  necessaries  of  life  when  the  currency  has 
expanded,  and  a  corresponding  diminution  of  ^,_ 
price  when  it  has  diminished,  and  thus  labor  has 
been  robbed  of  its  earnings.  I  say  that  it  has 
operated  constantly  to  rob  labor,  and  enhance 
wealth,  for  labor  is  always  the  last  to  rise,  and 
the  first  to  fall. 

In  1830,  I  think  that  there  were  only  about 
sixty  millions  of  dollars  ($61,323,898)  of  paper  in 
circulation.  The  necessaries  of  life  and  the 
means  of  living  were  then  cheap.  From  that 
period  up  to  1836,  the  circulation  increased,  until 
it  went  up  to  one  hundred  and  fifty  millions,  in 
round  numbers.  What  was  the  effect  of  this 
great  increase  ?  It  was  just  so  much  tax  upon 
the  labor  of  the  country,  collected  for  the  benefit 
of  capital. 

If  you  turn  to  the  statistics  of  the  country, 


328 


BANKING. 


[65th   day. 


Saturday,] 


HOOPER. 


[July  23d. 


and  look  at  the  amount  of  imports,  you  will  find 
that  they  increased  almost  in  the  precise  ratio  of 
the  increase  of  paper  money.  The  whole  amount 
of  imports  in  1830  was  $70,876,920.  Of  cotton 
fabrics,  $7,862,326;  while  in  1836  the  total  of 
imports  was  $189,980,035,  and  of  cottons, 
$17,876,087.  If  you  again  follow  up  the  sta 
tistics  you  will  see  the  decrease  from  1836 
to  1840  in  about  the  same  proportion,  when  the 
paper  circulation  came  down  to  about  one  hundred 
and  six  millions  ($108,968,572,)  and  the  imports 
to  $104,805,891,  and  cottons  to  $6,599,330. 
The  importations  of  the  most  highly  protected 
articles,  such  as  cottons  and  woollens,  diminished 
under  the  decreasing  tariff,  which  was  then  de 
cried  as  being  ruinous  to  the  manufacturing 
interests. 

It  is  thus  seen  that  the  total  importations  de 
creased  in  the  same  ratio  in  which  the  paper 
money  decreased,  till  in  1840  they  were,  notwith 
standing  a  decreasing  tariff,  but  little  more  than 
half  what  they  were  in  1836,  when  the  tariff  was 
the  highest.  The  whole  amount  of  imports  of 
the  country  in  1840,  as  we  have  seen,  were  a 
little  over  one  hundred  and  four  millions  of  dol 
lars,  and  the  paper  circulation  was  only  about  one 
hundred  and  six  millions  of  dollars  ;  while  in 
1836,  with  a  paper  circulation  of  one  hundred 
and  fifty  million  dollars,  the  imports  had  run  up 
to  the  enormous  amount  of  one  hundred  and 
ninety  millions  of  dollars. 

This  shows  that  the  importations  decreased 
under  a  decreasing  tariff,  and  decreased  simply 
because  the  paper  circulation  decreased. 

What  was  its  effect  upon  labor  ?  To  my 
knowledge,  laborers  in  1836,  when  they  were 
receiving  the  highest  wages  which  they  had  ever 
been  accustomed  to  receive,  were  not  able  to  live 
near  as  well  as  in  1840,  when  the  amount  which 
they  received  for  their  labor  was  nominally  far 
less.  The  amount  which  they  received  in  1840 
for  each  day's  labor,  purchased  more  of  the  neces 
saries  and  comforts  of  life  than  in  1836,  although 
the  amount  nominally  was  then  much  less. 

What  is  the  state  of  facts  now  r  The  paper 
circulation  has  been  on  the  increase  again  ever 
since  1843,  and  I  suppose  at  this  time,  that  it  is 
fully  equal,  here  in  Massachusetts  at  least,  to 
what  it  was  in  1836  ;  and  you  find  that  the  price 
of  everything  has  risen,  and  is  rising  in  a  con 
stant  ratio  with  this  expanding  currency  ;  but  you 
do  not  find  that  the  laboring  man  can  live  any 
better  upon  the  proceeds  of  his  labor  now  than 
he  could  in  1841,  1842,  1843,  and  I  question 
whether  he  can  live  as  well  as  he  could  then. 

Now,  it  seems  to  me  there  should  be  some 
thing  to  regulate  this  matter ;  something  to  pre 


vent  these  enormous  fluctuations  of  this  circulating 
paper  meditim,  so  that  it  shall  not  expand,  as  it 
did  from  1830  to  1836,  from  $61,000,000  to 
$150,000,000,  and  then  contract  down  to  $106,- 
000,000  in  1840,  the  prices  in  the  same  period 
fluctuating  in  the  same  ratio.  I  know  of  but  one 
mode  of  reaching  this  difficulty,  and  that  is,  to  in 
fuse  into  the  circulating  medium  of  the  country  a 
larger  proportion  of  specie.  When  this  subject 
was  agitated,  at  the  time  we  were  laboring  under 
these  great  evils,  and  the  independent  treasury 
was  put  into  operation.,  as  a  partial  remedy,  it  was 
urged  by  our  opponents  that  there  was  not  specie 
enough  in  the  world  to  supply  a  currency,  and 
that  for  this  reason,  it  was  necessary  to  have  a 
paper  medium.  They  argued  that  there  was  not 
a  sufficient  supply  of  specie  to  meet  the  demands 
of  a  currency,  without  a  most  ruinous  depression 
of  prices.  Supposing  that  argument  to  have  been 
good  then,  which  it  was  not,  is  it  good  now  ? 
What  is  the  fact  ?  We  find  that  now,  we  are  in 
the  receipt  of  something  like  fifty  millions  of 
dollars  annually,  of  gold,  which  is  the  product 
of  our  own  territor}r.  There  never  can  be  a 
more  favorable  time,  or  a  better  opportunity 
of  beginning  to  infuse  into  the  circulation  of 
the  country  a  larger  proportion  of  specie.  But 
for  this  large  production  of  gold,  which  simply 
passes  through  the  country  in  its  transit  to  the 
other  side  of  the  Atlantic,  I  do  not  believe  that 
even  now  the  banks  would  continue  to  pay  specie 
for  three  months.  If  that  supply  of  gold  were  to 
be  cut  off,  you  would  find  there  would  be  a 
collapse  as  great  and  severe  as  that  of  1837. 
There  is  every  indication  of  it.  Look  at  the  re 
turns  as  to  the  amount  of  specie  in  the  banks, 
compared  with  the  amount  of  paper  in  circula 
tion.  Is  not  the  difference  as  great  as  it  was  in 
1836  ?  I  have  not  been  able  to  examine  the  sta 
tistics  on  this  point  since  the  subject  came  up ; 
but  my  impression  is  that  the  disproportion  is 
quite  as  large  now  as  it  was  then.  The  same 
causes  exist  now  that  existed  then,  over  impor 
tation  produced  by  high  prices,  caused  by  an  in 
flated  currency ;  and,  but  for  the  influx  of  the 
precious  metals  which  are  being  sent  across  the 
Atlantic  to  pay  balances,  you  would  immediately 
have  a  pressure  in  the  money  market,  and  a  col 
lapse. 

Now,  it  seems  to  me  this  is  the  proper 
time  to  start  a  reform  in  this  respect,  and  one 
which  is  more  demanded  for  the  interest  of  labor 
than  any  other.  The  value  of  specie,  it  is  true, 
will  fluctuate  and  affect  prices  somewhat,  at  differ 
ent  times,  and  in  different  places  ;  bnt,  like  the 
waters  of  the  ocean,  it  will  always  find  its  true 
level  by  the  laws  of  trade;  while  the  paper  cur- 


65th  day.] 


BANKING. 


329 


Saturday," 


HOOPER  — 


[July   23d. 


rency  is  like  the  atmosphere  above  it,  subject 
to  whirlwinds  and  tornadoes  continually,  and 
scattering  ruin  and  desolation  in  its  track.  If  we 
wish  to  have  business  steady,  and  prices  stable, 
let  us  make  our  currency,  for  the  most  part,  of 
value  only,  which  shall  fluctuate  only  as  the  laws 
of  trade  fluctuate,  according  to  the  principle  of  de 
mand  and  supply.  Now  is  the  time  to  check  this 
evil,  and  retain  a  part  of  the  gold  which  is  flowing 
through  the  country,  and  make  it  a  part  of  the 
currency  which  is  to  circulate  from  hand  to  hand. 
Sir,  in  England  it  was  found  that  the  circula 
tion  of  a  paper  currency  was  inconsistent  with 
the  best  interests  of  society,  producing  fluctuations 
too  ruinous  to  be  endured,  and  they  have  reformed 
it,  so  that  at  this  day  no  laboring  men  are  ever 
paid  for  their  services  in  paper  money.  They  are 
uniformly  paid  in  specie.  I  have  seen  many  of 
those  who  have  been  mechanics  and  laborers  in 
the  manufacturing  establishments  of  England, 
who  tell  me  that  they  never  knew  an  employer  to 
pay  his  laborers  in  paper  money.  The  paper  is 
for  the  trading  and  mercantile  community,  and  to 
such  it  is  a  convenience  that  may  well  be  granted 
to  them.  But  these  extreme  fluctuations  to  which 
we  have  been  heretofore  subjected,  have  been  so 
ruinous  in  their  effects,  that  we  should  be  warned 
for  the  future.  That  which  has  been,  will  be 
again,  under  like  circumstances.  The  great  pro 
portion  of  paper,  compared  with  specie,  produced 
the  enormous  fluctuations,  and  the  suspension  of 
specie  payments  by  the  banks  of  but  a  few  years 
ago — evils,  to  the  recurrence  of  which  we  shall 
be  continually  exposed  so  long  as  the  present  sys 
tem  shall  continue  to  exist.  I  hope  we  may 
adopt  his  amendment,  in  order  to  prepare  the 
way  for  the  change,  which  I  think  should  be 
somewhat  progressive,  so  that  the  community 
may  not  be  shocked  by  it,  or  experience  any  in 
convenience  from  it.  Above  all,  it  is  proper  that 
we  should  commence  this  reform  in  Massachu 
setts,  for  if  we  commence  it  here,  we  have  every 
reason  to  expect  that  other  States  will  follow  our 
example.  Massachusetts  is  doing  more  at  this 
time  than  any  other  State  in  the  Union,  to  flood 
the  country  with  paper  money.  At  this  very 
time  her  banks  are  scattering  their  bills  all 
through  the  West,  and  particularly  those  of  a 
small  denomination,  so  as  to  render  nugatory  the 
laws  of  several  of  the  States  against  the  issuing 
of  small  bills,  and  thereby  driving  specie  out  of 
circulation,  and  out  of  the  country.  Adopt  this 
amendment,  and  you  will  remedy  these  evils. 
The  day  is  put  so  far  ahead  that  measures  will  be 
adopted  to  prepare  for  the  change  in  season  to 
prevent  any  injury  to  the  public. 

Mr.  FRENCH,  of  Berkley.     I  am  in  favor  of 
22  3 


the  amendment  proposed  by  the  delegate  from 
Fall  Iviver.  "We  want  something  to  protect  the 
people.  Notwithstanding  all  the  gold  and  silver 
that  we  are  now  in  possession  of,  we  are  not 
worthy  to  have  any  other  currency  than  a  parcel 
of  shin-plasters.  As  I  observed  the  other  day, 
you  may  go  out  into  the  city  or  country,  and 
they  will  ail  tell  you  that  they  are  embarrassed 
and  troubled  exceedingly  about  making  change 
in  their  daily  business.  That  is  right,  just  as  it 
should  be,  so  long  as  the  people  are  content  to  sit 
still  and  let  the  banks  control  everything.  So 
long  as  they  are  satisfied  that  the  banks  shall 
keep  them  from  using  any  other  currency  but 
paper,  that  is  just  what  the  people  deserve,  exactly, 
and  they  ought  not  to  complain. 

Sir,  let  us  look  a  little  at  the  facts  about  this 
paper  currency  which  we  are  compelled  to  take. 
If  I  recollect  right,  in  18-42  we  had  the  highest 
tariff,  perhaps,  that  we  ever  had  in  this  country, 
and  under  that  tariff  more  goods  were  imported 
into  the  country  than  at  any  other  period.  And 
why  was  it  so  ?  Because  the  expansion  of  the 
currency  had  raised  the  prices  fictitiously,  and 
foreigners  were  able  to  come  into  our  country 
and  sell  their  goods  aiid  pay  the  duties,  and  still 
make  a  fair  profit.  And  that  was  by  the  opera 
tion  of  the  currency.  Why  is  it  that  trade  is 
rendered  a  lottery  ;  that  it  is  not  the  most  pre 
scient  man,  the  man  who  foresees  or 'looks  far- 
therest,  who  is  to  be  the  most  successfxil  trader  ? 
But  the  most  reckless,  the  most  ignorant  of 
trade,  the  least  qualified  to  trade,  are  just  as 
likely  to  succeed  as  the  men  who  have  the  most 
prescience  and  the  best  calculation.  Why  ? 
Because  they  are  dependent  on  the  fluctuations 
of  the  currency  for  their  success.  One  man 
purchases  his  goods  on  an  expansion  of  the  cur 
rency,  comes  home  and  goes  to  trading.  An 
other  man  on  the  opposite  side  of  the  way,  goes 
and  purchases  his  goods  on  a  contraction  of  the 
currency.  And  what  is  the  consequence  ?  He 
purchases  his  goods  twenty  per  cent,  cheaper 
than  the  other  one  did,  and  only  because  of  the 
different  states  of  the  currency  when  the  goods 
were  purchased.  Now,  is  this  the  best  currency 
we  can  have  in  our  country  r 

Another  objection  to  this  kind  of  currency  is, 
that  it  is  not  a  measure  of  value,  and  cannot  be 
made  so.  And  I  sometimes  think  that  a  man 
never  paid  his  debts  with  paper  money,  in  his 
life.  It  is  not  a  measure  of  value.  A  man  may 
pay  another  man  who  holds  a  note  against  him  a 
hundred  dollars.  The  man  is  willing  to  receive 
it  and  all  is  fair ;  but  when  the  man  has  got  his 
hundred  dollars  he  has  not  got  his  pay.  Why  ? 
Because  it  may  be  worth  a  hundred  dollars,  or 


330 


BANKING. 


[65th.   day. 


Saturday,] 


WALKER. 


[July  23d. 


it  may  be  worth  seventy-five  dollars,  or  it  may 
not  be  worth  anything  at  all.  All  the  transaction 
between  the  parties  is  just  the  exchanging  of  the 
evidence  of  one  debt  for  the  evidence  of  another. 
I  hope  that  we  shall  begin  to  do  something  in 
order  that  we  may  get  a  better  currency,  for  in 
a  mixed  currency  it  always  happens  that  that 
which  is  of  the  least  value  will  displace  the  more 
valuable  and  drive  it  out.  I  hope  that  the  amend 
ment  of  the  gentleman  from  Fall  River  will  be 
adopted. 

Mr.  WALKER,  of  North  Brookfield.  Mr. 
President :  The  proposition  before  us,  according 
to  the  resolve  reported  by  the  Committee  is,  "  that 
the  legislature  shall  have  no  power  to  pass  any  act 
granting  any  special  charter  for  banking  purposes, 
or  any  special  act  to  increase  the  capital  stock  of 
any  charter  bank  ;  but  corporations  may  be  formed 
for  such  purposes,  or  the  capital  stock  of  charter 
banks  may  be  increased,  under  general  laws." 

"  That  the  legislature  shall  provide  by  law  for 
the  registry  of  all  notes  or  bills  authorized  by  gen 
eral  laws  to  be  issued,  or  to  be  put  in  circulation 
as  money  ;  and  shall  require  ample  security  for 
the  redemption  of  such  notes  in  specie." 

I  suppose  the  important  principle  contained  in 
these  resolves  is  included  in  the  last  clause,  which 
"  requires  ample  security  for  the  redemption  of 
such  notes  in  specie." 

That  is  the  great  idea  which,  I  suppose,  the 
gentleman  from  Charlestown,  (Mr.  Frothingham,) 
has  in  view,  in  bringing  forward,  as  the  chairman 
of  the  Committee,  these  resolves.  Now,  Sir,  I  am 
satisfied  that  the  measure  is  a  very  important 
one ;  that  we  should  have  a  general  banking  law, 
and  that  all  the  notes  issued  by  banks  created  by 
that  law,  should  be  secured  to  the  public ;  because 
Massachusetts  has  suffered,  and  especially  the 
poorer  class  of  people,  upon  whom  the  loss  of 
broken  bank  bills  principally  falls. 

The  industrious  classes  are  not  judges  of  bank 
notes  or  bills,  and  do  not  know  what  banks  stand 
the  best.  But  business  men  do  know.  I  have 
been  a  business  man,  and  I  know  that  the  bills 
of  suspected  banks  are  always  deposited  before  the 
banks  close.  I  know  that  suspicions  arise  respect 
ing  certain  banks  in  times  of  pressure,  and  certain 
bills  are  always  got  rid  of  by  the  knowing  ones 
as  soon  as  possible.  They  are  kept  in  the  hands 
of  laboring  men  mostly,  and,  consequently,  the 
losses  by  the  failure  of  a  bank  commonly  fall  on 
that  class  of  people  to  a  great  extent.  Massachu 
setts  has  lost  many  millions  in  this  way  ;  and  yet, 
we  have  the  best  managed  banks,  on  this  system, 
in  the  whole  country. 

It  seems  to  me  that  we  should  settle  the  matter 
now,  so  that  the  people  shall  be,  hereafter,  secure 


against  the  losses  so  far  as  any  new  banks  are 
created.  What  will  be  the  effect  of  the  proposed 
measure  ?  Simply  this  :  that  banks  will  be  es 
tablished,  hereafter,  by  those  who  have  money  to 
lend.  Now  they  are  generally  got  up  by  those 
who  want  to  borrow  money.  I  hold  it  to  be  very 
desirable,  that  those  who  have  money  should  es 
tablish  the  banks,  and  not  those  who  have  not. 

I  say  that  losses  have  occurred  because  banks 
have  failed  from  time  to  time ;  and  what  has 
happened  may  happen  again. 

At  present,  all  is  fair  weather,  and  these  are 
halcyon  days  of  banking.  Never  were  larger 
dividends  made  than  during  the  last  year,  amount 
ing,  on  an  average,  through  the  State,  to  almost 
eight  per  cent.,  as  is  shown  by  the  last  bank  re 
turns.  These  dividends  are  made  by  the  large 
circulation,  and  by  exchanges  charged  upon  bills 
discounted,  and  the  advantage  of  large  deposits. 

By  examining  these  statistics,  we  find  that  the 
whole  circulation  of  the  banks  in  this  State,  in 
September  last,  was  over  twenty- one  millions ; 
amount  of  specie,  a  little  over  three  and  a  half 
millions — equal  to  within  a  fraction  of  six  dol 
lars  in  bills,  to  one  of  specie.  The  whole  amount 
of  circulation  and  deposits,  was  over  thirty-six 
millions,  and  this  amount  forms  the  "  immediate 
liabilities"  of  the  banks,  which  they  may  be 
called  upon  to  pay,  at  any  moment,  and  to  meet 
which,  they  have  but  three  and  a  half  millions  of 
specie.  And  this  shows  plainly,  that  the  banks 
owe,  on  demand,  over  ten  dollars  for  every  one 
dollar  they  have  in  gold  and  silver.  This  is  the 
true  position  of  affairs.  It  may  be  contradicted, 
but  it  can  never  be  disproved ;  and  all  the  talk 
we  hear  about  "  specie  funds,"  does  not  alter  the 
matter  at  all,  so  far  as  this  question  is  concerned. 

Now,  it  must  be  evident  to  every  one  that  this 
is  a  critical  state  of  things.  It  cannot  be  other 
wise.  Any  individual  who  owed  thirty-six  thou 
sand  dollars,  all  on  demand,  and  had  only  thirty- 
six  hundred  dollars  to  pay  it  with,  we  should 
say,  stood  in  rather  a  precarious  situation ;  and 
yet  that  is  just  the  position  of  the  banks. 

But  if  we  farther  look  at  the  several  banks, 
the  case  is  still  more  striking.  Take  the  last  ab 
stract,  and  you  will  see  how  the  individual  banks 
stand  with  regard  to  specie.  As  I  happen  to  have 
my  eye  on  some  of  the  figures  relating  to  the 
country  banks,  I  begin  with  one  that  has  twenty- 
five  dollars  in  circulation  to  one  of  specie ;  the 
next  has  sixteen  to  one  ;  another  has  forty- four  to 
one ;  another  twenty- eight  to  one ;  and  one,  I 
find,  has  sixty- four  dollars  in  bills,  to  every  one  in 
specie  ;  and  including  the  deposits,  this  particular 
bank  has  over  ninety  dollars  of  immediate  liabil 
ity,  to  every  dollar  of  specie.  And  the  country 


65th  day.] 


BANKING. 


331 


Saturday,] 


WALKER. 


[July  23d. 


banks,  on  an  average,  have  over  twenty-two  dol 
lars  of  immediate  liabilities,  to  one  of  specie. 

I  know  it  is  said  very  ingeniously,  that  these 
country  banks  have  funds  deposited  in  the  banks 
in  Boston.  Allow  it  to  be  so ;  but  what  is  the 
condition  of  these  Boston  banks  ?  How  much 
specie  can  they  help  the  country  banks  to,  in  case 
of  need  ?  Let  us  see.  I  find  that  the  Boston 
banks  have  in  circulation  two  dollars  and  ninety- 
eights  cents  to  one  dollar  in  specie,  almost  three 
dollars  in  bills,  to  one  of  specie,  besides  all 
their  obligations  on  account  of  deposits.  It  seems 
to  me  they  are  not  in  a  very  good  condition  to 
help  their  country  cousins.  If  a  pressure  comes, 
it  will  be  about  as  much  as  they  can  do  to  take 
care  of  themselves.  Some  of  my  friends  here  are 
presidents  of  Boston  banks,  and  know  whether  I 
state  the  truth  in  this  matter  or  not. 

I  think,  from  these  statistics,  we  can  distinctly 
see  the  basis  these  banks  rest  upon  ;  and  now  the 
question  occurs,  what  makes  them  at  all  secure  ? 
Their  only  present  security  is,  that  there  is  no 
great  demand  for  specie  to  ship  abroad.  We  re 
ceive  from  California  just  about  the  same  amount 
that  is  required  for  foreign  shipment,  at  the  pres 
ent  time.  By  the  way,  the  particular  amount  of 
specie  thus  received  does  not  affect  us  any  more 
than  so  much  additional  amount  of  cotton  or  any 
other  export  would ;  for  if  we  had  an  equal  ad 
ditional  amount  of  cotton  to  send  to  England,  it 
would  be  the  same  thing  to  us  as  sending  specie. 
It  merely  pays  our  indebtedness  there,  and  the 
principal  effect  upon  our  currency,  of  the  influx 
of  gold  from  California,  is  simply  this — it  inspires 
general  confidence. 

This  being  the  case,  what  must  inevitably  hap 
pen  ?  Just  what  has  happened  hitherto.  When 
the  balance  of  trade  does  come  against  us  in 
Europe,  we  must  export  our  specie  from  the 
banks  ;  and  when  that  time  comes,  how  much 
can  we  spare  ?  Three  millions  and  a  half  is  all 
that  we  have  in  Massachusetts.  Suppose  that 
there  is  a  balance  against  this  country  of  thirty  or 
forty  millions ;  that  may  be  the  case,  and  that 
will  be  the  case  sooner  or  later,  after  all  the  cot 
ton  and  other  produce  we  send  abroad.  Every 
man  knows,  who  is  any  financier  at  all,  that  this 
time  is  coming,  and  that  there  will  then,  of  ne 
cessity,  be  a  demand  for  specie  to  ship  to  Eng 
land  ;  and  then  what  will  happen  ?  Sir,  in  an 
instant,  in  the  twinkling  of  an  eye,  the  bank 
discounts  will  be  closed — they  will  shut  right 
down — they  cannot  help  doing  so.  I  have  seen 
the  time  that  when  I  went  to  the  bank  in  Boston 
in  the  morning  to  do  business,  all  was  easy  and 
fair  in  the  money  market ;  but  before  two  o'clock 
there  was  no  discount  to  be  had.  What  was  the 


reason  of  it  ?  Why,  Sir,  information  had  been 
received  from  New  York  that  there  was  a  great 
demand  for  specie  abroad,  and,  of  course,  the  New 
York  banks  sent  right  on  to  Boston  for  specie,  so 
far  as  they  had  claims  in  the  Boston  banks.  If 
the  Boston  banks  had  out  three  dollars  in  paper 
for  one  in  specie,  as  they  now  have,  they  would 
feel  at  once  that  they  must  stop  all  discounts,  and 
bring  in  all  their  resources,  in  order  to  sustain 
themselves.  What  follows  then  ?  Money  begins 
to  be  very  scarce,  and  men  who  have  notes  to  pay 
are  turned  into  the  street  to  hire  money  at  any 
price  at  which  they  can  get  it — perhaps  eight, 
twelve,  twenty,  or  even  as  much  as  thirty  per 
cent,  interest — in  order  to  maintain  their  business 
reputation  and  meet  their  engagements.  When 
money  is  plenty,  these  men  are  tempted  to  borrow 
of  the  banks,  and  very  largely  ;  and  when  the 
time  of  pressure  comes,  the  banks  cannot  help 
them,  for  they  are  themselves  the  most  feeble 
members  of  the  community.  • 

Now,  I  do  not  blame  the  bank  directors  in  this 
matter  ;  they  are  obliged  to  take  the  course  they 
do  in  self-defence.  It  is  incidental  to  the  sys 
tem — they  cannot  help  it ;  but  any  man  can  see 
that  it  must  be  a  terrible  system  which  produces 
such  results  ;  which  allures  men  to  make  promises 
to  pay  certain  amounts  at  certain  times,  and  when 
these  obligations  become  due  it  cannot  relieve 
them.  The  great  plentifulness  of  money  enables 
speculators  to  create  an  artificial  rise  in  property, 
and  induces  people  to  increase  their  business 
operations  and  expenses  ;  but  when  reckoning 
day  comes,  they  are  left  high  and  dry.  Every 
body  who  understands  the  matter,  knows  that 
this  is  the  legitimate  result  of  our  present  system  ; 
and  is  it  not  a  most  pernicious  one  ?  The  system 
is  so  complicated  that  but  few  persons  understand 
it,  yet  it  may  be  resolved  into  one  or  two  general 
principles.  The  leading  idea  is  that  our  banks 
have  the  power  to  issue  their  promissory  notes  as 
money.  Now,  if  those  notes  did  not  exceed  the 
amount  of  specie  held  by  them,  they  would  be  the 
representatives  of  real  money,  or  in  more  scientific 
language,  of  value  money ;  because  gold  and  silver 
possess  intrinsic  or  absolute  value,  like  wheat  or 
cotton,  and  for  the  same  reason,  namely,  that  they 
cost  labor  and  are  objects  of  desire,  and  those  two 
conditions  combined  always  and  only  give  value 
to  any  commodity.  But  the  banks  do  not  limit 
themselves  to  the  issue  of  an  amount  correspond 
ing  to  their  specie.  They  go  beyond  that  limit 
as  far  as  they  dare,  and  issue  their  promises,  and 
these  constitute  credit  money.  That  is  the  proper 
term  for  such  money ;  so,  then,  our  currency  is 
in  fact  a  mixed  one,  consisting  of  value  money 
and  credit  money.  Now,  when  a  pressure  comes, 


332 


BANKING. 


[65th  day. 


Saturday,] 


WALKER. 


[July  23d. 


when  specie  is  wanted  for  export,  what  must  hap 
pen  ?  Why,  if  all  the  banks  of  Massachusetts 
owe,  as  they  now  do,  ten  dollars  for  every  one 
dollar  they  have  in  specie,  they  must  contract 
their  circulation  in  proportion.  That  is,  if  the 
Massachusetts  banks  are  called  on  for  one  million, 
they  must  contract  the  currency  ten  millions. 
This  is  the  great  objection  to  such  a  currency — 
the  contractions  must  be  so  great,  so  sudden,  and 
BO  necessarily  injurious  to  the  community. 

It  is,  then,  the  elasticity,  or  the  power  of  expan 
sion  and  contraction,  which  our  currency  possesses, 
that  makes  it  at  once  so  unstable,  insecure,  and 
pernicious  in  its  character.  As  certain  as  there 
is  an  expansion,  there  must  be  a  contraction,  and 
the  more  plentiful  money  is  at  one  time,  the 
greater  will  be  its  scarcity  at  another.  Natural 
fluctuations  in  the  currency  there  must  ever  be, 
and  like  the  tides  of  the  ocean,  they  are  salutary  ; 
but  under  our  system  they  receive  an  artificial 
extent  and  intensity  that  causes  the  most  terrible 
revulsions  and  the  most  disastrous  consequences. 

Every  bank  director  in  this  room — and  I  sup 
pose  there  may  be  two  hundred  of  them,  more  or 
less — knows  that  such  revulsions  under  our 
present  system,  inevitably  come.  It  has  happened 
hitherto  that  it  has  come  about  once  in  seven 
years,  which  seems  to  be  about  a  monetary  cycle. 
Of  course,  if  we  could  foresee  the  exact  time,  so  as 
to  provide  against  the  evil  consequences  of  these 
revulsions,  it  would  not  be  so  bad ;  but  we  can 
never  know  the  precise  time  when  they  will  occur. 
When  they  do  come,  however,  as  I  said  before, 
the  Boston  banks  will  shut  down ;  then  the  pres 
sure  will  begin  to  come  upon  the  country  banks, 
and  they  will  stop  discounts,  too,  and  when  they 
find  themselves  hard  pushed,  the  most  feeble  ones 
will  come  down  to  the  Boston  banks  for  assistance, 
and  say,  "  If  you  don't  help  us,  we  must  fail." 
And  the  Boston  banks,  if  they  are  satisfied  that 
such  banks  are  sound,  will  aid  them,  because  they 
will  know  that  the  failure  of  one  bank  injures 
the  circulation  and  the  credit  of  all ;  that  they 
have  a  common  interest,  and  must  hold  each 
other  up  as  long  as  possible.  But  in  spite  of  all 
these  efforts,  if  the  pressure  continues,  one  after 
another  the  rotten  banks  fail.  When  there  are 
nearly  one  hundred  and  fifty  banks,  with  such  a 
tremendous  circulation  as  the  document  in  my 
hand  shows,  I  ask,  is  it  possible  that  some  banks 
will  not  fail  when  there  comes  a  crisis  ?  It  is  not 
possible  that  it  should  be  otherwise.  Some  will 
fail,  and  then  the  people  will  lose.  Now,  Sir,  to 
guard  against  this  loss  is  the  object  of  the  pro 
posed  measure.  I  admit,  Sir,  the  banks  go  on  as 
long  as  they  can ;  they  do  not  make  a  general 
suspension,  if  they  can  help  it.  They  all  stand 


together  like  brothers,  not  because  they  love  each 
other  so  much,  but  because  they  have  one  com 
mon  destiny.  But  the  event  will  come  at  last ;  for 
they  will  all  have  to  stop  payment  if  the  crisis 
reaches  a  certain  point,  as  has  been  done  at  differ 
ent  times  heretofore.  But  up  to  a  certain  point 
they  can  stand  ;  and  in  order  to  save  themselves 
they  will  sacrifice  the  business  community.  The 
banks  can  all  stand  safe  and  secure  so  long  as  they 
can  keep  the  business  community  before  them  to 
meet  the  losses ;  but  if  there  comes  a  great  pres 
sure  ;  if  there  is  a  continued  run  upon  them  for 
specie  to  ship  abroad,  as  there  was  in  1836  and 
1837,  the  banks  cannot  keep  themselves  going, 
and  so  they  will  all  stop. 

This  state  of  things  will  return  at  different  in 
tervals,  just  so  long  as  you  allow  banks  to  issue 
bills  without  reference  to  the  amount  of  specie  in 
their  vaults.  As  long  as  you  do  not  limit  them  in 
this  respect,  it  is  no  sort  of  use  to  say  that  you 
will  not  excuse  them  if  they  all  suspend  specie  pay 
ment  together.  Sir,  you  will  excuse  them  ;  you 
must  excuse  them,  for  when  they  stop  it  is  the 
best  thing  they  can  do.  They  ought  to  stop  under 
such  circumstances  ;  and  the  fault  is  to  be  charged 
to  the  bad  system  under  which  they  act. 

All  these  evils  are  inseparately  connected  with 
the  system ;  and  I  submit,  Mr.  Chairman,  that 
we  have  gone  on  with  it  as  long  as  we  ought  to. 
I  do  not  expect  that  the  whole  system  is  to  be 
done  away ;  I  do  not  expect  any  reform  of  that 
kind  at  present,  so  I  hope  no  one  will  be  alarmed 
on  that  score.  I  have  made  no  such  intimation. 
The  measure  before  us  is  simply  one  of  precau 
tion,  for  the  benefit  of  the  people,  and  it  will  hurt 
no  legitimate  banking  at  all.  It  will  not  injure 
any  bank  which  is  now  in  operation,  that  is  cer 
tain  ;  and  it  will  merely  prevent  any  future  bank 
being  got  up  by  persons  who  have  not  got  money 
to  loan. 

The  time  has  not  yet  come  when  we  are  pre 
pared  for  a  thorotigh  reform  on  this  subject. 
There  is  nothing  in  this  world  that  the  people  love 
so  well  as  they  do  banks — there  is  nothing  that 
they  like  the  sight  of  so  well  as  they  do  paper 
money.  And  paper  money,  if  it  is  only  equal  in 
quantity  to  the  value  in  money  which  it  repre 
sents,  is  a  great  convenience ;  but  whatever  is 
over  and  above  the  specie  in  the  vaults,  is  credit 
money,  and  all  credit  money  is,  in  my  opinion,  a 
curse.  There  is  no  necessity  for  it  at  all.  We  have 
arrived  at  an  important  epoch  in  the  history  of  the 
currency.  By  the  discovery  of  the  California!!  and 
Australian  mines,  large  qxiantities  of  the  precious 
metals  have  been  added  to  the  circulating  medium 
of  the  world ;  and  one  would  suppose  that  the  effect 
of  this  ought  to  be  to  drive  paper  money  out  of 


65th  day.] 


BANKING. 


333 


Saturday,] 


WALKER. 


[July  23d, 


circulation ;  but  instead  of  that,  what  is  the  con 
sequence  ?  The  more  gold  that  we  receive  from 
California,  so  far  as  it  remains  in  the  banks,  the 
more  paper  money  we  have ;  for  the  banks,  on  an 
average,  through  the  nation,  issue  about  three 
dollars  of  paper  money  for  every  dollar  of  Cali 
fornia  gold  they  get ;  and  some  issue  ten  or  twenty 
dollars  for  one,  or  even  forty  or  fifty,  as  the  case 
may  be.  Now,  Sir,  nothing  can  be  more  unwise 
than  such  a  course.  The  time  never  was  when 
there  was  not  specie  enough  in  the  world  to  do 
the  business  of  the  world.  Before  the  discovery 
of  the  California  mines,  there  were  ten  thousand 
millons  of  gold  and  silver  in  the  world,  only 
three-fifths  of  which  was  in  currency ;  the  rest 
was  in  plate.  This  fact  shows  that  there  was 
enough  of  these  metals  for  the  purposes  of  the 
currency  ;  for  if  the  people  had  wanted  it  in  cur 
rency,  it  would  have  been  converted  into  currency. 
In  this  country  we  have  the  worst  paper  system 
in  the  world — I  mean  the  worst  voluntary  system. 
Russia  has  a  forced  paper  money  system  that  may 
be  worse  than  ours ;  that  is  owing  to  the  despot 
ism  of  the  emperor,  who  has  the  whole  regulation 
of  the  matter,  and  who  has  forced  it  upon  his  peo 
ple  ;  but,  for  a  voluntary  system,  ours  is  the  worst 
in  existence.  The  gentleman  from  Charlestown 
alludes  to  the  banks  in  Scotland,  and  he  says  that 
those  banks  are  safe.  They  are  so,  but  the  system 
of  Scotland  is  the  next  worst  in  the  world  to  ours, 
because  it  most  nearly  resembles  ours  in  being  the 
most  liable  to  expansion  and  contraction.  That  is 
the  great  characteristic  feature  of  both  their  system 
and  ours.  The  currency  of  New  York,  one  year, 
was  twenty-four  millions ;  the  next  year  it  was 
twelve  millions  ;  the  next  year,  eighteen ;  the 
next,  nine.  How  can  people  go  on  and  do  busi 
ness  with  a  currency  fluctuating  in  that  way,  by 
the  mere  expansion  and  contraction  of  paper 
money  ?  This  expansion  and  contraction  in  the 
currency  insidiously  robs  the  masses  of  the  labor 
ing  people  of  no  small  share  of  all  they  can  earn ; 
and  this,  too,  is  what  ruins  so  many  of  our  business 
men.  Thousands  and  thousands  of  these  men  are 
ruined  in  this  way,  without  knowing  the  cause. 
They  think,  and  say,  it  is  owing  to  "  hard  luck, 
or  bad  times  ;"  but  the  true  reason  is  to  be  found 
in  the  fluctuation  of  the  currency.  A  man  buys 
goods  when  the  currency  is  flush  ;  and  if  it  so 
happens  that  he  has  to  pay  for  them  under  a  con 
tracted  currency,  he  is  ruined,  unless  he  is  a  rich 
man,  and  can  afford  to  sustain  a  heavy  loss. 
Hence,  a  great  proportion  of  all  our  failures  are 
caxised  simply  by  the  expansions  and  contractions 
in  the  currency.  I  insist,  therefore,  that  this  is  a 
great  evil,  and  the  greatest  evil  under  which  we 
labor ;  and  the  effects  of  it  are  seen  from  the  fact 


that  we  have  more  bankrupts,  in  proportion,  in 
this  country,  than  there  are  in  any  other  in  the 
world.  We  are  a  nation  of  bankrupts.  I  do  not 
mean  by  this  that  we  are  more  dishonest  than 
other  people,  but  that  our  currency  system  robs 
the  people  more  effectually,  and  ruins  more  of  our 
merchants,  than  the  system  of  other  countries. 
Scotland  is  the  country  where  there  is  the  next 
greatest  number  of  bankrupts,  because  it  is  next 
to  us  in  the  fluctuating  character  of  its  currency. 
In  England  there  are  less  still,  because  its  currency 
is  more  stable  ;  and  in  France  fewer  still,  for  the 
same  reason. 

The  gentleman  from  Fall  River  said,  that  a  re 
cent  law  of  parliament,  passed,  I  think,  about 
1845,  has  limited  the  issues  of  the  bank  in  the 
manner  in  which  we  ought  to  limit  our  banks,  so 
that  there  should  be  a  certain  proportion  between 
the  specie  and  the  bills.  That  was  a  measure  of 
vast  importance.  I  think  it  was  carried  by  Sir 
Robert  Peel,  and  it  showed  the  wisdom  of  the 
British  government.  The  Bank  of  England  would 
have  failed  at  a  little  time  previous  to  this,  if  it 
had  not  been  for  four  millions  of  specie  which  it 
borrowed  from  the  Bank  of  France ;  and  the 
British  government,  seeing  that  result,  and  seeing 
to  what  great  peril  the  whole  currency  and  com 
merce  of  England  had  been  exposed,  passed  a  law 
establishing  a  certain  proportion  between  the  cir 
culation  of  the  bank  and  the  amount  of  its  specie. 
That  is  just  what  we  need  here,  and  what  we 
shall  get,  I  suppose,  when  we  have  passed  through 
three  or  four  more  revolutions,  and  the  people  get 
their  eyes  open.  I  do  not  expect  it  now — there 
is  not  much  chance  for  it  here.  The  amendment 
of  my  friend  from  Fall  River,  proposing  that  no 
bills  of  less  than  $10  should  be  issued,  is  a  good 
amendment ;  but  he  might  as  well  expect  to  get 
the  most  absurd  proposition  in  the  world  carried 
as  that.  If  he  should  make  a  proposition  that  we 
should  all  go  home  without  any  pay,  he  would 
get  about  as  many  votes  for  it,  I  presume,  as  he 
will  get  for  his  amendment.  But,  notwithstand 
ing  that,  it  is  a  sound  proposition,  and  one  that 
ought  to  be  adopted,  and  I  shall  vote  for  it.  It 
would  not  do  much  good  to  have  a  single  State 
adopt  it ;  but  if  other  States  would  do  the  same, 
an  important  object  would  be  attained.  It  ought 
to  be  a  great  national  movement,  and  then  all 
these  little  miserable  bank  notes  might  be  driven 
out  of  circulation.  I  hold  that  paper  money 
should  never  be  used  by  men  in  paying  off  their 
laborers.  The  gentleman  from  Fall  River  has 
said  that  paper  money  is  never  so  used  in  Eng 
land,  and  that  is  true.  You  may  travel  all  over 
that  country,  and  spend  months  there,  without 
seeing  a  bank  note,  as  I  know  by  experience. 


334 


BANKING. 


[65th   day. 


Saturday,] 


WALKER  —  STETSON. 


[July  23d. 


Now  there  is,  in  fact,  gold  and  silver  enough 
for  all  business  purposes ;  and  I  should  be  glad  if 
we  could  get  rid  of  all  these  one,  two,  and  three- 
dollar  bills.  It  seems  to  me  that  the  wisest  course 
would  be,  when  the  people  become  satisfied  of 
this,  to  have  it  provided  by  the  national  govern 
ment,  in  obedience  to  the  demand  of  public  sen 
timent,  that  all  bills,  under  five  dollars,  should  be 
excluded  after  the  first  year  ;  that  all  under  ten 
dollars  should  be  excluded  the  next  five  years, 
and  all  under  twenty  dollars  the  next  five.  I 
think  there  is  no  need  of  any  paper  r;  oney  of  a 
smaller  denomination  than  twenty  dollars. 

I  am  not  disposed  to  detain  the  Convention 
longer ;  but  as  the  measure  has  been  brought  for 
ward,  I  wished  to  bear  my  testimony  in  favor  of 
it ;  and  I  shall  be  happy  to  vote  in  favor  of  the 
amendment  of  the  gentleman  from  Fall  River, — 
not  that  I  believe  it  will  be  carried,  for  the  time 
has  not  yet  come,  but  because  I  believe  it  to  be 
right. 

Mr.  STETSON,  of  Braintree.  I  do  not  pur 
pose  to  detain  the  Convention  for  more  than  a 
few  moments  ;  and  will,  even  now,  give  way  to 
any  gentleman  who  is  desirous  of  speaking  to  the 
question,  especially  to  any  one  who  desires  to 
speak  against  the  Report  of  the  Committee  ;  be 
cause,  before  I  make  the  remarks  I  have  to  offer, 
I  should  like  to  hear  what  objections,  if  any,  can 
be  urged  against  it.  As  yet,  none  have  been 
urged.  The  arguments  have  been  all  on  one  side 
— that  is,  in  favor  of  the  adoption  of  the  Report. 
As  I  differ  from  my  friend  who  has  just  spoken, 
in  regard  to  matters  of  finance,  I  wish  to  state  my 
views  upon  the  subject,  and  to  set  forth  what  I 
understand  to  be  the  position  of  the  case.  I  am 
not  disposed  to  speak  against  corporations  or  char 
ters,  of  any  character.  I  maintain  that  corpora 
tions  may  be  beneficial ;  that  they  have  been 
beneficial ;  and  that  Massachusetts  has  built  her 
self  up — the  manufacturing  interests  particularly 
— by  corporations.  My  position  is  this  :  that  our 
laws  should  be  so  constructed  and  framed  that  any 
body  of  persons  may  associate  themselves  together 
in  a  corporate  capacity.  The  principle  of  corpo 
rations,  whether  composed  of  a  large  or  small 
number  of  persons,  is  one  and  the  same  thing  in 
itself.  A  corporation  may  consist  of  three  or  four 
persons,  or  it  may  consist  of  only  two.  It  may 
consist  of  any  number  of  persons  incorporated 
under  a  charter  by  the  legislature,  or  of  two  or 
three  persons  united  together  in  a  partnership. 
They  are  both  the  same ;  the  only  distinction  be 
ing,  that  there  are  some  of  these  bodies  corporate 
who  obtain  their  acts  here,  that  are  monopolies, 
unless  the  public  themselves  have  not  at  all  times 
the  like  privilege  of  associating  themselves  to 


gether.  I  maintain,  therefore,  not  that  we  should 
restrict  the  incorporation  of  any  number  of  per 
sons,  but  that  the  matter  should  be  left  free  in 
regard  to  the  incorporation  of  banks  as  to  any 
other  incorporations ;  and  that,  I  take  it,  is  the 
question  here — whether  we  will  leave  persons  as 
free  to  incorporate  themselves  for  banking  pur 
poses  as  we  do  in  regard  to  any  other  business. 
Now,  if  I  understand  this  matter  rightly,  if  only 
a  few  of  these  corporations  are  permitted  to  exist 
with  special  privileges,  we  say  that  they  are  mo 
nopolies  ;  and  they  are,  unquestionably  so.  A 
chartered  bank,  as  it  exists  by  the  terms  of  any 
special  act  of  the  legislature,  or  by  any  provision 
in  the  Constitution  in  regard  thereto,  is  a  monop 
oly.  Now,  I  suppose,  the  object  of  the  Conven 
tion  is  to  do  away  with  all  systems  of  monopoly 
by  throwing  the  whole  matter  open,  so  that,  in 
regard  to  banking,  as  to  other  business,  every 
person  may  go  into  it  who  pleases.  After  passing 
a  law  restraining  corporations  from  injuring  pri 
vate  persons,  and  adopting  such  regulations  as 
will  save  the  public  harmless  from  the  issue  of 
bills,  I  think  that  the  State  has  not  only  done  all 
that  it  can  do,  but  all  that  it  has  a  right  to  do  in 
this  respect,  under  a  free  government.  I  contend 
that  banking  should  be  just  as  free  as  any  occu 
pation  in  commercial  life.  It  is  a  trade,  if  I  may 
so  speak,  in  itself — a  science  which  very  few  un 
derstand.  The  object  of  the  Report,  it  seems  to 
me  is,  that  the  public  may  be  secured  against 
what  the  legislature  gives  these  corporations 
authority  to  do,  in  issuing  promissory  notes  ;  that 
they  shall  be  secured  upon  a  basis — something 
that  can  be  relied  upon  in  case  of  the  failure  of 
a  bank.  This,  I  apprehend,  is  the  question,  and 
if  so,  I  confess  that  I  can  see  no  objection  to  such 
a  purpose. 

I  maintain  that  the  present  system  of  banking 
is  a  growing  evil,  and  that  special  legislation  in 
regard  to  this  matter  is  an  evil  which  will  in  itself 
bring  ruin  upon  the  community — that  is,  that  the 
system  is  so  involved,  being  a  monopoly,  and  in 
no  way  restrained,  so  that  the  State  can  reach  it 
by  any  enactment  of  law.  Now,  after  the  State 
has  done  all  that  it  can  do  in  regard  to  preserving 
the  rights  of  persons,  I  maintain  that  the  business 
of  banking  should  be  left  like  every  other  busi 
ness  in  the  circle  of  trade.  I  hold  that  this  thing 
will  regulate  itself.  If  it  is  overworked,  it  will 
regulate  itself,  as  all  other  commercial  operations 
do.  For  all  these  matters,  there  is  a  law  that  is 
higher  and  stronger  than  any  statute  that  can  be 
enacted  to  regulate  the  laws  of  trade.  No  law 
that  any  legislature  can  enact,'  can  regulate  trade. 
It  regulates  itself. 

I  do  not,  however,  propose  to  go  into  this  ques- 


65th  day.] 


BANKING. 


335 


Saturday," 


STETSON. 


[July  23d. 


tion.  I  only  maintain  that  paper  currency,  if  so 
restricted  as  to  be  made  safe,  is  a  useful  currency  ; 
and  the  existence  of  it,  I  think,  will  be  perpetu 
ated  by  the  use  of  it.  If  it  is  well  restrained  and 
secured,  I  can  see  no  evil  in  it.  I  am  not  an 
enemy  to  paper  currency,  made  and  properly 
regulated  by  law.  It  is  a  useful  medium  in  itself, 
and  its  conveniences  are  felt  in  every  branch  of 
trade.  Upon  this  question,  therefore,  I  do  not 
wish  to  enter.  I  only  wish  to  allude  to  one 
objection  which  has  been  made  to  the  Report,  by 
the  gentleman  from  Boston  (Mr.  Schouler).  I 
did  not  hear  the  whole  of  his  remarks  ;  but  as  I 
came  into  the  hall,  I  understood  him  to  say  that 
the  resolution  which  passed  the  other  day,  in 
relation  to  acts  of  incorporation,  covered  the 
whole  matter.  Now,  I  entirely  dissent  from  that. 
I  do  not  think  that  it  covers  any  part  of  the  ques 
tion,  neither  do  I  think  the  resolutions  passed  the 
other  day,  have  any  binding  effect  at  all  in  rela 
tion  to  the  subject  of  banking.  I  think  they  are 
very  similar  to  the  provisions  of  an  act  which 
was  passed  a  few  years  since,  being  an  act  to 
create  corporations  under  general  laws.  I  believe 
that  I  opposed  that  act  in  the  House  of  Repre 
sentatives  then;  I  maintained  that  it  was,  de  facto, 
a  special  act;  that  it  would  be  of  no  binding 
effect,  and  would  not  cure  the  evil,  because  it 
did  not  cover  the  matter ;  and  my  friend  from 
Boston  was  willing  that  it  should  remain  on 
the  statute  book,  for  the  very  reason  that  it  had 
no  binding  effect ;  that  it  was  merely  a  dead  letter 
upon  the  statute  book,  and,  in  regard  to  banking, 
that  it  was  precisely  the  same  as  a  special  act.  A 
free  banking  act  was  passed  a  few  years  since, 
and  the  argument  then  was  that  it  would  not  be 
used.  True,  it  has  not  been  used,  and  for  what 
reason  ?  Because  the  State,  in  its  sovereign  ca 
pacity,  gives  a  monopoly  to  certain  corporations 
who  have  in  themselves  the  power  to  make  twice 
the  money  that  they  could  make  if  they  had  not 
the  advantage  of  their  special  charters.  Now, 
what  association  of  men  would  incorporate 
themselves  under  this  free  banking  act,  and  sub 
mit  to  be  restricted,  and  give  security  for  their 
bills,  when  they  could  come  here  and  obtain  an 
act  whereby  they  could  pledge  their  credit  to  any 
amount  they  pleased,  without  any  restriction  r 
That  law  will  never  be  of  any  avail,  till  some 
restriction  is  imposed  by  the  legislature  on  these 
special  corporations ;  and  then  all  persons  who 
want  to  commence  banking,  can  do  so  under  a 
general  law,  and  all  will  be  upon  an  equality. 

My  friend  from  Charlestown  read  an  extract 
this  morning  from  a  speech  of  the  Hon.  Edward 
Everett.  With  your  permission,  I  wish  to  read 
an  extract  from  a  speech  just  previous  to  the 


explosion  of  1837,  which  was  delivered  in  this 
hall  by  the  same  able  gentleman. 
He  says : — 

"  The  banks  form  a  class  of  corporations  dis 
tinguished  from  all  others,  by  a  privilege  of  a 
very  extraordinary  character.  When  a  company 
of  citizens  come  before  us,  and  ask  to  be  incorpo 
rated  as  a  bank,  they  ask  us  not  merely  to  allow 
them  to  associate  themselves  together  for  the  pur 
pose  of  lending  money,  but  they  ask  us  the  privi 
lege  of  allowing  them  to  associate  themselves 
together  in  addition,  for  the  power  to  create  money 
out  of  nothing — that  is,  out  of  blank  paper,  for 
their  own  benefit ;  equivalent  to  an  outright  gift 
of  a  sum  of  money  equal  to  the  average  amount 
of  circulation  after  deducting  the  average  amount 
of  its  specie  on  hand.  *  *  * 

"  The  easy  indifference  with  which  the  legisla 
ture  has  been  accustomed  to  grant  these  immense 
bounties,  is  somewhat  singular,  considering  the 
scrupulous  reserve  that  is  commonly  and  very 
properly  practised  in  regard  to  most  other  mea 
sures  involving  grants  of  money.  Heretofore, 
when  applications  have  been  made  for  bank 
charters,  the  acts  have  been  passed  without  hesi 
tation,  and  very  often  without  debate.  *  *  * 

"  Sir,  I  ask  whether  it  can  be  said  with  pro 
priety,  that  a  business  to  which  we  give  these 
immense  bounties,  regulates  itself  ?  As  long  as 
the  granting  of  a  bank  charter  carries  with  it  a 
bonus  of  $50,000,  or  $150,000,  according  to  the 
extent  of  the  circulation,  there  will  never  be  a 
failure  of  applications.  If  you  wish  the  business 
of  lending  money  to  regulate  itself ;  withdraw 
from  the  banks  the  privilege  of  issuing  notes. 
There  will  then  be  no  danger  of  excess,  and  you 
may  grant  with  safety  all  the  charters  that  may  be 
applied  for.  But,  while  the  present  system  is 
pursued,  it  is  perfectly  evident  that  the  banking 
system  never  will  regulate  itself;  and  that  unless 
we  mean  to  push  it  to  an  indefinite  extent,  we 
must  fix  ourselves  where  it  is  proper  to  stop. 
That  we  have  already  reached  that  point,  and  that 
it  is  high  time  to  stop  where  we  are,  and  gradually 
to  retrace  our  steps,  if  we  mean  to  avoid  the  danger 
of  the  most  disastrous  convulsions.  It  may  still 
be  inquired  with  propriety,  whether  we  have  a 
right  to  bestow  this  immense  boon  upon  a  few  of 
the  citizens  in  preference  to  all  the  rest.  *  *  * 

"  The  Constitution  provides  that  no  person  shall 
enjoy  any  exclusive  privileges  ;  that  all  shall  be 
equal  before  the  law.  And  is  it  not  a  privilege  to 
be  able  to  create  money  for  your  own  benefit,  out 
of  blank  paper  ?" 

That  speech  was  made  at  a  time  when  this 
House  granted  a  large  number  of  charters.  I 
will  not  detain  the  Convention  farther  than  to 
read  another  extract,  and  then  I  shall  have  done. 
About  the  year  1816,  when  the  southern  country 
was  under  the  suspension  of  specie  payments,  and 
at  the  time  when  an  application  was  before  the 
House  of  Representatives  for  a  charter  for  a 
United  States  Bank,  John  Randolph  opposed  that 
application,  and  he  took  occasion  then  to  make 


336 


BANKING. 


[65th  day. 


Saturday,! 


STETSON  —  FROTIIINGHAM  —  LIVEHMOKE  —  HOOPER. 


[July  23d. 


some  remarks  which  have  proved  prophetic  in 
regard  to  the  bank.     lie  says : — 

"  It  is  unpleasant  to  put  one's  self  in  array 
against  a  great  leading  interest  in  a  community, 
be  they  a  lot  of  land  speculators,  paper  jobbers,  or 
what  not ;  but,  Sir,  every  man  you  meet,  in  this 
House  or  out  of  it,  with  some  rare  exceptions, 
which  only  serve  to  prove  the  rule,  is  either  a 
stockholder,  president,  cashier,  clerk,  or  door 
keeper,  runner,  engraver,  paper  maker,  or  me 
chanic,  in  some  way  or  other,  to  a  bank.  *  * 
However  great  the  evil  of  their  conduct  may  be, 
who  is  to  bell  the  cat  ?  who  is  to  take  the  bull  by 
the  horns  ?  You  might  as  well  attack  Gibralter 
with  a  pocket  pistol,  as  to  attempt  to  punish 
them.  *  *  *  A  man  has  their  note  for  fifty 
dollars,  perhaps,  in  his  pocket,  for  which  he  wants 
fifty  Spanish  milled  dollars ;  but  they  have  his 
note  for  five  thousand  in  their  possession,  and 
laugh  at  his  demand.  We  are  tied  hand  and 
foot,  Sir,  and  are  bound  to  conciliate  this  gi-eat 
mammoth  which  is  set  up  to  be  worshipped  in 
this  Christian  land.  We  are  bound  to  propitiate 
it.  *  *  *  * 

"It  is  as  much  swindling  to  issue  notes  with 
the  intention  not  to  pay,  as  it  is  burglary  to  break 
open  a  house.  If  they  are  unable  to  pay,  the 
banks  are  bankrupt ;  if  able  to  pay,  and  will  not, 
they  are  fraudulent  bankrupts.  But  a  man  might 
as  well  go  to  Constantinople  to  preach  Christianity, 
at  to  get  up  here  and  preach  against  the  banks." 

I  think  that  would  apply  very  well  to  some  of 
the  members  of  our  House  of  Representatives 
here. 

"As  to  establishing  this  bank,  to  prevent  a 
variation  in  the  rate  of  exchange  of  bank  paper, 
you  might  as  well  expect  it  to  prevent  the 
variations  of  the  wind  ;  you  might  as  well  pass 
an  act  of  congress,  (for  which,  if  it  would  be  of 
any  good,  I  would  certainly  vote,)  to  prevent  the 
north-west  wind  from  blowing  in  our  teeth  as  we 
go  from  the  House  to  our  lodgings." 

This  is  the  precise  truth.  The  whole  commu 
nity  is  so  interwoven  in  this  matter,  so  interested 
in  it,  and  the  whole  State  of  Massachusetts  is  so 
much  incorporated  into  banks,  that  I  think  it  is 
high  time  that  we  should  cut  loose  from  the  sys 
tem  of  granting  special  charters,  and  throw  the 
whole  matter  open,  and  let  every  person  be  free 
to  bank  himself,  if  he  has  capital  enough,  or  can 
obtain  it  by  associating  others  with  him.  That  is 
my  doctrine. 

Mr.  FROTIIINGHAM,  of  Charlestown.  I 
wish  to  say  one  word  in  relation  to  this  amend 
ment.  I  agree  with  what  has  been  said  by  the 
gentleman  from  Fall  River,  (Mr.  Hooper,)  as  to 
the  principle  of  it ;  but  I  would  submit  to  him, 
that  that  is  a  question  which  had  better  be  left, 
after  all,  with  the  legislature  to  settle.  It  seems 
to  come  more  appropriately  under  that  rule,  than 


it  does  within  the  rule  which  guides  us  as  to  put 
ting  in  matters  into  our  organic  law. 

Another  thing  I  remark,  it  seems  to  be  at  vari 
ance  with  the  principle  upon  which  the  Commit 
tee  have  acted  in  relation  to  this  matter.  It  pro 
vides  that  on  and  after  a  certain  time  there  shall 
be  no  bank  bills  under  a  denomination  of  ten 
dollars,  and  therein  it  interferes  with  the  present 
privileges  of  existing  banks.  The  object  of  the 
Committee  was  to  leave  this  matter  entirely  to 
the  regulation  of  general  laws,  and  not  to  put 
anything  into  the  Constitution  in  relation  to  it. 

Mr.  LIYERMORE,  of  Cambridge.  I  have 
but  a  word  to  say  in  regard  to  this  amendment. 
The  effect  of  this  amendment,  if  adopted,  will 
be,  that  other  States  will  derive  all  the  benefit 
from  the  circulation  of  small  notes  under  the 
denomination  of  ten  dollars.  In.  the  State  of 
Ohio,  the  law  is  that  no  bill  under  the  denomi 
nation  of  five  dollars,  shall  be  issued  by  any  bank 
of  that  State.  What  has  been  the  effect  ?  Hun 
dreds  and  thousands  of  dollars  of  money,  in  bills 
of  less  denomination  than  that,  have  been  sent 
from  this  State  within  a  few  months  past  to  pur 
chase  produce  in  that  State.  Now,  Sir,  I  think 
if  we  want  to  restrain  the  circulation  of  our  banks, 
and  allow  the  banks  of  other  States  to  come  in 
and  supply  us  with  our  smaller  circulating  medi 
um,  we  had  better  adopt  the  amendment  offered 
by  the  gentleman  from  Fall  River.  I  had  intend 
ed  to  say  a  few  words  upon  the  whole  question 
before  the  Committee,  but  I  do  not  think  it  worth 
while  now  to  take  up  the  time  of  the  Convention. 

Mr.  HOOPER,  of  Fall  River.  I  should  be 
glad  to  accommodate  gentlemen  if  I  could,  but, 
Sir,  the  very  consequences  mentioned  by  the 
gentleman  last  up,  furnish  the  strongest  argument 
in  favor  of  putting  such  a  provision  into  the 
Constitution.  At  this  time  no  State  in  the  Union 
is  circulating  so  many  small  bills  in  other  States 
as  Massachusetts.  It  is  a  constant  source  of 
complaint,  and  they  say  they  cannot  reform  the 
evil  so  long  as  Massachusetts  is  flooding  them 
with  small  bills.  If  we  commence  here,  the 
reform  will  go  on  throughout  the  country,  but  it 
cannot  so  long  as  Massachusetts  continues  her 
present  course.  I  hope  the  amendment  will  be 
adopted. 

The  question  then  recurring  upon  the  amend 
ment  offered  by  the  gentleman  from  Fall  River, 
(Mr.  Hooper,)  it  was  taken,  and  there  were,  upon 
adivibion — ayes,  27  ;  noes,  85. 

So  the  amendment  was  rejected. 

The  question  then  recurred  upon  the  adoption 
of  the  resolves  as  reported  by  the  Committee,  and 
being  put,  it  was  decided  in  the  affirmative — ayes, 
130 ;  noes,  28. 


65th  day.] 


JUSTICES    OF   THE   PEACE,  &c. 


337 


Saturday,] 


PARKER  —  FAY  —  GRISWOLD  —  BRIGGS. 


[July  23d. 


So  the  resolves  were  passed. 

Mr.  DAVIS,  of  Worcester.  I  move  that  the 
Committee  rise  and  report  the  resolves  to  the 
Convention  with  a  recommendation  that  they  do 
pass. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

The  Committee  accordingly  rose,  and 

IN    CONVENTION, 

The  chairman  of  the  Committee,  (Mr.  Butler,) 
reported  that  the  Committee  of  the  Whole  had 
had  under  consideration,  according  to  order,  the 
Report  of  the  Special  Committee  on  the  subject 
of  Banking,  and  had  instructed  him  to  report  the 
resolves  to  the  Convention  with  a  recommenda 
tion  that  they  do  pass. 

The  Report  was  accepted  by  the  Convention, 
and  the  resolves  were  ordered  to  a  second  read 
ing. 

Mr.  E  ARLE,  of  Worcester.  I  move  that  when 
the  Convention  adjourn,  it  adjourn  to  meet  on 
Monday  next,  at  ten  o'clock. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

Reconsideration. 

Mr.  BIRD,  of  Walpole.  I  move  that  the  vote 
by  which  the  Convention  carried  to  their  final 
passage  the  resolves  in  relation  to  elections  by 
plurality,  be  reconsidered. 

The  PRESIDENT.  The  motion  will  be  en 
tered  upon  the  Orders  of  the  Day  for  Monday 
next. 

Mr.  BIRD.  I  now  move  that  the  motion  to 
reconsider  be  laid  upon  the  table. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

So  the  motion  to  reconsider  was  laid  upon  the 
table. 

Sectarian  Schools. 

Mr.  PARKER,  of  Cambridge.  It  will  be 
recollected,  Mr.  President,  that  when  the  Report 
of  the  Committee  on  Sectarian  Schools  was  under 
consideration,  I  read,  for  the  information  of  the 
Convention,  an  amendment  which  I  proposed  to 
offer  when  the  amendment  then  pending  was 
disposed  of,  so  that  mine  might  be  in  order. 
That  subject  was  subsequently  laid  upon  the 
table,  and  I  desire  to  offer  anew  the  resolution 
which  I  then  proposed,  somewhat  modified,  so 
that  it  may  be  laid  upon  the  table  and  printed. 

The  resolution  is  as  follows  : — 

Resolved,  That  all  moneys  raised  by  taxation 
in  the  towns  and  cities  for  the  support  of  public 


schools,  and  all  moneys  which  may  be  appropri 
ated  by  the  State  for  the  support  of  common 
schools,  shall  be  applied  to  and  expended  in  no 
other  schools  than  those  which  are  conducted 
according  to  law,  under  the  order  and  superin 
tendence  of  the  authorities  of  the  town  or  city  in 
which  the  money  is  to  be  expended ;  and  such 
moneys  shall  never  be  appropriated  to  any  reli 
gious  sect  for  the  maintenance,  exclusively,  of  its 
own  schools. 

The  resolution  was  laid  upon  the  table  and 
ordered  to  be  printed. 

Leave  of  Absence. 

Mr.  FAY,  of  Soutl>boro',  from  the  Committee 
on  Leave  of  Absence,  presented  a  Report,  grant 
ing  leave  of  absence  to  Messrs.  Bliss,  of  Hatfield, 
Taylor,  of  Great  Barrington,  and  Kellogg,  of 
West  Stockbridge. 

The  Report  was  accepted  and  adopted. 

Justices  of  the  Peace. 

Mr.  GRISWOLD,  for  Erving.  I  move  that 
the  Convention  resolve  itself  into  the  Committee 
of  the  Whole  upon  No.  57  of  the  calendar,  in 
relation  to  election  of  justices  of  the  peace  and 
justices  of  inferior  courts. 

Mr.  BRIGGS.  I  suggest  to  the  gentleman 
that  the  chairman  of  the  Committee  which  re 
ported  the  resolves,  (Mr.  Bishop,)  is  anxious  to 
be  here  when  that  subject  is  considered,  but  he  is 
not  able  to  be  here  now.  He  feels  a  deep  interest 
in  this  matter,  and  I  hope  it  will  not  be  now  taken 
up. 

Mr.  GRISYVTOLD.  I  understand  there  is  no 
other  business  that  can  now  be  taken  up,  and  I 
suggest  to  gentlemen  that  amendments  can  be 
offered  at  the  second  reading  of  the  resolves. 

The  question  was  taken,  and  decided  in  the 
affirmative — ayes,  90  ;  noes,  52. 

The  Convention  accordingly  resolved  itself  into 

COMMITTEE  OF  THE  WHOLE, 

Mr.  Morton,  of  Andover,  in  the  chair,  and  took 
up  for  consideration  the  following  resolves  : — 

1.  Resolved,  That  it  is  expedient  to  amend  the 
Constitution,  so  as  to  provide  that  the  electors  of 
the  several  towns  shall  elect,  in  such  manner  as 
the  legislature  may  direct,  justices  of  the  peace, 
whose  term  of  office  shall  be  three  years,  and 
whose  jurisdiction  shall  extend  throughout  the 
county   in   which  they   may    be   elected ;    their 
number  and  classification  shall  be  regulated  by 
law  ;  they  may  be  removed,  after  due  notice,  and 
an  opportunity  of  being  heard  in  their  defence, 
by  such  court  as  may  be  prescribed  by  law,  for 
causes  to  be  assigned  in  the  order  of  removal. 

2.  Resolved,  That  it  is  expedient  so  to  amend 
the  Constitution,  that  the  Governor  may  remove 


338 


JUSTICES   OF   THE   PEACE. 


[65th  day. 


Saturday,] 


CUSHMAN  —  HATHAWAY. 


[July  23d. 


any  officer  in  the  former  resolves  of  this  Com 
mittee  mentioned,  within  the  term  for  which  he 
shall  have  been  elected,  giving  such  officer  a  copy 
of  the  charges  against  him,  and  an  opportunity 
of  being  heard  in  his  defence. 

3.  Resolved,  That  it  is  expedient  to  provide  in 
the  Constitution,  that,  in  case  of  vacancy,  by 
resignation  or  otherwise,  of  any  state,  county,  or 
district  officer,  whose  election  is  provided  for  in 
the  Constitution,  the  Governor  shall  issue  his 
warrant  to  the  mayor  and  aldermen  of  the  sev 
eral  cities,  and  the  selectmen  of  the  several  towns, 
to  fill  the  vacancy  at  the  next  annual  election 
after  it  shall  happen ;  and  the  Governor,  with  the 
advice  and  consent  of  the  Council,  may  appoint 
suitable  persons  to  fill  vacancies,  until  an  election 
by  the  people. 

Mr.  CUSHMAN,  of  Bernardston.  I  move  to 
amend,  by  striking  out  the  first  resolve,  and  in 
serting,  in  lieu  thereof,  Convention  document 
No.  121,  as  follows  : — 

Resolved,  That  it  is  expedient  to  amend  the 
Constitution,  as  follows  : — 

There  shall  be  two  classes  of  justices  of  the 
peace,  viz. : 

1.  Trial  Justices,  who   shall  be  elected  by  the 
legal  voters  of  the  several  towns,  for  a  term  of 
three  years.     There  shall  be  one  in  each  town, 
and  one  additional  for  every  two  thousand  inhab 
itants.     They  shall  have  the  same  jurisdiction, 
powers,  and  duties,  that  are  now  exercised  by 
justices  of  the  peace,  justices  of  the  quorum,  and 
commissioners  to  qualify  civil  officers  ;  and  such 
other  powers  as  may  be  given  them  by  the  legis 
lature. 

2.  Justices  of  the  Peace,  who  shall  be  appoint 
ed,  by  the  Governor  and  Council,  for  a  term  of 
seven  years ;  and  those  who  now  hold  that  office 
shall  continue  as  such,  according  to  the  tenure  of 
their  respective  commissions :  provided,  that  the 
jurisdiction  of  justices  of  the  peace  shall  extend 
only   to  the  acknowledgment    of  deeds,  the  ad 
ministration  of  oaths,  the  issuing  of  subpoenas, 
and  the  solemnization  of  marriages. 

I  believe,  Mr.  Chairman,  there  is  a  general 
feeling  in  the  community  that  the  office  of  justice 
of  the  peace  has  become  too  common,  and  there 
fore  too  cheap.  My  object  in  introducing  the 
amendment,  is  to  create  a  class  of  justices  that 
will  be  of  higher  character,  and  possessing  a 
higher  degree  of  intelligence  than  the  present 
one.  By  referring  to  the  resolution  which  I  pro 
pose  to  strike  out,  it  will  be  perceived  that  it  is 
proposed  to  elect  all  the  justices  of  the  peace  for 
the  term  of  three  years.  Now  my  objection  is, 
that  if  a  sufficient  number  of  justices  are  elected 
to  accommodate  the  people,  the  number  elected 
must,  necessarily,  be  quite  large  ;  and  if  the  num 
ber  elected  be  not  large,  there  will  not  be  a  suf 
ficient  number  to  accommodate  the  people.  I 


therefore  propose  that  the  justices  of  the  peace  be 
divided  into  two  classes  ;  the  first  to  be  called  trial 
justices — an  office  of  considerable  importance, 
and  to  give  to  it  the  entire  jurisdiction  now  ex 
ercised  by  justices  of  the  peace,  which  extends  to 
all  cases  involving  claims  to  the  amount  of  one 
hundred  dollars,  also  the  right  of  trial  by  a  jury 
of  six ;  and  also  to  give  them  the  jurisdiction 
which  is  now  exercised  by  justices  of  the  quo 
rum,  and  commissioners  to  qualify  civil  officers. 
It  will  be  perceived  that  the  office  of  trial  jus 
tices  will  be  one  of  considerable  importance,  and 
if  elected  by  the  people,  it  seems  to  me  that  the 
people  will  be  so  careful  and  cautious,  that  judi 
cious  and  discreet  men  will  be  chosen. 

It  also  provides,  that  the  justices  now  in 
commission  will  hold  their  offices  during  the 
continuance  of  their  present  commissions,  and  it 
diminishes  their  jurisdiction,  so  that  as  to  all 
persons  appointed  by  the  Governor  and  Council, 
and  also  all  those  that  now  remain  in  office,  it 
shall  extend  only  to  the  acknowledgment  of  deeds, 
the  administration  of  oaths,  the  issuing  of  sub 
poenas,  and  the  solemnization  of  marriages. 

It  has  been  suggested  to  me,  that  there  should 
be  a  clause,  authorizing  this  class  of  justices  of 
the  peace  to  take  depositions.  I  had  supposed 
that,  under  the  head  of  administration  of  oaths, 
would  be  included  the  taking  of  depositions.  If 
that  is  not  so,  I  should  prefer  adding  such  a 
clause. 

I  think  gentlemen  will  see,  that  by  this  ar 
rangement  there  will  be  a  perfect  system,  one 
which  will  work  well  for  the  community,  and 
one  that  can  easily  be  carried  out.  Therefore,  I 
hope  it  will  be  adopted,  unless  there  are  some 
very  serious  objections  to  it.  I  have  consulted 
with  several  legal  gentlemen,  and  also  with  others 
who  have  been  acting  justices  in  the  Common 
wealth,  and  they  cordially  concur  in  my  amend 
ment. 

Mr.  HATHAWAY.  I  would  much  rather 
that  the  matter  had  been  discussed  when  the 
chairman  of  the  Committee  was  present.  Sir, 
matters  that  are  worthy  of  being  discussed  in 
Committee  of  the  Whole,  and  of  being  incorpo 
rated  into  the  Constitution,  must  be  of  impor 
tance  ;  and,  however  unimportant  we  may  consid 
er  this  matter  of  justices  of  the  peace,  I  can  assure 
you  that  the  people  regard  it  as  a  matter  of  great 
importance. 

The  complaint  not  only  has  been  made,  but 
has  been  reiterated  over  and  over  again  upon  this 
floor,  and  the  difficulty  has  been  felt,  from  time 
to  time,  ever  since  the  formation  of  the  Constitu 
tion  in  1780,  that  the  tenure  of  the  office  of  justice 
of  the  peace  was  such,  that  when  once  appointed, 


65th   day.] 


JUSTICES    OF   THE   PEACE. 


339 


Saturday,] 


HATHAWAY  —  HALLETT. 


[July  23d. 


justices  could  not  be  removed ;  and  many  se 
rious  inconveniences  have  been  the  consequence 
of  it.  Many  improper  persons  have  been  ap 
pointed  justices  of  the  peace,  or  from  age  and 
other  causes,  have  become  disqualified  for  the 
office,  and  unable,  properly,  to  discharge  the 
duties  of  the  same.  Much  injustice  and  wrong 
have  been  the  consequences,  to  the  people,  by 
continuing  them  in  office  after  it  was  known  that 
they  were  unfit  and  improper  incumbents,  or 
after  they  had  become  unable  to  discharge  prop 
erly  their  duties  ;  for  there  was  no  power  under 
the  Constitution,  by  which  they  could  be  re 
moved,  except  by  impeachment,  which  is  too 
costly  and  troublesome  a  process.  It  has  been 
said  upon  this  floor,  and  I  think  very  correctly, 
that  when  a  justice  of  the  peace  once  had  his 
commission,  no  matter  how  incompetent  he 
might  be,  and  no  matter  how  unfaithful  in  the 
discharge  of  his  duties,  he  might  defy  the  whole 
power  of  the  government  to  remove  him  other 
than  by  impeachment.  Well,  Sir,  there  is  some 
thing  for  which  the  gentleman  from  Bernardston 
has  failed  to  provide,  as  the  proposition,  as  I  un 
derstand  it,  is  to  strike  out  the  whole  Report  of 
the  Committee,  which  carries  with  it,  if  the 
amendment  is  adopted,  the  provision  in  the  Re 
port  for  the  removal  of  these  officers. 

Mr.  CUSHMAN.  I  only  propose  to  strike 
out  the  first  resolve  reported  by  the  Committee. 

Mr.  HATHAWAY.  I  thank  the  gentleman 
for  the  correction ;  for,  as  I  understood  the  chair 
man,  it  was  to  strike  out  the  resolves  reported  by 
the  Select  Committee,  and  substitute  the  resolves 
submitted  by  the  gentleman  from  Bernardston, 
as  an  amendment  or  substitute.  If  the  proposi 
tion  is  merely  to  strike  out  the  first  resolve,  my 
objection  is,  to  that  extent,  removed.  But,  Sir, 
there  are  other  reasons,  as  I  stated  before,  on 
account  of  which  I  am  anxious  that  the  chair 
man  and  other  members  of  the  Committee  which 
reported  these  resolves,  should  be  here  when  the 
subject  is  discussed ;  for,  however  excellent  the 
amendments  that  are  offered,  may  be,  I  should 
like  to  hear  an  explanation  of  the  resolves  from 
the  chairman,  or  some  member  of  the  Committee. 
I  should  like  to  have  them  explain  why  they 
have  made  a  distinction  between  the  election  or 
appointment  of  justices  of  the  peace  and  justices 
of  the  police  courts,  and  also,  why  the  distinction 
between  the  removal  of  justices  of  the  peace  and 
justices  of  these  courts.  They  provide  that  the 
justices  of  the  peace  may  be  removed  for  suffi 
cient  cause,  although  they  cannot,  in  any  case, 
hold  their  office  unless  reappointed  or  reflected, 
for  more  than  seven  years.  Justices  of  the  police 
courts,  by  the  decisions  of  the  supreme  court, 


hold  their  offices  for  life,  or  during  good  beha 
vior  ;  yet  there  is  no  provision  made  by  which 
they  may  be  removed,  however  incompetent  they 
may  be,  nor  is  there  any  provision  made  for  their 
appointment,  unless  they  are  to  be  classed  with 
"  inferior  courts,"  and  to  be  appointed  by  virtue 
of  that  expression  in  the  Constitution.  And  why 
should  you  appoint  these  officers  of  an  "  inferior 
court"  with  a  life  tenure,  if  you  limit  the  tenure 
of  the  judges  of  the  supreme  court  to  but  ten 
years  ? 

Now,  Sir,  I  would  have  these  officers  made 
elective.  Certainly,  if  you  make  your  judges  of 
probate  elective,  the  justices  of  the  police  courts 
should  also  be  made  elective ;  nor  should  their 
time  be  longer  than  the  term  of  the  judge  of  pro 
bate.  I  should  like  to  know  from  the  chairman 
of  the  Committee,  or  from  the  gentleman  over 
the  way,  (Mr.  Cushman,)  if  it  was  intended  that 
the  provision  for  electing  the  justices  of  the  peace 
or  trial  justices,  was  also  to  cover  the  election  of 
justices  of  the  police  court  ?  If  such  was  the 
intention,  I  think  a  farther  amendment  should 
be  made  to  the  amendment  proposed  by  the  gen 
tleman  from  Bernardston.  It  seems  to  me  that 
if  there  are  good  reasons  for  electing  "  trial  jus 
tices,"  that  there  are  equally  as  good  reasons  for 
having  the  justices  of  the  police  courts  elective, 
and  for  no  longer  term  than  "trial  justices,"  and 
certainly  such  should  be  the  course  where  their 
jurisdiction  is  only  exclusive  and  coextensive 
with  the  town  or  city  in  which  they  are  elected  ; 
which,  I  believe,  is  not  always,  but  usually  the 
case.  I  think  there  is  one  instance  where  the 
jurisdiction  of  the  justice  of  the  police  court  ex 
tends  over  two  towns.  I  know,  however,  of  no 
substantial  reasons  why  they  should  not  be  in 
cluded  in  the  same  category  with  trial  justices,  as 
to  the  mode  of  their  appointment  and  tenure  in 
office.  But,  Sir,  the  Committee  who  have  had 
this  matter  in  charge,  I  doubt  not,  have  exam 
ined  it,  and  they  may  be  able  to  give  reasons 
which  may  be  satisfactory,  for  making  a  distinc 
tion  ;  and  hence  I  am  unwilling,  at  this  time,  to 
offer  an  amendment  I  have  prepared,  or  to  go 
farther  into  the  discussion  of  this  proposition 
when  none  of  that  Committee  are  present.  It  is 
due  to  the  chairman  and  members  of  that  Com 
mittee,  that  we  should  give  them  an  opportunity 
of  defending  their  Report.  For  this  reason,  I  am 
constrained  to  make  the  motion  which  I  do  now 
make,  that  the  Committee  rise,  report  progress, 
and  ask  leave  to  sit  again. 

Mr.  HALLETT.  I  hope  that  motion  will  not 
prevail.  I  have  prepared  one  or  two  amendments 
to  the  amendment  of  the  gentleman  from  Ber 
nardston,  which  I  desire  to  present. 


340 


JUSTICES    OF   THE   PEACE. 


[65th  day. 


Saturday,] 


HATHAWAY  —  HALLETT  —  MORTON  —  CUSIIMAN  —  BUTLER. 


[July  23d. 


Mr.  HATHAWAY.  If  the  gentleman  has 
any  amendments  to  propose,  I  will  withdraw  the 
motion. 

Mr.  HALLETT.  I  then  have  two  amend 
ments,  which,  if  incorporated  in  the  proposition 
of  the  gentleman  from  Bernardston,  will  recon 
cile  me  to  this  plan.  As  has  been  stated,  by  the 
existing  law,  according  to  the  decision  of  the 
supreme  court,  the  justices  of  the  police  courts 
are  recognized  as  holding  a  life  tenure.  Now, 
Sir,  I  see  no  reason  why  these  officers  should  not 
be  placed  on  a  par  with  the  justices  of  the  peace, 
so  far  as  their  election  and  tenure  are  concerned. 
Certainly,  it  is  hardly  consistent  to  provide,  as  we 
have  done,  that  even  the  judges  of  the  supreme 
judicial  court  shall  be  limited  to  a  term  of  years, 
and  the  justices  of  the  police  courts,  shall  be 
appointed  for  life.  I  therefore  move  to  add  as 
follows : — 

Justices  of  the  police  courts  shall  be  elected 
by  the  legal  voters  of  the  several  towns  and  cities 
wherein  such  courts  are  established. 

Mr.  MORTON,  of  Taunton.  I  move  to  insert 
in  the  second  paragraph,  after  the  word  "  deeds," 
the  words,  "  the  taking  of  depositions,"  so  that 
the  proviso  would  read  : — 

Provided,  That  the  jurisdiction  of  Justices  of 
the  Peace  shall  extend  only  to  the  acknowledg 
ment  of  deeds  ;  the  taking  of  depositions  ;  the 
administration  of  oaths  ;  the  issuing  of  subp(jenas  ; 
and  the  solemnization  of  marriages. 

Mr.  CUSHMAN.     I  accept  that  amendment. 

Mr.  HALLETT.  I  now  move  to  strike  out 
the  whole  proviso  of  the  second  section,  and  to 
insert  in  its  place  the  following : — 

Provided,  That  the  jurisdiction  of  Justices  of 
the  Peace  shall  not  extend  to  the  trial  of  causes, 
or  the  issuing  of  warrants. 

The  whole  resolve  would  then  read  : — 

Justices  of  the  Peace,  who  shall  be  appointed 
by  the  Governor  and  Council  for  a  term  of  seven 
years  ;  and  those  who  now  hold  that  office  shall 
continue  as  such,  according  to  the  tenure  of  their 
respective  commissions  :  provided,  that  the  juris 
diction  of  justices  of  the  peace  shall  not  extend  to 
the  trial  of  causes,  or  the  issuing  of  warrants. 

Mr.  CUSHMAN.  This  is  a  matter  for  legal 
gentlemen  to  settle,  I  will  admit ;  but  it  seems  to 
me,  that  it  will  not  be  so  plain  as  it  is  in  the  propo 
sition  as  originally  offered.  Gentlemen  will  see, 
by  looking  at  the  section  as  originally  offered, 
that  the  jurisdiction  of  the  justices  of  the  peace  is 
made  definite  and  clear.  It  prescribes  distinctly 


that  it  shall  extend  only  to  the  administration  of 
oaths,  the  issuing  of  subpoenas,  the  acknowledg 
ment  of  deeds,  the  taking  of  depositions,  and  the 
solemnization  of  marriages.  Now,  it  seems  to 
me,  that  if  the  amendment  of  the  gentleman  for 
Wilbraham  is  adopted,  the  jurisdiction,  the  power, 
the  authority,  and  the  duties  of  the  justices  of  the 
peace  will  be  left  undefined.  I  think,  therefore, 
the  amendment  to  this  section  had  better  not  be 
adopted. 

Mr.  BUTLER,  of  Lowell.  I  find  my  mind 
very  strongly  inclined  to  favor  the  amendment  of 
the  gentleman  for  Wilbraham,  (Mr.  Hallett,)  for 
precisely  the  same  reason  that  the  gentleman  from 
Bernardston,  (Mr.  Cushman,)  has  given  for  re 
jecting  it.  The  amendment  of  that  gentleman 
makes  the  jurisdiction,  of  the  justices  of  the  peace 
too  definite.  It  does  not  allow  them  to  do  any 
thing,  except  to  administer  oaths,  acknowledge 
deeds,  take  depositions,  issue  subpoenas,  and 
solemnize  marriages.  Now  there  are  a  great  many 
other  things  which  the  justice  of  the  peace  ought 
to  be  authorized  to  do.  In  the  first  place,  he  is 
to  get  as  near  to  a  riot  as  he  can,  and  order  them  to 
disperse.  He  is  a  qualifier  of  militia  officers. 
But,  without  going  into  the  detail  of  these  duties,  I 
will  merely  say,  that  there  are  a  great  many  things 
which  it  is  the  duty  of  the  justices  of  the  peace  to 
perform ;  and  which,  unless  left  to  the  legislature 
to  provide,  will  be  found  to  create  much  trouble. 
For  instance,  they  are  to  demand  pedlars  licences. 
I  only  call  the  attention  of  the  Convention  to 
these  particulars,  to  show  that  there  are  many 
things  which  a  justice  of  the  peace  should  per 
form,  besides  those  enumerated  in  the  amendment 
of  the  gentleman  from  Bernardston. 

Now,  the  amendment  of  the  gentleman  for  Wil 
braham,  leaves  the  matter  of  what  they  shall  do, 
to  the  legislature  to  settle  ;  it  only  prescribes  that 
they  shall  not  try  causes  or  issue  warrants.  That 
leaves  with  them  the  power  of  acting  as  conserva 
tors  of  the  peace,  the  same  as  the  constables,  which 
the  amendment  of  the  gentleman  from  Bernards- 
ton  would  take  away  from  them. 

Now,  Sir,  when  defining  the  duties  of  an  offi 
cer  like  this,  I  am,  as  a  rule,  always  in  favor  of 
taking  away  the  jurisdiction  I  do  not  want  them 
to  exercise,  rather  than  of  defining  that  I  do  want 
them  to  exercise.  I  prefer  to  say,  that  they  shall 
not  do  such  and  such  things,  and  leave  the  matter 
of  what  they  shall  do  an  open  question,  rather 
than  to  say  they  shall  only  do  such  and  such 
things.  That  is  precisely  the  ground  upon  which 
the  amendment  of  the  gentleman  for  Wilbraham 
is  based.  It  excludes  them  from  trying  causes 
and  issuing  warrants,  but  leaves  them  to  do  what 
ever  else  it  is  proper  for  them  to  do.  If  you  un- 


66th  day.] 


CONSTITUTIONAL    CONVENTIONS,  &c. 


341 


Monday,] 


BUTLER  —  WESTON  —  HALLETT. 


[July  25th. 


dertake  to  define  precisely  what  the  justice  of  the 
peace  shall  do,  there  will  be  something  left  out 
which  we  shall  find  aftewards  will  be  the  occasion 
of  much  inconvenience.  If  there  had  been  a 
single  justice  of  the  peace  on  the  ground,  in 
Charlestown,  to  have  given  the  firemen  orders  to 
go  on  and  quell  the  riot,  at  the  time  the  convent 
was  burned,  they  would  have  quelled  it ;  and 
there  are  very  many  duties  which  cannot  now  be 
foreseen.  I  am,  therefore,  in  favor  of  the  amend 
ment  of  the  gentleman  for  Wilbraham,  for  these 
reasons.  I  am  also  in  favor  of  the  first  amend 
ment  offered  by  that  gentleman,  which  provides 
for  the  election  of  the  justices  of  the  police  courts 
by  the  people,  as  well  as  of  trial  justices.  I  am 
not  aware  that  the  jurisdiction  of  a  police  justice 
is  of  a  higher  character  than  that  of  a  justice  of 
the  peace;  yet,  according  to  the  construction  which 
has  been  given  to  the  present  Constitution,  there 
is  no  way  of  getting  them  out  of  office.  Now,  I 
do  not  know  why  a  justice  of  the  peace  who  lives 
in  a  city,  and  has  the  power  to  fry  causes,  should 
be  a  life  officer,  any  more  than  a  justice  of  the  peace 
who  lives  in  the  country,  and  performs  exactly 
the  same  duties.  I  am,  therefore,  in  favor  of  this 
amendment,  which  puts  the  police  justices  in  the 
same  category  with  the  trial  justices,  making  them 
elective  for  the  term  of  three  years  ;  giving  the 
same  power  of  removal  as  in  the  case  of  other  like 
officers.  I  think  the  people  in  the  cities  are  just 
as  competent  to  elect  their  justices  as  are  the  peo 
ple  in  the  country.  I  know  of  some  places  where 
they  would  not  get  elected,  but  I  also  know  of 
some  places  where  they  would  not  be  reappointed  ; 
but  I  believe,  that  in  the  places  where  they  would 
not  be  elected  they  would  not  be  reappointed.  I 
hope,  therefore,  that  the  amendments  of  the  gen 
tleman  for  Wilbraham  will  be  adopted,  and  that 
the  proposition  of  the  gentleman  from  Bernards- 
ton,  as  amended,  will  then  be  accepted. 

Mr.  WESTON,  of  Duxbury.  These  resolves 
come  from  the  Committee  of  which  I  am  a  mem 
ber  ;  but  I  regret  that  it  is  not  in  my  power  to 
make  the  explanation  which  has  been  called  for. 
Having  been  absent  from  the  Committee  when 
this  subject  was  acted  upon,  I  am  unable  to  give 
the  reasons  which  governed  them  in  reporting 
these  resolutions.  I,  myself,  was  in  favor  of  the 
general  proposition  of  electing  the  justices  of  the 
peace  by  the  people.  But,  as  I  know  the  chair 
man  of  the  Committee  feels  a  great  interest  in  this 
matter,  as  do  some  of  the  other  members  of  the 
Committee,  who  are  not  now  present,  for  the  pur 
pose  of  giving  them  an  opportunity  of  defending 
their  own  Report,  I  move  that  the  Committee  do 
now  rise,  report  progress,  and  ask  leave  to  sit 
again. 


The  motion  was  agreed  to — ayes,  70  ;  noes,  37. 
The  Committee  accordingly  rose,  and  the  Pres 
ident  having  resumed  the  chair  of 

THE    CONVENTION", 

The  chairman  reported  progress,  and  asked  that 
the  Committee  have  leave  to  sit  again. 

Mr.  HALLETT  said  he  hoped  that  the  Com 
mittee  would  not  have  leave  to  sit  again,  but  that 
they  would  be  discharged  from  the  further  con 
sideration  of  the  subject. 

The  question  being  upon  granting  leave,  no 
quorum  voted,  when 

On  motion  of  Mr.  BRIGGS,  of  Pittsfield,  the 
Convention  adjourned  until  Monday  at  ten  o'clock, 
A.M. 


MONDAY,  July  25,  1853. 

The  Convention  assembled  pursuant  to  adjourn 
ment,  and  was  called  to  order  by  the  President 
pro  tempore,  at  ten  o'clock,  A.  M. 

Prayer  by  the  Chaplain. 

The  journal  of  yesterday  was  read. 

The  Convention  proceeded  to  consider  the 
Orders  of  the  Day,  the  first  item  being  the  sub 
ject  specially  assigned  for  consideration  this 
morning,  viz. :  the  resolves  on  the  subject  of 

Amendments  to  the  Constitution. 

The  pending  question  being  on  the  amendment 
of  the  gentleman  from  Pittsfield,  (Mr.  Briggs,) 
to  the  amendment  of  the  gentleman  for  Wilbra 
ham  (Mr.  Hallett). 

Mr.  HALLETT,  for  Wilbraham.  I  wish  to 
state,  in  relation  to  the  proposition  that  was  offered 
by  me  the  other  day,  as  a  substitute  for  the  origi 
nal  Report  of  the  Committee,  that  there  is  now 
pending  to  it  an  amendment  proposed  by  the 
gentleman  from  Pittsfield,  which  is  in  effect  to 
leave  to  the  legislature  the  regulating  of  the  mat 
ter  of  calling  Conventions  for  the  revision  of  the 
Constitution.  If  I  understand  the  intention  of 
the  friends  of  constitutional  reform,  their  de 
sire  is  that  Conventions  for  the  revision  of  the 
Constitution  may  hereafter  be  held  when  the 
people  desire  it,  without  the  intervention  of  the 
legislature.  And  a  proposition  has  been  presented 
for  that  purpose,  in  the  form  of  a  substitute  for 
the  resolve  reported  by  the  Committee.  Some 
exception,  however,  was  taken  to  that  substitute, 
as  embodying  too  fully  the  Act  of  1852,  in  which 
Act,  there  was  something  relating  to  the  law  as  it 
now  exists,  which  in  one  of  the  criticisms  of 
gentlemen,  was  supposed  to  throw  some  doubt 
upon  its  construction.  I  must  say,  in  regard  to 
this  objection,  that  it  is  rather  technical  than  sub- 


342 


CONSTITUTIONAL   CONVENTIONS. 


[66th  day. 


Monday,] 


BRIGGS  —  SIMMONS. 


[July  25th. 


stantial ;  but  at  the  same  time,  I  wish  to  avoid 
technical  objections  of  this  sort. 

Now,  the  proposition  of  the  gentleman  from 
Pittsfield,  is  one  which  all  can  understand.  It 
proposes  to  take  the  question  away  from  the 
legislature— to  depart  from  the  old  doctrine  that 
the  people  shall  not  reform  their  government 
unless  in  conformity  with  an  act  of  the  existing 
powers.  Now,  it  appears  to  me,  the  question  of 
adhering  to  such  a  doctrine  as  that,  is  one  that 
will  be  very  readily  disposed  of  by  this  Conven 
tion.  I  do  not  apprehend  that  it  can  stand  for  a 
moment. 

Should  the  present  motion  be  rejected,  I  shall 
then  desire  to  propose  several  amendments  to  the 
resolutions,  which  I  now  give  notice  that  I  will, 
at  the  proper  time,  present  to  the  Convention  for 
its  consideration. 

Mr.  BRIGGS,  of  Pittsfield.  I  stated  the 
other  day,  that  I  preferred  the  first  proposition 
reported  from  the  Committee,  to  the  amendment 
of  the  gentleman  for  Wilbraham  ;  and  my  amend 
ment  was  intended  to  restore  that  proposition, 
so  far  as  it  was  affected  by  the  amendment  of 
the  gentleman.  It  only  incorporates  into  his 
amendment  the  principle  contained  in  that  first 
resolve.  But,  if  it  should  be  amended  in  the 
way  proposed  by  the  gentleman,  my  impression 
now  is,  that  I  would  vote  against  the  amended 
proposition,  for  the  purpose  of  going  back  to  the 
Report  of  the  Committee,  which  I  think  is  pre 
ferable. 

Mr.  SIMMONS,  of  Hanover.  I  am  unwil 
ling  to  detain  the  Convention  at  this  stage  of  its 
proceedings,  and  will  not,  with  any  extended 
remarks ;  but  I  cannot  suffer  the  amendment 
which  has  been  proposed  by  the  gentleman  from 
Pittsfield,  to  pass,  without  saying  a  few  words  in 
opposition  to  it.  It  appears  to  me  that  by  its 
adoption,  we  should  at  once  become  dependent 
upon  the  will  of  the  legislature,  whether  we 
should  ever  have  a  Constitutional  Convention  or 
not.  And  I  ask  the  gentleman  what  he  would 
propose  to  do  in  case  one  House  should  see  fit  to 
reject  any  law  which  the  other  might  adopt  in 
relation  to  this  subject — for  unless  the  two  Houses 
agree,  the  whole  thing  falls  to  the  ground  ;  no 
Convention  can  be  held,  and  your  State  Consti 
tution  cannot  be  amended.  But,  there  is  another, 
and  in  my  judgment,  a  greater  evil  than  that. 
Gentlemen  must  be  aware  that  we  have  adopted 
a  system  of  representation  which  it  will  be  found 
allows  a  minority  of  the  people  to  control  the 
elections  of  representatives  in  the  legislature. 
"We  shall,  therefore,  when  this  evil  has  increased, 
when  it  shall  have  grown,  perhaps  enormous; 
when  from  less  than  a  minority  it  shall  have 


descended  until  it  becomes  lodged  in  the  hands  of 
a  fourth  or  a  fifth,  or  even  a  tenth  of  the  people, 
we  are  then  to  be  dependent  upon  the  will  of  a 
tenth  of  the  people  whether  we  shall  have  a  Con 
vention — whether  the  Constitution  shall  be  revised. 
In  other  words,  one-tenth  part  of  the  people  of 
the  Commonwealth  shall  have  it  in  their  power 
to  say  whether  they  will  give  up  the  power  they 
have — whether  they  will  give  up  the  control  of 
the  Commonwealth.  Well,  now  has  it  ever  been 
known,  when  any  set  of  men  had  power  in  their 
hands  which  did  not  rightfully  belong  to  them, 
that  they  willingly  gave  it  up  ?  Go  back  in  the 
history  of  the  world  to  the  earliest  times  and 
trace  the  course  of  events  down  to  this  hour,  and 
where  will  you  find  an  instance  of  a  party  having 
power  who  were  willing  to  yield  up  that  power  ? 
The  Stuarts  might  have  maintained  their  ground 
if  they  had  yielded  somewhat ;  but  they  would 
not,  and  it  cost  them  their  heads.  So  too,  the 
Bourbons,  who  are  said  never  to  have  learned, 
and  never  to  have  forgotten  anything,  always 
yielded  when  it  was  too  late,  and  it  cost  them 
their  throne.  It  has  been  so  in  our  times,  and  in 
this  country.  How  has  it  been  in  the  neighbor 
ing  State  of  Rhode  Island  ?  A  very  small  minor 
ity  of  the  people  held  out  in  a  struggle  of  forty 
years  or  more,  during  which,  they  refused  to  give 
up  the  power,  and  it  brought  about  something 
like  a  revolution — an  unsuccessful  revolution,  I 
admit — but  for  that  revolution,  we  had,  in  a  great 
measure,  to  thank  the  good  citizens  of  Massachu 
setts.  It  was  the  arms  of  Massachusetts,  loaned 
by  Massachusetts  officers,  that  were  used  to  put 
down  the  majority  of  the  legal  voters  of  Rhode 
Island.  Yet,  we  see  men  of  the  same  party, 
men  who  stood  shoulder  to  shoulder  with  each 
other  to  put  down  the  majority  of  the  legal  voters 
in  Rhode  Island,  we  find  them  now  on  the  other 
side.  And,  I  say,  reasoning  from  all  this,  it  is 
dangerous  to  leave  it  in  the  power  of  the  legisla 
ture  to  say,  whether  or  not  we  shall  have  a  Con 
vention  ;  it  is  dangerous  to  leave  it  to  the  legisla 
ture  to  say,  what  shall  be  the  basis  of  the 
Convention  to  revise  the  Constitution  of  the  State, 
when  a  Convention  for  that  purpose  shall  be 
agreed  upon.  But,  it  is  necessary  that  we  should 
have  some  provision  that  will  execute  itself.  I 
am  willing,  therefore,  that  the  proposition  sub 
mitted  by  the  gentleman  for  Wilbraham,  or  the 
proposition  submitted  by  the  gentleman  for  Marsh- 
field,  (Mr.  Sumner,)  one  or  both  of  them,  should 
be  adopted.  They  would  cure  a  part  of  the  evil. 
They  would  go  as  far  as  this  :  that  a  Convention 
should  be  held,  whether  the  legislature  existing 
at  the  time  should  consent  or  not.  The  objection 
to  the  proposition  of  the  gentleman  from  Pitts- 


66th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


343 


Monday,] 


SIMMONS  —  UPTON  —  BRADFORD. 


[July  25th. 


field,  (Mr.  Briggs,)  is,  that  it  leaves  to  the  legisla 
ture  the  power  to  control  the  matter.  For  these 
reasons,  with  all  due  respect  for  the  experience  of 
the  gentleman  from  Pittsfield,  I  must  respectfully 
protest  against  its  adoption. 

But  after  we  have  got  to  that  extent,— after  we 
have  secured  a  provision  by  which  a  Convention 
may  hereafter  be  called,— I  say  this  Convention 
is  bound  to  go  one  step  farther  to  prevent  those 
who  represent  but  a  small  minority  of  the  people 
of  the  Commonwealth,  from  controlling  the  Com 
monwealth  in  regard  to  this  matter.  If  we  do 
not,  I  will  venture  to  say  that  our  descendants 
will  never  see  anything  like  equal  representation 
in  their  government. 

And  the  way  in  which  I  would  do  this,  is  by 
adopting  the  proposition  which  I  submitted  in 
Committee  of  the  Whole,  and  which  was  voted 
down,  for  the  reason  that  there  was  no  opportu 
nity  given  to  explain  it.  And  lest  there  should 
be  no  opportunity  to  submit  it  again,  I  will  state 
that  it  corresponds  with  the  proposition  of  the 
gentleman  for  Wilbraham,  with  the  additional 
provision  that  all  magistrates,  justices,  and  persons 
in  authority,  shall  recognize  all  meetings  of  the 
people  that  shall  be  holden  for  the  purpose  of 
revising  the  Constitution  ;  so  that  we  shall  not 
fall  into  the  evil  that  the  people  of  Rhode  Island 
did  from  the  earliest  times.  All  writers  on  con 
stitutional  law,  from  the  earliest  times  down  to 
the  present  hour,  the  judges  of  the  supreme 
court,  and  amongst  them  Judge  Marshall  himself, 
all  recognize  the  right  of  the  people  to  amend  or 
abolish  their  fundamental  law.  It  is  true  the 
amendment  of  the  gentleman  for  Wilbraham 
embodies  that  doctrine,  though  not  so  strongly  as 
I  desire.  In  Rhode  Island,  as  there  had  been  no 
legislation  on  the  subject,  the  courts  could  not 
take  notice  of  the  movements  made  by  the  people 
to  amend  their  Constitution,  though  it  was  known 
that  a  majority  had  voted  to  amend  it.  Now  I 
want  to  avoid  this ;  I  want  to  avoid  the  possi 
bility  of  the  occurrence  of  such  a  state  of  things 
in  this  Commonwealth.  Let  us  require  our 
courts  to  take  notice  of  such  action  on  the  part  of 
the  people.  And  if  any  considerable  body  of  the 
people  can  make  out  to  the  satisfaction  of  the 
court  and  jury  that  a  majority  of  the  citizens  of 
the  Commonwealth  had  decided  that  they  would 
have  a  Convention  in  a  certain  manner,  let  them 
have  it.  If  we  adopt  such  a  provision,  in  my 
judgment,  this  evil  would  be  wholly  cured. 

There  are  many  other  points  that  I  would  like 
to  enlarge  upon,  but  the  time  allowed  me  is  not 
sufficient  for  that  purpose.  There  are  many  sub 
jects  that  come  before  the  Convention  in  which  I 
feel  a  deep  and  abiding  interest,  but  this  is,  per 


haps,  the  greatest  of  them  all.  I  feel  that  Rhode 
Island  has  suffered,  and  I  feel  that  Massachusetts 
has  done  a  grievous  wrong  in  this  matter,  when 
she  should  have  done  what  in  her  lay  to  farther 
a  sacred  principle  of  liberty.  I  hope  that  this 
Convention  will  not  adjourn  until  we  have  done 
what  shall,  in  some  degree,  serve  to  repair  that 
wrong,  or  at  least  prevent  its  occurrence  hereafter. 

Mr.  UPTOX,  of  Boston.  I  hope  the  proposi 
tion  now  under  consideration  will  not  prevail, 
but  that  the  Convention  will  finally  adopt  the 
Report  of  the  Committee,  which  I  think  is  simple 
and  explicit,  and  covers  the  whole  ground.  I 
object  to  the  proposition  of  the  gentleman  for 
Wilbraham,  (Mr.  Hallett,)  because  it  undertakes 
to  establish  a  basis  now  for  future  amendments  to 
the  Constitution,  and  instead  of  establishing  it 
upon  the  popular  branch  of  the  legislature,  the 
Senate,  it  proposes  to  establish  it  upon  the  House 
of  Representatives,  which  is  not  the  popular 
branch  but  the  representative  of  corporations.  I 
object,  therefore,  as  a  matter  of  principle,  in  un 
dertaking  to  establish  here  a  basis  for  future 
amendments  to  the  Constitution,  as  I  regard  it  as 
an  anti-  democratic  principle  to  do  so.  In  all  the 
debates  upon  this  floor  in  relation  to  the  present 
basis  of  representation,  it  has  been  admitted  that 
the  Senate  is  the  popular  branch.  It  has  been 
claimed,  and  conceded  in  part,  that  towns  were 
entitled  to  a  greater  representation  on  account  of 
the  concession  made  that  the  Senate  should  be 
elected  upon  the  basis  of  population.  I  object, 
therefore,  to  the  proposition  of  the  gentleman  for 
Wilbraham,  (Mr.  Hallett,)  because,  as  I  said 
before,  it  establishes  a  basis  now  for  making 
future  amendments  to  the  Constitution,  instead 
of  leaving  the  matter  as  is  proposed  by  the  Report 
of  the  Committee,  to  the  legislature.  As  I  under 
stand  the  gentleman  for  Wilbraham,  (Mr.  Hal 
lett,)  he  submits  that  proposition  as  an  entire 
proposition,  upon  which  hereafter  to  base  amend 
ments  to  the  Constitution.  By  the  Report  of  the 
Committee,  it  is  provided  that  amendments  may 
be  proposed  by  the  Senate  and  House  of  Repre 
sentatives,  and  then  submitted  to  the  people.  It 
seems  to  me  very  important  that  such  a  provision 
should  be  inserted  in  the  Constitution,  in  case 
any  clerical  errors  should  be  made,  or  any  other 
errors  in  the  amendments  which  you  should  adopt, 
that  would  need  correction.  The  proposition  of 
the  gentleman  for  Wilbraham,  (Mr.  Hallett,) 
makes  no  provision  for  a  case  of  this  kind.  Under 
the  circumstances  I  hope,  therefore,  that  the  Re 
port  of  the  Committee  will  be  adopted. 

Mr.  BRADFORD,  of  Essex.  I  agree  to  the 
principle  contained  in  the  amendment  of  the  gen 
tleman  for  Wilbraham— and  I  suppose  that  a 


344 


CONSTITUTIONAL   CONVENTIONS. 


[66th  day. 


Monday,] 


BUCK  —  HALLETT  —  SIMONDS. 


[July   25th. 


large  majority  of  the  Convention  will  agree  to  it — 
that  the  people  alone  aro  the  sovereignty,  that 
they  are  the  source  of  power,  and  that  they  have 
power  to  alter  or  amend  their  Constitution  with 
out  the  intervention  of  the  legislature,  or  any  con 
stitutional  authority  within,  or  without  the  State. 
There  are  some  objections,  however,  to  the  plan 
proposed  by  the  gentleman  for  Wilbraham  ;  and 
I  desire,  if  it  is  in  order  at  this  time,  or  when  it 
shall  be  in  order,  to  propose  an  amendment  to 
that  proposition.  As  the  proposition  now  before 
us  is  a  substitute  for  the  proposition  of  the  Com 
mittee,  I  suppose  an  amendment  to  that  substi 
tute  is  now  in  order.  If  so,  I  would  offer  it  at 
this  time.  If  not,  I  desire  to  offer  it  at  some 
future  time. 

The  PRESIDENT.  The  amendment  of  the 
gentleman  from  Essex  is  not  in  order  at  this  time, 
as  an  amendment  to  an  amendment  is  now  pend 
ing. 

Mr.  BUCK,  of  Lanesboro'.  As  this  is  an 
amendment  to  an  amendment,  and  as  it  is  not  in 
order  to  propose  a  farther  amendment,  I  shall 
therefore  call  for  a  division  of  the  question. 

The  PRESIDENT.  The  question  will  first  be 
taken  upon  the  amendment  of  the  gentleman  from 
Pittsfield,  (Mr.  Briggs,)  to  strike  out  the  follow 
ing  words  :  "in  conformity  with  the  provisions  of 
the  Act  of  1852,  chapter  188,  relating  to  calling  a 
Convention  of  the  delegates  of  the  people  for  the 
purpose  of  revising  the  Constitution." 

Mr.  HALLETT,  for  Wilbraham.  I  presume 
the  yeas  and  nays  wrere  ordered  upon  this  ques 
tion  with  the  understanding  that  they  were  not 
to  be  taken  upon  a  proposition  to  which  every 
body  seems  agreed,  but  upon  the  other  parts  of 
the  proposition.  I  move  a  reconsideration  of  the 
vote,  therefore,  by  which  the  yeas  and  nays  were 
ordered. 

The  question  was  taken  upon  Mr.  Hallett's 
motion,  and  it  was  decided  in  the  affirmative. 

So  the  vote  by  which  the  yeas  and  nays  were 
ordered,  was  reconsidered. 

The  question  was  then  taken,  whether  the  yeas 
and  nays  should  be  ordered  upon  Mr.  Briggs's 
amendment,  and  it  was  decided  in  the  negative. 

So  the  yeas  and  nays  were  not  ordered. 

The  question  was  taken  upon  Mr.  Briggs's 
amendment,  and  it  was  adopted. 

The  question  then  recurred  on  the  following 
amendment,  to  strike  out  the  words  "  with  the 
same  authority  as  is  provided  in  the  2d,  3d,  and 
4th  sections  of  said  Act,"  and  to  insert  in  lieu 
thereof,  the  following :  "  to  be  provided  by  the 
legislature  to  be  chosen  at  said  election." 

The  question  was  taken,  and  the  amendment 
was  rejected — ayes,  77  ;  noes,  105. 


Mr.  HALLETT,  for  Wilbraham,  moved  to 
amend  the  first  resolve  by  striking  out,  and  in 
serting  the  following : — 

1.  A  Convention  to  revise  or  amend  this  Con 
stitution,  may  be  called  and  held  in  the  following 
manner :  At  the  general  election  in  the  year 
one  thousand  eight  hundred  and  seventy- three, 
and  in  each  twentieth  year  thereafter,  the  quali 
fied  voters  in  State  elections  shall  give  in  their 
votes  upon  the  question  :  "  Shall  there  be  a  Con 
vention  to  revise  the  Constitution  ?  "  which  votes 
shall  be  received,  counted,  recorded,  and  declared, 
in  the  same  manner  as  in  the  election  of  governor ; 
and  a  copy  of  the  record  thereof,  shall,  within  one 
month,  be  returned  to  the  office  of  the  Secretary 
of  State,  who  shall,  thereupon,  examine  the  same, 
and  shall,  officially  publish  the  number  of  yeas 
and  nays  given  upon  said  question,  in  each  town 
and  city,  and  if  a  majority  of  said  votes  shall  be 
in  the  affirmative,  it  shall  be  deemed  and  taken  to 
be  the  will  of  the  people  that  a  Convention  shall 
meet  accordingly ;  and  thereafter,  on  the  first 
Monday  of  March  ensuing,  meetings  shall  be 
held,  and  delegates  shall  be  chosen,  in  all  the 
towns,  cities,  and  districts,  in  the  Commonwealth, 
in  the  manner  and  number  then  provided  by  law 
for  the  election  of  the  largest  number  of  represent 
atives,  which  the  towns,  cities,  and  districts  shall 
then  be  entitled  to  elect  in  any  year  of  that  de 
cennial  period.  And  such  delegates  shall  meet  in 
Convention  at  the  State  House,  on  the  first 
Wednesday  of  May  next  ensuing,  and  when  or 
ganized,  shall  have  all  the  powers  necessary  to 
execute  the  purpose  for  which  such  Convention 
was  called  ;  and  may  establish  the  compensation 
of  its  officers  and  members,  and  the  expense  of 
its  session,  for  which  the  Governor,  with  the  ad 
vice  and  consent  of  the  Council,  shall  draw  his 
warrant  011  the  treasury.  And  if  such  alterations 
and  amendments  as  shall  be  proposed  by  the  Con 
vention,  shall  be  adopted  by  the  people  voting 
thereon,  in  such  manner  as  the  Convention  shall 
direct,  the  Constitution  shall  be  deemed  and  taken 
to  be  altered  or  amended  accordingly.  And  it 
shall  be  the  duty  of  the  proper  officers,  and  per 
sons  in  authority,  to  perform  all  acts  necessary  to 
carry  into  effect  the  foregoing  provisions. 

Mr.  SIMONDS,  of  Bedford.  I  would  inquire, 
Mr.  President,  if  it  is  in  order  to  offer  an  amend 
ment  at  the  present  time  ? 

The  PRESIDENT.     It  is  not. 

Mr.  SIMONDS.  I  do  not  propose,  Mr.  Pres 
ident,  to  oppose  this  amendment ;  but  still,  I 
think  it  is  incomplete ;  and  any  other  measure 
proposed  for  amending  the  Constitution,  -I  think 
is  incomplete,  which  does  not  exclude  the  ninth 
article  of  the  amendments  of  the  present  Consti 
tution. 

Why  do  we  wish  for  a  principle  in  the  Consti 
tution,  embracing,  as  this  does,  the  power  of  the 
legislature  to  unmake  any  Constitution  which  the 
people  may  establish  ?  I  suppose  that  if  a  prin- 


66th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


345 


Monday,] 


SlMONDS  —  CnOWNINSHIELD. 


[July  25th. 


ciple  of  this  kind  is  necessary,  it  is  necessary  for 
some  beneficial  effect ;  and  I  would  call  the  atten 
tion  of  the  Convention  to  this  inquiry,  whether 
it  has  any  beneficial  effect  ?  It  is  known  that  it  is 
a  new  principle,  which  originated  in  the  Conven 
tion  of  1820,  for  the  ostensible  purpose  of  amend 
ing  the  Constitution  in  unimportant  and  specific 
matters,  which  it  Avas  supposed  might  be  done  by 
this  mode  when  it  would  be  inconvenient  to  get 
a  vote  of  the  people  for  calling  a  Convention. 
But  I  would  ask  if  the  experience  of  thirty- three 
years  has  shown  that  such  a  power  is  needed  to 
make  unimportant  and  specific  amendments  ? 
The  legislature  has  been  called  upon  four  times 
to  act  upon  this  matter ;  and  what  have  been  the 
subjects  to  which  their  attention  has  been  called  r 
There  have  been  only  three  subjects  acted  upon, 
which  I  contend  were  of  the  most  important  and 
fundamental  character  of  any  in  the  Constitution, 
to  wit :  the  third  article  of  the  Bill  of  Rights ;  the 
basis  of  the  House  of  Representatives ;  and  the 
third  one,  which  I  consider  less  important,  re 
lating  to  the  time  of  the  meeting  of  the  legisla 
ture.  These  three  subjects  are  all  that  it  has 
been  found  necessary  to  act  upon,  since  the  Con 
stitution  was  adopted,  as  amended  in  1820. 

Now,  I  submit,  that  in  the  experience  of  thirty 
years,  there  has  been  no  occasion  for  the  exercise 
of  this  power  by  the  legislature,  except  in  those 
cases  which  were  of  the  most  vital  importance. 
If  this  is  a  necessary  principle,  we  might  as  well 
say  at  once  that  we  have  done  with  holding  Con 
ventions  ;  and  we  will  have,  then,  all  amendments 
submitted  through  that  channel.  If  this  principle 
should  not  be  retained,  and  the  amendment  now 
offered  should  go  in,  then,  I  submit,  that  it  would 
be  better  to  leave  it  entirely  to  this  course.  I  am  in 
favor  of  the  amendment,  because  I  am  opposed  to 
retaining  this  principle  in  the  Constitution  ;  and  I 
shall  vote  against  every  proposition  which  does 
not  provide  against  the  exercise  of  this  legislative 
mode  of  submitting  amendments  in  the  future. 
If  the  legislature  are  to  have  this  power,  and  it  is 
thought  proper  that  they  should  act  as  they  have 
done  heretofore  upon  the  most  important  subjects 
contained  in  the  Constitution,  this  is  leaving  all 
the  power  to  the  legislature,  and  saying,  at  once, 
that  the  voice  of  the  people  is  properly  expressed 
through  their  agents,  the  legislature ;  now,  I 
would  go  back  to  the  original  ground,  and  declare 
that  the  legislature  have  no  right  to  interfere  with 
the  fundamental  law  which  the  people  have  es 
tablished  by  the  mode  of  a  Convention.  One  of 
these  two  principles  must  be  adhered  to,  as  a  fun 
damental  restraint  upon  the  government.  I  can 
not  see  the  propriety  of  retaining  both  of  these 
principles,  which  are,  in  my  opinion,  diametrically 

23 3 


opposed  to  each  other  in  their  character.  When 
we  consider  the  nature  of  the  subjects  which  the 
legislature  have  heretofore  proposed  for  amend 
ment,  in  the  exercise  of  that  power,  we  shall  find 
that  it  has  only  been  \ised  to  effect  changes  in  the 
Constitution  which  the  people  had  rejected.  This 
result  has  been  effected  by  reversing  the  declara 
tion  in  the  Bill  of  Rights,  which  says  the  people 
alone  have  the  right  to  alter  and  amend  the  form 
of  government,  by  introducing  another  power, 
which  changes  that,  and  says  the  legislature  also 
have  a  right  to  propose  amendments  to  the  frame 
of  government.  And  how  does  this  principle 
operate  ?  The  people  can  never  express  in  any 
direct  form,  an  opinion  how  the  Constitution 
should  be  amended.  They  must  wait  until  the 
legislature  propose  the  amendments  in  form,  as 
they  are  to  be  adopted.  Now,  according  to  my 
opinion,  the  people  are  the  proper  power  to  declare 
what  is  necessary  for  an  amendment  of  our  fun 
damental  law.  It  was  on  this  great  principle 
that  our  Constitution  was  formed  at  first.  We 
have  heard  it  stated  in  the  history  of  the  forma 
tion  of  the  Constitution,  that  the  legislature  un 
dertook  to  propose  to  the  people  the  fundamental 
law,  which  the  people  rejected,  and  ever  after 
wards  went  on  and  proposed  for  themselves — 
until  recently — in  a  legitimate  and  proper  manner, 
as  I  believe. 

The  history  of  this  legislative  mode  of  amend 
ments  show,  that  it  has  only  been  used  to  defeat 
the  will  of  the  people,  as  previously  expressed,  on 
each  of  the  several  subjects  that  have  been  intro 
duced  into  the  Constitution  by  that  mode  of 
amendment.  And  the  same  results  may  be  ex 
pected  to  follow,  if  that  power  is  retained,  judging 
the  future  by  the  past. 

It  is  said  this  system  was  adopted  by  the  people 
in  1820  ;  but  it  was  held  out  to  them  that  the 
power  of  the  legislature  was  only  to  be  used  in 
reference  to  unimportant  matters.  This  was  the 
argument  which  was  put  before  them.  And  now, 
since  the  history  of  the  exercise  of  this  power  has 
shown  that  it  has  not  been  exercised  in  minor 
matters,  but  only  in  reference  to  important  mat 
ters,  it  appears  to  me  that  we  should  now  be 
satisfied  that  it  is  not  necessary  to  retain  that 
power,  unless  we  are  prepared  to  show  that  the 
legislature  is  the  proper  medium  throxigh  which 
to  express  the  act  of  the  people. 

Mr.  CROWNINSHIELD,  of  Boston.  I  do 
not  intend  to  detain  the  Convention  at  this  late 
period  of  the  session,  to  go  over  again  the  same 
matters  which  I  had  the  honor  to  present  hereto 
fore.  I  wish  to  say  but  a  word  or  two  with  re 
gard  to  the  objections  which  I  have  to  this  amend 
ment.  We  all  agree  that  the  great  mass  of  the 


346 


CONSTITUTIONAL   CONVENTIONS. 


[66th  day. 


Monday,] 


CKOWNINSHIELD —  DENTON. 


[July  25th. 


people  have  the  right  to  frame  their  Constitution, 
and  alter  it  at  pleasure.  Nobody  denies  that 
proposition.  I  think  I  see  the  object  of  the 
amendment  of  the  gentleman  for  Wilbraham,  to 
be  a  proposition  to  carry  6ut,  and  forever  to  fasten 
upon  us,  what  I  must  call  the  unjust  principle  of 
representation  which  has  been  established  by  a 
majority  of  this  Convention.  We  have  decided 
to  submit  to  the  people,  for  their  consideration,  a 
proposition  to  establish  a  House  of  Representa 
tives,  not  upon  the  principle  of  equality,  but 
upon  an  arbitrary,  uncertain,  and  varying  princi 
ple,  and  one  that,  I  must  say,  I  think  is  unfair 
and  unjust ;  a  principle  which  will  give  to  a  small 
minority  of  the  people,  the  control  of  that  body. 
Now,  Sir,  the  amendment  proposed  by  the 
gentleman  for  Wilbraham,  contains  this  propo 
sition  :  that  whenever  it  shall  be  determined  upon 
hereafter  to  call  a  Convention  of  the  people,  that 
.Convention  shall  be  apportioned  upon  the  basis  of 
Representation  which  may  then  exist.  If  the  peo 
ple  accept  the  proposition  we  have  submitted  to 
£b£iu.,  then  equality  of  representation  is  gone,  and 
£ny  future  Convention  which  may  assemble  under 
a  call  of  the  people,  to  alter  and  frame  the  funda 
mental  laws  .of  the  Commonwealth,  will  by  no 
means  represent  the  people  of  the  Commonwealth. 
Sir,  it  is  proposed  by  the  system  of  representation 
we  have  adopted,  to  put  the  chain  upon  us  of  the 
large  cities  and  .towns.  I  say  the  chain,  Sir.  It 
is  taking  away  from  my  constituents  their  just 
rights  to  be  equally  represented  ;  and  the  propo 
sition  of  the  gentleman  for  Wilbraham  is  to  rivet 
this  chain  upon  us  forever.  What  have  we  seen 
here  in  this  body  of  delegates  of  the  people,  in 
which  my  constituents  are  not  equally  represent 
ed  with  the  constituents  of  many  gentlemen  on 
this  floor  ?  Here  is  a  Convention  of  delegates  not 
fully  representing  the  people,  and  the  first  thing 
they  do  is  to  go  on  and  propose  a  basis  of  repre 
sentation  which  is  already,  under  the  existing  pro 
visions  of  the  Constitution,  unequal,  vastly  more 
unequal ;  and  we  are  called  upon  to  adopt  a  prin 
ciple  for  calling  a  Convention  in  1873  upon  the 
same  principle  of  inequality.  Where  shall  we  be 
then,  who  are  now  shorn  of  our  just  rights? 
"What  will  become  of  us  then  ?  The  next  thing, 
in  this  progressive  age — if  this  is  democratic  and 
republican — will  be  to  have  an  equal  horizontal 
representation  of  the  corporations,  so  that  some 
little  petty  town,  in  point  of  numbers — containing 
three,  or  four,  or  five  hundred  inhabitants — will  be 
as  largely  represented,  and  have  as  many  votes,  as 
the  city  of  Boston,  which  will  contain  at  that 
time  perhaps  two  hundred  and  fifty  or  three  hun 
dred  thousand  inhabitants.  And  it  is  just  as 
right  and  just  that  they  should  do  so,  as  to  have 


the  unequal  representation  which  we  have  given 
them  already.  These  are,  in  one  word,  the 
reasons  why  I  must  vote  against  the  amendment. 

Upon  the  question  of  the  expediency  of  sub 
mitting  the  question  to  the  people  every  twenty 
years,  whether  or  not  they  will  have  a  Convention, 
I  have  nothing  to  say.  If  it  is  thought  by  this 
Convention  expedient  to  do  so,  I  do  not  rise  to 
oppose  it.  But  if  such  a  proposition  is  to  be  sub 
mitted  to  the  people,  or  any  other  proposition 
whereby  a  Convention  is  to  be  called,  I  will  not 
vote  for  it  unless  it  contains  the  great  funda 
mental,  essential,  eternal  principles  of  a  republi 
can  government — of  justice  and  equality.  If, 
therefore,  the  gentleman  from  Essex,  (Mr.  Brad 
ford,)  has  an  opportunity  to  submit  his  amend 
ment—which,  from  a  somewhat  careful  attention 
to  it  as  he  read  it,  I  think  I  understand — I  will  go 
for  it,  because  it  provides  for  an  equal  representa 
tion  of  all  the  people  in  any  future  Convention. 
This  is  the  first  time  I  have  known  it  contended 
for,  that  the  municipal  corporations  of  this  Com 
monwealth,  and  acting  as  corporations,  have  a 
right,  or  should  have  a  right,  to  make  a  funda 
mental  law.  Against  such  a  proposition  as  that,  I 
here  enter  my  earnest  and  solemn  protest.  When 
the  gentleman  from  Essex  has  an  opportunity  to 
bring  in  his  amendment — which  does  provide  for 
an  exact  and  equal  representation  of  the  people  in 
any  future  Convention — I  am  willing  to  vote  for 
it,  although  it  may  not  be  in  the  precise  form 
which  I  would  make  it  if  I  had  drawn  it  up  to 
suit  myself. 

Mr.  DENTON,  of  Chelsea.  I  did  not  intend 
to  express  any  opinion  upon  the  subject  now  be 
fore  the  Convention  ;  but  the  remarks  of  the  gen 
tleman  who  represents  Boston  (Mr.  Crownin- 
shield)  have  induced  me,  in  a  few  words,  to  reply 
to  the  argument  he  has  used  with  regard  to  the 
representation  of  Boston  on  this  floor.  I,  Sir, 
represent  a  portion  of  Suffolk  County.  I  take 
issue  with  that  gentleman  on  the  question  of  the 
representation  of  Boston  and  the  other  towns  in 
Suffolk  County.  Comparing  the  population  of 
Boston  with  the  population,  of  Chelsea,  we  find 
that  Boston  is  more  fully  represented  than  Chel 
sea.  Chelsea  has  a  population  of  near  nine  thou 
sand,  and  Boston  has  some  one  hundred  and 
thirty- five  thousand.  Boston  is  represented  on 
the  floor  of  this  Convention  by  forty-four  repre 
sentatives,  and  Chelsea  has  but  two.  Now,  I  ask 
the  gentleman  from  Boston,  if  Boston  is  not  more 
fully  represented  than  the  town  of  Chelsea  ?  He, 
I  am  sure,  will  not  deny  this  fact.  Not  only 
have  they  more  delegates  upon  this  floor,  in  pro 
portion  to  their  population,  than  the  town  I 
have  the  honor  to  represent;  but  also  by  the 


66th  day.] 


CONSTITUTIONAL    CONVENTIONS. 


347 


Monday/ 


DENTON. 


[July   25th. 


election  of  those  delegates  on  a  general  ticket, 
each  and  every  voter  in  the  city  of  Boston  was 
entitled  to  vote  for  forty- four  delegates  to  this 
Convention,  while  the  voters  of  the  town  of  Chel 
sea,  in  their  representation  upon  this  floor,  were 
only  entitled  to  vote  for  two.  Sir,  does  this  look 
as  if  Boston  was  unequally  represented  ?  I  think 
not.  Now,  Mr.  President,  these  are  facts,  and 
no  will  deny  it.  Consequently,  I  say,  that  Bos 
ton  is  equally,  and  more  than  equally  represented, 
and  will  be,  as  long  as  the  general  ticket  system 
prevails. 

And  now,  Sir,  one  word  in  regard  to  the  sub 
ject  before  the  Convention— a  subject,  in  my 
opinion,  one  of  the  most  important  that  will  be 
submitted  to  the  people — the  rights  of  the  people 
themselves,  whether  the  people,  through  their 
qualified  voters,  independent  of  all  legislative 
enactments,  shall  have  the  power  to  call  a  future 
Convention,  or  whether  they  will  delegate  that 
power  to  future  legislatures.  That  is  the  ques 
tion.  And,  I  believe,  if  the  proposition  of  the 
gentleman  for  Wilbraham  (Mr.  Hallett)  should 
be  accepted,  it  would  be  precisely  what  the  people 
want.  It  gives  them  the  right,  without  any  leg 
islative  interference,  to  hold  their  future  Conven 
tions.  Now,  Sir,  why  not  submit  this  proposi 
tion  to  the  people  ?  It  is  a  proposition  for  them 
to  act  upon — a  question  which  is  of  vital  interest 
to  every  man,  woman  and  child,  in  the  whole 
Commonwealth,  and  one  which  if  they  adopt,  must 
be  by  a  majority  of  legal  votes  cast  in  the  whole 
Commonwealth,  and  not  by  a  majority  of  the 
towns,  or  a  majority  of  the  representatives  of  the 
towns.  It  is  for  the  people  themselves  to  decide, 
if  this  proposition  is  submitted  to  them,  whether 
they  will  accept  or  reject  it.  If  the  people  say 
aye,  it  will  be  incorporated  into  the  Constitution, 
and  become  a  part  of  the  fundamental  law  of  the 
State.  And  now,  Sir,  what  would  be  the  effect 
of  this  law,  provided  it  should  be  adopted  ?  It  is 
that  the  people,  in  their  primary  capacity,  through 
their  qualified  voters,  may  decide  in  1873  whether 
they  will  have  a  Convention  for  the  purpose  of 
revising  the  Constitution:  Then,  again,  it  will 
require  a  majority  of  all  the  votes  cast  in  the 
State  to  call  a  Convention  ;  and  if  a  majority 
should  decide  that  the  Constitution  ought  to  be 
revised  or  amended,  why  the  delegates  elected 
would  meet,  according  to  the  provision  in  the 
Constitution,  and  transact  their  business  without 
any  of  the  formula  that  would  be  attached  if  the 
authority  of  the  legislature  was  required  before 
the  people  could  themselves  act  upon  the  ques 
tion.  This,  of  itself,  is  a  sufficient  reason,  in  my 
opinion,  why  the  proposition  of  the  gentleman  for 
Wilbraham  should  be  adopted.  It  has  been  ob 


jected,  by  gentlemen  opposed  to  the  adoption  of 
these  resolutions,  that  any  specified  time  should 
be  appointed  for  the  holding  of  future  Conven 
tions,  that  it  is  taking  what  properly  belongs  to 
the  legislature;  that  they  should  present  the 
question  for  the  legal  voters  to  decide ;  and  that 
this  Convention  is  usurping  a  power  that  does 
not  properly  belong  to  them,  to  decide  what  action 
may  be  necessary  for  the  future.  Why,  Sir,  the 
gentleman,  in  his  resolutions,  provides  that  the 
legislatures  may,  by  concurrent  action,  present 
the  question  of  calling  a  Convention  to  the  people, 
whenever,  in  their  opinion,  it  may  be  expedient ; 
and  if  the  people,  by  a  majority  of  legal  votes, 
decide  in  favor,  then  the  Convention  will  be  held 
accordingly.  Thus  it  will  be  seen,  that  whatever 
emergency  may  arise,  the  legislature,  if  necessary, 
may  submit  the  question  for  the  final  action  of 
the  people  ;  while,  at  the  same  time,  there  will  be 
incorporated  a  provision  that,  at  the  expiration  of 
twenty  years,  without  regard  to  the  will  of  any 
legislature,  and  beyond  the  control  of  any  legisla 
tive  action  thereon,  the  people  themselves,  inde 
pendent  of  any  and  all  other  power,  will,  by  their 
own  votes,  determine  whether  there  is  a  necessity 
for  revising  or  amending  the  Constitution. 

Then  the  question  is,  how  shall  the  people  be 
represented  ?  I  can  see  no  other  way  in  accord 
ance  with  the  principles  of  justice,  that  they  can 
be  represented  in  that  Convention,  except  by  a 
representation  from  the  several  towns  ;  because 
we  have  incorporated  into  the  Constitution  that 
every  town  shall  be  represented  according  to  the 
number  of  inhabitants  ;  and  if  the  inhabitants  or 
legal  voters  in  those  several  towns  say  that  they 
wish  them  to  be  represented,  why,  in  the  name 
of  common  sense,  should  not  every  town  be 
represented  in  forming  our  fundamental  laws  for 
the  future  ?  Is  it  not  the  principle  of  justice  that 
every  town  shall  be  represented  in  that  Conven 
tion  ?  I  ask  if  we  should  disfranchise  any  indi 
vidual  town  from  being  represented  where  the 
fundamental  law  of  the  Commonwealth  is  to  bo 
submitted  to  the  whole  people  ?  This  matter  seems 
to  be  a  very  important  matter,  and  at  the  same  time 
it  appears  to  be  a  very  simple  matter.  It  appears  to 
me  that  gentlemen  have  brought  in  and  thrown  a 
mystification  around  it,  which  plain,  common 
sense  men  can  see  at  once  is  for  a  specific  object. 
The  question,  as  it  seems  to  me,  is  simply  this  : 
Shall  the  people,  in  their  primary  capacity,  have 
the  right,  in  1873,  without  any  legislative  action 
on  the  subject,  to  assemble  through  their  dele 
gates  in  a  Constitutional  Convention  ?  That  is 
the  whole  matter  at  issue  ;  and  now,  all  we  want 
to  decide  is,  how  shall  they  be  represented  ?  It 
seems  to  me  to  be  no  more  than  strict  equality 


348 


CONSTITUTIONAL    CONVENTIONS. 


[66th  day. 


Monday, 


CROWNINSHIELD  —  HATHAWAY. 


[July  25th. 


and  justice  that  every  town  in  the  Common  weal  th, 
whether  it  contains  one  thousand  inhabitants,  or 
one  hundred  and  fifty  thousand,  shall  be  repre 
sented  in  the  Convention  to  form  the  organic  law. 
I  should  not  have  said  anything  upon  this  subject, 
had  it  not  been  that  a  false  impression  might  go 
before  the  Convention  that  the  city  of  Boston  has 
not  an  equal  representation  with  the  other  cities 
and  towns  in  this  Commonwealth,  while  she  has 
forty- four  representatives  who  are  sent  here  by 
general  ticket,  which  gives  her  more  power  than 
those  towns  possess  which  send  one,  two,  or  three 
representatives,  according  to  their  population. 

Mr.  CROWNINSIIIELD.  I  wish  to  say  one 
word  in  relation  to  the  remark  which  has  been 
made  by  the  gentleman  from  Chelsea,  that  she  has 
not  an  equal  representation  with  Boston,  in  pro 
portion  to  her  population.  That  is  no  answer  to 
what  I  said.  I  maintain  that  the  city  of  Boston 
has  not  her  full  share  of  representation  upon  this 
floor.  By  the  last  census,  there  were  one  hundred 
and  thirty  thousand  inhabitants  in  this  city,  and 
she  is  only  entitled  to  forty- four  representatives 
cut  of  more  than  four  hundred,  being  but  little 
more  than  one-tenth,  while  she  has  a  great  deal 
more  than  one-tenth  of  the  population  of  the 
Commonwealth.  It  follows,  of  course,  that  she 
has  not  a  full  representation. 

Mr.  HATHAWAY,  of  Freetown.  I  concur 
with  the  gentlemen  who  have  preceded  me,  in 
reference  to  the  inalienable  rights  of  individuals 
to  take  part  and  lot  in  the  government  of  the 
State  under  which  they  may  live,  whether  it  be 
in  this  or  any  other  State.  I  maintain  that  in 
Rhode  Island  or  here,  there  should  be  a  repre 
sentation,  equal  as  is  practicable,  of  the  people. 
I  agree,  also,  with  gentlemen  who  say  that  our 
representation  in  the  House  of  Representatives  is 
not  to  be  an  equal  representation  of  the  people ; 
and  if  this  is  so,  then  that  the  difficulty  and  "  re 
bellion,"  (as  some  characterize  it,)  in  Rhode 
Island,  grew  out  of  the  same  unjust  principle  that 
is  incorporated  in  the  proposition  which  you  are 
about  to  present  to  the  people  as  the  basis  of  the 
House  of  Representatives  in  this  State.  It  is  a 
representation  of  towns,  and  not  an  equal,  but  an 
unequal  representation  of  the  people.  Was  not 
that  the  real  difficulty  in  the  Rhode  Island  case  ? 
And  is  not  the  same  principle  of  injustice  and  in 
equality  involved  in  the  proposition  of  the  gen 
tleman  for  Wilbraham  for  future  Conventions,  as 
the  delegates  are  to  be  chosen  by  and  to  represent 
towns,  instead  of  the  people ;  and  how  does  his 
amendment  relieve  us  from  that  difficulty  ?  His 
proposition  may  not  be  so  excessive  and  barefaced 
in  its  unjust  operation,  as  the  Rhode  Island  ques 
tion  was  in  Rhode  Island ;  but  you  may  multiply 


and  change  the  forms  as  much  as  you  please  in 
reference  to  the  Rhode  Island  matter,  and  this 
matter,  and  after  all,  this  proposition  and  the 
Rhode  Island  difficulty,  both  settle  down  upon 
the  unjust  principle  that  man  is  not  equal  with 
man,  but  that  his  political  weight  in  government 
depends  on  the  accident  of  his  "  locality."  That 
his  mere  locality  should  make  him  unequal  with 
his  fellow-man  of  another  place,  both  in  the  form 
ation  of  an  organic  law,  and  in  the  enactment  of 
ordinary  statutes.  Was  not  this  unjust  principle 
the  cause  from  whence  arose  all  the  tribulation, 
and  trouble,  and  persecution  that  they  experienced 
in  Rhode  Island  ?  Now,  Sir,  I  maintain  that  the 
very  difficulty  and  injustice  which  was  involved 
in  the  Rhode  Island  proposition,  is  involved  in 
these  propositions  which  have  been  presented, 
and  also  in  the  amendment  of  the  gentleman  for 
Wilbraham,  because  the  representation  in  our 
future  Conventions  is  to  be  by  a  delegation  from 
the  towns,  who  are  to  represent  the  towns,  and 
not  the  people.  You  may  shift  and  change  the 
language  of  the  propositions  now  under  discus 
sion  as  much  as  you  please,  but  in  all  their  va 
ried  forms  and  colors,  there  is  still  the  came 
injustice  involved  in  them  which  was  involved 
in  the  Rhode  Island  matter.  The  same  spots 
on  the  leopard  still  remain ;  and  the  color  of 
the  Ethiopian's  skin,  which  cannot  be  changed. 
There  was  not  an  equal  representation  of  man 
with  man  in  that  State ;  and  there  is  the  same 
trouble  here.  I  speak  with  great  diffidence  in 
relation  to  this  matter,  because  gentlemen  say 
that  my  warmth  on  this  subject  carried  me  away 
the  other  day,  and  it  may  carry  me  away  again. 
If  that  should  be  the  case,  I  hope  gentlemen  will 
do  me  the  justice  to  believe  that  I  mean  no  offence, 
as  I  meant  none  then.  I  intend  to  discuss  every 
question  coolly  and  deliberately  in  every  discus 
sion  in  which  I  shall  take  a  part ;  and  I  cannot 
refrain  from  saying  that  I  used  no  improper  lan 
guage  on  that  occasion,  and  none  has  been,  or  can 
be,  pointed  out.  Here,  then,  is  the  same  great 
principle  involved  in  this  question,  which  was 
involved  in  the  Rhode  Island  question.  At  the 
time  of  the  Rhode  Island  difficulty,  I  was  in  part 
a  Rhode  Island  man.  Upon  that  occasion,  I  was 
stigmatized  as  being  a  "  Dorrite,"  but  the  princi 
ple  which  I  acted  upon  then,  I  am  yet  willing  to 
stand  up  to  and  defend,  here  or  elsewhere,  when 
ever  it  shall  be  necessary. 

Sir,  let  us  for  a  moment  analyze  the  proposi 
tion  before  the  Convention,  which  has  been  re 
ported  by  the  Select  Committee.  It  is,  that  in 
1873,  you  shall  have  a  Convention,  and  that  you 
may  have  one  at  such  "other  times "  as  the  legis 
lature  shall  direct.  Not  that  your  legislature 


66th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


349 


Monday,] 


HATHAWAY. 


[July  25th. 


shall  have  the  power  hereafter  to  say  that  you 
may  or  may  not  have  a  Convention,  in  1873  ;  but 
it  is  positively  provided,  by  the  proposition  of  the 
Committee,  that  in  1873,  those  who  have  the 
right  of  suffrage  in  this  Commonwealth — the 
voters — shall  pass  upon  this  question,  whether  there 
shall  then  bo  a  Convention  or  not.  As  to  the 
holding  of  other  Conventions,  in  "  other  times," 
the  legislature  are  to  pass  upon  it.  Now,  as  to  the 
Convention  to  be  held  in  1873,  I  do  not  perceive 
any  difference  between  the  gentleman's  proposi 
tion,  when  you  analyze  it,  and  the  proposition  of 
the  Select  Committee.  I  would  not  refer  to  the 
law  of  1852,  and  make  that  part  and  parcel — as 
the  gentleman  for  Wilbraham  proposes  to  do — of 
your  Constitution,  for  it  is  merely  a  statute  law. 
There  are  great  objections,  in  my  mind,  to  so 
doing ;  and  as  I  am  informed — for  I  was  not 
present — the  impropriety  of  incorporating  that 
Act  in,  and  making  it  a  part  of,  the  constitutional 
law,  was  ably  and  clearly  stated,  the  other  day, 
by  the  gentleman  from  Cambridge,  (Mr.  Parker,) 
and  the  gentleman  from  Salem,  (Mr.  Lord,)  that 
I  will  not  remark  any  farther  upon  it,  except  so 
far  as  one  provision  is  concerned.  As  I  under 
stand  the  new  proposition  of  the  gentleman  for 
Wilbraham,  and  which  he  has  just  now  intro 
duced  as  a  farther  amendment  to  his  proposed 
amendment,  he  now  excludes  from  it  the  second 
section  of  the  law  of  1852,  for  the  calling  of  this 
Convention ;  but  if  that  is  not  to  be  excluded, 
but  to  be  included,  as  he  first  proposed  in  his 
amendment,  I  should  like  to  have  him  tell  me,  if 
he  can,  whether  that  section  of  the  Act  is  so  plain 
that  "  he  that  runs  may  read,  and  understand  it." 
Is  he  certain  that  he  understands  it  ^  and  can  he 
tell  me  whether  those  towns  that  shall  be  incor 
porated  from  1870  to  1873— if  any  shall  be  in 
corporated — will  be  entitled  to  send  delegates  to 
the  Convention  then  to  be  held  ?  I  confess,  Sir, 
that  in  referring  to  that  section  of  the  Act,  I  can 
not  tell,  for  the  life  of  me,  whether  those  towns 
which  have  been  incorporated  since  1850,  if  they 
had  sent  delegates  to  this  body,  would  or  would 
not  have  been  permitted  to  be  represented,  and 
whether  such  delegates  would  have  been  entitled 
to  seats  in  this  Convention.  I  presume  the  mem 
bers  of  the  Convention  will  recollect  the  debate 
which  came  up  in  reference  to  the  admission  of 
the  gentleman  from  Walpole,  to  a  seat  here,  be 
cause  a  portion  of  the  town  of  Dedham  had  been 
taken  off  and  annexed  to  Walpole.  The  ques 
tion  there  arose  on  account  of  the  annexation  of 
a  small  portion  of  the  territory,  and  a  few  inhabi 
tants  of  Dedham,  to  Walpole.  Suppose  that  West 
Roxbury,  or  any  other  town  that  has  been  inCor- 
porated  since  1850,  had  sent  a  delegate  here, 


under  the  statute  of  1852,  I  want  the  gentleman 
for  Wilbraham  to  tell  me  whether  it  is  perfectly 
clear,  from  that  law,  that  such  delegate  would 
have,  and  ought  to  have  been  accepted,  and  ad 
mitted  to  a  seat  upon  this  floor  ?  But  I  under 
stand  that  this  portion  of  the  law  is  excluded 
from  the  gentleman's  amendment  to  his  amend 
ment,  and  therefore  I  will  not  pursue  that  branch 
of  the  subject.  Permit  me,  however,  to  say  that 
the  law  of  1852  was  very  imperfectly  drawn ; 
that  it  was  almost  an  exact  transcript  of  the  law 
calling  the  Convention  in  1820  ;  and  in  conse 
quence  of  the  changes  in  the  Constitution  as  to 
representation,  and  made  since  1820,  that  law  was 
not  perfectly  applicable  to  our  present  condition 
and  wants. 

In  reference  to  the  remark  that  fell  from  the 
gentleman  from  Chelsea,  in  his  reply  to  the  gen 
tleman  from  Boston,  (Mr.  Crowniiishield,)  that 
there  will  be  a  disfranchisement  of  some  of  the 
towns,  so  that  they  will  not  have  their  full  share 
of  delegates  in  the  Convention  of  1873,  let  me 
say  that,  if  the  town  basis  which  you  have  agreed 
upon  shall  be  adopted  by  the  people,  there  need 
be  but  little  fear  that  any  of  the  towns  will  be  dis 
franchised,  or  that  the  small  towns  will  not  then 
have  their  full  share  and  weight  in  the  formation 
of  the  Constitution.  The  true  question  is,  will 
will  you  not  then  virtually  disfranchise  the  elec 
tors  and  voters  ?  Will  you  not  disfranchise  men 
by  your  proposed  inequality  of  representation  in 
that  Convention  r  The  proposition  of  the  gentle 
man  from  Essex,  (Mr.  Bradford,)  disfranchises 
nobody.  Every- body  who  has  the  right  of  suf 
frage,  whether  he  lives  in  a  small  town  in  the 
country,  or  in  the  city,  has  an  equal  right,  one 
with  another.  It  is  in  consequence  of  these  and 
other  difficulties  that  have  presented  themselves 
to  my  mind,  and  because  I  believe  that  there 
should  be  an  equal  representation  upon  this  floor, 
of  man  with  man,  instead  of  a  representation  by 
corporations,  that  I  am  in  favor  of  the  proposition 
of  the  gentleman  from  Essex. 

Another  reason  is,  that  I  would  not,  as  has 
been  the  case  in  this  Commonwealth,  make  one 
man's  political  power  forty- four  times  greater 
than  that  of  another,  who  happened  to  reside  in 
different  locality — no,  nor  even  double.  But, 
by  your  present  proposition,  you  give  a  certain 
amount  of  political  power  to  an  elector  in  certain 
districts  and  towns  in  the  Commonwealth ;  and  a 
different  amount,  less  or  more,  to  another  elector, 
in  other  districts  and  towns.  I  use  the  word  dis 
tricts  because,  in  my  judgment,  it  was  intended 
by  our  fathers,  when  they  framed  the  Constitu 
tion,  that  these  towns  should  be  districts,  for  the 
purpose  of  choosing  representatives,  as  the  scv- 


350 


CONSTITUTIONAL   CONVENTIONS. 


[66th    day. 


Monday,] 


HATHAWAY  —  ALLEN. 


[July  25th. 


eral  counties  were  to  be,  and  have  been,  districts 
for  the  choice  of  senators.  In  one  case,  a  man 
can  vote  for  several  representatives,  and  in  an 
other  case  he  can  only  vote  for  one ;  and  it  is  just 
so  in  choosing  your  delegates  for  a  Convention  ; 
in  some  towns  each  elector  may  vote  for  three,  in 
others  only  for  one.  Is  that  in  accordance  witVi 
the  genius  and  spirit  of  our  government  ?  How  is 
it  in  regard  to  the  executive  department  of  govern 
ment  ?  No  matter  whether  I  reside  in  Boston,  or  in 
Erving — in  Lowell,  or  in  Hull — when  I  come  to 
vote  for  the  chief  executive  officer  of  the  govern 
ment,  my  vote  counts  one,  and  just  as  much,  no 
more  or  less,  than  that  of  any  other  elector.  No 
matter  what  the  locality,  the  representation  and 
political  power  of  every  elector  is  alike,  and  equal. 
The  same  principle  is  about  to  be  applied  to  one 
branch  of  your  legislature — the  Senate.  No  mat 
ter  where  a  man  may  be  located  in  the  Com 
monwealth,  he  votes,  man  for  man,  and  lias  an 
equal  right — if  he  is  an  elector — with  every  other 
elector  in  the  Commonwealth.  Now,  why  should 
you,  in  choosing  representatives  to  the  legisla 
ture,  or  delegates  to  a  Convention,  to  frame  an 
organic  law,  still  retain  a  principle  which  gives 
a  man  in  one  locality,  three  times  the  political 
power  which  he  has  in  another  ?  The  proposition 
of  the  gentleman  from  Essex  makes  one  man 
equal  with  another,  no  matter  where  he  is.  It 
does  not  do  as  they  did  in  Rhode  Island — give 
a  man  who  lived  in  one  town  great  political 
power,  and  a  man  who  lived  in  another,  very 
little,  if  any  at  all ;  and  I  think  that  is  a  good 
reason  why  we  should  adopt  the  proposition  of 
the  gentleman  from  Essex.  The  original  lieport 
and  resolutions  of  the  Committee,  it  seems  to  me, 
stand  well  enough,  provided  the  principle  of  the 
amendment  of  the  gentleman  from  E.-SCX  shall  be 
incorporated  into  it,  and  made  part  of  the  resolu 
tions,  so  as  to  give  five,  eight,  or  ten — I  do  not 
care  what  number,  provided  the  Convention  in 
1873  is  not  too  large— delegates  from  each  sena 
torial  district.  Then  the  representation  will  be 
perfectly  equal;  and  there  will  be  no  disfran- 
chisement,  directly  or  indirectly,  of  any  man  or 
elector  in  the  Commonwealth.  The  gentleman 
from  Chelsea  talks  about  the  disfranchisement  of 
towns,  but  let  me  say  that  what  he  terms  the  dis 
franchisement  of  towns,  is,  to  a  certain  extent, 
involved  in  every  proposition  which  we  have  had 
before  us — except  the  district  system — because  all 
of  those  towns  which  contain  less  than  a  thou 
sand  inhabitants  are  to  be  disfranchised  five  years 
out  of  ten.  They  are,  if  need  be,  to  be  taxed 
every  year,  but  are  not  to  be  represented,  upon 
an  average,  only  every  other  year  ;  and  taxation 
withoxit  representation,  or  a  right  to  it,  when 


taxed,  the  friends  of  town  representation  call  dis 
franchisement.  But  the  proposition  of  the  gentle 
man  from  Essex  accomplishes  all  that  can  be  ac 
complished  ;  that  is,  that  not  a  single  voter  shall  be 
disfranchised  upon  the  occasion  of  calling  a  future 
Convention.  Each  one  and  all  of  the  electors  are 
to  have  equal  political  power,  without  regard  to 
towns,  cities,  or  place.  Hence,  his  proposition  is 
more  consistent  with  the  principles  of  a  free  and 
equal  government  than  the  other,  and  therefore  I 
go  for  it. 

Mr.  ALLEN,  of  Worcester.  I  rise  to  make  a 
proposition,  and  not  to  discuss  this  question.  We 
all  agree  that  the  people  of  this  Commonwealth 
should  be  at  liberty  to  call  a  Convention  when 
ever  they  see  fit ;  but  it  seems  to  me  that  the  idea 
that  the  people  will  want  a  Convention  again  in 
1873,  or  at  any  other  fixed  period  of  time  what 
ever,  is  one  that  we  can  hardly  entertain.  The 
people  will  want  a  Convention  whenever  the  con 
dition  of  public  affairs  and  of  public  sentiment 
shall  require  it ;  and  whether  that  shall  be  done  at 
one  time  or  at  another  time,  is  something  that  no 
person  is  competent  to  predict.  The  people  may 
want  a  Convention  fifteen  years  from  now,  and 
they  may  have  it,  and  make  all  the  necessary  re 
vision  of  their  Constitution  at  that  time  ;  and 
shall  they  have  another  in  five  years  afterwards  ? 
Or  twenty  years  hence  they  may  desire  a  Conven 
tion,  and  five  years  afterwards  a  state  of  things 
may  arise  which  will  render  it  desirable.  Who 
supposed  five  years  ago  that  a  Convention  would 
have  been  wanted  now;  but  in  1852  or  1853  it 
was  thought  very  desirable  that  one  should  be 
called. 

The  proposition,  as  it  came  from  the  Committee, 
has  been  much  modified,  and  gentlemen  in  all 
parts  of  the  House  intimate  a  purpose  to  modify 
it  still  farther.  Numbers  of  gentlemen  who  have 
not  spoken  upon  this  question,  have  each,  I  be 
lieve,  their  separate  propositions  to  offer.  In  this 
state  of  feeling  on  the  part  of  the  Convention,  and 
believing  that  the  subject  is  not  very  well  digested 
— believing,  also,  that  it  lies  before  Us  in  a  very 
crude  state— I  am  about  to  move  that  it  be  re 
committed  to  a  Special  Committee ;  and  in  order 
that  no  time  may  be  lost,  I  move  that  that  Com 
mittee  report  some  digested  plan  to-morrow  morn 
ing,  by  which  the  people,  twenty  years  hence, 
may  have  a  Convention,  or  whenever  else  they 
please. 

The  motion  to  recommit  was  agreed  to. 

Mr.  ALLEN.  I  beg  to  say,  that  having  moved 
this  question  of  reference  to  a  special  committee, 
I  desire  that  I  may  not  be  appointed  as  one  of 
that  committee,  having  other  engagements. 

Mr.  MORTON,  of  Taunton.     I  would  suggest 


66th   day.] 


BANKING,  &c. 


351 


Monday,] 


DENTOX  —  WESTON  —  HALLETT  —  HALL. 


[July  25th. 


to  the  gentleman  from  Worcester,  that  the  num 
ber  of  gentlemen  of  which  the  committee  is  to 
consist,  should  be  fixed. 

Mr.  ALLEN.  I  believe  that  that  has  usually 
been  left  to  the  discretion  of  the  Chair ;  but  in 
order  to  make  the  matter  more  definite,  I  move 
that  the  committee  consist  of  seven. 

The  PRESIDENT,  after  deliberation,  named 
the  following  gentlemen  as  the  Committee  : — Mr. 
Hallett,  for  Wilbraham  ;  Mr.  Crowninshield,  of 
Boston  ;  Mr.  Nayson,  of  Amesbury  ;  Mr.  Sum- 
ner,  for  Marshfield  ;  Mr.  Williams,  of  Taunton  ; 
Mr.  Alvord,  for  Montague  ;  and  Mr.  Simmons,  of 
Hanover. 

Mr.  CPvOWNINSHIELD.  I  ask  to  be  ex 
cused  from  serving,  as  it  will  be  exceedingly  in 
convenient  for  me  to  attend  to  the  business  of  this 
Committee. 

Excused. 

The  PRESIDENT.  The  Chair,  then,  will 
name  Mr.  Hillard,  of  Boston. 

Mr.  HILLARD.  I  am  in  expectation  of  being 
summoned  into  court  as  a  witness,  and  therefore 
I  beg  to  be  excused. 

The  PRESIDENT.  Then  the  Chair  will  nom 
inate  Mr.  Briggs,  of  Pittsfield. 

Mr.  BRIGGS.  I  am  upon  two  other  com 
mittees,  one  of  them  a  very  important  commit 
tee,  which  meets  this  evening.  It  will  hardly 
be  possible  for  me  to  attend  to  this  business,  and 
I  ask  to  be  excused  for  that  reason. 

Mr.  Briggs  was  excused. 

The  PRESIDENT.  The  Chair  will  name 
Mr.  Lord,  of  Salem. 

Mr.  LORD.  I  was  about  to  say  that  I  am 
upon  a  committee  which  is  to  meet  this  evening — 
the  Committee  on  Revision ;  and  I  beg  to  say 
that  I  cannot  be  in  two  places  at  once.  If  I 
attend  to  the  business  of  this  Committee,  I  shall 
be  obliged  to  neglect  that  of  the  other.  I  think 
I  would  prefer  to  be  excused. 

Not  excused. 

Mr.  DENTON,  of  Chelsea.     I  move  a  recon 
sideration  of  the  vote  by  which  this  subject  was 
recommitted. 
'  The  motion  to  reconsider  was  rejected. 

The  Special  Committee  finally  stood  as  follows  : 
Messrs.  Hallett,  for  Wilbraham ;  Sumner,  for 
Marshfield ;  Williams,  of  Taunton ;  Alvord,  for 
Montague  ;  Simmons,  of  Hanover  ;  Lord,  of  Sa 
lem  ;  and  Hazewell,  of  Concord. 

Orders  of  the  Day. 

On  motion  of  Mr.  WESTON,  of  Duxbury, 
the  Convention  proceeded  to  the  consideration  of 
the  Orders  of  the  Day,  the  first  question  therein 
being  the  question  of  granting  leave  to  the  Com 


mittee  of  the  Whole  to  sit  again  for  the  consider 
ation  of  the  resolves  on  the  subject  of  justices  of 
the  peace. 

The  question  being  taken,  leave  was  granted. 

The  resolve  granting  authority  to  the  Com 
mittee  on  Reporting  and  Printing,  and  also  the 
resolve  on  the  subject  of  the  Commissions  of  the 
Judges  were  passed  over — these  resolves  being  in 
the  hands  of  the  printers. 

The  Council. 

Mr.  HALLETT.  I  do  not  intend  to  detain 
the  Convention  by  saying  a  single  word  upon  this 
subject,  but  it  has  been  suggested  to  me  from 
many  quarters  of  the  House,  that  there  has  never 
been  a  fair  expression  of  opinion  on  the  subject  of 
the  final  passage  of  the  resolves  in  regard  to  the 
Council.  I  have  no  feeling  myself  on  the  sub 
ject,  but  I  move  a  reconsideration  of  the  vote  so 
that  the  question  may  be  taken  by  the  yeas  and 
nays. 

The  motion  to  reconsider  was  rejected. 

Banking. 

The  Convention  next  proceeded  to  the  consid 
eration  of  the  resolves  on  the  subject  of  Banking, 
the  question  being  on  their  final  passage. 

Mr.  HALL,  of  Haverhill.  I  desire  to  say  a 
few  words  upon  this  question,  though  I  very 
much  doubt  whether  I  can  compress  what  I  have 
to  say,  within  the  time  allowed,  under  the  fifteen 
minutes'  rule.  I  may  not  have  time,  under  that 
rule,  to  say  all  that  I  could  wish,  but  I  desire  to 
notice  one  or  two  points  in  regard  to  this  ques 
tion,  which  it  seems  to  me,  have  not  been  no 
ticed  by  other  gentlemen  who  have  spoken  upon 
the  subject.  The  Convention  may  not  be  wil 
ling  to  hear  debate  upon  this  subject,  but  it 
appears  to  me  to  be  one  of  those  questions  upon 
which  the  Convention  ought  not  to  pass  too 
hastily.  I  believe  this  question  to  be  of  too 
much  importance  to  the  people,  to  be  passed 
upon  hastily,  and  put  into  the  Constitution  even 
by  gentlemen  who  intend  that  this  Constitution 
shall  be  ratified  by  the  people. 

Now,  Sir,  I  am  in  favor,  as  I  always  have 
been,  of  a  limited  amount  of  banking  capital.  I 
am  in  favor  of  that  amount  of  banking  capital 
which  the  people  of  the  Commonwealth  desire  in 
the  pursuit  of  a  legitimate  business  in  the  com 
munity,  and  as  far  as  that  capital  is  seeking  a 
bonafide  investment.  It  would  seem,  that  some 
fifteen  years  ago,  the  great  bulk  of  the  banking 
capital  was  owned  by  the  Whigs.  At  that  time 
I  had  about  made  up  my  mind,  from  what  cer 
tain  presses  and  certain  men  said,  that  such  was 
the  fact ;  but,  as  I  became  acquainted  with  men 


352 


BANKING. 


[66th  day. 


Monday,] 


HALL  —  STETSON. 


[July  25th. 


and  with  business,  I  found  that  I  was  mistaken. 
Sir,  this  question  of  banking  is  not,  and  never 
has  been,  a  party  question  in  this  Commonwealth. 
There  are  Democrats  interested  in  banking  capi 
tal,  and  Free  Soilers  also  ;  and  there  always  have 
been,  although  some  people  may  think  that  it  is 
a  mistake.  As  we  find,  upon  examination,  there 
are  gentlemen  who  own  large  amounts  of  bank 
ing  capital  in  this  Commonwealth,  who  are  Dem 
ocrats — gentlemen  who  are  in  the  management 
of  banks  who  are  Free  Soilers  and  Democrats,  so 
that  it  is  not  exactly  a  party  question  after  all. 
My  friend  and  colleague  from  Haverhill,  a  Free 
Soiler,  every  inch  of  him,  (Mr.  Hewes,)  is  presi 
dent  of  one  of  these  banks,  as  respectable  a  bank 
as  there  is  in  the  community.  Gentlemen  will, 
therefore,  understand,  that  it  is  not  exactly  a 
party  question  in  the  Convention. 

I  desire  to  notice  two  particular  points  on  this 
question,  first  as  to  the  security  to  the  bill- 
holder 

Mr.  STETSON,  of  Braintree.  If  the  gentle 
man  will  allow  me  to  interrupt  him,  I  would  like 
to  ask  him  one  question. 

Mr.  HALL.  The  gentleman  from  Braintree 
is  aware  of  the  existence  of  the  fifteen  minutes' 
rule,  and  that,  with  interruption,  a  gentleman  can 
hardly  be  expected  fully  to  express  his  thoughts 
in  that  time,  upon  an  important  subject  like  this. 
Mr.  STETSON.  The  gentleman  was  pro 
ceeding  to  state  what  parties  represented  the 
banking  interest.  I  should  like  to  know  how 
many  Whigs  and  how  many  Democrats  are  con 
nected  with  the  bank  of  which  the  gentleman 
from  Haverhiil  is  cashier  ? 

Mr.  HALL.  I  suppose  I  could  answer  the 
gentleman,  if  he  is  particularly  anxious  to  know 
from  me  ;  but  I  suppose  he  knows  already,  with 
out  my  informing  him.  I  might  ask  the  director 
(Mr.  Stetson)  of  the  Shoe  and  Leather  Dealers' 
Bank,  [laughter,]  how  his  corporation  was  divided 
in  this  respect.  I  spoke  of  the  matter  as  a  gen 
eral  question,  and  said  that  some  years  ago  it 
would  seem  as  though  all  the  banks  were  owned 
by  one  party  in  the  Commonwealth.  I  say  that 
that  is  not  so  ;  and  my  friend,  who  is  a  director 
in  the  Shoe  and  Leather  Corporation,  under 
stands  that  perfectly  well. 

I  was  proceeding  to  say,  when  interrupted, 
that  there  were  two  points  on  which  I  desired  to 
speak — one  of  them  a  point  that  my  friend  from 
Charlestown  labored  hard  upon — first  the  secu 
rity  to  the  bill-holder,  and  secondly,  the  practi 
cability  or  impracticability  of  a  general  banking 
law.  I  understood  the  chairman  of  the  Com 
mittee  to  which  this  subject  was  referred,  to  say, 
that  we  had  no  law  sufficient  to  secure  the  bill- 


holder.  Now  I  desire  to  call  attention  to  that 
point  for  a  moment ;  and,  if  I  am  not  mistaken, 
there  are  some  gentlemen  present  who  will  find 
that  there  is  a  great  deal  more  law  upon  that 
subject  already,  than  they  seem  to  be  aware  of. 
I  therefore  ask  attention  to  four  or  five  short  ex 
tracts  from  these  laws,  which  go  to  secure  the 
bill-holder.  The  first  extract  to  which  I  shall 
refer,  regards  the  "loss  of  capital." 

"  If  any  loss  or  deficiency  of  the  capital  stock 
shall  arise  from  the  mismanagement  of  the  di 
rectors,  the  stockholders  at  the  time  of  such  mis 
management,  shall,  in  their  individual  capacities, 
be  liable  to  pay  the  same.  No  one  shall  be  liable 
to  pay  a  sum  exceeding  the  amount  of  stock 
held  by  him." 

This  was  passed  in  1828,  and,  under  this  sec 
tion,  gentlemen  will  see,  that  when  a  bank  fails, 
the  stockholders  are  not  only  liable  to  the  loss  of 
their  capital  stock,  but  to  a  given  amount  be 
sides.  If  a  man  owns  ten  shares  of  bank  stock, 
and  the  bank  fails,  he  is  liable  for  ten  shares 
more. 

Another  section  says : — 

"  The  holders  of  stock  in  any  bank  at  the  time 
when  its  charter  shall  expire,  shall  be  liable,  in, 
their  individual  or  corporate  capacities,  for  the 
payment  or  redemption  of  all  bills  issued  by  such 
bank,  in  proportion  to  the  stock  they  may  re 
spectively  hold  at  such  dissolution." 

In  that  section,  gentlemen  will  see  that  the 
stockholders  of  a  bank  on  winding  up  its  charter, 
are  liable  in  their  individual  capacity,  pro  rata,  for 
every  bill  in  circulation.  And  under  this  section 
they  are  liable  for  the  recovery  of  damages  : — 

"  Any  stockholder  of  a  bank,  who  shall  have 
been  obliged  to  pay  a  debt  or  demand  against  such 
bank,  may  have  a  bill  in  equity  to  recover  the 
proportional  parts  of  such  sums  as  he  may  have 
so  paid,  from  the  other  stockholders." 

A  bill-holder,  therefore,  it  will  be  seen,  may 
sue  any  one  stockholder,  and,  if  he  does  not  ob 
tain  satisfaction  from  him,  may  sue  any  other  one. 

Now  here  is  another  section  as  to  the  liability 
of  stockholders  : — 

"  Any  corporation  which  is,  or  shall  be  a  stock 
holder  in  any  bank,  shall  be  liable,  in  its  corpo 
rate  capacity,  to  pay  any  loss  or  deficiency  of  the 
stock  of  such  bank,  arising  from  the  official  mis 
management  of  its  directors ;  and  also  liable  for 
the  payment  or  redemption  of  all  bills  issued  by 
such  bank,  and  which  bills  shall  remain  unpaid 
when  its  charter  shall  expire,  in  the  same  manner 
as  individual  stockholders  are  liable  in  their  indi 
vidual  capacities." 

"We  have  the  decision  of  the  supreme  court  to 


66tli  day.] 


BANKING. 


353 


Monday,] 


HALL. 


[July  25th. 


this  effect.  Now  how  is  it  with  these  corpora 
tions  ?  One  gentleman  said,  the  other  clay,  that 
a  large  amount  of  this  bank  capital  was  owned 
by  women  and  children.  That  is  true  in  some 
senses.  If  he  terms  two  and  a  half  millions  a 
large  sum,  it  is  true.  More  than  one-third  of  the 
bank  capital  of  the  Commonwealth  is  owned  by 
savings  banks,  and  other  corporate  institutions — 
precisely  the  class  of  owners  that  the  bill-holders 
on  a  broken  bank  would  desire.  I  contend,  there 
fore,  that  in  regard  to  all  these  points  there  is  law 
enough.  But  there  is  still  another  law  which  was 
passed  in  1819,  in  regard  to  the  individual  liabil 
ity  of  stockholders.  Here  is  the  provision  : — 

"  The  holders  of  stock  in  any  bank,  at  the  time 
of  its  failure,  shall  be  individually  liable  for  all 
bills  of  such  bank,  issued  and  unpaid,  in  propor 
tion  to  the  stock  they  may  respectively  hold." 

This  is  the  same  provision  that  was  passed  in 
1828,  only  a  little  stronger. 

Now  it  may  be  said  that  the  stockholders  may 
know  something  about  the  condition  of  a  bank, 
and  in  anticipation  of  a  failure,  may  transfer  their 
stock.  But  we  have  also  a  section  in  regard  to 
this  point : — 

"  If  any  shareholder,  having  reasonable  belief 
that  such  bank  is  about  to  fail,  shall  transfer  his 
shares  to  avoid  individual  liability,  such  transfer 
shall  be  void  as  respects  such  liability." 

But  that  did  not  go  quite  far  enough,  and.  there 
is  still  another  law.  It  is  this  : — 

"  If  any  stockholder  in  any  bank,  having  rea 
sonable  cause  to  believe  the  bank  insolvent,  shall 
within  six  months  before  the  expiration  of  its 
charter,  transfer  the  whole  or  part  of  his  shares, 
with  intent  to  avoid  his  liability  for  the  redemp 
tion  of  its  unpaid  circulation,  such  transfer  shall 
be  void,  so  far  as  respects  such  liability." 

Now,  Mr.  President,  it  appears  to  me  that  we 
have  laws  enough  upon  this  subject,  and  decisions 
affirming  the  validity  of  these  various  laws,  by  the 
supreme  court  of  this  Commonwealth,  and  it  ap 
pears  to  me  that  the  bill-holder  is  not  in  a  condi 
tion  to  lose  anything. 

Now,  Sir,  the  gentleman  from  Charlestown, 
(Mr.  Frothingham,)  read  from  the  Commission 
ers'  Report,  and  I,  also,  desire  to  read  one  or  two 
sections  from  the  same,  because  that  report  con 
tains  some  very  good  reading.  In  the  report  of 
1850,  from  which  the  gentleman  read,  the  com 
missioners,  after  examining  the  New  York  bank 
ing  system  say : — 

"  That  system,  however,  has  been  sustained 
only  by  continual  resorts  to  the  legislature,  to 


modify  the  laws  which  regulate  it,  and  it  is  al 
ready  apprehended  that  a  deficiency  will  soon 
exist,  in  the  requisite  amount  of  public  stocks  for 
its  basis. 

"The  system  of  banking  on  the  security  of 
public  stocks,  will  soon,  ice  trust,  be  impracticable 
in  all  the  States." 

This  report  is  signed  by  Solomon  Lincoln, 
Joseph  S.  Cabot,  and  George  S.  Boutwell. 

Also,  after  referring  to  the  system  of  banking 
in  other  countries,  these  commissioners  say : — 

"  One  principle,  however,  seems  to  be  well 
settled,  that  a  mixed  currency,  composed  partly 
of  gold  and  silver,  and  partly  of  paper,  redeemable 
in  specie,  on  demand,  is  the  most  economical,  the 
most  convenient,  and  the  most  useful,  of  any  yet 
devised." 

I  have  no  doubt  that  this  will  be  considered  as 
good  authority  upon  this  subject. 

What  farther  do  the  commissioners  say,  in 
another  report,  after  having  examined  the  banks 
for  two  years  ?  They  say  : — 

"  And  first,  we  remark,  that  the  currency  of 
the  Commonwealth,  so  far  as  it  depends  upon  its 
banking  institutions,  is  in  a  sound  and  healthy 
condition.  The  banks  are,  in  the  main,  carrying 
out  the  objects  for  which  they  were  created,  with 
fidelity  to  the  public  and  to  stockholders.  In 
most  essential  particulars,  they  do,  with  few  ex 
ceptions,  conform  to  the  requirements  of  the  va 
rious  statutes  passed  for  their  regulation.  Their 
practical  operation  has  been  such,  as  to  be  condu 
cive  to  the  various  important  interests  of  the  com 
munity  ;  and  they  have  generally  been  managed 
with  so  much  intelligence  and  sound  judgment, 
as  to  render  their  stock  desirable  for  investment, 
by  a  large  number  of  our  inhabitants,  who,  from 
their  position,  are  obliged  to  intrust  their  property, 
to  some  extent,  to  the  control  of  others,  for  the 
purpose  of  procuring  from  it  the  income  necessary 
for  their  support." 

Now,  Sir,  if  these  banks  are  working  to  carry 
out  the  purposes  for  which  they  were  created — 
and  this  board  of  commissioners,  composed  of 
men  of  different  parties,  say  they  are — if  they  are 
working  with  fidelity  for  the  public  good,  it  ap 
pears  to  me  that  we  need  not  change  that  system 
of  banking,  at  the  present  time.  After  examin 
ing,  for  two  years,  every  bank  in  the  Common 
wealth,  the  commissioners  say,  in  winding  up  : — 

"  We  have  desired  to  exhibit,  so  far  as  in  our 
power,  the  actual  condition  of  the  banks,  and 
their  influence  «  in  providing  a  currency  best 
adapted  to  the  wants  and  interests  of  the  people.' 
We  propose  110  legislation  which  shall  be  vital  to 
the  system,  believing  that  its  continuance  is  pre 
ferable  to  a  change.  If  we  were  caUed  upon  to 
frame  a  new  system,  some  alterations  of  existing 
provisions  of  law  might  seem  desirable,  other  than 


354 


BANKING. 


[66th  day. 


Monday,] 


HALL  —  KEYES. 


[July  25th. 


those  mentioned  by  us  ;  yet,  as  many  of  our  exist 
ing  statutes  have  been  the  subjects  of  judicial 
interpretation  and  decision,  and  have  thus  been 
made,  to  a  great  extent,  certain  in  their  applica 
tion,  we  do  not  feel  inclined  to  recommend  essen 
tial  changes  which  would  unsettle  the  law,  and 
raise  new  questions  for  litigation." 

This  is  the  testimony  of  bank  commissioners, 
composed,  as  you  know,  of  gentlemen  of  opposite 
political  sentiments,  after  a  thorough  examination 
of  all  the  banks  in  the  Commonwealth,  for  a  pe 
riod  of  two  years. 

We  have,  also,  the  opinion  of  the  bank  com 
missioners  of  1853,  which  is  as  follows : — 

'<  The  officers  having  the  immediate  charge  of 
the  institutions  were,  with  the  exception  of  a 
single  individual,  sworn  or  affirmed  to  the  truth 
of  their  statements,  as  authorized  by  the  statute ; 
and  the  commissioners  take  pleasure  in  stating, 
that  the  officers  of  banks  generally  have  rendered 
every  desirable  aid  to  facilitate  the  investigations, 
which  have  been  as  thorough  and  satisfactory  as 
the  nature  of  the  case  seemed  to  require. 

"  The  results  of  the  examinations  of  the  year, 
embracing  institutions  in  almost  every  section  of 
the  Commonwealth,  indicate,  with  an  approxima 
tion  to  accuracy,  the  general  condition  of  the 
banks  of  Massachusetts.  The  «  general  conduct 
and  condition'  of  the  banks  examined  have  been, 
with  some  qualifications,  satisfactory  to  the  com 
missioners,  profitable  to  stockholders,  and  useful 
to  the  community." 

This  report  is  signed  by  Solomon  Lincoln,  Pe 
ter  T.  Homer,  and  Samuel  Philips. 

Now,  Sir,  this  does  not  look  as  though  our 
banking  system  was  in  a  very  dangerous  condi 
tion,  even  for  the  bill-holders. 

Some  gentlemen  predict  a  reversion  in  business, 
and  a  probable  suspension  of  specie  payments  by 
the  banks.  "Well,  Sir,  I  see  no  good  reason  for 
this  prediction,  at  present ;  my  opinion  is  this  : 
that,  as  we  produce,  as  a  nation,  very  much  more, 
in  proportion,  than  our  indebtedness  accumulates, 
and,  probably,  shall  continue  to  do  so,  we  need 
have  no  fears  of  a  national  crisis,  such  as  was  ex 
perienced  in  1837  and  1838,  but  that  in  the  fact 
I  have  named,  is  our  safety.  And,  as  we  have 
a  permanent  board  of  bank  commissioners,  con 
stantly  watching  the  banks,  and  the  Suffolk  Bank 
system,  requiring  every  bank  to  redeem  its  bills 
daily,  thereby  obliging  them  to  keep  at  all  times 
prepared  to  meet  their  liabilities,  together  with 
the  personal  liability  of  the  stockholders,  as  I  have 
shown,  it  appears  to  me,  that  there  is  no  danger 
whatever  to  be  apprehended,  so  far  as  our  circu 
lation  is  concerned. 

The  circulation  of  bank  bills  is  never  what  it 
appears  to  be  by  the  returns  of  the  banks.  These 
returns  are  made  up  at  the  close  of  business  hours 


on  given  days ;  and  when  the  books  of  a  bank 
shows  its  circulation  to  be  $100,000,  the  Suffolk, 
or  some  other  bank,  has  redeemed,  and  has  in  its 
vault,  $25,000,  more  or  less,  entirely  out  of  the 
hands  of  the  public ;  and  this  is  probably  true  of 
nearly  all  the  banks  in  the  State,  which  would 
reduce  the  actual  circulation  at  least  twenty-five 
per  cent. 

Entertaining  this  opinion,  and  these  views,  I 
am  opposed  to  changing  the  system  of  banking 
in  this  Commonwealth,  acknowledged,  by  every 
body,  to  be  the  best  in  the  world. 

[Here  the  President's  hammer  fell,  the  fifteen 
minutes  allowed  by  the  rule  to  each  member  to 
speak,  having  expired.] 

Mr.  KEYES,  for  Abington.  I  believe  that  this 
question  has  been  pretty  well  discussed  while  I 
have  been  absent,  and  probably  what  I  am  about 
to  say,  may  have  been  said  already.  But  it  seems 
to  me  this  is  very  much  like  shutting  the  door 
after  the  horse  has  run  away.  I  think  the  gen 
tleman  who  last  addressed  the  Convention,  spoke 
very  sincerely,  and  I  was  rather  surprised  to  hear 
him,  and  the  gentleman  from.  Haverhill,  bank 
men  both  of  them,  take  the  grounds  they  did. 
It  strikes  me  it  is  for  the  interest  of  the  banks 
themselves,  which  are  now  incorporated,  to  main 
tain  this  provision,  because  it  would  secure  to 
them,  what  I  understand  the  gentleman  from 
Boston  said  yesterday,  a  monopoly  of  banking. 
What  is  to  be  the  result  of  this  ?  The  world  is 
not  coming  to  an  end  yet,  or  as  I  once  heard  it 
said,  by  the  gentleman  from  Oxford,  the  bottom 
is  not  going  to  drop  out.  Things  are  to  go  on  in 
the  future,  as  they  have  in  the  past.  If  an  in 
crease  of  bank  capital  has  been  needed  for  the 
last  twenty  years,  it  will  be  needed  for  the  next 
twenty  years  to  come.  Now  the  question  is,  shall 
the  men  who  hold  the  fifty- four  millions  of  bank 
capital  now  incorporated,  have  a  monopoly  of 
the  business  of  banking  ?  No,  Sir.  It  has  been 
settled  that  the  present  general  banking  law  con 
tains  such  provisions  as  will  prevent  persons 
taking  advantage  of  it  while  the  special  charters 
exist.  The  general  banking  law  is  good  for 
nothing,  practically,  alongside  of  special  charters. 
It  was  only  five  years  ago  that  a  large  portion  of 
the  banks  came  forward,  when  their  charters 
expired,  and  had  them  renewed.  Then  we  passed 
the  Ilubicon.  The  gate  should  have  been  shut 
down  at  that  time,  and  a  provision  should  have 
been  made  then,  under  which  all  the  banks  should 
have  been  compelled  to  come,  as  they  were  in 
New  York,  under  the  provisions  of  the  general 
banking  system.  The  bank  system  of  New  York 
State  is  the  finest  in  the  world,  and  nobody  that 
looks  into  it,  but  will  come  to  that  conclusion. 


66th   day.] 


BANKING. 


355 


Monday,] 


KEYES. 


[July  25th. 


But  it  is  stated  that  the  system  is  impracticable, 
because  stocks  enough  cannot  be  obtained  as  a 
basis  to  carry  it  on.  The  people  of  Massachusetts 
will  have  additional  banks  from  time  to  time,  as 
long  as  this  system  is  in  existence,  and  they  will 
not  be  quiet  and  let  the  present  banks  have  a 
monopoly  of  the  present  system. 

Well,  Sir,  what  will  be  the  result  ?  They  will 
come  to  the  legislature  and  say,  if  we  must  have 
a  general  banking  law,  you  must  give  us  a  gen 
eral  law  that  will  permit  us  to  bank  with  as  much 
profit  as  those  specially  chartered.  They  will  ask 
for  such  a  law,  and  they  will  get  it  too  ;  and  then 
what  will  be  the  consequence?  Why,  all  the 
private  individuals  in  the  Commonwealth,  who 
choose,  can  go  to  banking  with  just  the  same 
privileges  as  these  banks  with  special  charters  ; 
and  the  evil,  if  it  be  an  evil,  which  now  arises 
from  the  banks  of  the  Commonwealth  being  too 
numerous,  will  be  increased  ten  fold.  If  you 
could  do  away  with  the  charters  of  the  banks 
already  now  in  existence,  that  would  place  the 
matter  in  a  different  light ;  but  here  you  have 
$54,000,000  of  bank  capital  already  in  existence, 
under  special  charters,  which  are  to  exist  upon  an 
average  for  fifteen  or  sixteen  years.  About  four 
or  five  years  ago,  a  very  large  proportion  of  the 
old  banks  renewed  their  charters  for  twenty  years. 
This  last  year  nearly  $10,000,000  more  of  bank 
capital  was  chartered  for  twenty  years.  This 
brings  the  average  length  of  the  charters  from 
this  time  to  an  average  of  fifteen  or  sixteen  years  ; 
and  if  you  abolish  this  system  of  granting  special 
charters,  and  authorize  no  banks  to  be  chartered 
except  under  the  general  banking  law  now  in 
existence,  these  banks,  with  their  special  charters, 
will  have  the  whole  monopoly  of  the  banking 
business  of  the  State  for  fifteen  or  sixteen  years. 
I  tell  gentlemen  that  the  people  will  not  stand  it. 

As  I  remarked,  the  matter  of  doing  away  this 
old  system  now,  is  a  very  different  one  from  com 
mencing  anew.  If  we  were  just  now  commenc 
ing  a  banking  system  for  the  State,  I  might  be  in 
favor  of  this  resolution,  and  vote  for  a  general 
banking  law. 

Sir,  the  gentleman  from  Oxford  has  alluded  to 
this  State  tax  upon  banks.  That  gentleman  has 
alluded  to  the  same  subject  in  the  same  way, 
several  times  before,  in  my  presence,  in  legis 
lative  bodies.  Now,  Sir,  it  strikes  me  that  this  is 
the  most  just  of  all  the  taxes  imposed  by  the 
legislature  upon  the  people  of  Massachusetts.  I 
know  of  no  other  instance  where,  in  proportion 
to  the  advantage  derived,  the  tax  is  so  small  as 
this.  Why  not  ?  You  give  me  the  privilege  of 
issuing  my  rags  to  the  amount  of  $200,000,  upon 
which  I  can  get  an  interest  of  six  per  cent.,  and  I 


should  be  most  happy  to  pay  the  tax  of  one  per 
cent.  After  paying  this  one  per  cent,  tax,  the 
compensation  is  more  than  sufficient  to  pay 
me  for  all  the  capital  I  have  invested.  If  men 
can  borrow  $20,000  for  a  few  hours,  that  is  all 
they  want.  They  can  then  commence  their  issues, 
and  scatter  them  over  every  State  in  the  Union, 
although  it  may  be,  as  has  been  remarked,  that 
they  are  secured  mainly  by  the  notes  of  hand  of 
the  stockholders.  In  this  way  the  banks  are 
allowed  to  circulate  much  more  money  than  they 
have  capital  invested,  and,  after  paying  the  one  per 
cent,  what  compensation  do  they  receive  r  Gen 
tlemen  very  well  know  that  nearly  all  the  banks 
in  the  State  are  constantly  declaring  four  per 
cent,  semi-annual  dividends,  or  eight  per  cent, 
yearly  dividends  ;  and  therefore,  I  say,  that  the 
advantage  derived  from  their  charters,  is  much 
greater  than  the  burden  imposed  upon  them  in 
the  shape  of  a  tax.  If  you  could  check  their  far 
ther  increase  altogether,  that  would  be  one  step 
towards  accomplishing  the  result  you  are  seeking. 
But  you  cannot  do  it,  and  it  seems  to  me  that  one 
per  cent,  is  not  enough  for  the  extraordinary 
privileges  you  confer  upon  them.  The  system 
under  which  we  live,  has  now  gone  too  far  to 
make  it  in  your  power  to  check  it  without  in 
creasing  the  evil ;  and,  therefore,  for  anything  I  can 
see,  you  will  have  to  allow  the  evil — if  it  be  an 
evil — to  go  on  until  it  remedies  itself.  Because  I 
believe  if  we  undertake  to  check  the  farther  in 
crease  of  banks,  the  people  will  never  submit  to 
have  these  six  hundred  individuals,  of  which  the 
gentleman  from  Oxford  (Mr.  De  Witt)  speaks, 
who  own  the  present  bank  property,  to  monop 
olize  the  whole  banking  business  of  the  State  for 
the  next  fifteen  or  sixteen  years. 

Sir,  this  system  of  banking  that  is  carried  on, 
although  to  a  certain  extent  it  increases  the  wealth 
of  the  State,  and  to  that  extent  the  industry  of  all 
the  people  in  the  State,  yet  is  a  system  which  re 
sults  in  gross  inequality.  It  is  a  system  by  which 
a  man  with  $20,000  capital,  by  means  of  trading 
upon  the  capital  which  belongs  to  somebody  else, 
to  California  or  Australia,  receives  the  profits  of 
$500,000,  without  incurring  the  risk  of  but  one 
twenty-fifth  part  of  that  sum.  I  say,  therefore,  it 
creates  a  most  extraordinary  inequality  among 
people  who  do  business ;  but  yet  I  do  not  complain 
of  the  system  on  that  account,  because  the  busi 
ness,  the  wealth,  and  even  the  extravagance  of  the 
people  to  a  certain  extent,  is  an  advantage  to  all, 
even  to  the  poorer  classes  of  the  community. 

But,  Sir,  I  believe  the  passage  of  these  resolu 
tions  will  lead  to  greater  mischief  than  the  pres 
ent  order  of  things— if  it  be  true  that  the  present 
order  of  things  does  lead  to  mischief.  If  it 


356 


BANKING. 


[6 6 ill  day. 


Monday,] 


HOOPER  —  HALL  —  GRISWOLD  —  PLUXKETT. 


[July  25th. 


is  dangerous  to  increase  the  capital  of  these 
banks,  it  will  be  increased  to  a  greater  extent 
than  under  the  present  system  ;  because,  accord 
ing  to  my  view  of  the  matter,  it  will  be  exceed 
ingly  unjust  to  allow  the  banks  now  in  existence 
to  hold  a  monopoly  of  all  the  banking  business 
of  the  State  for  the  next  fifteen  or  twenty  years ; 
and  if  they  do  not  hold  that  monopoly,  then 
there  must  be  general  banking  laws  passed, 
giving  privileges  in  every  way  equal  to  those  en 
joyed  by  the  banks  having  special  charters,  so  that 
every-body  who  chooses  can  go  into  the  business 
of  banking.  I  see,  therefore,  no  way  of  escape 
from  what  gentlemen  term  the  evil  of  the  present 
system,  except  to  allow  it  to  go  on  until  there 
shall  be  so  many  banks  established  that  the  busi 
ness  will  cease  to  be  profitable,  and  then  the  evil 
will  check  itself.  I  hope,  therefore,  that  the  re 
solves  will  not  be  adopted. 

[Cries  of  "  Question  !  "    "  Question  !  "] 
Mr.   HOOPER,   of   Fall    River.      I   move  to 
amend  by  adding  to  the  second  resolution  the  fol 
lowing  : — 

Provided,  That  no  note  or  bill  of  a  less  denom 
ination  than  ten  dollars,  shall  be  issued  as  cur 
rency,  after  the  year  1860. 

Mr.  EARLE,  of  Worcester.  I  rise  to  a  ques 
tion  of  order.  I  submit  that  this  proposition  has 
once  been  voted  down  by  the  Convention,  and, 
therefore,  it  is  not  competent  for  the  gentleman  to 
offer  it  again. 

The  PRESIDENT.  Such  a  proposition  may 
have  been  offered  in  Committee  of  the  Whole,  but 
not  in  Convention. 

Mr.  HOOPER  asked  for  the  yeas  and  nays 
upon  the  adoption  of  his  amendment ;  but  they 
were  not  ordered,  one- fifth  of  the  members 
present  not  voting  therefor. 

The  question  was  taken,  and  the  amendment 
was  disagreed  to. 

Mr.  HALL,  of  Haverhill.  I  do  not  under 
stand  precisely  this  rule  about  limiting  debate.  I 
desire  to  say  a  few  words  upon  the  impractica 
bility  of  a  general  banking  law.  I  ask  the  Chair 
whether  it  will  be  in  order  for.  me  to  speak  upon 
that  subject  ? 

The  PRESIDENT.  The  rule  limits  the  time 
to  be  occupied  by  any  speaker  upon  any  one 
question,  to  fifteen  minutes.  The  gentleman 
from  Haverhill  spoke  out  his  fifteen  minutes,  and 
objection  was  made  to  his  speaking  longer.  No 
motion  was  made  for  leave  to  proceed.  If  such 
a  motion  had  been  made,  the  Chair  would  have 
put  the  question  to  the  Convention. 

Mr.  BROWN,  of  Douglas.  I  move  that  the 
gentleman  have  leave  to  proceed. 


Mr.  FROTHINGHAM,  of  Charlestown.  I 
rise  to  a  point  of  order.  I  understand  the  gentle 
man  from  Haverhill,  (Mr.  Hall,)  proposes  to  ad 
dress  the  Convention  upon  the  question  of  the 
propriety  or  impropriety  of  a  general  banking  law. 
What  has  a  general  banking  law  to  do  with  the 
subject  before  the  Convention  ? 

The  PRESIDENT.  It  is  competent  for  the 
Convention  to  grant  leave  to  speak  upon  any 
subject. 

Mr.  BROWN,  of  Medway.  The  rule  limiting 
debate  to  fifteen  minutes  has  been  adopted  by  the 
Convention,  and  I  hope  it  will  be  carried  out. 

Mr.  GRISWOLD,  for  Erving.  I  desire  to  say 
one  word  upon  this  motion.  I  should  be  very 
glad  to  hear  the  remarks  of  the  gentleman  from 
Haverhill,  but  it  must  be  evident  that  if  we  grant 
leave  in  one  case,  we  must  grant  leave  to  every 
other  gentleman  in  the  Convention,  who  asks  it, 
to  speak  beyond  his  time,  and  the  rule  at  once 
becomes  no  rule.  If  this  were  a  nicely  balanced 
question,  upon  which  we  needed  more  light,  per 
haps  I  might  vote  to  violate  the  rule ;  but  from 
a  vote  we  have  already  taken,  there  can  be  no 
doubt  as  to  what  will  be  the  final  result ;  and  for 
this  reason,  I  shall  vote  to  sustain  the  rule. 

Mr.  PLUNKETT,  of  Adams.  I  move  to  strike 
out  the  first  resolution. 

The  resolution  was  read  as  follows  : — 

Resolved,  That  the  legislature  shall  have  no 
power  to  pass  any  act  granting  any  special  charter 
for  banking  purposes,  or  any  special  act  to  increase 
the  capital  stock  of  any  charter  bank ;  but  corpora 
tions  may  be  formed  for  such  purposes,  or  the 
capital  stock  of  charter  banks  may  be  increased, 
under  general  laws. 

Mr.  HALL,  of  Haverhill.  Will  it  be  in  order 
now  to  speak  upon  the  subject  which  I  indicated 
a  minute  ago  ? 

The  PRESIDENT.  The  gentleman  is  entitled 
to  speak  fifteen  minutes  upon  the  pending  ques 
tion. 

Mr.  HALL.  This  resolve,  as  I  understand  it, 
proposes  a  change  in  our  banking  system.  This 
resolve,  which  it  is  now  proposed  to  strike  out, 
provides  that  "  the  legislature  shall  have  no 
power  to  pass  any  act  granting  any  special  charter 
for  banking  purposes,  or  any  special  act  to  in 
crease  the  capital  stock  of  any  charter  bank  ;  but 
corporations  may  be  formed  for  such  purposes,  or 
the  capital  stock  of  charter  banks  may  be  increased 
under  general  laws." 

Well,  Sir,  the  chairman  of  this  Committee 
(Mr.  Frothingham)  spoke  his  hour  upon  this 
subject,  and  now  he  turns  and  asks  what  the  sub 
ject  of  banking  laws  has  to  do  with  the  question 
under  consideration.  Now  it  seems  to  me,  that 


66th  day.] 


BANKING. 


357 


Monday,] 


HALL  —  FROTHIXGHAM. 


[July  25th. 


as  the  general  banking  law  now  in  existence  was 
framed  by  that  gentleman  himself,  and  that  as  it 
was  very  theoretically  and  cautiously  drawn  by 
him  in  1851,  when  it  passed  the  legislature,  it 
may  have  something  to  do  with  this  question. 
Now  it  is  proposed  to  change  the  whole  banking 
system  of  the  Commomvealth,  to  conform  with 
that  general  law  ;  and  it  seems  to  me,  therefore, 
that  the  question  of  a  general  law  is  the  question, 
and  the  whole  question  for  consideration  in  rela 
tion  to  this  resolution.  Yet,  after  talking  an  hour 
upon  it,  that  gentleman  now  very  plainly  asks, 
"what  has  a  general  banking  law  to  do  with  this 
resolution  ?  "  But,  there  was  one  thing  I  did  not 
exactly  understand.  This  bill  passed  the  legisla 
ture  in  1851,  with  a  Coalition  majority  of  forty- 
six  in  the  House,  and  of  so  many  in  the  Senate 
that  you  could  not  find  the  other  party.  And 
yet,  that  same  legislature,  with  that  same  majority, 
during  the  same  session,  passed  some  forty  odd 
special  bank  charters,  granting  about  $6,000,000, 
under  the  old  system  after  that  general  law  passed. 
The  chairman  of  this  Committee  understands  all 
that.  The  explanation  of  the  matter,  as  near  as  I 
can  judge,  was  about  this  :  The  gentleman  from 
Charlestown  (Mr.  Frothingham)  wanted  a  gen 
eral  banking  law,  and  a  large  portion  of  his 
friends  did  not  object  to  it  so  long  as  they  could 
still  continue  to  get  their  special  charters,  under 
the  old  system. 

Mr.  FROTHINGHAM,  (the  floor  being  tem 
porarily  yielded).  I  rise  to  make  an  inquiry. 
The  gentleman  from  Haverhill,  has  referred  to  the 
granting  of  special  charters  in  the  session  of 
185 1,  and  he  has  referred  to  me  as  being  connected 
with  those  proceedings.  Now,  I  ask  him  to  state 
to  this  Convention,  whether  I  did  not  out  and 
out  oppose  the  granting  of  these  special  charters  ; 
whether  I  did  not  oppose  the  reissue  of  the  old 
charters,  and  if  I  did,  whether  his  statement  is  cor 
rect? 

Mr.  HALL,  (resuming).  The  gentleman  cer 
tainly  did  oppose  the  granting  of  these  special 
charters,  and  I  do  not  say  that  he  did  not.  I  stated 
that  the  legislature  in  1851,  with  a  Coalition 
majority  of  forty-six  in  the  House,  and  with  a 
majority  of  so  many  in  the  Senate  that  you  could 
not  find  the  other  party,  passed  acts  incorporating 
banks  with  $6,000,000  of  capital,  after  they  had 
passed  this  general  banking  law.  That  is  what  I 
said,  and  I  repeat  it.  It  is  true,  and  the  gentleman 
from  Charlestown  knows  it.  Yet,  that  gentle 
man  now  comes  in  here  and  wants  to  put  into 
the  Constitution  a  provision  which  would  secure 
a  monopoly  of  all  the  banking  business  in  the 
Commonwealth,  to  these  fifty  millions  of  bank 
capital  which  is  already  incorporated,  and  to  the 


persons  who  hold  those  charters,  for  the  next 
twenty  years. 

Now,  Sir,  I  caution  those  gentlemen  who  want 
this  Constitution  ratified,  against  putting  any  such 
provision  into  the  Constitution.  Sir,  I  do  not 
want  the  Constitution  which  we  shall  adopt,  to 
go  before  the  people  with  any  such  provision  in 
it.  I  believe  it  would  do  more  to  induce  the 
people  to  repudiate  it,  than  any  provision  that 
we  shall  be  likely  to  incorporate.  Now,  Sir,  the 
gentleman  from  Charlestown  knows — my  friend 
from  Braintree  (Mr.  Stetson)  knows — just  as  well 
as  I  do,  that  with  the  present  general  banking 
law,  the  incorporation  of  new  banks  which  can 
compete  with  those  in  existence,  is  perfectly  im 
practicable. 

Mr.  STETSON,  (in  his  seat).  I  do  not  know- 
it. 

Mr.  HALL.  Well,  Sir,  I  think  I  can  show 
the  gentleman  that  it  is.  In  the  first  place,  the 
statute  of  1851  is  specific  about  the  stocks  you 
shall  be  allowed  to  put  in.  You  may  put  in 
United  States  government  stock,  which  every  one 
knows  you  cannot  buy.  You  may  put  in  the 
stocks  of  the  State  of  New  York,  which  every 
one  knows,  is  not  to  be  had.  Some  of  it  was 
issued  for  the  purpose  of  their  canal  enlargement ; 
but  it  was  all  taken  up  for  her  own  purposes, 
llhode  Island  stock  nobody  could  buy,  and  I 
should  not  want  it  if  I  could.  1  tried  as  treas 
urer  to  collect  $500  there,  and  could  not. 

The  States  of  Connecticut,  Vermont,  and  New 
Hampshire  are  not  issuing  any  stocks.  The  State 
of  Maine  is  not  issuing  any,  and  they  have  $200,- 
000  in  their  treasury,  arising  from  the  sale  of  their 
public  lands.  We  might,  in  this  State,  derive  as 
much  benefit,  had  a  sale  been  completed  last  year, 
of  our  interest  in  those  lands.  Massachusetts 
has  not  issued  but  $200,000  of  State  stock  for 
the  last  two  years.  The  towns  and  cities  of  the 
Commonwealth  are  not  hiring  money  to  any 
amount.  If  I  may  be  allowed  to  refer  to  my 
own  acts,  I  will  say  that  as  treasurer,  I  sent 
notices  to  every  city  and  town  of  the  Common 
wealth,  asking  them  to  hire  the  money  of  the 
State  belonging  to  the  school  fund,  for  any  term 
of  years  from  two  to  ten,  at  six  per  cent.,  and  the 
amount  which  could  be  loaned  was  only  $93,000 
or  about  $42,000  a  year.  This  was  all  the  money 
that  was  wanted  by  the  towns  of  the  Common 
wealth.  They  are  rich  and  do  not  want  any 
money.  The  State  has  not  issued  its  scrip  to  any 
amount,  for  several  years.  Suppose  the  State 
should  issue  its  scrip  to  build  a  tunnel,  or  sup 
pose  at  the  next  legislature  or  some  subsequent 
legislature,  the  advocates  of  the  tunnel  should 
come  in  and  say  to  the  bank  men,  give  us  five 


358 


BANKING. 


[66th  day. 


Monday,] 


HALL  —  NAYSON  —  DE  WITT  —  FROTHIXGHAM. 


[July  25th. 


millions  loan,  and  you  will  get  that  amount  of 
State  scrip  upon  which  to  do  banking  business. 
What  would  it  cost?  Can  you  start  a  bank 
under  it  ?  My  friend  from  Braiiitreo,  (Mr.  Stet 
son,)  who  understands  the  science  of  this  matter, 
said  that  banking  was  a  science,  and  I  take  it  for 
granted  that  he  understands  it,  because  he  is  a 
director  in  a  bank  that  pays  large  dividends,  and 
has  a  good  reserve  besides.  Suppose  my  friend 
from  Braintree  wished  to  start  a  bank  out  at  his 
place  with  a  $100,000  capital,  I  desire  to  know 
how  he  may  start  it  under  this  general  banking 
law.  The  gentleman  would  find,  if  he  enters  into 
a  calculation  upon  this  subject,  that  there  would 
be  a  difference  of  three  per  cent.,  in  round  num 
bers,  between  starting  a  bank  under  the  general 
law,  and  starting  it  under  the  other  system.  In 
the  first  place,  the  stock  to  be  lodged  with  the 
auditor  must  be  "  equal  to  a  stock  of  this  State 
producing  six  per  cent,  per  annum." 

Now  then,  you  must  buy  $120,000  to  get 
$100,000  bills,  and  pay  a,  premium  of  six  per  cent, 
if  issued  in  dollar  bonds,  or  fifteen  per  cent,  if 
issued  in  sterling  bonds,  payable  in  London,  as  I 
was  offered,  as  treasurer  of  the  Commonwealth, 
during  the  last  year,  the  highest  price  I  have 
named,  by  a  foreign  banker,  which  will  make  a 
difference  of  interest  to  begin  with,  of  $2,100, 
to  which  add  the  interest  on  $25,000,  which  the 
present  system  gives  you  a  right  to  circulate,  more 
than  the  general  law — which  is  $1,500,  making 
$3,600,  from  which  you  may  deduct  the  bank 
tax  on  three-fourths  of  the  capital,  $750,  leaving 
$2,850,  yearly  difference  against  him,  besides,  in 
the  end,  the  entire  loss  paid  as  premium. 

Will  he,  understanding  the  science  of  banking, 
start  a  bank  under  such  circumstances  ?  He  will 
do  no  such  thing.  I  have  stated  this  matter  pre 
cisely  as  it  exists,  and  I  challenge  the  gentleman 
from  Braintree,  or  any  other  gentleman,  to  dis 
prove  the  statement  I  have  made.  I  say  it  is  an 
impracticable  thing,  the  idea  of  starting  a  bank 
under  that  law. 

Mr.  NAYSON,  of  Amesbury.  I  wish  to  ask 
the  gentleman  a  single  question.  If  the  bank  of 
which  he  is  cashier,  which  was  incorporated  at  the 
last  session  of  the  legislature,  did  not  petition  for 
an  increase  of  capital  ? 

Mr.  HALL.  I  believe  there  was  a  petition  of 
the-kind  presented,  but  I  did  not  sign  it,  and  had 
nothing  to  do  with  it.  But,  if  such  a  charter  had 
been  granted  us,  we  could  have  used  it,  having 
now  a  charter  that  we  can  circulate  upon,  to  the 
amount  any  bank  can  keep  in  circulation,  of  the 
capital  of  $500,000,  which  is  entirely  a  different 
matter  from  starting  a  bank  when  you  want  cir 
culation  and  can  get  it  only  under  the  provisions 


of  the  present  general  banking  law.     And  now, 
one  question. 

Can  the  general  banking  law  be  amended  ? 

I  have  been  asked  this  question  many  times, 
by  my  friends,  and  my  answer  is  this  :  it  can  be 
amended  by  extending  the  limit  of  stocks  for 
investment,  and  take  railroad  stocks  and  bonds, 
and  real  estate ;  and  when  I  name  these,  and 
other  investments,  gentlemen  say  at  once,  they 
do  not  like  them  as  a  basis  for  banking,  because 
they  are  a  fluctuating  and  doubtful  class  of  secu 
rities.  And  if  this  is  true,  is  it  desirable  to 
change  our  present  system  for  one  so  full  of 
difficulties  ? 

Now  I  ask  gentlemen  from  all  parts  of  the 
Commonwealth,  to  pause  and  reflect,  before 
voting  to  deprive  yourselves  of  the  privileges 
enjoyed  by  your  neighbors,  unless  you  pay  a 
difference  of  three  or  four  per  cent.,  as  I  have 
shown,  besides  losing  the  premium  you  must  pay 
to  procure  public  stocks,  because  when  they 
mature,  you  only  get  the  face  or  par  value.  We 
have  villages  growing  up  in  all  parts  of  the 
Commonwealth,  and  if  they  desire  banks  for  the 
convenience  of  business,  and  the  investment  of 
surplus  capital,  by  persons  preferring  this  mode 
of  investment,  why  vote  for  an  untried  and 
impracticable  s y stern,  that  may  prevent  you 
attaining  the  very  object  which  you  are  so  soon 
likely  to  need  and  desire,  when  we  have  a  system 
adapted  to  our  wants,  and  in  my  opinion,  se 
cure  ? 

My  impression  is,  that  we  should  leave  this 
whole  subject  in  the  hands  of  the  legislature,  and 
I  hope  the  resolves  will  not  pass. 

Mr.  DE  WITT,  of  Oxford.  The  gentleman  for 
Abington  (Mr.  Keyes)  entirely  misunderstood  me 
in  the  course  of  his  remarks,  when  he  alluded  to 
the  position  I  had  taken.  I  say  that  the  banks 
here  are  well  managed,  and  that  their  notes  are 
perfectly  good.  I  desire  to  say  one  word  in  reply 
to  the  gentleman  from  Boston,  (Mr.  Schouler,)  the 
other  day.  He  said  that  this  general  law  was 
carried  through  a  compromise.  I  say  that  you 
could  do  nothing  under  this  general  law,  except 
by  way  of  this  compromise.  You  can  no  more 
do  without  it,  than  we  could  send  a  pound  of 
Dupont's  powder  through  Shadrach's  furnace. 
[Laughter.]  The  gentleman  speaks  of  monoply. 
But  the  people  agreed  to  give  all  these  various 
corporations  this  renewal  of  their  charter.  I  am 
a  law-abiding  man,  and  I  stand  by  the  law,  if  I 
can,  until  it  is  repealed  or  modified. 

Mr.  DUNCAN,  of  Williamstown.  I  move 
the  previous  question. 

Mr.  FHOTIIINGHAM,  of  Charlestown.  So 
far  as  the  argument  is  concerned,  I  have  no  objec- 


66th  day.]                                            BANKING. 

359 

Monday,]                                                         YEAS  —  NAYS. 

[July  25th. 

tions  to  the  previous  question,  though  I  should  be 
happy  to  hear  any  and  every  objection  which 
might  be  made  to  these  resolves.     I  have  not 
spoken  to-day  in  relation  to  them,  but  had  marked 

Lord,  Otis  P. 
Loud,  Samuel  P. 
Miller,  Seth,  Jr. 
Mixter,  Sanuiel 
Moore,  James  M. 

Souther,  John 
Stevens,  Granville 
Stevenson,  J.  Thomas 
Swain,  Alanson 
Tileston,  Edmund  P. 

down  several  things  which  had  been  said  by  my 

Oliver,  Henry  K. 

Train,  Charles  R. 

friend  from  Haverhill,  (Mr.  Hall,)  and  the  gentle 

Orcutt,  Nathan 

Underwood,  Orison 

man  for  Abington,  (Mr.  Keyes).     I  should  like 

Packer,  E.  Wing 

Upham,  Charles  W. 

to  have  a  few  minutes  to  reply  to  these  gentle 
men,  because  I  really  think  I  could  reply  to  them 

Park,  John  G. 
Parker,  Samuel  D. 
Perkins,  Jonathan  C. 

Upton,  George  B. 
Walcott,  Samuel  B. 
Walker,  Samuel 

successfully.     I  would  ask  the  gentleman  to  with 

Plunkett,  William  C. 

Weeks,  Cyrus 

draw  his  demand  for  the  previous  question,  so  as 

Putnam,  John  A. 

Wetmore,  Thomas 

to  allow  me  to  make  a  few  remarks. 

Read,  James 

Wheeler,  William  F. 

The  previous  question  was  seconded,  and  the 
main  question  ordered. 

Reed,  Sampson 
Sampson,  George  R. 
Sargent,  John 

White,  Benjamin 
Wilder,  Joel 
Wilkins,  John  II. 

The   PRESIDENT.      The   question   is,   first, 

Schoulcr,  William 

Winn,  Jonathan  B. 

upon  striking  out  the  first  resolution,  which  reads 

Simonds,  John  W  . 

as  follows  :  — 

NAYS. 

Resolved,   That  the  legislature  shall  have  no 
power  to  pass  any  act,  granting  any  special  char 

Adams,  Shubael  P. 
Allen,  Charles 

Fiske,  Emery 
Fowle,  Samuel 

ter  for  banking  purposes,  or  any  special  act  to 
increase  the  capital  stock  of  any  chartered  bank  ; 
but  corporations  may  be  formed  for  such  pur 
poses,  or  the  capital  stock  of  chartered  banks  may 
be  increased,  under  the  general  laws. 

Allen,  James  B. 
Allis,  Josiah 
Bancroft,  Alpheus 
Barrett,  Marcus 
Bennett,  Zephaniah 

French,  Charles  A. 
French,  Samuel 
Frothingham,  R.,  Jr. 
Gardner,  Johnson 
Giles,  Charles  G. 

Mr.  HALL,  of  Haverhill,  demanded  the  yeas 
and  nays,  which  were  ordered. 

Bird,  Francis  W. 
Bishop,  Henry  W. 
Bliss,  Gad  O. 

Gooch,  Daniel  W. 
Gooding,  Leonard 
Green,  Jabez 

The  question  was  taken,  and  there  were  —  yeas, 

Booth,  William  S. 

Griswold,  Whiting 

99  ;  nays,  158—  as  follows  :— 

Bradford,  William  J. 

A   Hadley,  Samuel  P. 

Breed,  Hiram  N. 

Hallett,  B.  F. 

YEAS. 

Bronson,  Asa 

Hapgood,  Lyman  W. 

Brown,  Adolphus  F. 

Hapgood,  Seth 

Abbott,  Alfred  A.           Eames,  Philip 

Brown,  Artemas 

Harmon,  Phineas 

Adams,  Benjamin  P.       Easland,  Peter 

Brown,  Hammond 

Hathaway,  Elnathan  P. 

Aldrich,  P.  Emory          Farwell,  A.  G. 

Brown,  Hiram  C. 

Hawkes,  Stephen  E. 

Alley,  John  B.                  Fay,  Sullivan 

Brownell,  Frederick 

Haze  well,  Charles  C. 

Aspinwall,  William         Fowler,  Samuel  P. 

Brownell,  Joseph 

Heath,  Ezra,  2d, 

Atwood,  David  C.           Freeman,  James  M. 

Buck,  Asahel 

Hewes,  James 

Ayres,  Samuel                  Gardner,  Henry  J. 

Butler,  Benjamin  F. 

Hewes,  William  H. 

Barrows,  Joseph               Gilbert,  Wanton  C. 

Case,  Isaac 

Hobart,  Aaron 

Bartlett,  Ilussel                 Graves,  John  W. 

Chandler,  Amariah 

Hobart,  Henry 

Beal,  John                         Hale,  Artemas 

Chapin,  Daniel  E. 

Holder,  Nathaniel 

Bell,  Luther  V.                 Hall,  Charles  B. 

Chapin,  Henry 

Hood,  George 

Bennett,  Wrilliam,  Jr.      Hammond,  A.  B. 

Childs,  Josiah 

Hooper,  Foster 

Bigelow,  Edward  B.         Hay  den,  Isaac 

Clark,  Henry 

Hoyt,  Henry  K, 

Brewstcr,  Osmyn             Hayward,  George 

Clark,  Ransom 

Huntington,  Charles  P, 

Brinley,  Francis               Hersey,  Henry 

Cleverly,  William 

Hurlbut,  Moses  C. 

Briggs,  George  N.            Hillard,  George  S. 

Cole,  Lansing  J. 

Ide,  Abijah  M.,  Jr. 

Bullock,  Ruius.                Hinsdale,  William 

Cole,  Sumner 

Jacobs,  John 

Cogswell,  Nathaniel        Hopkinson,  Thomas 

Cooledge,  Henry  F. 

Kendall,  Isaac 

Conkey,  Ithamar              Hubbard,  William  J. 

Crane,  George  B. 

Kimball,  Joseph 

Cook,  Charles  E.              Hunt,  William 

Cressy,  Oliver  S. 

Knight,  Jefferson 

Copeland,  Benjamin  F.  Hurlburt,  Samuel  A. 

Cross,  Joseph  W. 

Knowlton,  William  H. 

Crockett,  George  W.       Jackson,  Samuel 

Cushman,  Thomas 

Knox,  Albeit 

Crosby,  Leander               Jenkins,  John 

Dean,  Silas 

Ladd,  Gardner  P. 

Crowell,  Seth                    Jenks,  Samuel  H. 

Deiiton,  Augustus 

Lawrence,  Luther 

Crowninshield,  F.  B.       Kellogg,  Giles  C. 

DeWitt,  Alexander 

Lawton,  Job  G.,  Jr. 

Curtis,  Wilber                  Keyes,  Edward  L. 

Duncan,  Samuel 

Leland,  Alden 

Davis,  John                      Knight,  Hiram 

Dunham,  Bradish 

Littlefield,  Tristram 

Davis,  Solomon                Knight,  Joseph 

Durgin,  John  M. 

Loomis,  E.  Justin 

Dawes,  Henry  L.              Kuhn,  George  H; 

Earle,  John  M. 

Marvin,  Abijah  P. 

Deming,  Elijah  S.            Lincoln,  Abishai 

Edwards,  Elisha 

Merritt,  Simeon 

Denison,  Hiram  S.           Lincoln,  F.  W.,  Jr. 

Edwards,  Samuel 

Monroe,  James  L. 

360 

BANKING.                                             [66th  day. 

Monday,] 

NAYS  —  ABSENT  —  WESTON  —  LORD.                                  [July  25th. 

Morton,  Elbridge  G. 

Sprague,  Melzar                    Gale,  Luther                     Paige,  James  W. 

Morton,  Marcus 

Spooner,  Samuel  W. 

Gates,  Elbridge                Paine,  Benjamin 

Morton,  Marcus,  Jr. 

Stetson,  Caleb 

Gilbert,  Washington       Paine,  Henry 

Nash,  Hiram 

Stevens,  Joseph  L.,  Jr. 

Giles,  Joel                         Parker,  Adolphus  G. 

Nayson,  Jonathan 

Stevens,  William 

Gould,  Robert                  Parker,  Joel 

Newman,  Charles 

Stiles,  Gideon 

Goulding,  Dalton             Parris,  Jonathan 

Nichols,  William 

Sumner,  Increase 

Goulding,  Jason               Parsons,  Samuel  C. 

Nute,  Andrew  T. 

Taft,  Arnold 

Gray,  John  C.                   Parsons,  Thomas  A. 

Orne,  Benjamin  S. 

Thayer,  Willard,  2d, 

Greene,  William  B.         Partridge,  John 

Osgood,  Charles 

Thomas,  John  W. 

Greenleaf,  Simon             Payson,  Thomas  E. 

Peabody,  Nathaniel 

Tilton,  Horatio  W. 

Griswold,  Josiah  W.        Peabody,  George 

Pease,  Jeremiah,  Jr. 

Turner,  David 

Hale,  Nathan                    Phinney,  Silvanus  B. 

Penniman,  John 

Turner,  David  P. 

Haskell,  George               Pomroy,  Jeremiah 

Perkins,  Daniel  A. 

Tyler,  William 

Haskins,  William             Powers,  Peter 

Perkins,  Jesse 

Viles,  Joel 

Heard,  Charles                 Preston,  Jonathan 

Perkins,  Noah  C. 

Yinton,  George  A. 

Henry,  Samuel                 Prince,  F.  O. 

Phelps,  Charles 

Wallis,  Freeland 

Heywood,  Levi                 Putnam,  George 

Pierce,  Henry 

Walker,  Amasa 

Hobbs,  Edwin                  Richards,  Luther 

Pool,  James  M. 

\Vard,  Andrew  H. 

Houghton,  Samuel           Richardson,  Nathan 

Rantoul,  Robert 

Warner,  Samuel,  Jr. 

Howard,  Martin               Rockwell,  Julius 

Rawson,  Silas 

Wraters,  Asa  H. 

Howland,  Abraham  H.  Rockwood,  Joseph  M. 

Rice,  David 

Weston,  Gershom,  B. 

Hunt,  Charles  E.              Ross,  David  S. 

Richardson,  Daniel 

White,  George 

Huntington,  Asahel         Sherman,  Charles 

Richardson,  Samuel  H. 

Wrilbur,  Daniel 

Huntington,  George  H.  Sikes,  Chester 

Ring,  Elkanah,  Jr. 

Wilbur,  Joseph 

Hyde,  Benjamin  D.          Sleeper,  John  S. 

Rogers,  John 

Williams,  Henry 

James,  William                Stacy,  Eben  H. 

Royce,  James  C. 

Williams,  J.  B. 

Johnson,  John                  Stevens,  Charles  G. 

Sanderson,  Amasa 

Wilson,  Willard 

Kellogg,  Martin  R.          Storrow,  Charles  S. 

Sanderson,  Chester 

Winslow,  Levi  M. 

Kingman,  Joseph             Strong,  Alfred  L. 

Sheldon,  Luther 

Wood,  Charles  C. 

Kinsman,  Henry  W.        Stutson,  William 

Sherril,  John 

Wood,  Nathaniel 

Knowlton,  Charles  L.      Sumner,  Charles 

Simmons,  Perez 

Wood,  Otis 

Krtowlton,  J.  S.  C.          Taber,  Isaac  C. 

Smith,  Matthew 

Wright,  Ezekiel 

Ladd,  John  S.                   Talbot,  Thomas 

Langdon,  Wilber  C.        Taylor,  Ralph 

ABSENT. 

Little,  Otis                        Thayer,  Joseph 

Abbott,  Josiah  G. 
Allen,  Joel  C. 
Allen,  Parsons 
Alvord,  D.  W. 
Andrews,  Robert 
Appleton,  William 
Austin,  George 
Baker,  Hillel 
Ballard,  Alvah 
Ball,  George  S. 
Banks,  Nath'l  P.,  Jr. 
Bartlett,  Sidney 
Bates,  Eliakim  A. 
Bates,  Moses,  Jr. 

Choate,  Rufus 
Churchill,  J.  McKean 
Clark,  Salah 
Clarke,  Alpheus  B. 
Clarke,  Stillman 
Coggin,  Jacob 
Crittenden,  Simeon 
Cummings,  Joseph 
Cushman,  Henry  W. 
Cutler,  Simeon  N. 
Dana,  Richard  H.,  Jr. 
Davis,  Charles  G. 
Davis,  Ebenezer 
Davis,  Isaac 

Livermore,  Isaac              Thompson,  Charles 
Lotlirop,  Samuel  Iv.         Tilton,  Abraham 
Lowell,  John  A.               Tower,  Ephruim 
Marble,  William  P.         Tyler,  John  S. 
Marcy,  Laban                   Wales,  Bradford  L. 
Marvin,  Theophihis  R.    Wrallace,  Frederick  T. 
Mason,  Charles                 Warner,  Marshal 
Meader,  Reuben               Whitney,  Daniel  S. 
Morey,  George                 Whitney,  James  S. 
Morss,  Joseph  B.              Wilkinson,  Ezra 
Morton,  William  S.          Wilson,  Henry 
Norton,  Alfred                 Wilson,  Milo 
Noyes,  Daniel                   Wood,  William  H. 
Ober,  Joseph  E.               Woods,  Josiah  B. 

Beach,  Erasmus  D. 

Davis,  Robert  T. 

Absent  and  not  voting,   162. 

Beebe,  James  M. 

Day,  Gilman 

Bigelow,  Jacob 

Dehon,  William 

So  the  motion  was  not  agreed  to. 

Blagden,  George  "VV. 

Doane,  James  C. 

The  resolves  were  then  ordered  to  their  final 

Bliss,  William  C. 
Boutwell,  George  S. 

Dorman,  Moses 
Easton,  James,  2d, 

passage,  by  a  vote  of  108  ayes  to  67  noes. 

Boutwell,  Sewell 

Eaton,  Calvin  D. 

Termination  of  Debate* 

Bradbury,  Ebenezer 
Braman,  Milton  P. 

Eaton,  Lilley 
Ely,  Homer 

Mr.  WESTON,  of  Duxbury.      I  move  that 

Brown,  Alpheus  R. 

Ely,  Joseph  M. 

debate  cease  on  the  resolves  upon  the  subject  of 

Bryant,  Patrick 

Eustis,  William  T. 

the  election  of  justices  of  the  peace,  at  five  min 

Bullen,  Amos  H. 

Fellows,  James  K. 

utes  before  two  o'clock. 

Bumpus  Cephas  C. 
Burlingame,  Anson 
Cady,  Henry 

Fisk,  Lvman 
Fitch,  Ezekiel  W. 
Foster,  Aaron 

Mr.  LORD,  of  Salem.      Upon  a  question  of 
such  magnitude,  and  it  being  uncertain  at  what 

Carter,  Timothy  W. 

Foster,  Abram 

time  we  shall  go  into  Committee,  I  ask  that  the 

Caruthers,  William 

French,  Charles  H. 

question  be  decided  by  yeas  and  nays. 

Chapin,  Chester  W. 

French,  Rodney 

Mr.  GRISWOLD,  for  Erving.     This  question 

66th  day.] 


JUSTICES    OF   THE   PEACE,   &c. 


361 


Monday," 


HALLETT  —  BISHOP. 


[July  25th. 


has  already  been  before  the  Committee  of  the 
Whole,  and  has  been  pretty  well  discussed.  It  is 
the  desire  of  the  chairman  of  the  Committee  that 
the  matter  should  be  taken  up  now,  as  he  desires 
to  leave  this  afternoon. 

Mr.  LORD.  I  have  no  objection  to  taking  up 
the  question  now,  but  my  objection  is  to  saying 
beforehand,  that  a  matter  shall  not  be  discussed 
at  all. 

Mr.  WESTON.  I  will  withdraw  the  motion  I 
made. 

Appointment. 

The  PRESIDENT.  The  Chair  will  announce 
the  appointment  of  Mr.  Upton,  of  Boston,  as  a 
member  of  the  Committee  to  whom  the  subject 
of  Future  Amendments  to  the  Constitution  has 
been  committed,  in  the  place  of  Mr.  Hazewell,  of 
Concord,  who  is  excused  from  serving. 

Election  of  Justices  of  the  Peace. 

On  motion  of  Mr.  WESTON,  of  Duxbury, 
the  Convention  resolved  itself  into 

COMMITTEE    OF   THE    WHOLE, 

Mr.  Morton,  of  Andover,  in  the  chair,  upon  the 
subject  of  the  election  of  justices  of  the  peace. 
The  pending  question  being  on  the  adoption 
of  the  amendment  proposed  by  Mr.  Hallett,  to 
insert,  after  the  word  "shall,"  the  words  "not 
extend  to  hearing  and  trying  of  causes,  or  the  is 
suing  of  warrants  in  criminal  cases." 

The  amendment  was  adopted. 

Mr.  HALLETT.  I  wish  to  suggest  another 
amendment,  which  seems  to  me  to  be  proper  to 
carry  out  what  now  exists.  I  understand  the 
third  proposition  has  been  stricken  out,  relating  to 
justices  of  the  quorum.  It  is  obvious  that  you 
must  have  them,  or  else  you  must  call  upon  other 
justices  to  swear  persons  out  of  prison.  I  move, 
therefore,  to  strike  out  the  line,  "there  shall  be 
two  classes  of  justices,"  &c.,  and  also  to  strike 
out  the  word  "who,"  in  the  second  paragraph,  so 
that  it  will  read,  "trial  justices  shall  be  elected," 
&c.,  instead  of  "trial  justices,  who  shall  be  elect 
ed;"  and  in  the  second  paragraph,  it  will  read, 
"justices  of  the  peace  shall  be  appointed  by  the 
Governor  and  Council,  for  the  term  of  seven 
years,"  &c. 

Mr.  BISHOP,  of  Lenox.  The  amendments 
proposed  are  a  departure,  in  a  good  degree,  from 
the  Report  of  the  Committee.  The  Committee, 
in  the  first  place,  reported  in  favor  of  the  election 
of  the  justices  of  the  peace ;  and  for  the  reason 
that  these  offices  are  local,  in  some  sense,  and 
would  be  chosen  in  the  towns  where  the  individ 
uals  called  upon  to  make  the  choice  would  under- 

24 3 


stand  better  their  just  qualifications,  than  any 
other  power.  Then  it  was  proposed  that  after  the 
election  should  have  been  made, — after  provision 
was  made  for  their  election  and  for  the  tenure 
of  their  office, — that  the  legislature  should  have 
the  farther  control  over  this  matter,  that  they 
should  just  specify  the  number  to  be  chosen  and 
determine  upon  the  grade ;  or,  in  other  words, 
whether  there  should  be  justices  of  the  peace  of 
two  distinct  grades  ;  that  they  should  determine 
the  classification  of  these  officers. 

Now,  Mr.  Chairman,  I  regard  it  as  proper  that 
this  matter  should  be  left  to  the  legislature  ;  that 
it  should  not  be  fixed  unalterably  by  any  consti 
tutional  provision.  I  think  we  go  far  enough 
when  we  provide  for  the  election  of  justices  of  the 
peace,  and  when  we  determine  their  tenure.  The 
legislature  should  determine  their  number ;  and 
if  it  is  necessary  to  fix  a  classification,  the  legisla 
ture  should  determine  that  classification.  It  is 
proposed  by  the  amendment  reported  by  the 
Committee,  that  there  be  a  specific  number,  to  be 
ascertained,  in  the  first  place,  by  the  number  of 
towns,  and  in  the  second  place,  by  the  number 
of  inhabitants  ;  each  town  to  elect  a  justice  of  the 
peace,  and  a  justice  to  be  elected  for  every  addi 
tional  two  thousand  inhabitants.  That  may  be 
convenient.  I  see  no  very  serious  objection  to  it ; 
but,  still,  in  many  places,  most  unquestionably,  a 
fewer  number  of  justices  than  that  would  sub 
serve  the  purposes  of  the  community.  And  in 
many  places  there  might  be  required  a  larger 
number  than  that.  In  many  places  there  is  very 
little  litigation,  and  they  would  not  have  occasion 
for  the  services  of  a  justice  of  the  peace  very  often, 
and  perhaps  not  once  in  a  year,  and  that,  too,  in 
a  town  where  there  is  a  great  number  of  inhabi 
tants.  In  other  places  there  might  be  a  great  deal 
of  litigation,  and  a  larger  number  of  justices  might 
be  required.  Now,  that  this  matter  should  be 
left  for  the  legislature  to  determine,  we  regarded 
as  reasonable. 

In  regard  to  grades,  we  thought  proper  that 
the  subject  should  be  left  to  the  legislature.  I 
know  of  but  two  grades  of  justices  of  the  peace. 
I  mean  by  justices  of  the  peace,  those  officers 
who  have  a  right  to  hold  a  court,  and  who  are 
authorized  to  determine  controversies  between 
individuals,  or  between  individuals  on  one  side 
and  the  State  upon  the  other.  Those  two  classes 
are,  first,  justices  of  the  quorum ;  second,  the 
ordinary  justices  of  the  peace.  In  this  Common 
wealth,  the  class  called  justices  of  the  quorum 
has  been  maintained  ever  since  the  establishment 
of  the  Commonwealth.  Whether  it  be  necessary 
to  retain  the  distinction  any  longer,  it  will  be 
proper  for  the  legislature  to  determine,  and  for 


3G2 


JUSTICES    OF   THE   PEACE. 


[66th   day. 


Monday,] 


BISHOP. 


[July  25th. 


this  reason.  Their  introduction  was  a  matter  of 
necessity  originally.  There  were  a  great  many 
duties  assigned  to  justices  of  the  peace ;  that  offi 
cer  was  appointed  in  England  by  the  crown. 
The  justices  became  very  numerous,  and  it  be 
came  convenient,  if  not  necessary,  that  important, 
arduous,  difficult,  and  perplexing  duties  should 
be  assigned  to  these  officers  ;  and  a  higher  grade 
of  justices  was  called  for,  of  men  somewhat 
acquainted  with  the  laws,  men  of  sound  judg 
ment,  and  when  perplexing  questions  were  pre 
sented  for  the  decision  of  two  or  more  of  the 
justices,  one  or  more  of  this  higher  grade  of  jus 
tices  was  selected,  to  be  associated  with  the  ordi 
nary  justices,  and,  by  that  mode,  sometimes  diffi 
cult  questions  were  settled  without  a  resort  to 
the  higher  tribunals,  and  duties  difficult  of  exe 
cution  were  performed  by  this  court.  Now, 
whether  this  distinction  is  necessary,  I  cannot  de 
termine.  The  Committee  regarded,  that  if  a 
different  class  from  the  ordinary  justices  was  nec 
essary,  the  legislature  should  have  the  right  to 
create  them  ;  or,  if  they  were  in  existence,  to 
continue  them. 

It  is  unquestionably  true,  that  these  officers 
perform  duties  that  never  were  originally  assigned 
to  them.  They  were,  originally,  the  conservators 
of  the  peace.  They  had  little  to  do,  and  indeed 
nothing  to  do  with  acts  merely  ministerial,  unless 
those  acts  were  incident  to  the  discharge  of  their 
main  duty.  They  were  anciently  chosen  by  the 
people,  or  by  the  freeholders  convened  ty  the 
sheriffs.  They  exercised  nothing  but  criminal 
jurisdiction,  and  I  believe  that  in  England  to 
this  very  day,  they  exercise  no  civil  jurisdiction  ; 
that  is,  they  try  no  civil  causes.  But  there  have 
been  duties  devolved  upon  this  class  of  officers, 
which  have  rendered  their  multiplication  almost 
necessary,  and  the  greater  part  of  their  duties 
have  become  ministerial  and  administrative ;  and 
that,  I  apprehend,  has  occasioned  the  difficulties 
of  which  there  has  been  so  much  complaint. 

Now  justices  of  the  peace — and  I  wish  to  re 
tain  that  name,  for  if  officers  of  another  charac 
ter  are  to  be  created,  if  commissioners  are  to  be 
appointed  to  execute  merely  ministerial  or  ad 
ministrative  duties,  I  choose  that  they  should 
receive  the  right  appellation — justices  of  the  peace 
are  judicial  officers  ;  all  justices  of  the  peace,  by 
the  very  force  of  the  term,  are  judicial  officers. 
There  are  justices  of  the  court  of  the  king's 
bench,  justices  of  the  court  of  common  pleas,  of 
the  supreme  judicial  court,  and  a  variety  of  tri 
bunals  administered  by  individuals  denominated 
justices  ;  and  the  term  implies  a  judicial  power. 

Now  that  has  been  the  great  difficulty,  and  the  j 
subject  of  complaint ;  it  is  the  multiplication  of  | 


justices  of  the  peace  to  such  an  extent,  that  it 
became,  or  was  regarded  as  necessary,  some  few 
years  since,  to  create  a  distinct  class  of  justices 
called  trial  justices  ;  and  to  them  was  assigned 
all  the  judicial  duties  proper  ;  and  that  is  a  rea 
son  for  not  making  the  proper  distinction.  Jus 
tices  of  the  peace  not  only  exercise  judicial 
power,  but  they  exercise  an  immense  number  of 
ministerial  powers ;  and  the  ministerial  duties 
which  have  been  devolved  upon  them,  have  been 
the  occasion  of  their  multiplication. 

A  justice  of  the  peace  is  desired  in  a  commu 
nity  where  there  is  no  litigation  at  all ;  and  an 
application  is  made  for  his  appointment.  It  is 
contemplated  that  he  will  exercise  only  certain 
specific  duties,  that  he  will  act,  not  as  a  judicial, 
but  as  a  merely  ministerial  officer.  No  litigation 
whatever  occurs  in  the  community  from  which 
proceeds  the  application  for  his  appointment  as  a 
justice  of  the  peace  ;  and  he  is  appointed  a  justice 
of  the  peace,  for  what  r  To  take  the  acknowl 
edgment  of  deeds  ;  for  in  every  community  where 
there  is  any  business  transacted,  there  are  convey 
ances  of  real  estate,  and  an  officer  authorized  by 
law  to  take  an  acknowledgment  of  deeds  is  neces 
sary.  He  is  appointed  for  another  purpose  in 
this  community  :  to  issue  appraisers  warrants,  to 
appraise  the  inventory  of  deceased  persons,  to 
administer  a  great  variety  of  oaths  which  are 
required  to  be  administered  to  individuals  assum 
ing  trusts.  This  individual  is  appointed  for  that 
purpose.  He  never  contemplates  exercising  any 
judicial  powers  ;  and  it  is  not  contemplated  by 
those  who  solicited  his  appointment,  that  he 
shall  sit  in  any  civil  or  criminal  case  whatever ; 
and  the  commission  is  granted  for  no  other  pur 
pose  in  the  world  than  for  purposes  of  conven 
ience,  that  he  may  perform  those  ministerial  acts 
which  the  convenience  of  the  neighborhood  re 
quire.  In  that  way  the  justices  of  the  peace  have 
been  multiplied  ;  in  that  way  justices  of  the  peace 
have  been  created  who  were  not  competent  for 
the  appropriate  duties  of  justices,  the  holding  of 
courts  and  the  trying  of  criminal  and  civil  causes. 
Neither  the  legislature  nor  the  executive,  nor  any 
body  else  is  to  blame  for  the  multiplication  of 
these  justices,  and  for  the  difficulties  which  these 
frequent  appointments  have  created  ;  for  a  justice 
of  the  peace,  when  once  appointed,  is  compelled 
by  the  Constitution  and  by  his  oath,  not  only  to 
perform  those  duties  for  which  his  appointment 
was  sought,  but  to  perform  other  duties.  His 
commission  directs  him  to  keep  the  peace  ;  he  is 
denominated  as  a  person  assigned  to  keep  the 
peace  ;  and  if  a  complaint  is  made  to  him,  it  is  not 
for  him  to  determine  whether  he  will  receive  that 
complaint  and  issue  a  warrant  upon  it  or  not ; 


66th  day.] 


JUSTICES    OF   THE   PEACE,   &c. 


363 


Monday,] 


BISHOP  —  HALLETT  —  LORD  —  GUISWOLD  —  FAY. 


[July  25th. 


but  he  is  bound  by  his  oath,  and  by  the  Consti 
tution,  and  by  the  trust  which  he  has  assumed, 
to  issue  his  warrant ;  and  however  incompetent 
he  may  be  to  try  any  question  brought  before 
him,  however  difficult  the  questions  which  may 
arise  in  the  course  of  that  trial,  he  is  bound  to 
proceed  with  the  trial ;  and  great  complaints  have 
been  made  in  consequence  of  that  matter. 

Now,  the  Committee  propose  that  the  legisla 
ture  shall  designate  the  number  of  justices  to  be 
appointed ;  that  the  legislature  shall  determine 
their  classification,  because  the  number  may  vary 
from  time  to  time ;  and  I  regard  it  as  improper, 
or  at  least  as  unwise,  to  fix  by  the  Constitution 
any  definite  number — to  say  that  no  greater  num 
ber  than  such  as  is  prescribed,  shall  be  appointed. 

[The  time  allotted  under  the  rule,  expired.] 

SEVERAL  MEMBERS.     Go  on  !     Go  on  ! 

Mr.  BISHOP.  I  am  opposed  to  special  privi 
leges.  If  there  is  a  general  rule  I  shall  abide  by 
it. 

The  question  was  then  taken  on  the  amendment 
proposed  by  the  gentleman  for  Wilbraham,  (Mr. 
Hallett,)  and  it  was  agreed  to. 

Mr.  HALLETT.  I  desire  to  make  an  addi 
tional  amendment  to  the  second  proposition,  by 
inserting  after  the  words  "justices  of  the  peace" 
the  words  "  justices  of  the  peace  and  the  quorum, 
justices  throughout  the  Commonwealth,  and  com 
missioners  to  qualify  civil  officers,"  shall  be  ap 
pointed,  &c. 

Mr.  LORD,  of  Salem.  I  would  ask  "the  dele 
gate  representing  Wilbraham,  whether  he  has 
observed  that  the  same  resolution  provides  that 
trial  justices  shall  have  the  same  jurisdiction, 
powers,  and  duties,  that  are  now  exercised  by 
justices  of  the  peace,  justices  of  the  quorum,  and 
commissioners  to  qualify  civil  officers ;  and  if  he 
has  observed  that,  I  would  inquire  whether  the 
change  which  he  has  proposed  does  not  involve 
the  necessity  of  striking  out  a  part  of  the  first 
resolution  ? 

Mr.  GRISWOLD,  for  Erving.  I  would  ask 
the  gentleman  from  Salem  if  there  is  any  objec 
tion  to  that — if  it  will  not  give  them  the  same 
jurisdiction  ? 

Mr.  LORD.  I  should  have  objection  to  the 
multiplication  of  justices  of  the  quorum  and  jus 
tices  to  qualify  civil  officers.  I  think  the  number 
specified  as  trial  justices  is  enough  for  all  pur 
poses.  I  should  have  had  objection  to  the  amend 
ment  of  the  gentleman  for  Wilbraham,  which 
was  adopted ;  for  I  think  it  was  hardly  understood 
by  the  Convention,  when  the  question  was  taken, 
what  it  was  that  they  were  adopting.  I  desire 
to  call  the  attention  of  the  gentleman  to  it/ to  see 
whether  he  intends  to  have  these  officers  provided 


for  in  the  first  section.  I  do  not  mean  to  enter 
into  any  argument  on  the  subject  at  all. 

Mr.  GRISWOLD.  The  objection  which  is 
raised  bv  the  gentleman  from  Salem  is  valid  to 
this  extent :  it  does  multiply  the  number  of  offi 
cers  who  would  have  jurisdiction  upon  the  sub 
jects  that  justices  of  the  quorum  and  commission 
ers  to  qualify  civil  officers  have.  If  we  preserve 
these  officers,  I  see  no  objection  to  striking  out 
the  words  "justices  of  the  quorum  and  commis 
sioners  to  qualify  civil  officers  "  from  the  first 
section,  inasmuch  as  it  is  comprised  in  the  other 
amendment,  and  limiting  the  jurisdiction  of  trial 
justices  to  the  jurisdiction  which  justices  of  the 
peace  have.  At  the  proper  time  I  will  move  to 
strike  out  those  words  which  I  have  indicated. 

The  question  being  then  taken  on  the  amend 
ment  of  Mr.  Hallett,  as  modified,  no  quorum 
voted. 

Mr.  EARLE  moved  that  the  Committee  rise, 
and  report  to  the  Convention  that  no  quorum 
was  present ;  which  was  agreed  to,  and  the  Com 
mittee  accordingly  rose. 

IX    CONVENTION. 

The  President  having  resumed  the  chair,  the 
chairman,  Mr.  Morton,  of  Andover,  reported  that 
the  Committee  of  the  Whole  had  had  under  con 
sideration  the  subject  of  the  election  of  justices  of 
the  peace,  and  had  made  some  progress  therein, 
but  had  come  to  no  conclusion  thereon,  and  find 
ing  themselves  without  a  quorum,  had  instructed 
him  to  report  that  fact  to  the  Convention. 

On  motion  by  Mr.  EARLE,  the  Convention 
then  adjourned  until  three  o'clock,  P.  M. 


AFTERNOON  SESSION. 

The  Convention  reassembled  at  three  o'clock, 
P.M. 

Leave  of  Absence. 

Mr.  FAY,  of  Southborough,  from  the  Com 
mittee  on  Leave  of  Absence,  reported  that  leave 
of  absence  for  the  remainder  of  the  session  be 
granted  to  Mr.  Henry,  of  Prescott,  and  Mr.  Gale, 
of  Heath. 

The  question  being  taken  on  the  adoption  of 
the  Report,  it  was  decided  in  the  affirmative. 

Justices  of  the  Peace. 

On  motion  of  Mr.  BUTLER,  of  Lowell,  the 
Committee  of  the  Whole  was  discharged  from  the 
farther  consideration  of  the  resolves  concerning 
the  election  of  justices  of  the  peace. 

On  motion  of  Mr.  BUTLER,  of  Lowell,  the 
Convention  proceeded  to  the  consideration  of  that 


364 


FIFTEEN   MINUTES'   RULE,   &c. 


[66th  day. 


Monday/ 


BUTLER  —  LOUD  —  WOOD. 


[July  25th. 


item  on  the  Orders  of  the  Day  relating  to  the  sub 
ject  of  the 

Commissions  of  Judges. 
The  resolve  was  read,  as  follows  : — 

Resolved,  That  all  judicial  commissions  which 
shall  issue  to  any  person  from  and  after  the  first 
day  of  August,  in  the  year  one  thousand  eight 
hundred  and  fifty- three,  shall  confer  no  greater 
tenure  of  office  than  the  term  of  ten  years. 

Mr.  BUTLER  moved  to  amend  by  inserting 
the  tenth  day  of  August  instead  of  the  first. 

The  amendment  was  agreed  to,  and  the  resolve 
was  ordered  to  a  second  reading. 

Fifteen  Minutes'  Rule. 

Mr.  LORD,  of  Salem,  moved  that  the  rule  by 
which  speeches  are  limited  to  fifteen  minutes  be 
rescinded. 

Mr.  LORD.  I  make  this  motion,  Sir,  as  a 
matter  of  duty,  not  supposing  that  it  will  prevail. 
But,  Sir,  I  feel  bound  to  do  it,  from  several  cir 
cumstances.  Last  Saturday  a  subject  was  report 
ed  to  this  Convention,  or  considered  in  Commit 
tee  of  the  Whole.  The  chairman  of  the  Commit 
tee  from  which  the  report  was  made,  rose  and 
addressed  the  Convention  one  hour  on  the  subject. 
My  friend  from  Boston  got  up  and  talked  for  three 
or  four  minutes,  not  against  the  resolve  at  all. 
Immediately  the  gentleman  from  Fall  River  rose, 
and  addressed  the  Convention  for  half  an  hour ; 
thereupon  the  gentleman  from  Braintree  occupied 
his  half  hour,  and  the  gentleman  from  Melrose 
another,  all  011  the  same  side.  These  remarks 
embraced  the  whole  subject  of  banking.  And 
there  is  not  a  gentleman  who  knows  anything 
about  the  subject,  but  who  knows  that  the  chair 
man  of  the  Committee  has  an  exceedingly  narrow 
space  in  which  to  explain  his  views.  The  subject 
came  up  this  morning,  and  a  gentleman  com 
menced  to  speak  in  opposition  to  the  proposition ; 
he  was,  however,  restricted  to  fifteen  minutes, 
and  was  obliged  to  get  a  friend  to  move  an 
amendment,  so  as  to  enable  him  to  continue  his 
remarks,  under  the  technicality  of  having  a  new 
question  to  speak  to.  Now,  such  shifts  as  these 
are  certainly  not  dignified.  Well,  Sir,  we  have 
on  the  calendar  the  subject  of  the  Bill  of  Rights, 
and  the  chairman  of  the  Committee  on  that 
subject,  I  know,  cannot  present  his  views  within 
fifteen  minutes.  Could  any  other  gentleman  do 
so  ?  Here,  Sir,  we  have  the  subject  of  justices  of 
the  peace,  and  the  chairman  of  the  Committee 
on  that  subject  got  up,  but  had  not  entered  upon 
the  subject ;  and  when  he  had  exhausted  half  an 
hour,  he  was  interrupted ;  but,  being  excessively 


democratic,  he  said  he  did  not  ask  any  special 
privileges,  and  sat  down.  Now,  I  suppose  there 
are  gentlemen  here  who  desire  to  speak  on  the 
subject  of  justices  of  the  peace ;  but  every  one 
knows  that  no  man  can  in  fifteen  minutes  explain 
his  views ;  he  may,  it  is  true,  make  a  suggestion, 
but  it  is  impossible  for  him  to  discuss  it.  No 
man  can  within  the  time  limited  by  the  rule  that 
is  now  in  force.  And,  I  suppose,  no  man  would 
undertake  to  discuss  the  subject  without  having 
time  enough  afforded  him  to  state  his  premises, 
even  without  enforcing  them  in  the  slightest  de 
gree  by  arguments  or  illustrations,  and  this  in 
relation  to  a  subject  possessing  so  many  ramifica 
tions. 

Now,  Sir,  I  have  no  objection  at  all  to  stopping 
the  work  of  the  Convention  just  as  soon  as  gentle 
men  please,  but  my  objection  is  to  making  impor 
tant  changes  in  the  Constitution,  without  allow 
ing  any  gentleman  time  enough,  even,  to  state  his 
objections.  I  have  no  desire  to  protract  the  session 
of  this  Convention ;  and,  if  gentlemen  will  aban 
don  their  attempts  to  change  the  Constitution 
farther — if  gentlemen  will  abandon  their  attempt 
to  change  the  Constitution  in  regard  to  this  sub 
ject  of  justices  of  the  peace — a  subject  which  I 
think  requires  reform  more  than  any  other  ;  but, 
so  long  as  important  changes  are  intended,  and 
we  are  bound  to  act  on  those  changes,  it  seems  to 
me  we  ought,  at  least,  to  have  time  enough  to 
state  our  reasons  for  advocating  or  opposing  such 
changes. 

It  is  for  these  reasons  that  I  ask  that  the  rule 
shall  be  rescinded,  because  I  know  that  no  man 
can  discuss  the  subjects  submitted. 

Mr.  WOOD,  of  Fitchburg.  I  hope,  Mr.  Pres 
ident,  that  the  rule  will  not  be  rescinded.  I  have 
been  here  from  the  beginning  of  the  session  of 
the  Convention  until  this  late  period  ;  and  I  have 
been  compelled  to  listen  to  a  great  many  long 
speeches,  which  I  thought  were  wholly  unneces 
sary,  until  I  have  become  heartily  sick  of  a  certain 
vote  which  we  passed  here,  that  all  that  was  said 
in  this  Convention  should  be  reported  and  handed 
down  to  posterity  in  the  records  of  this  Conven 
tion.  I  think  that  order  has  made  more  speechi 
fying,  and  has  caused  us  to  spend  a  great  deal 
more  time  than  we  otherwise  should,  the  object 
being,  on  the  part  of  speakers,  as  it  seems  to  me, 
to  perpetuate  their  names,  more  than  it  was  to  get 
through  with  the  business  which  we  have  been 
sent  here  to  attend  to,  in  revising  the  Constitu 
tion.  I  have  not  taken  up  much  time  in  making 
speeches,  because  I  have  not  been  anxious  of 
having  my  name  thus  perpetuated  ;  when  I  die, 
let  me  go.  But  it  is  not  so  with  many  of  the 
members  of  the  Convention ;  and  many  of  the 


66th  day.] 


JUSTICES    OF   THE   PEACE,  &c. 


365 


Monday,] 


WOOD  —  WESTON  —  WALKER. 


[July  25th. 


speeches  which  have  been  made,  have  not  been 
delivered  so  much  for  the  purpose  of  enlightening 
us,  as  they  have  been  for  the  purpose  of  beautify 
ing  those  pages  that  are  to  be  read  hereafter,  as 
containing  the  eloquence  and  the  wisdom  of  this 
Convention.  We  have  now  arrived,  as  I  believe, 
nearly  to  the  close  of  our  labors  here ;  and  the 
best  thing  that  we  can  do  is,  to  wind  up  our  con 
cerns  as  soon  as  we  can  and  go  home.  We  saw 
how  it  was  in  the  debate  on  Saturday,  when 
another  question  was  under  discussion.  I  wished 
to  speak  on  that  question,  and  there  were  proba 
bly  others  in  similar  circumstances,  who  had 
given  the  matter  a  careful  examination  ;  but  one 
gentleman  spoke  an  hour,  another  a  half  hour, 
and  another  a  half  hour,  until  gentlemen  upon 
the  other  side  had  no  opportunity  to  speak  at  all. 
The  subjects  which  are  now  to  come  before  us, 
have,  most  of  them,  if  not  all,  been  carefully  ex 
amined  ;  and  then  why  not  limit  the  time  to 
fifteen  minutes  ?  If  that  is  the  case,  the  Conven 
tion  will  not  be  so  impatient,  and  they  will  be 
willing  to  hear  both  sides.  It  is  not  so  much 
eloquence  and  oratory  that  we  want  as  it  is  sub 
stance  and  sound  argument ;  and  if  gentlemen 
will  state  their  points  without  amplifying  so 
much,  we  can  understand  them  if  there  is  any 
substance  in  their  views,  and  we  can  act  accord 
ingly,  without  any  of  these  ornaments  of  rhetoric. 
There  is  not  a  single  question  which  has  yet  come 
before  us,  the  points  of  which  could  not  have 
been  stated  in  fifteen  minutes ;  but  gentlemen 
want  the  record  of  their  speeches  to  go  down  to 
posterity,  that  their  children  and  their  children's 
children  may  see  how  their  fathers  and  their 
grandfathers  talked  upon  these  subjects.  I  am 
entirely  opposed  to  the  proposition  to  rescind  this 
fifteen  minutes'  rule ;  instead  of  that,  I  wish  we 
had  adopted  it  much  earlier  in  the  session.  There 
are  many  subjects  which  have  been  introduced 
into  the  Convention,  upon  which  I  have  felt 
deeply  interested ;  but  there  has  not  been  one 
upon  which,  if  I  had  studied  it  carefully  and  taken 
pains  to  condense  my  ideas,  I  could  not  have  stated 
all  the  leading  points  without  exceeding  a  fifteen 
minutes'  speech.  So  can  the  gentleman  from 
Salem.  I  know  that  that  gentleman  has  a  power 
of  condensation  ;  and  that  he  can  bring  into  fif 
teen  minutes  the  consideration  of  the  most  elabo 
rate  and  complicated  question,  if  he  chooses  to  do 
so.  I  see  no  necessity,  therefore,  for  rescinding 
the  rule  in  regard  to  this  matter.  It  is  now 
nearly  the  end  of  July ;  and  there  was,  throughout 
the  community  at  large,  an  expectation,  when  this 
Convention  commenced  its  session,  that  it  would 
expire  about  the  first  of  July.  Instead  of  that,  it 
is  now  the  last  of  July ;  and  if  we  rescind  this 


rule,  I  see  nothing  to  prevent  our  going  on  for 
another  month,  or  even  longer.  Sir,  there  is  no 
need  of  it.  This  is  a  rule  that  commends  itself 
to  all  of  us.  Had  I  been  one  of  these  long  talkers, 
— had  I  been  unfortunate  enough  to  possess  the 
power  of  eloquence,  and  had  tHus  been  tempted 
to  spread  out  my  thoughts  in  page  after  page  of 
the  journal  of  our  debates — I  should  not  have  said 
what  I  have  said.  Every  gentleman  knows  that 
I  have  not  taken  up  much  of  the  time  of  the  Con 
vention  ;  and  I  have  often  regretted  that  our  pro 
ceedings  were  so  much  delayed  by  the  protracted 
remarks  of  some  of  my  associates,  who  use  very 
little  power  of  condensation  in  expressing  their 
views.  I  hope  we  shall  try  to  have  a  reform  in 
this  respect,  so  as  to  bring  our  session  to  a  close. 
Without  taking  up  any  more  time,  I  will  con 
clude  by  expressing  the  hope  that  the  rule  will 
not  be  rescinded. 

The  question  being  then  taken,  the  motion  was 
not  agreed  to. 

Election  of  Justices  of  the  Peace. 

Mr.  WESTON,  of  Duxbury,  moved  that  de 
bate  on  the  subject  of  the  election  of  justices  of 
the  peace  should  cease  at  four  o'clock  this  after 
noon.  The  motion  was  agreed  to. 

Mr.  WALKER,  of  North  Brookfield.  I  move 
that  the  Convention  now  proceed  to  the  consider 
ation  of  the  resolves  on  the  subject  of  the  election 
of  justices  of  the  peace. 

The  motion  was  agreed  to. 

Mr.  LORD,  of  Salem.  Is  that  matter  in  the 
Orders  of  the  Day  ? 

The  PRESIDENT.     Certainly  it  is. 

Mr.  LORD.  Does  the  discharge  of  the  Com 
mittee  of  the  Whole  from  its  farther  consideration 
place  it  in  the  Orders  of  the  Day  without  any 
farther  action  ? 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  it  does.  He  does  not  know  where  else  to 
put  it.  The  question  is  on  the  resolves  reported 
by  the  Committee  of  the  Whole.  The  gentleman 
from  Lenox,  (Mr.  Bishop,)  is  chairman. 

The  resolves  were  read  as  follows  : — 

1.  Resolved,  That  it  is  expedient  to  amend  the 
Constitution,  so  as  to  provide  that  the  electors  of 
the  several  towns  shall  elect,  in  such  manner  as 
the  legislature  may  direct,  Justices  of  the  Peace, 
whose  term  of  office  shall  be  three  years,  and 
whose  jurisdiction  shall  extend  throughout  the 
county  in  which  they  may  be  elected  ;  their  num 
ber  and  classification  shall  be  regulated  by  law  ; 
they  may  be  removed  after  due  notice,  and  an  op 
portunity  of  being  heard  in  their  defence,  by  such 
court  as  may  be  prescribed  by  law,  for  causes  to 
be  assigned  in  the  order  of  removal. 

2.  Resolved,  That  it  is  expedient  so  to  amend 


360 


JUSTICES    OF   THE   PEACE. 


[66th  day. 


Monday,] 


BUTLER.  —  MORTON  —  ALVORD  —  GRISWOLD  —  SCHOULER. 


[July  25th. 


the  Constitution  that  the  Governor  may  remove 
any  officer  in  the  former  resolves  of  this  Com 
mittee  mentioned,  within  the  term  for  which  he 
shall  have  been  elected,  giving  such  officer  a  copy 
of  the  charges  against  him,  and  an  opportunity  of 
being  heard  in  his  defence. 

3.  Resolved,  That  it  is  expedient  to  provide  in  the 
Constitution,  that,  in  case  of  vacancy,  by  resignation 
or  otherwise,  of  any  state,  county,  or  district  officer, 
whose  election  is  provided  for  in  the  Constitution, 
the  Governor  shall  issue  his  warrant  to  the  mayor 
and  aldermen  of  the  several  cities,  and  the  select 
men  of  the  several  towns,  to  fill  the  vacancy  at  the 
next  annual  election  after  it  shall  happen  ;  and 
the  Governor,  with  the  advice  and  consent  of 
the  Council,  may  appoint  suitable  persons  to  fill 
vacancies  until  an  election  by  the  people. 

Mr.  BUTLER,  of  Lowell.  I  move  the  amend 
ment  which  was  presented  in  Committee  of  the 
Whole,  before  the  Committee  was  discharged  from 
the  farther  consideration  of  this  subject.  It  will 
be  found  in  Document  121,  and  was  offered  by 
the  gentleman  from  Bernardston,  (Mr.  Cushman). 
It  is  to  substitute  the  following  for  the  two  first 
resolutions,  as  reported  by  the  Committee  : — 

Resolved,  That  it  is  expedient  to  amend  the 
Constitution  as  follows  : — 

There  shall  be  two  classes  of  Justices  of  the 
Peace,  viz.  : — 

1.  Trial  Justices,  who  shall  be  elected  by  the 
legal  voters  of  the  several  towns  for  a  term  of 
three  years.     There  shall  be  one  in  each  town, 
and  one  additional  for  every  two  thousand  inhab 
itants.     They  shall   have  the  same  jurisdiction, 
powers   and   duties   that  are  now  exercised   by 
Justices  of  the  Peace,  Justices  of  the  Quorum, 
and  Commissioners  to  qualify  civil  officers  ;  and 
such  other  powers  as  may  be  given  them  by  the 
legislature. 

2.  Justices  of  the  Peace,  who  shall  be  appointed 
by  the  Governor    and    Council  for  a   term    of 
seven  years  ;  and  those  who  now  hold  that  office 
shall  continue  as  such,  according  to  the  tenure  of 
their  respective  commissions :  prodded,  that  the 
jurisdiction  of  Justices  of  the  Peace  shall  extend 
only  to  the  acknowledgment  of  deeds,  the  admin 
istration  of  oaths,  the  issuing  of  subpoenas,  and 
the  solemnization  of  marriages. 

Mr.  MORTON,  of  Andover.  I  suppose  that 
the  object  of  the  amendment  offered  by  the  gen 
tleman  from  Lowell,  (Mr.  Butler,)  is  to  place  the 
matter  precisely  as  it  was  when  under  considera 
tion  by  the  Committee  of  the  Whole.  With  his 
permission,  I  v\  ill  offer  an  amendment,  which,  I 
think,  will  better  effect  that  object.  It  is  to  strike 
out  of  the  first  resolve  the  words,  "  There  shall 
be  two  classes  of  Justices  of  the  Peace,"  and  also 
the  word  "  who,"  in  the  next  line,  and  insert 
after  the  words  "  Justices  of  the  Peace,"  in  the 
second  resolve,  what  I  send  to  the  Chair.  If 
amended  as  I  propose,  the  resolves  will  stand  as 
follows : — 


Resolved,  That  it  is  expedient  to  amend  the 
Constitution  as  follows  : — 

1.  Trial  Justices  shall  be  elected  by  the  legal 
voters  of  the  several  towns  for  a  term  of  three 
years.  There  shall  be  one  in  each  town,  and  one 
additional  for  every  two  thousand  inhabitants. 
They  shall  have  the  same  jurisdiction,  powers, 
and  duties  that  are  now  exercised  by  Ju-tices  of 
the  Peace,  Justices  of  the  Quorum,  and  Commis 
sioners  to  qualify  civil  officers ;  and  such  other 
powers  as  may  be  given  them  by  the  legislature. 
2.  Justices  of  the  Peace,  and  Justices  ot  the  Peace 
and  Quorum,  and  Justices  throughout  the  Com 
monwealth,  and  Commissioners  to  qualify  civil 
officers,  shall  be  appointed  by  the  Governor  and 
Council  for  a  term  of  seven  years  ;  and  those  who 
now  hold  that  office  shall  continue  as  such,  ac 
cording  to  the  tenure  of  their  respective  commis 
sions  :  provided,  that  the  jurisdiction  of  Justices 
of  the  Peace  shall  not  extend  to  the  hearing  or 
trial  of  any  causes,  or  the  issuing  of  warrants  in 
criminal  cases. 

Mr.  BUTLER.  As  the  amendment  of  the 
gentleman  from  Andover  seems  better  suited  to 
the  object  in  view,  I  will  withdraw  my  amend 
ment. 

The  PRESIDENT.  Then  the  question  will 
be  on  the  amendment  offered  by  the  gentleman 
from  Andover,  (Mr.  Morton). 

Mr.  ALYORD.  I  wish  to  suggest  a  difficulty 
in  the  amendment  proposed.  It  provides  that 
justices  shall  be  appointed  by  the  Governor  and 
Council,  and  that  those  no  win  office  shall  continue 
to  hold  their  commissions.  Under  that  amend 
ment,  justices  of  the  quorum,  and  justices  through 
out  the  Commonwealth,  may  be  appointed  in  any 
number  as  justices  of  trial.  You,  therefore,  lose 
the  benefit  of  the  election  of  justices  of  trial  by 
the  people ;  for  the  governor  will  have  power,  in 
definitely,  to  appoint  justices  for  the  trial  of 
causes. 

Mr.  GRISWOLD,  for  Erving.  I  move  to 
amend  by  striking  out  of  the  last  line  but  two  in 
the  first  resolution,  as  proposed  by  the  gentleman 
from  Andover,  the  words  "justices  of  the  quo 
rum,"  and  also  the  words  "  civil  officers."  If 
these  words  are  not  stricken  out  we  shall  have 
the  offices  of  justices  of  the  quorum,  and  of  com 
missioners  to  qualify  civil  officers,  indefinitely 
extended.  I  see  no  way  to  remedy  the  evil  or  to 
limit  it,  but  by  the  amendment  I  have  proposed. 
There  are  some  differences  of  opinion  about  this  ; 
but  I  think  we  had  better  strike  out  the  words  I 
have  indicated.  It  will  prevent  the  creating  of 
new  offices,  which  is  the  object,  if  I  understood 
it,  of  the  gentleman  for  Montague,  (Mr.  Alvord,) 
and  will  have  the  justices  as  they  are  now,  hold 
ing  their  commissions  until  they  expire. 

Mr.  SCHOULER.  I  want  to  ask  one  or  two 
questions  before  I  can  vote  on  this  matter.  I 


66th   day.] 


JUSTICES   OF   THE   PEACE. 


367 


Monday,] 


HALLETT  —  KEYES  —  DAVIS. 


[July  25th. 


want  to  know  whether  justices  of  the  peace  in 
cities  are  to  be  elected  by  the  district  system,  or  by 
the  whole  city  ?  If  they  are  to  be  elected  by  the 
whole  city  we  shall  have  about  seventy  or  eighty 
to  elect  every  three  years. 

Mr.  HALLETT,  for  Wilbrahara.  I  would 
remind  the  gentleman  from  Boston  that  in  the 
county  of  Suffolk  there  is  a  police  court  estab 
lished.  Justices  of  the  peace  in  Suffolk  have  no 
power  to  try  causes.  All  criminal  cases  that 
would  be  investigated  by  a  justice  of  the  peace 
are  to  be  returned  to  the  police  court.  This 
amendment  relates  to  justices  of  the  peace  in 
towns  ;  it  cannot  relate  to  any  city  or  district  in 
which  there  is  a  police  court.  The  justices  of  the 
peace  are  to  be  appointed  in  precisely  the  same 
manner  as  heretofore,  except  that  they  are  to  be 
limited,  all  over  the  Commonwealth,  as  they  are 
now  limited — that  they  shall  have  110  jurisdiction 
as  a  court. 

Mr.  KEYES,  for  Abington.  I  was  not  here 
when  this  question  was  up  before ;  but  it  strikes 
me  that,  on  reading  this  amendment  and  hearing 
the  debate  upon  it,  there  is  something  peculiar 
about  one  paragraph — that  is  the  paragraph  which 
provides  that  trial  justices  shall  be  elected  for 
each  town,  and  that  they  are  to  have  jurisdiction 
throughout  the  county.  Now  I  should  like  to 
know  what  use  there  is  in  that  ?  I  suppose  the 
design  is  comprehended  under  the  general  one 
that  the  people  should  elect  their  judges,  but  on 
examination  it  really  seems  to  me  that  it  is  not 
based  upon  that  at  all.  Take  an  instance.  Here 
is  one  town  in  the  Commonwealth  which  elects  a 
trial  justice.  Anybody  who  has  any  business 
before  a  trial  jxisticc  may  elect  whatever  justice 
he  pleases,  and  I  may  be  called  upon  to  answer 
before  a  justice  that  I  had  no  hand  in  electing. 
I  prefer  that  the  governor  should  have  the  right 
to  appoint,  for  this  reason.  We  all  know  that 
offices  of  this  kind  are  sometimes  thrust  upon 
people  who  do  not  want  them,  as  a  matter  of  joke, 
as,  for  instance,  in  the  case  of  constables  and 
militia  officers.  There  may  be  towns  which  hold 
this  office  in  contempt,  and  they  may  choose  a 
man  who  is  utterly  unfit  for  the  office,  and  that 
man  may  be  selected  by  all  the  towns  in  the 
county  to  give  his  decision  in  cases.  I  am  not 
lawyer  enough  to  know  what  jurisdiction  a  jus 
tice  of  the  peace  has,  although  I  am  one  myself ; 
but  these  trial  justices  may  be  so  selected,  and 
their  known  sentiments  or  predelictions  may  be 
taken  advantage  of  to  the  annoyance  of  individu 
als,  and  the  subversion  of  just  rights.  Suppose, 
for  instance,  that  a  liquor  case  is  to  be  tried,  and  a 
justice  living  in  a  remote  town  from  where  the 
case  originated  is  known  to  entertain  peculiar 


sentiments ;  the  party  complaining  may  go  and 
employ  him  and  drag  the  defendant  from  his  own 
home  and  neighborhood,  merely  because  he  thinks 
he  has  found  a  justice  that  will  coincide  with  his 
notions  of  right  and  wrong  in  this  matter.  The 
object  of  election  by  the  people  will,  in  this  way, 
be  defeated,  as  they  will  be  subjected  to  the 
decisions  of  justices  whom  they  had  no  hand  in 
electing. 

Mr.  DAVIS,  of  Plymouth.  I  believe  that  the 
gentleman  for  Abington  is  mistaken  in  regard 
to  the  object  of  this  amendment.  I  am  sorry  to 
hear  that  the  gentleman  from  Lenox,  (Mr. 
Bishop,)  is  so  ill  to-day  as  to  be  unable  to  be 
here,  and  that  this  question  should  have  come  up 
in  his  absence.  I  believe  that  gentlemen  are 
aware  that  there  is  a  greater  evil  than  the  gentle 
man  for  Abington  supposes,  from  the  great  number 
of  justices  of  the  peace  who  are  appointed  by  the 
governor,  and  who,  to  a  certain  extent,  have 
power  over  the  liberty  and  property  of  the  people 
of  the  Commonwealth.  I  believe  it  is  important 
that  members  of  this  Convention  should  know 
that  there  is  a  great  evil  which  is  felt  by  the  citi 
zens  of  the  Commonwealth,  arising  from  the 
present  system,  with  regard  to  the  power,  juris 
diction,  and  learning  of  justices  of  the  peace.  It 
is  a  matter  well  known  to  many  gentlemen  of 
this  body,  who  have  had  much  experience  at  the 
bar,  that  persons  who  are  appointed  by  the  gov 
ernor,  as  justices  of  the  peace  for  the  purpose  of 
taking  the  acknowledgment  of  deeds,  or  of 
administering  oaths,  often  take  upon  themselves 
to  act  as  judges.  They  have  been  found  issuing 
warrants  day  after  day  against  the  same  individ 
ual,  and  even  engaged  in  stirring  up  civil  broils  in 
the  neighborhood,  that  they  might  thus  have  an 
opportunity  of  trying  civil  cases. 

There  are  numerous  cases  in  this  Common 
wealth  of  a  like  character,  and  one  case  has 
happened  within  my  knowledge.  A  justice  of 
the  peace  issued  somewhere  between  fifty  and  a 
hundred  warrants  against  two  or  three  individuals 
in  this  State,  in  the  course  of  three  months.  In 
each  of  those  cases  an  appeal  was  taken,  and  all 
of  them  were  quashed  when  they  carne  to  a  hear 
ing  in  the  court  of  common  pleas. 

I  believe  it  is  to  prevent  this  evil,  and  not  from 
fear,  as  the  gentleman  for  Abington  would  have 
it,  that  the  people  will  elect  certain  persons  as 
justices  who  are  weak  sisters,  as  he  said,  but  it 
is  because  we  know  as  an  actual  fact,  that  among 
the  great  variety  of  persons  on  whom  the  gov 
ernor  may  feel  it  necessary  to  confer  a  commis 
sion  as  justice,  there  must  be  a  great  proportion 
little  known  to  the  governor ;  and  therefore,  the 
|  governor  is  not  so  well  fitted  as  the  citizens  of 


368 


JUSTICES   OF   THE   PEACE. 


[66th  day. 


Monday,] 


DAVIS  —  LORD. 


[July  25th, 


the  several  neighborhoods,  to  confer  that  honor 
upon  the  persons  who  are  to  execute  the  duties 
of  that  office.  I  do  not  believe,  either  generally, 
or  specially,  that  the  people  of  the  small  neighbor 
hoods,  as  a  matter  of  abstraction,  to  say  the  least, 
will  not  choose  persons  fully  competent  to  exer 
cise  the  duties  of  that  office.  It  is  for  that 
reason  that  I  regret  that  the  motion  has  been 
made  to  except  justices  of  the  quorum  from  the 
general  scope  of  the  first  resolve.  I  hope  the 
present  justices  of  the  quorum  will  continue 
during  the  tenure  of  their  commissions,  and  I  do 
hope  that  these  justices,  having  the  power,  as 
they  do  have,  over  the  liberties  of  the  people  of 
the  Commonwealth,  will  be  elected  by  the  people 
of  the  several  towns.  I  know  it  is  a  crying  evil, 
about  which  the  citizens  in  almost  every  town 
have  something  to  complain  of,  that  there  are  per 
sons  among  them  who  have  the  power,  and  who, 
either  from  ignorance  or  dishonesty,  discharge  or 
confine  persons  within  the  limits  of  the  county, 
and  who  issue  writs  and  give  judgments  either 
one  way  or  the  other,  solely  from  motives  of 
policy.  And,  with  this  view,  and  merely  as  an 
illustration,  it  will  not  be  out  of  order  to  relate 
an  anecdote.  I  knew  in  a  town  not  fifty  miles 
from  the  town  which  I  represent,  a  justice,  now 
dead,  who  was  accustomed  to  try  cases  brought 
before  him  by  a  certain  lawyer,  residing  in  his 
neighborhood.  It  so  happened,  at  one  time,  that 
an  action  was  brought  by  another  lawyer,  which 
was  returnable  before  this  justice ;  and  his  patron, 
a  lawyer  of  distinction,  appeared  for  the  defend 
ant.  In  the  course  of  the  trial,  this  lawyer 
forced  the  counsel  opposed  to  him,  to  make 
amendments  from  time  to  time.  After  those 
amendments  were  allowed,  the  case  proceeded. 
A  clear  case  was  made  out  for  the  plaintiff,  and 
when  the  justice  came  to  deliver  his  opinion, 
«« Well,"  says  he,  "  I  have  allowed  Mr.  so  and  so 
to  amend  several  times,  and  I  do  not  think  it  is 
more  than  fair  to  give  judgment  for  the  defend 
ant." 

I  hope,  Mr.  President,  that  this  evil,  which  in 
particular  cases  is  a  trying  one,  will  be  prevented  ; 
and  I  hope  we  shall  prevent  it,  so  far  as  civil 
and  criminal  cases  are  concerned,  and  so  far  as 
the  liberties  of  the  citizens  of  this  Commonwealth 
are  at  stake. 

Mr.  DA  WES,  of  Adams.  Is  an  amendment 
to  an  amendment  in  order  at  this  time  ? 

The  PRESIDENT.  There  is  already  an 
amendment  to  an  amendment  pending.  The 
immediate  question  is  upon  the  amendment 
offered  by  the  gentleman  for  Erving,  (Mr.  Gris- 
wold). 

Mr.  LORD,  of  Salem.     Is  not  the  resolution 


itself  an  amendment  to  the  Report  of  the  Com 
mittee  ;  and  if  so,  is  not  this  an  amendment  to 
the  amendment  ? 

The  PRESIDENT.  The  Chair  understands, 
that  pending  the  Report  of  the  Committee,  the 
delegate  from  Andover,  (Mr.  Morton,)  moved  to 
amend  by  striking  out  the  first  resolve,  and  to 
substitute  the  resolution  reported  in  Document 
No.  121.  Then  the  delegate  for  Erving,  (Mr. 
Griswold,)  moved  to  amend  the  first  of  these  res 
olutions.  That  makes  an  amendment  to  the 
amendment. 

Mr.  LORD,  of  Salem.  I  wanted  to  express 
some  views  in  relation  to  this  subject,  for  the 
reason  that  I  thought  there  was  real  necessity  for 
reform.  I  supposed,  if  there  were  any  matters 
in  this  Commonwealth,  which  were  generally 
understood  by  the  people  of  the  Commonwealth 
as  needing  reformation,  those  two  matters  were 
the  police  courts  and  justices  of  the  peace.  These, 
by  way  of  preeminence,  were  matters  over  all 
others,  in  my  judgment,  which  demanded  reform. 
Well,  Sir,  there  are  some  traits  of  reform  in  this 
proposition,  which  I  like.  I  like  the  idea  of  there 
being  two  classes  of  magistrates,  the  one  being 
trial  justices,  and  the  other  having  some  more 
limited  jurisdiction — substantially  the  jurisdic 
tion  suggested  by  the  gentleman  from  Bernards- 
ton,  (Mr.  Cushinan,)  when  he  first  made  the 
proposition  yesterday  to  amend,  with  some  qual 
ification.  I  was  dissatisfied  with  the  amendment 
made  in  Committee  of  the  Whole,  for  a  reason 
which  seems  to  be  overlooked  ;  and  that  is,  that 
the  trial  justices  which  this  resolution  provides 
for,  are  enough,  in  all  conscience,  for  all  the  ordi 
nary  purposes  which  require  the  exercise  of  dis 
cretion.  WThere  justices  are  merely  to  take  the 
acknowledgment  of  deeds,  and  do  any  other 
mere  formal  act,  which  could  as  well  be  done  by 
machinery  as  by  a  magistrate,  there  I  would  let 
all  these  justices  remain ;  but  where  the  office 
requires  the  exercise  of  sound  and  legal  dis 
cretion,  I  would  have  it  limited  to  that  class 
called  trial  justices. 

Now,  Sir,  I  have  no  objection  at  all  to  the 
election  of  trial  justices.  On  the  whole,  I  am 
rather  inclined  to  think  that  is  a  good  way  to  elect 
them.  But  I  do  not  think  it  well  to  elect  them 
without  the  power  of  keeping  them  in  if  the 
people  want  them.  I  do  not  think  it  well  to  take 
away  from  the  governor  the  power  of  appoint 
ment,  and  yet  leave  to  him  the  power  of  removal 
the  instant  the  people  appoint,  if  he  choose  to  do 
so.  I  do  not  think  it  well  to  say  that,  when  the 
people  have  elected  one  of  these  officers,  the  gov 
ernor  may  put  his  veto  upon  him,  and  say  he 
shall  not  hold  his  office  an  hour.  I  would  just 


66th  day.] 


JUSTICES    OF   THE  PEACE. 


369 


Monday,] 


LORD  —  CHANDLER. 


[July   25th. 


as  soon  give  the  governor  the  power  to  remove 
every  other  officer.  Although  you  put  into  the 
hands  of  the  people  the  power  of  election,  you 
say,  also,  that  the  very  day  they  have  exercised 
that  power,  the  Governor  and  Council  may  re 
move.  And  that  provision  extends  to  judges  of 
probate,  sheriffs,  commissioners  of  insolvency, 
registers  of  probate,  and  all  other  officers  who  are 
now  appointed  by  the  executive,  but  hereafter  to 
be  chosen  by  the  people.  The  language,  though 
not  precise,  still  seems  to  me  to  include  them  all, 
for  it  says  it  is  expedient  so  to  amend  the  Con 
stitution,  that  the  governor  may  remove  any 
officer  in  the  former  resolve,  by  this  Committee 
mentioned.  The  Committee  having  made  a  Re 
port,  as  to  the  election  and  tenure  of  office,  and 
the  Convention  having  acted  upon  it,  and  agreed 
that  the  judges  of  probate  and  other  officers  shall 
be  elected  for  three  years,  these  resolves  provide 
that,  notwithstanding  what  we  have  done,  the 
Governor  and  Council  may  remove  them  at  any 
time.  I  do  not  think  it  is  proper  to  put  the 
appointing  power  in  one  tribunal,  and  the  re 
moving  power  in  another.  Such  is  the  effect  of 
this  resolution. 

I  do  not  think  it  well  to  adopt  these  resolves, 
as  they  stand,  for  another  reason.  I  do  not  think 
it  well  to  give  to  one  town  the  power  to  elect 
a  magistrate  who  shall  exercise  jurisdiction  in 
another  town  where  he  cannot  get,  were  he  a 
candidate  there,  a  single  vote.  It  is  a  very  con 
venient  arrangement  for  a  party  who  wants  to 
dispose  of  some  particular  individual  whom  they 
do  not  want  among  them,  and  who  will  agree 
not  to  work  at  home,  to  place  him  where  he 
may  do  all  the  mischief  he  does,  not  at  home,  but 
abroad. 

It  was  answered  just  now,  that  the  police  court 
was  established  in  the  city  of  Boston.  But,  that 
is  not  a  constitutional  court,  but  merely  an  insti 
tution  to  be  made  or  unmade,  at  the  pleasure  of 
the  legislature.  It  may  be  changed,  and,  Sir,  the 
town  of  Boston,  if  I  am  right  in  this,  having  one 
hundred  and  forty-eight  thousand  inhabitants, 
would  have  to  choose  seventy-four  trial  justices, 
and  one  more  for  corporate  rights,  making  sev 
enty-five  trial  justices,  which  the  city  of  Boston 
have  to  elect  every  three  years.  I  do  not  think 
that  a  necessary,  or  proper,  or  expedient  provi 
sion. 

But,  there  is  another  difficulty  in  these  resolves, 
and  that  is,  that  no  provision  is  made  for  the  po 
lice  court.  I  am  inclined  to  think  that  the 
provision  you  have  already  passed  in  relation  to 
judicial  officers,  clearly  by  its  terms  covers  police 
courts.  Now,  this  provision  is  entirely  nugatory, 
until  we  have  made  provision  for  police  courts. 

25 3 


There  is  another  provision  here — though  I  have 
not  half  time  enough  to  mention  the  objections 
which  I  desire  to  suggest,  and  at  the  same  time  to 
suggest  the  remedies  to  many  of  them — but  there  is 
another  provision,  and  that  is,  the  one  which  gives 
the  legislature  the  power  to  confer  upon  justices 
of  the  peace  any  authority  which  the  legislature 
choose  to  confer  upon  them.  It  does  not  provide 
a  jurisdiction  which  cannot  be  altered,  not  such  as 
is  given  to  them  by  the  present  Constitution ;  but 
they  are  to  have  all  such  other  powers  as  may  be 
given  them  by  the  legislature.  I  am  not  willing 
thus  to  create  a  tribunal  of  this  kind,  with  power 
in  the  legislature,  to  confer  upon  it  any  jurisdic 
tion,  that  it  choose  to  confer.  I  am  inclined  to 
think  that  real  wisdom  would  suggest  the  same 
course  in  relation  to  these  resolves,  that  was  sug 
gested  this  morning  in  relation  to  the  amendment 
proposed  by  the  gentleman  who  represents  "SVil- 
braham,  that  they  are  not  in  a  condition  in  which 
they  can  be  matured.  It  is  not  for  me  to  do  any 
thing  more  than  simply  to  suggest,  that  although 
there  is  here  an  object  to  be  obtained,  and  which 
I  think  there  is  not  a  single  individual  here  who 
does  not  wish  to  obtain,  yet  it  cannot  be  accom 
plished  in  this  Convention.  I  have  suggested 
some  half  a  dozen  objections,  without  having  an 
opportunity,  on  account  of  the  fifteen  minutes' 
rule,  to  suggest  a  single  remedy.  There  were 
other  difficulties  which  suggested  themselves  to 
me ;  but  of  course,  as  the  hour  at  which  the  Con 
vention  have  determined  to  take  the  question,  is 
near  at  hand,  I  cannot  even  state  them. 

Mr.  CHANDLER,  of  Greenfield.  It  seems  to 
me  that  there  are  several  points  in  the  resolutions 
which  are  objectionable.  In  the  first  place,  I  do 
not  approve  of  the  two  classes  of  justices.  It 
seems  to  me  to  be  making  an  invidious  distinction, 
and  one  altogether  unnecessary,  the  one  class  to 
hear  and  determine  important  causes ;  and  the 
other,  to  administer  oaths  on  common  occasions, 
to  witness  deeds,  &c.  Why  should  such  a  dis 
tinction  be  made  ?  I  believe  if  you  submit  the 
election  to  the  people  they  will  choose  those  who 
have  common  sense,  and  common  information, 
and  who,  of  course,  will  be  capable  to  discharge 
all  the  duties  which  appertain  to  the  office  of  jus 
tice  of  the  peace.  It  seems  to  me,  therefore,  en 
tirely  unnecessary,  and,  indeed,  even  a  burlesque 
upon  the  the  people  to  suppose,  that  they  will 
choose  a  man  incapable  of  performing  the  duties 
of  the  office.  And  what  a  burlesque  it  would  be 
upon  the  people  !  A  stranger  is  passing  through 
the  town,  he  calls  at  a  house,  and  inquires  for 
your  patrician  justice,  as  he  has  a  cause  to  submit 
to  him.  He  goes  his  way.  Another  stranger 
comes  along,  and  he  inquires  for  your  plebian 


370 


JUSTICES    OF   THE   PEACE. 


[66th  day. 


Monday,] 


DAWES  —  ALVORD  —  CHAPIN  —  MORTON  —  WESTOX  —  LELAXD. 


[July    25th. 


justice,  as  he  wants  him  to  marry  his  daughter. 
This  distinction  seems  to  me  invidious  and  un 
necessary. 

[Here  the  President's  hammer  fell,  the  hour  of 
four  o'clock  having  arrived,  at  which  time  the 
Convention  had  ordered  the  question  to  be  taken.] 

The  question  was  taken  upon  the  amendment 
of  the  gentleman  for  Erving,  (Mr.  Griswold,)  to 
strike  out  in  the  first  resolve,  the  words,  "jus 
tices  of  the  quorum  and  commissioners  to  qualify 
civil  officers,"  and  it  was  adopted. 

Mr.  DAWES,  of  Adams,  moved  to  amend  by 
inserting  in  the  first  paragraph,  after  the  word 
''towns"  the  words  "and  cities  where  no  police 
court  is,  or  may  be  established  by  law,"  so  that 
the  clause  as  amended,  would  read  : — 

Trial  Justices  shall  be  elected  by  the  legal 
voters  of  the  several  towns  and  cities  where  no 
police  court  is  or  may  be  established  by  law,  for  a 
term  of  three  years. 

The  amendment  was  agreed  to. 

Mr.  ALVORD,  for  Montague,  moved  to  amend 
ihe  second  paragraph,  by  inserting  after  the  word 
*'ofj**  the  word  "such,"  and  to  strike  out  the 
•words  ft  of  the  peace." 

So 'that  instead  of  "provided,  that  the  jurisdic 
tion  of  justices  of  the  peace,  shall  not  extend," 
&e,,  it  would  read  : — 

Provided,  That  the  jurisdiction  of  such  justices 
shall  not  extend.  £c. 

The  motion  was  agreed  to. 

Mr.  CHAP  IN,  of  Worcester,  moved  to  insert 
an  additional  section  to  the  amendment  of  the 
gentleman  from  Andover,  (Mr.  Morton,)  as  fol 
lows  : — 

3.  Justices  and  .elerks  of  the  police  courts  in 
the  several  towns  and  cities  of  the  Common 
wealth,  shall  be  elected  by  the  legal  voters  of  the 
several  towns  and  cities,,  for  a  term  of  three  years." 

The  amendment  was  agreed  to. 

Mr.  MORTON,  of  Andover,  moved  to  strike  out 
in  the  last  line  of  the  first  paragraph,  the  words, 
"  and  such  other  powers  as  may  be  given  them," 
and  to  insert  the  words,  "  subject  to  alterations," 
so  that  the  clause  as  amended,  would  read : — 

They  shall  have  the  same  jurisdiction,  powers 
and  duties,  that  are  now  exercised  by  justices  of 
the  peace,  subject  to  alterations  by  the  legislature. 

Mr.  STEVENSON,  of  Boston.  I  would  sug 
gest  to  the  gentleman  to  strike  out  the  words  which 
he  proposes,  without  inserting.  The  effect  of 
leaving  the  clause  as  it  now  stands,  or  of  striking 
out  and  inserting  that  which  he  proposes,  will  be 


to  confer  upon  the  legislature  the  power  to  give 
these  officers  authority  to  try  the  highest  causes. 

The  PRESIDENT.  The  Chair  must  remind 
the  gentleman  that  he  cannot  debate  the  amend 
ment. 

Mr.  THOMPSON,  of  Charlestown.  I  desire 
to  know  if  the  motion  is  divisible,  so  that  the 
question  may  first  be  taken  upon  the  motion  to 
strike  out,  and  then  upon  the  motion  to  insert  ? 

The  PRESIDENT.  A  motion  to  strike  out 
and  insert  is  not  divisible. 

The  amendment  was  then  adopted. 

Mr.  WESTOX,  of  Duxbury,  suggested  that 
inasmuch  as  there  seemed  to  be  some  prejudice 
against  the  word  "  trial,"  he  thought  some  other 
word  might  be  substituted ;  he  therefore  moved 
to  strike  out  the  word  "trial,"  and  insert  the 
word  "  town,"  so  that  it  would  read  "  Town 
Justices,"  instead  of  "  Trial  Justices." 

The  amendment  was  not  agreed  to. 

Mr.FROTHINGHAM,  of  Charlestown,  moved 
to  insert,  after  the  word  "  and,"  in  the  third  line 
of  the  first  paragraph  of  the  resolve,  the  words 
"maybe,"  so  as  to  make  the  clause  read: — 

There  shall  be  one  in  each  town,  and  may  be 
one  additional  for  every  two  thousand  inhab 
itants. 

The  amendment  was  adopted. 
Mr.  LELAND,  of  Holliston,  moved  to  amend 
by  adding  to  the  first  resolve  the  following : — 

Provided,  that  no  Trial  Justice  shall  act  as  such 
after  his  ceasing  to  reside  in  the  town  in  which  he 
was  elected. 

Mr.  SCHOULER  asked  the  gentleman  from 
Holliston  to  substitute  the  following  instead  of 
his  amendment :  Insert  after  the  word  "  inhab 
itants,"  the  words  "  who  shall  have  jurisdiction 
only  in  the  towns  in  which  they  shall  reside,  and 
for  which  they  shall  be  elected."  So  that  the 
clause,  if  amended,  would  read  : — 

There  shall  be  one  in  each  town,  and  may 
be  one  additional  for  every  two  thousand  inhab 
itants,  who  shall  have  jurisdiction  only  in  the 
towns  in  which  they  reside  and  for  which  they 
shall  be  elected. 

Mr.  LELAND  declined  to  accept  the  substi 
tute,  and  the  question  being  taken,  the  amend 
ment  was  not  adopted  by  the  Convention. 

Mr.  MORTON,  of  Andover,  moved  to  amend 
by  striking  out  the  words  "  each  town,"  and  to 
insert  "  every  such  town  or  city."  The  clause 
would  then  read  : — 

There  shall  be  one  for  every  such  town  or  city, 


66th  day.] 


JUSTICES   OF   THE   PEACE. 


371 


Monday,] 


TB.AIX  —  LORD  —  STEVEXSON  —  WHITNEY  —  BIRD  —  HALLETT. 


[July  25th. 


and  may  be  one  additional  for  every  two  thou 
sand  inhabitants. 

The  motion  was  agreed  to — ayes,  148  ;  noes,  3. 

On  motion  of  Mr.  TRAIN,  of  Framingham, 
the  Convention  reconsidered  the  vote  by  which 
the  amendment  of  the  gentleman  from  Holliston 
(Mr.  Leland)  was  rejected. 

The  question  then  recurred  upon  the  adoption 
of  the  amendment,  which  was  read,  as  follows  : 
Add,  at  the  end  of  the  first  paragraph,  the  follow 
ing  :— 

Provided,  that  no  Trial  Justice  shall  act  as 
such  upon  his  ceasing  to  reside  in  the  town  in 
which  he  was  elected. 

The  question  was  taken,  and  the  amendment 
adopted. 

Mr.  LORD,  of  Salem,  moved  to  amend  by  ad 
ding  to  the  first  section  the  following  words  : — 

But  no  Trial  Justice  shall  have  jurisdiction  in 
any  civil  action  in  which  both  of  the  parties 
shall  be  inhabitants  of  towns  in  the  Common 
wealth,  other  than  the  town  in  which  such  Justice 
was  elected. 

The  amendment  was  not  agreed  to. 

The  question  then  recurred  upon  the  amend 
ment  offered  by  Mr.  Morton,  of  Andover,  as 
amended,  to  strike  out  the  first  resolve  reported 
by  the  Committee,  and  to  insert  the  follow 
ing  :— 

Resolved,  That  it  is  expedient  to  amend  the 
Constitution,  as  follows  : — 

1.  Trial  Justices  shall  be  elected  by  the  legal 
voters  of  the  several  towns  and  cities  where  no 
police  court  is  or  shall  be  established  by  law,  for 
a  term  of  three  years.     There  shall  be  one  in 
every  such  town  or  city,  and  may  be  one  addi 
tional    for    every    two     thousand     inhabitants. 
They  shall  have  the  same  jurisdiction,  powers 
and  duties,  that  are  now  exercised  by  Justices  of 
the  Peace,  subject  to  alteration  by  the  legislature : 
provided,  that  no  Trial  Justice  shall  act  as  such 
upon  his  ceasing  to  reside  in  the  town  in  which 
he  was  elected. 

2.  Justices  of  the  Peace,  Justices  of  the  Peace 
and  Quorum,  J  ustices  of  the  Peace  throughout  the 
Commonwealth,  and  Commissioners   to   qualify 
civil  officers,  shall  be  appointed  by  the  Governor 
and  Council,  for  a  term  of  seven  years ;  and  those 
who  now  hold  that  office  shall  continue  as  such, 
according  to  the  tenure  of  their  respective  com 
missions  :  provided,  that  the  jurisdiction  of  such 
justices  shall  not  extend  to  the  hearing  or  trial  of 
any  causes,  or  the  issuing  of  warrants  in  criminal 
cases. 

3.  Justices  and  Clerks  of  the  police  courts,  in 
the  several  towns  and  cities   in   the   Common 
wealth,  shall  be  elected  by  the  several  towns  and 
cities,  for  a  term  of  three  years. 


Mr.  STEVENSON,  of  Boston.  From  the  fact 
that  this  is  a  subject  which  only  those  acquainted 
with  the  law  can  thoroughly  understand,  I  feel 
under  the  necessity  of  moving  to  recommit  this 
subject  to  the  Committee  which  reported  it. 

Mr.  WESTON,  of  Duxbury.  If  the  subject 
is  to  be  recommitted,  I  hope  it  will  be  committed 
to  a  Select  Committee,  and  not  to  the  Committee 
which  reported  it. 

Mr.  STEVENSON.  I  will  so  modify  my 
motion. 

The  question  was  taken,  and  the  motion  to 
commit  was  disagreed  to— ayes,  97  ;  noes,  119. 

Mr.  WHITNEY,  of  Boylston.  After  so  much 
information  upon  this  subject,  I  feel  disposed  to 
move,  and  I  do  now  move,  to  postpone  indefi 
nitely  the  whole  subject. 

Mr.  BIRD,  of  Walpole.  I  move  the  previous 
question. 

Mr.  HALLETT,  for  Wilbraham.  I  desire  to 
know  whether  the  motion  for  the  previous  ques 
tion  will  extend  to  the  second  and  third  re 
solves  ? 

The  PRESIDENT.  It  will  extend  to  all  the 
resolves  under  consideration. 

Mr.  HALLETT.  Well,  Sir,  I  desire  to  say  a 
word,  to  show  why  the  main  question  should  not 
be  ordered.  According  to  my  understanding,  if 
the  previous  question  is  sustained,  it  brings  us  to 
a  direct  vote  upon  this  second  resolve,  which  I  do 
not  hesitate  to  say  is  the  most  extraordinary  prop 
osition  I  ever  heard  proposed  to  be  put  into  any 
Constitution.  It  gives  to  the  governor  power  to 
turn  every-body  out  of  office  in  the  Common 
wealth.  [A  laugh.]  I  do  not  want  to  give  the 
governor  any  such  powers. 

Mr.  BIRD,  of  Walpole.  At  the  time  I  made 
the  motion,  I  supposed  it  applied  only  to  the 
amendment  of  the  gentleman  from  Andover,  (Mr. 
Morton,)  but  if  it  is  desirable  to  propose  amend 
ments  to  the  other  resolutions,  and  they  cannot 
be  separated,  I  will  withdraw  the  demand  for  the 
previous  question. 

Mr.  WHITNEY,  of  Boylston.  I  withdraw  the 
demand  for  the  indefinite  postponement. 

Mr.  MILLER,  of  Wareham.  I  renew  the 
motion. 

Mr.  HALLETT,  for  Wilbraham.  I  move  to 
amend  by  striking  out  the  second  resolution. 
It  is  a  resolution  which  gives  the  governor  the 
power  of  removing  every-body,  without  any  cause 
whatever. 

The  PRESIDENT.  The  motion  to  amend 
must  be  first  put,  before  the  motion  for  indefinite 
postponement. 

Mr.  CHAPIN,  of  Worcester.  I  move  to  re 
consider  the  vote  by  which  the  Convention  re- 


372 


BILL  OF   RIGHTS,  &c. 


[66th  day. 


Monday,] 


MILLER  —  BOUTWELL  —  GRISWOLD  —  STEVEXSON  —  CHURCHILL.  [July  25th. 


fused  to  recommit  this  subject  to  a  Special  Com 
mittee.  The  reason  why  I  make  the  motion  is 
this  :— 

The  PRESIDENT.  The  question  is  not  de 
batable. 

Mr.  MILLER.  I  desire  to  inqure  of  the  Chair 
if  my  motion  is  not  to  be  considered  ? 

The  PRESIDENT.  The  Chair  would  inform 
the  gentleman  that  the  pending  question  is  a 
motion  to  amend,  made  by  the  gentleman  for 
Wilbraliam,  which  must  be  first  put,  before  the 
motion  for  the  indefinite  postponement.  A  motion 
has  been  made  by  the  gentleman  from  Worcester, 
to  reconsider  the  vote  by  which  the  Convention 
refused  to  recommit  the  subject  of  the  election  of 
justices  of  the  peace  to  a  Special  Committee, 
which  motion  the  Chair  decides  to  be  in  order  at 
this  time. 

The  question  was  taken  upon  Mr.  Chapin's 
motion,  and  there  were — ayes,  127  ;  noes,  89. 

The  PRESIDENT.  The  question  now  is, 
upon  the  motion  of  the  delegate  from  Boston, 
(Mr.  Stevenson,)  to  recommit  this  whole  subject 
to  a  Special  Committee. 

Mr.  BOUTWELL,  for  Berlin.  I  move  that 
the  whole  subject  lie  upon  the  table. 

The  question  was  taken,  and  there  were — ayes, 
91 ;  noes,  140. 

So  the  motion  was  not  agreed  to. 

Mr.  GRISWOLD,  for  Erving.  I  move  to 
amend  the  rrotion  of  the  gentleman  from  Boston, 
(Mr.  Stevenson,)  by  adding  that  the  Committee 
be  instructed  to  report  to-morrow  morning. 

Mr.  STEVENSON.  I  accept  the  amend 
ment. 

The  question  was  then  taken  upon  the  motion 
of  Mr.  Stevenson,  and  it  was  decided  in  the 
affirmative. 

Mr.  IvEYES,  for  Abington,  moved  that  the 
Committee  consist  of  seven. 

The  motion  was  agreed  to. 

Debates  and  Proceedings. 

The  PRESIDENT.  The  next  matter  in  the 
Orders,  is  the  following  resolve,  reported  by  the 
Committee  on  Publishing  the  Proceedings  and 
Debates  of  the  Convention. 

The  resolve  was  read,  as  follows  : — 

Unsolved,  That  the  Committee  appointed  to 
superintend  the  publication  of  the  reports  of  the 
Debates  and  Proceedings  of  this  Convention,  be 
authorized,  in  connection  with  the  President  and 
State  Auditor,  to  allow  the  accounts  for  such 
service,  and  the  Governor  is  hereby  requested  to 
draw  his  order  on  the  treasury  for  the  payment 
of  the  same. 

The  resolve  was  ordered  to  a  second  reading. 


Announcement  of  a  Committee. 

The  Chair  announced  as  members  of  the  Special 
Committee  on  the  resolves  concerning  the  election 
of  justices  of  the  peace,  the  following  named 
gentlemen  :  Mr.  Stevenson,  of  Boston ;  Mr.  But 
ler,  of  Lowell ;  Mr.  Chapin,  of  Worcester  ;  Mr. 
Bartlett,  of  Boston  ;  Mr.  Dawes,  of  Adams  ;  and 
Mr.  Morton,  of  Andover. 

Mr.  STEVENSON  moved  that  the  Committee 
have  leave  to  sit  during  the  session  of  the  Con 
vention. 

The  motion  was  agreed  to. 

Mr.  CHURCHILL,  of  Milton.  I  have  a 
proposition  with  reference  to  the  election  of  jus 
tices  of  the  peace,  which  I  ask  permission  to  read 
to  the  Convention,  and  which  I  ask  may  be  refer 
red  to  the  Committee  just  appointed. 

The  resolve  was  read  and  referred. 

Bill  of  Rights. 

On  motion  of  Mr.  BIRD,  of  Walpole,  the 
Convention  resolved  itself  into 

COMMITTEE   OF    THE   WHOLE. 

Mr.  Schouler,  of  Boston  in  the  chair,  upon  the 
several  resolves  reported  from  the  Committee  on 
the  subject  of  the  Bill  of  Rights. 

The  resolves  were  read,  as  follows  : — 

1.  Resolved,     That    the     Bill     of  Rights     be 
amended  by  adding  to  the  eleventh  article,  as  a 
part  of  the  same,  the  following  words  : 

"  And  every  person  having  a  claim  against  the 
Commonwealth,  ought  to  have  a  judicial  remedy 
therefor." 

2.  Resolved,     That     the    Bill    of     Rights    be 
amended  by  inserting  between  the  llth  and  12th 
articles,  the  following   additional   article,    being 
identical  with  one  now  in  another  chapter  of  the 
Constitution,  and  which  more  appropriately  be 
longs  to  the  Bill  of  Rights,  viz. : — 

"  VII.  The  privilege  and  benefit  of  the  writ 
of  habeas  corpus  shall  be  enjoyed  in  this  Com 
monwealth  in  the  most  free,  easy,  cheap,  expedi 
tious  and  ample  manner ;  and  shall  not  be  sus 
pended  by  the  legislature,  except  upon  the  most 
urgent  and  pressing  occasions,  and  for  a  limited 
time,  not  exceeding  twelve  months." 

3.  Resolved,     That    the     Bill    of    Rights    be 
amended  in  the  last  sentence  of  the  29th  article, 
by  striking  out  the  words  «« so  long  as  they  behave 
themselves  well,  and  that  they,"  and  inserting, 
"by  tenures  established    by    the    Constitution, 
and ;"  also,  by  striking  out  the   words  "  ascer 
tained   and  established  by  standing  laws,"  and 
inserting,  "  which  shall  not  be  diminished  during 
their  continuance  in  office,"  so  that  the  whole 
sentence,  as  amended,  shall  read  as  follows  : — 

"  It  is  therefore  not  only  the  best  policy,  but 
for  the  security  of  the  rights  of  the  people,  and  of 
every  citizen,  that  the  judges  of  the  supreme 
judicial  court  should  hold  their  office  by  tenures 
established  by  the  Constitution,  and  should  have 


66th  day.] 


BILL   OF   RIGHTS. 


373 


Monday,] 


SUMNER. 


[July  25th. 


honorable  salaries,  which  shall  not  be  diminished 
during  their  continuance  in  office." 

4.  Resolved,  That  the  Bill  of  Rights  be 
amended,  by  inserting  between  the  29th  and  30th 
articles,  the  following  additional  article  : — 

"  This  enumeration  of  rights  shall  not  impair 
others  retained  by  the  people,  and  no  po \vers  shall 
ever  be  assumed  by  the  legislature  that  are  not 
granted  in  this  Constitution." 

Also  the  following  Minority  Reports : — 
To  amend  as  follows  :  And  no  subject  shall  be 
hurt,  molested,  or  restrained  in  his  person,  liberty, 
or  estate,  for  worshipping  God  in  the  manner 
and  season  most  agreeable  to  the  dictates  of  his 
own  conscience,  or  for  his  profession  or  sentiments 
concerning  religion. 

To  add  to  the  loth  article  of  Bill  of  Rights  the 
following  clause : — 

In  all  trials  for  criminal  offences,  the  jury,  after 
having  received  the  instruction  of  the  court, 
shall  have  the  right,  in  their  verdict  of  guilty  or 
not  guilty,  to  determine  the  law  and  the  facts  of 
the  case. 

Mr.  SUMXER,  for  Marshfield.  Mr.  Chair 
man  :  As  chairman  of  the  Committee  on  the  Pre 
amble  and  Bill  of  Rights,  it  belongs  to  me  to 
introduce  and  explain  their  Report.  It  will  be 
perceived  that  it  is  brief,  and  proposes  no  import 
ant  changes.  But,  in  justice  to  the  distinguished 
gentlemen  with  whom  I  had  the  honor  of  being 
associated  on  that  Committee,  I  deem  it  my  duty 
to  suggest  that  the  extent  of  their  labors  should 
not  be  judged  by  this  result.  It  appears  from  the 
proceedings  of  the  Convention  of  1820,  that  the 
Committee  on  the  Bill  of  Rights  at  that  time,  sat 
longer  than  any  other  Committee.  I  believe  that 
the  same  Committee  in  the  present  Convention, 
might  claim  the  same  preeminence.  Their  re 
cords  show  twenty  different  sessions. 

At  these  sessions,  the  Preamble  and  the  Bill  of 
Rights,  in  its  thirty  different  propositions,  were 
passed  in  review  and  considered,  clause  by  clause ; 
the  various  orders  of  the  Convention,  amounting 
to  twelve  in  number  ;  the  petitions  addressed  to 
the  Convention,  and  referred  to  the  Committee  ; 
and  also  informal  propositions  from  members  of 
the  Convention  and  others,  were  considered ;  some 
of  them  repeatedly  and  at  length.  On  many 
questions  there  was  a  decided  difference  of  opin 
ion;  and  on  a  few,  the  Committee  was  nearly 
equally  divided.  But  after  the  best  consideration 
we  could  bestow  upon  them,  in  our  protracted 
series  of  meetings,  it  was  found  that  the  few  sim 
ple  propositions,  now  on  your  table,  were  all  upon 
which  a  majority  of  the  Committee  could  be 
brought  to  unite.  As  such,  I  was  directed  to 
present  them  to  the  Convention.  And  here,  Sir, 


admonished  by  the  lapse  of  time,  and  the  desire 
to  close  these  proceedings,  I  might  be  content  with 
this  simple  statement. 

But,  notwithstanding  the  urgency  of  our  busi 
ness,  I  cannot  allow  the  opportunity  to  pass — in 
deed,  I  should  not  do  my  duty — without  attempt 
ing,  for  a  brief  moment,  to  show  the  origin  and 
character  of  this  part  of  our  Constitution.  In 
this  way  we  may  learn  its  weight  and  authority, 
and  appreciate  the  difficulty  and  delicacy  of  any 
change  in  its  substance,  or  even  its  form.  I  will 
try  not  to  abuse  your  patience. 

The  Preamble  and  Bill  of  Rights,  like  the  rest 
of  our  Constitution,  were  from  the  pen  of  John 
Adams  ;  among  whose  published  works  the  whole 
document,  in  its  original  draught,  may  be  found. 
At  the  time  when  he  rendered  this  important  ser 
vice  to  his  native  Commonwealth,  and  to  the 
principles  of  free  institutions  everywhere,  he  was 
forty- five  years  of  age.  But  he  was  not  unpre 
pared.  The  natural  maturity  of  his  powers  had 
been  enriched  by  the  well-ripened  fruit  of  assidu 
ous  study,  and  of  an  active  life,  both  of  which 
concurred  in  him.  The  examples  of  Greece  and 
Rome,  and  the  writings  of  Sidney  and  Locke, 
were  especially  familiar  to  his  mind.  The  com 
mon  law  he  had  made  his  own,  and  mastered  well 
its  whole  arsenal  of  Freedom.  For  a  long  time 
the  vigorous  and  unfailing  partisan  of  the  liberal 
cause  in  Boston,  throughout  its  many  conflicts  ; 
then  in  Congress,  whither  he  was  transferred,  the 
irresistible  champion  of  Independence  ;  and  then 
the  republican  representative  of  the  united,  but 
still  struggling  colonies,  at  the  court  of  France  ; 
in  the  brief  interval  between  his  two  foreign  mis 
sions,  only  seven  days  after  landing  from  his  long 
ocean  voyage,  he  was  chosen  a  delegate  to  the 
Constitutional  Convention,  and  at  once  brought 
all  his  varied  experience,  rare  political  culture, 
and  eminent  powers,  to  the  task  of  adjusting 
the  frame-work  of  government  for  Massachusetts. 
As  his  work,  it  all  claims  our  regard ;  and  no 
part  bears  the  imprint  of  his  mind  so  much  as  the 
Preamble  and  Bill  of  Rights  ;  nor  is  any  other 
part  authenticated  as  coming  so  exclusively  from 
him. 

At  the  time  of  its  first  adoption,  the  Massachu 
setts  Bill  of  Rights  was  more  ample  in  its  pro 
visions,  and  more  complete  in  form,  than  any 
similar  Declaration  in  English  or  Colonial  history. 
Glancing  at  its  predecessors,  we  shall  learn  some 
thing  of  its  sources.  First  came,  long  back  in 
the  thirteenth  century,  Magna  Charta,  with  its 
genereous  safeguards  of  Freedom,  wrung  from 
King  John  by  the  Barons  at  Runnymede.  From 
time  to  time  these  liberties  were  confirmed,  and, 
after  an  interval  of  centuries,  they  were  again 


374 


BILL   OF   RIGHTS. 


[66th  day. 


Monday,] 


SUMXER. 


[July  25th. 


ratified,  at  the  beginning  of  the  unhappy  reign 
of  Charles  L,  by  a  Parliamentary  Declaration,  to 
which  the  monarch  assented,  known  as  the  Peti 
tion  of  Right,  which,  in  its  very  title,  reveals  the 
humility  with  which  the  rights  of  the  people  were 
then  maintained.  And  finally,  in  a  different  tone 
and  language,  at  the  Revolution  of  1688,  when 
James  II.  was  driven  from  his  dominions,  a 
"  Declaration  of  the  true,  ancient,  and  indubitable 
rights  and  liberties  of  the  people  of  the  king 
dom,"  familiarly  known  as  the  Bill  of  Rights,  was 
delivered  by  the  Convention  Parliament  to  the 
new  sovereigns,  William  and  Mary,  and  embodied 
in  the  Act  of  Settlement,  by  virtue  of  which  they 
sat  on  the  throne.  These,  Sir,  are  the  English 
examples. 

Their  influence  was  not  restrained  to  England. 
It  crossed  the  ocean.  From  the  beginning,  the 
colonists  were  tenacious  of  the  rights  and  liber 
ties  of  Englishmen,  and,  at  various  times  and  in 
various  forms,  declared  them.  Connecticut,  as 
early  as  1639  ;  Virginia  in  1624,  and  1676  ;  Penn 
sylvania  in  1682;  New  York  in  1691  ; — and  I 
might  mention  others  still, — put  forth  Declara 
tions,  brief  and  meagre,  but  kindred  to  those  of 
the  mother  country.  In  the  colony  of  New 
Plymouth,  the  essential  principles  of  Magna 
Charta  were  proclaimed  in  1636,  under  the  name 
of  the  General  Fundamentals  ;  and  in  1672,  the  in 
habitants  of  Massachusetts  Bay  declared  in  words 
worthy  of  careful  study,  that  "  the  free  fruition 
of  such  Liberties,  Immunities,  Privileges,  as  Hu 
manity,  Civility,  and  Christianity  call  for,  as  due 
to  every  man  in  his  place  and  proportion,  without 
impeachment  and  infringement,  hath  ever  been 
and  ever  will  be,  the  tranquillity  arid  stability  of 
Churches  and  Commonwealth,  and  the  denial  or 
deprival  thereof,  the  disturbance,  if  not  the  ruin 
of  both." 

In  the  animated  discussions,  which  immediate 
ly  preceded  the  Revolution,  the  rights  and  liberties 
of  Englishmen  were  constantly  asserted  as  the 
birth-right  of  the  colonists.  This  was  often  done 
by  formal  resolutions  or  declarations,  couched  at 
first  in  moderate  phrase.  At  the  outrage  of  the 
Stamp  Act,  a  Congress  of  Delegates  from  nine 
States,  held  at  New  York,  in  October  176o,  put 
forth  a  series  of  resolutions  entitled,  "  Declaration 
of  our  humble  opinion  respecting  the  most  essen 
tial  rights  and  liberties  of  the  colonists."  The 
humility  of  this  language  may  recall  the  English 
Petition  of  Right  under  Charles  I.  This  was 
followed  in  1774  by  the  Declaration  of  the  Conti 
nental  Congress,  which,  in  another  tone  and  with 
admirable  force,  arrays  in  ten  different  proposi 
tions,  the  rights  which  "  by  the  immutable  laws 
of  nature,  the  principles  of  English  liberty  and 


the  several  charters  of  compacts  "  belong  to  "  the 
inhabitants  of  the  English  colonies  in  North 
America." 

Time's  noblest  offspring  is  the  last ; 

and  the  whole  colonial  series  was  aptly  closed  by 
the  Declaration  of  Independence,  which  declared 
not  merely  the  rights  of  Englishmen,  but  the 
rights  of  men. 

But  only  a  few  brief  weeks  before  the  Declara 
tion  of  Independence,  Virginia,  taking  the  lead  of 
her  sister  colonies,  had  established  a  Constitution 
to  which  was  prefixed  an  elaborate  Bill  of  Rights. 
This  remarkable  document,  which  has  been  the 
grand  precedent  for  the  whole  country,  marks  an 
epoch  in  political  history.  In  all  English  Decla 
rations  of  Rights  and  even  in  those  of  the  colonies, 
unless  we  except  the  early  declaration  of  the  in 
habitants  of  Massachusetts  Bay,  stress  had  been 
laid  upon  the  liberties  and  privileges  of  English 
men.  The  rights  claimed  even  by  the  Continental 
Congress  of  1774,  in  their  masculine  Declaration, 
were  the  rights  of  "  free  'and  natural-born  sub 
jects  within  the  realm  of  England."  But  the 
Virginia  Bill  of  Rights,  standing  at  the  front  of 
its  first  Constitution,  discarded  all  narrow  title 
from  mere  English  precedent,  planted  itself  on  the 
eternal  law  of  God,  above  every  human  ordinance, 
and  openly  proclaimed  that  "  all  men  are  equally 
free  and  independent ;"  a  declaration,  which  is 
repeated,  though  in  other  language,  by  the  Mas 
sachusetts  Bill  of  Rights. 

The  policy  of  Bills  of  Rights  has  been  some 
times  called  in  question.  It  has  been  said  that 
they  were  originally  privileges  or  concessions  ex 
torted  from  the  king,  and,  though  expedient  in  a 
monarchy,  are  of  little  value  in  a  republic.  As 
late  as  1821,  in  the  Convention  for  revising  the 
Constitution  of  New  York,  doubts  of  their  utility 
were  openly  expressed  by  Mr.  Van  Buren.  But 
they  are  now  above  question.  Each  new  State, 
ending  with  California,  follows  the  example  of 
Virginia  and  Massachusetts,  and  places  its  Bill  of 
Rights  in  the  front  of  its  Constitution.  Nor  can 
I  doubt  that  much  good  is  done  by  this  frank 
assertion  of  fundamental  principles.  The  public 
mind  is  instructed ;  people  learn  to  know  their 
rights ;  liberal  institutions  are  confirmed ;  and 
the  Constitution  is  made  stable  in  the  hearts  of 
the  community.  The  provisions  in  the  Bill  cf 
Rights  are  lessons  of  political  wisdom  and  anchors 
of  liberty.  They  are  also  the  constant  index  and 
scourge  of  injustice  and  wrong.  In  Massachu 
setts,  slavery  itself  disappeared  before  the  declara 
tion  that  "  all  men  are  free  and  equal,"  interpret 
ed  by  a  liberty-loving  court. 

In  the  Convention  of  1780,  the  Bill  of  Rights 


66th  day.] 


BILL  OF   RIGHTS. 


375 


Monday,] 


WILSON  —  LORD  —  BOUTWELL  —  BKIGGS  —  HALLETT  —  ASPINWALL.       [July  25th. 


formed  a  prominent  subject  of  interest.  The  ne 
cessity  of  such  a  safeguard  had  been  pressed  upon 
the  people,  and  its  absence  from  the  Constitution 
of  1777  was  unquestionably  a  reason  for  the  re 
jection  of  that  ill-fated  effort.  Indeed,  this  Con 
stitution  was  openly  opposed  because  it  had  no 
Bill  of  Rights.  In  the  array  of  objections  to  it 
at  the  period  was  the  following,  which  I  take 
from  an  important  contemporaneous  publication  : 
"  That  a  Bill  of  Ilights,  clearly  ascertaining  and 
defining  the  rights  of  conscience,  and  that  security 
of  person  and  property  which  every  member  of 
the  State  hath  a  right  to  expect  from  the  supreme 
power  thereof,  ought  to  be  settled  and  established, 
previous  to  the  ratification  of  any  Constitution 
for  the  State."  Accordingly  at  the  earliest  mo 
ment 

[Here  the  hammer  of  the  Chairman  fell,  and 
Mr.  Sumner  took  his  seat.] 

Mr.  WILSON,  of  Natick.  I  move  that  the 
gentleman  for  Marshfield  have  leave  to  proceed. 

Mr.  LORD,  of  Salem.  I  rise  to  a  question  of 
order  :  whether  it  is  competent  for  this  Committee 
to  change  a  rule  made  in  the  Convention  ? 

Mr.  WILSON.  The  rule  of  the  Convention 
is,  that  a  person  shall  not  speak  more  than  fifteen 
minutes,  without  leave  is  granted.  I  take  it  that 
it  is  competent  for  this  Committee  to  grant  leave. 

The  CHAIRMAN,  Mr.  Schouler  in  the  chair. 
The  gentleman  from  Natick  moves  that  the  gen 
tleman  for  Marshfield  have  leave  to  proceed ;  and 
the  Chair  is  of  opinion  that  it  is  competent  for  the 
Committee  to  grant  that  leave. 

Mr.  BOUTWELL,  for  Berlin.  It  seems  to 
me  that  the  decision  has  been  otherwise,  and 
that  the  rule  of  the  Convention  has  been  inter 
preted  to  be  in  the  nature  of  an  instruction  to 
the  Committee,  like  instructions  to  any  other 
body. 

The  CHAIRMAN.  The  Chair  will  read  the 
rule  : — 

"  Ordered,  that  on  and  after  Monday  next,  no 
member  shall  speak  more  than  fifteen  minutes,  on 
any  one  subject,  without  leave." 

The  Chair  is  of  opinion  that  the  rule  is  appli 
cable  in  Committee  and  that  the  Committee  have 
a  right  to  change  the  rule. 

Mr.  BRIGGS,  of  Pittsfield.  I  apprehend  we 
cannot  change  the  rule ;  but  the  question  is, 
whether  the  Committee  have  the  right  to  grant 
leave.  It  struck  me  that  they  had  not  the  right, 
but  I  think  that  if  the  rule  is  applicable  to  the 
Committee  we  have  the  right  to  grant  leave. 

Mr.  HALLETT.  Leave  may  be  granted  by 
universal  consent,  but  not  otherwise. 

The  Chairman  again  read  the  rule,  and  stated 


it  as  his  opinion  that  leave  might  be  granted  by  a 
majority  of  the  Committee. 

Mr.  ASPINWALL,  of  Brookline.  I  think  it 
important  that  the  rule  should  be  decided  prop 
erly.  Whatever  the  ruling  of  the  Chair  may  be, 
I  suppose  the  Committee  cannot  decide  upon  an 
order.  That  point  of  order  having  been  raised,  it 
must  go  into  the  Convention  for  a  decision. 

The  CHAIRMAN.  Does  the  gentleman  make 
any  motion  ? 

Mr.  ASPINWALL.     I  will  make  110  motion. 

Mr.  WILSON.  I  think  that  either  in  Con 
vention  or  in  Committee,  when  the  fifteen  min 
utes  have  expired  and  the  Chairman  announces 
the  fact,  the  gentleman  who  is  speaking  cannot 
go  on.  His  time  is  out  under  the  rule.  But  it  is 
competent  for  any  member  of  the  Convention  to 
move  that  he  may  have  leave  to  proceed,  and  it 
is  competent  for  the  Committee  to  grant  leave. 
I  think  that  is  in  accordance  with  the  terms  of 
the  resolution,  and  if  I  were  in  the  chair  I  should 
put  the  question  to  the  Committee. 

Mr.  LORD.  If  the  motion  of  the  gentleman 
from  Natick  is  entertained,  then  I  move  to  amend 
it  so  as  to  add  after  the  words  "  delegate  for 
Marshfield,"  the  words,  "  and  any  other  gentle 
men  who  please  to  address  the  Committee  on 
this  subject,  may  be  allowed  to  proceed,  notwith 
standing  the  fifteen  minutes'  rule."  That  is  the 
same  motion  I  made  to-day,  and  at  that  time  I 
gave  this  very  case  as  an  illustration.  I  knew 
the  Committee  wanted  to  hear  the  chairman  of 
the  Committee  on  the  Bill  of  Rights  ;  I  wanted  to 
hear  him  ;  I  am  most  anxious  to  hear  him  ;  but 
I  am  not  disposed  to  see  this  invidious  distinction 
made  between  one  side  and  the  other.  I  have 
therefore  made  the  motion. 

Mr.  BRIGGS.  I  said  before,  when  the  ques 
tion  was  first  propounded,  that  I  thought  we  had 
not  power  to  grant  leave.  The  fifty- first  rule  of 
the  Convention  is  this  : — 

"The  rules  of  proceeding  in  the  Convention 
shall  be  observed  in  a  Committee  of  the  Whole, 
so  far  as  they  may  be  applicable,  except  the  rule 
limiting  the  time  of  speaking." 

Now,  Sir,  the  rule  which  you  read,  applies  to 
the  Convention,  and  does  not  name  the  Commit 
tee  ;  but  this  fifty-first  rule  of  the  Convention 
makes  it  apply  to  the  Committee,  so  far  as  it  is 
applicable.  Now,  on  this  precise  subject,  there 
is  as  much  reason  for  it  here  as  in  Convention. 
It  is  applicable  by  the  force  of  this  fifty- first  rule. 
In  Convention,  when  the  fifteen  minutes  have 
expired,  it  is  in  order  to  move  that  the  gentleman 
speaking  may  have  leave  to  proceed.  I  appre 
hend,  then,  that  this  motion,  taken  in  connection 
with  the  fifty-first  rule,  is  strictly  in  order. 


376 


BILL    OF   RIGHTS. 


[66th  day. 


Monday,] 


HALLETT  —  DANA  —  BIRD  —  GARDNER  —  BOUTWELL  —  SUMNER. 


[July  2oth. 


The  CHAIRMAN.  The  Chair  would  state 
that  he  considers  this  rule,  adopted  in  Conven 
tion,  as  applicable  to  the  Committee,  and  that  the 
general  ruling  and  practice  has  been,  that  each 
case  shall  be  decided  upon  its  own  merits,  when 
it  comes  up ;  and  therefore  the  Chair  rules  that 
the  amendment  proposed  by  the  gentleman  from 
Salem,  is  not  in  order. 

Mr.  HALLETT.  The  motion,  as  I  under 
stand,  is  for  leave  to  proceed.  Now,  Sir,  no  gen 
tleman  desires,  more  than  I  do,  to  hear  the  gen 
tleman  for  Marshfield ;  because,  as  he  knows,  I 
have  so  kind  feelings  against  him.  [Laughter.] 
I  meant  to  say,  kind  feelings  for  him ;  but  on 
one  subject  my  feelings  are  against  him ;  but  they 
are  kind,  though  strong.  We  have  made  a  rule 
to  limit  debate.  We  discussed  the  matter  in 
Convention  whether  we  ought  not  to  except  the 
chairman  of  a  Committee  from  its  application, 
and  we  found  there  would  be  an  injustice  in  that, 
which  was  not  suitable,  because  it  was  saying 
that  a  majority  should  have  more  time  than  a 
minority.  Therefore,  it  stands  as  a  rule,  and  for 
that  reason  I  hope  we  shall  adhere  to  it,  and  es 
pecially  in  this  particular  case.  If  we  adhere  to 
it  now,  we  shall  find  it  more  easy  to  apply  it  to 
others.  If  we  apply  the  rule  now,  we  shall  show 
that  we  are  disposed  to  carry  this  Convention 
through,  this  week ;  and  I  tell  gentlemen  who 
have  eloquent  speeches  to  make,  and  itching  ears 
to  listen  to  them,  that  if  we  allow  this  rule  to  be 
neglected  now,  we  shall  not  get  through  till  a,\\- 
other  week.  If  this  rule  is  passed  over,  I  pledge 
myself  I  will  make  no  more  effort  to  get  the  Con 
vention  through  this  week. 

Mr.  DANA,  for  Manchester.  There  is  a  dis 
tinction  between  this  order  and  other  orders. 
All  other  orders  declare  that  no  person  shall 
speak  beyond  a  particular  time,  without  a  sus 
pension  of  the  rules,  or  general  consent ;  but  this 
order  which  we  are  now  acting  under,  differs 
from  all  others,  and,  I  supposed,  intentionally, 
so  that  no  person  shall  speak  without  obtaining 
leave,  and  so  that  a  majority  may  grant  leave. 
But  under  all  the  other  orders,  there  was  re 
quired  either  a  suspension  of  the  rules,  or  unani 
mous  consent.  But  as  this  was  a  special  and 
peculiar  order,  I  suppose  the  power  to  grant 
leave  must  be  in  the  body  itself. 

Mr.  BIRD,  of  Walpole.  I  hope  the  rule  will 
be  enforced.  I  do  not  like  to  say  it,  in  relation 
to  the  gentleman  for  Marshfield,  but  I  think  the 
rule  is  important,  and  if  we  yield  in  this  case, 
we  must  yield  in  all  cases ;  and  it  will  cost  us 
some  two  or  three  thousand  dollars  if  we  suspend 
this  rule  now,  by  prolonging  this  Convention. 

Now  I  wish  to  say,  with  all  respect  to  the 


Committee  on  the  Bill  of  Rights,  that  if  they  had 
reported  two  or  three  weeks  ago,  they  would 
have  had  the  subject  before  us,  and  might  have 
had  it  fully  presented.  I  do  not  wish  to  say  any 
thing  to  injure  the  feelings  of  the  gentleman,  or 
of  any  member  of  the  Committee ;  but  if  they 
had  reported  six  weeks  ago,  they  might  have  had 
an  opportunity  to  get  the  subject  up  before. 

Mr.  GARDNER,  of  Seekonk.  If  the  gentle 
man  had  had  leave  to  proceed,  he  would  have 
been  through  before  this  time ;  and  I  move  that 
the  rule  of  the  Convention  be  suspended,  and 
that  the  gentleman  have  leave  to  proceed  and 
finish  his  remarks. 

The  CHAIRMAN.  The  motion  before  the 
Committee,  is  that  made  by  the  gentleman  from 
Natick,  and  the  Chair  will  state  that  he  consid 
ers  this  rule  as  in  the  nature  of  an  order,  so  that 
it  will  not  require  two-thirds  to  rescind  it,  but 
only  a  majority. 

The  question  was  then  taken  on  granting  leave, 
and  on  a  division,  there  were — ayes,  92  ;  noes,  87. 

So  the  motion  was  decided  in  the  affirmative. 

Mr.  BOUTWELL.  I  move  a  reconsideration 
of  the  vote  just  taken. 

Mr.  BRIGGS.  I  would  inquire  if  a  Commit 
tee  can  reconsider  ? 

The  CHAIRMAN.  The  Chair  thinks  that 
the  motion  of  the  gentleman  for  Berlin  may  be 
entertained. 

Mr.  BOUTWELL.  I  make  this  motion  with 
great  reluctance,  but  I  feel  it  to  be  most  impor 
tant,  for,  upon  the  decision  of  this  question,  de 
pends  the  fate  of  this  Convention.  I  am  sure  of 
that.  If  the  Committee  or  the  Convention  shall 
decide  that  the  gentleman  may  proceed,  I  cannot 
vote  against  allowing  any  other  gentleman  to  pro 
ceed  ;  and  upon  that  I  must  stand,  for  one,  whether 
this  Convention  sit  till  the  first  of  August,  or  the 
first  of  September,  or  the  first  of  October.  That 
is  a  reason  why  I  am  unwilling  that  a  majority, 
at  this  crisis  in  the  history  of  this  Convention, 
shall  say  whether  it  shall  be  indefinitely  pro 
longed  or  not.  I  know  the  gentleman  for  Marsh- 
field  will  relieve  me  from  the  thought  of  desiring 
to  do  anything  displeasing  to  him,  personally,  or 
injurious  to  his  feelings. 

Mr.  SUMNER,  for  Marshfield.  I  am  unwil 
ling  to  seem,  even  for  a  moment,  to  retard  the 
business  of  this  Convention,  which,  from  the  be 
ginning,  I  have  sought  to  speed,  and  which,  I 
rejoice  to  believe,  I  have  not  perplexed  by  much 
speaking.  But  the  rule  limiting  debate  has  been 
heretofore  relaxed  in  favor  of  the  chairmen  of 
Committees,  when  introducing  their  Reports,  and 
I  regarded  this  exception  as  so  entirely  reasona 
ble,  that  I  did  not  hesitate  to  count  upon  it.  The 


66th  day.] 


BILL    OF   RIGHTS. 


377 


Monday,] 


SlJMNER  —  HOPKINSON  —  GARDNER  —  HALLETT. 


[July  25th. 


Committee  on  the  Bill  of  Rights  is  one  of  the 
most  important  of  this  Convention.  After  twenty 
different  sessions,  it  has  only  recently  brought  its 
labors  to  a  close,  and  now  its  Report  is  presented 
for  your  consideration.  It  has  been  charged  with 
delay.  Sir,  it  is  not  obnoxious  to  any  such 
charge,  and  I  desired  to  show  that  it  is  not.  It 
was  my  hope,  also,  in  a  simple  way,  to  explain 
the  origin  and  character  of  a  part  of  our  Consti 
tution — which,  at  the  time  of  its  formation,  was 
regarded  as  second  to  none  other  in  importance — 
that  the  Convention  might  appreciate  the  delicacy 
with  which  the  Committee  had  acted,  and  might 
judge,  then,  not  merely  by  what  they  had  done, 
but  by  what  they  had  forborne  to  do,  in  the  way 
of  propositions  of  amendment.  This  I  owed  to 
my  associates  on  the  Committee,  and  also  to  the 
Convention,  who  had  a  right  to  expect  an  account 
of  our  labors.  Had  I  taken  the  floor  merely  as 
a  member  of  the  Convention,  in  the  ordinary 
course  of  debate,  I  should  have  yielded  at  once  to 
the  slightest  intimation  from  any  quarter  ;  but  I 
Avas  encouraged  by  others  to  feel  that,  in  present 
ing  the  Report  of  a  Committee  like  that  on  the 
Bill  of  Rights,  it  hardly  became  me  to  take  coun 
sel  of  the  feelings  of  reserve  which  would  have 
controlled  me  as  an  individual.  But,  Sir,  this 
matter  must  now  end.  After  what  has  passed,  I 
cannot  consent  to  proceed. 

Mr.  HOPKINSON,  of  Boston.  It  seems  to 
me  that  there  is  a  peculiar  impropriety  in  enforc 
ing  the  rule  in  this  case,  not  only  in  reference  to 
the  gentleman  who  has  just  taken  his  seat,  but 
with  reference  to  the  subject  which  that  Com 
mittee  have  acted  upon — I  might  properly  say 
subjects,  for  we  have  had  before  us  at  least  half  a 
dozen  subjects,  and  any  deliberative  assembly,  if 
they  should  attempt  to  decide  upon  them  on  a 
full  discussion  of  their  merits,  would  have  given 
to  each  of  them  more  than  one  day.  It  is  impos 
sible  to  do  justice  to  any  one  of  half  a  dozen  mat 
ters  now  before  the  Committee,  without  more 
discussion  than  the  rule  will  admit.  If  the  rule 
is  to  be  insisted  upon,  I  will  inquire  whether  it 
will  be  in  order  to  move  to  take  up  one  of  these 
subjects  at  a  time  ?  They  are  large  and  compre 
hensive  subjects,  embracing  great  principles,  and 
should  be  settled  upon  their  merits.  If  it  would 
be  in  order  to  take  up  one  of  these  subjects  at  a 
time,  we  should  still  find  that  the  rule  was  strin 
gent  enough  for  all  useful  purposes. 

The  CHAIRMAN.  All  these  matters  were 
referred  to  the  Committee,  and  it  is  in  the  power 
of  the  Committee  to  decide  in  what  way  they 
shall  be  discussed.  If  the  Committee  should  so 
decide,  one  would  be  taken  up  first.  The  ques 
tion  immediately  before  the  Committee  is  the 


motion  to  reconsider  the  vote  whereby  the 
gentleman  for  Marshfield  was  allowed  to  pro 
ceed. 

Mr.  GARDNER,  of  Seekonk.  There  is  prob 
ably  no  person  in  this  Convention  more  anxious 
than  I  am  to  bring  its  labors  to  a  close.  I  am 
very  desirous  indeed  that  all  our  business  should 
be  completed,  and  that  we  may  adjourn  before 
Saturday  next;  but  I  have  listened  with  great 
interest  to  the  remarks  of  the  gentleman  for 
Marshfield,  and  I  have  heard  no  speech  in  the 
course  of  the  session  which  I  thought  was  so  im 
portant  as  the  speech  made  by  that  gentleman ; 
and  I  am  very  anxious  that  he  should  be  allowed 
to  proceed.  We  might  make  this  one  exception, 
and  if  gentlemen  wish  that  the  labors  of  this  Con 
vention  should  be  brought  to  a  close,  I  will  guar 
antee  that  they  can  be  closed  during  the  present 
week.  We  can  save  the  time  between  now  and 
to-morrow  on  the  discussion  of  some  other  ques 
tion.  On  many  occasions  I  have  desired  to  s^eak, 
not  thirty  minutes,  as  the  gentleman  from  Boston 
suggested,  for  if  I  could  have  had  the  floor  fifteen 
minutes,  I  should  have  been  satisfied  ;  but  other 
gentlemen  who  wished  to  speak,  and  who  have 
not  used  so  much  of  the  power  of  concentration, 
have  occupied  the  time,  and  I  have  myself  re 
frained,  being  a  modest  man.  [Laughter.]  I 
have  refrained  ;  and  it  is  with  a  great  deal  of  dif 
fidence  that  I  say  this.  [Renewed  laughter.] 
Now,  Sir,  I  do  not  wish  to  have  the  Convention 
consume  any  more  time  in  the  discussion  of  this 
subject.  I  hope  the  gentleman  for  Berlin  will 
not  press  his  motion  to  reconsider  this  vote,  but 
allow  the  gentleman  for  Marshfield  to  go  on  and 
finish  his  eloquent  speech ;  and  that  after  this  the 
rule  will  be  enforced.  I  do  not  see  any  objection 
to  making  this  exception  to  the  general  rule  ;  for 
it  is  said  that  there  is  no  rule  without  an  excep 
tion  ;  and  if  ever  there  were  any  good  reasons  for 
making  an  exception,  it  seems  to  me  that  there 
are  in  this  case.  I  hope,  therefore,  that  the  gen 
tleman  for  Marshfield  will  be  allowed  to  go  on 
and  finish  his  speech,  even  if  we  are  obliged  to 
take  tea  a  little  later  than  the  usual  hour,  in  con 
sequence. 

The  question  being  then  taken  on  the  motion 
to  reconsider,  on  a  division  there  were — ayes,  84  ; 
noes,  82 — so  the  motion  was  agreed  to. 

The  question  then  recurred  on  the  motion  that 
Mr.  Sumner  be  allowed  to  proceed ;  when  Mr. 
Wilson  withdrew  the  motion. 

The  question  was  then  stated  on  the  adoption 
of  the  Report  of  the  majority  of  the  Commit 
tee. 

Mr.  HALLETT.  I  desire  to  inquire  if  the 
motion  was  put  that  these  subjects  be  taken  up 


378 


BILL   OF   RIGHTS. 


[66th  day. 


Monday,] 


HALLETT  —  HOPKINSON  —  BRIGGS  —  SUMNER  —  DANA. 


[July  25th. 


separately  ?  I  understood  the  gentleman  from 
Boston  to  make  such  a  suggestion. 

The  CHAIRMAN.  That  was  suggested  by 
the  gentleman  from  Boston,  but  a  motion  was  not 
in  order  at  that  time. 

Mr.  HALLETT.  I  desire,  then,  to  make  the 
motion— if  indeed  I  have  not  a  right  to  call  for  a 
division— that  each  branch  of  the  subject  be  con 
sidered  separately.  In  that  way  I  suppose  the 
gentleman  for  Marshfield  could  be  entitled  to 
fifteen  minutes  upon  each  resolution  and  each 
amendment  proposed,  and  he  would  thus  have 
an  opportunity  to  express  his  views,  in  discussing 
the  whole  subject  indirectly. 

Mr.  HOPKINSON.  I  will  inquire  whether 
the  adoption  of  the  motion  of  .my  friend  for 
Wilbraham  would  open  the  whole  question,  so 
that  upon  the  various  portions  of  the  Report 
fifteen  minutes  could  be  taken  by  each  speaker  ? 
If  so,  we  are  opening  a  very  wide  field  for  debate ; 
and  it  may  occupy  not  merely  one  or  two  days, 
but  a  whole  week  to  dispose  of  the  whole  matter. 
I  should  like  to  have  the  decision  of  the  Chair 
whether  the  adoption  of  the  motion  will  open  the 
whole  question  for  discussion  or  each  separate 
branch  of  it  ? 

The  CHAIRMAN.  As  all  these  matters  were 
referred  to  the  Committee  together,  the  Chair  is 
of  the  opinion  that  it  is  but  one  subject,  and  that 
any  gentleman  who  wished  to  speak,  will  be 
allowed  only  fifteen  minutes  by  the  rule,  upon  all 
of  them. 

The  question  being  then  taken  on  the  motion 
of  Mr.  Hallett,  it  was  not  agreed  to. 

Mr.  BRIGGS.  I  understand,  Mr.  Chairman, 
that  it  is  the  right  of  any  member  to  call  for  a 
division  of  any  question,  where  it  is  susceptible  of 
division ;  and  therefore,  although  we  take  up  the 
whole  Report  as  one  subject,  each  proposition 
may  be  considered  separately.  I  think  if  the 
Chair  will  turn  his  attention  to  it,  he  will  find 
that  this  has  been  the  rule  of  proceeding  in  all 
cases  heretofore. 

The  CHAIRMAN.  The  Chair  will  entertain 
any  motion  that  is  proposed,  for  a  division  of  the 
question. 

Mr.  SUMNER,  for  Marshfield.  I  think  that 
the  business  would  be  expedited  by  taking  up 
each  question  by  itself;  and  I  believe  that  the 
rules  and  orders  would  indicate  that  course.  I 
concur  entirely  in  the  remark  of  my  friend  from 
Pittsfield,  and  I  hope  we  shall  take  up  the  first 
proposition  in  the  Report  of  the  majority  of  the 
Committee,  and  consider  that  as  open  to  amend 
ment  ;  and  when  that  shall  have  been  disposed  of, 
that  we  shall  proceed  to  take  up  the  next,  and  the 
next,  until  we  dispose  of  the  four  propositions  in 


the  Majority  Report ;  and  that  we  shall  then  take 
up  the  Minority  Report  and  proceed  in  the  same 
way. 

The  CHAIRMAN.  The  Chair  will  state  that 
the  course  mentioned  by  the  gentleman  from 
Pittsfield,  is  that  which  the  Chair  will  adopt,  un 
less  the  Committee  shall  otherwise  direct.  The 
question  will  be  first,  on  the  adoption  of  the  first 
resolve  reported  by  the  majority  of  the  Com 
mittee,  which  will  be  read  by  the  Secretary. 

The  resolve  was  accordingly  read,  as  follows  : — 

1.  Resolved,  That  the  Bill  of  Rights  be  amend 
ed  by  adding  to  the  eleventh  article,  as  part  of  the 
same,  the  following  words  : — 

"  And  every  person  having  a  claim  against  the 
Commonwealth,  ought  to  have  a  judicial  remedy 
therefor." 

The  question  being  taken,  the  resolve  was 
agreed  to. 

The  question  was  then  stated  on  the  adoption 
of  the  second  resolve,  which  was  read  as  follows  : 

2.  Resolved,  That  the  Bill  of  Rights  be  amend 
ed  by  inserting,  between  the  llth  and  12th  arti 
cles,  the  following  additional  article,  being  identi 
cal  with  one  now  in  another  chapter  of  the  Con 
stitution,  and  which  more  appropriately  belongs 
to  the  Bill  of  Rights,  viz.  :— 

"  VII.  The  privilege  and  benefit  of  the  writ  of 
habeas  corpus  shall  be  enjoyed  in  this  Common 
wealth  in  the  most  free,  easy,  cheap,  expeditious, 
and  ample  manner  ;  and  shall  not  be  suspended 
by  the  legislature,  except  upon  the  most  urgent 
and  pressing  occasions,  and  for  a  limited  time, 
not  exceeding  twelve  months." 

Mr.  DANA,  for  Manchester.  The  Convention 
will  perceive  that  this  article  has  always  been  in 
the  Constitution,  and  it  is  only  proposed  to  trans 
fer  it  from  one  place  to  another.  I  now  offer  an 
amendment,  to  add  to  the  article  the  following 
words : — 

Said  writ  shall  be  granted  as  of  right  in  all 
cases  where  the  legislature  shall  not  specially 
confer  a  discretion  therein  upon  the  court ;  but 
the  legislature  may  prescribe  preliminary  proceed 
ings  to  the  obtaining  of  said  writ. 

I  will  state  the  reasons  why  I  propose  this 
amendment ;  and  I  suppose  I  ought  to  state  that 
when  it  was  considered  in  Committee,  I  failed  to 
obtain  a  majority  in  favor  of  it.  The  Constitu 
tion  says  that  the  privilege  and  benefit  of  habeas 
corpus  shall  be  obtained  and  enjoyed  in  the  most 
free,  easy,  cheap,  expeditious,  and  ample  manner  ; 
but  in  my  experience,  I  have  found  it  the  least 
free,  easy,  cheap,  expeditious,  and  ample  remedy, 
which  we  have.  It  is  the  most  difficult  writ  to 
obtain  in  Massachusetts.  Any  man  can  come  to 


66th  day.] 


BILL   OF   RIGHTS. 


379 


Monday,] 


DANA. 


[July  25th. 


my  office,  and  obtain  a  writ  by  which  I  can  attach 
all  the  property  of  any  citizen  in  Massachusetts  ; 
by  which  I  can,  with  an  affidavit,  arrest  the  person 
of  any  man  in  Massachusetts,  and  make  him  obtain 
bail  to  the  amount  of  $100,000.  But  the  writ  of 
habeas  corpus  is  the  most  difficult  to  obtain  in  the 
whole  calendar  of  writs.  This  arises  from  cer 
tain  circumstances.  In  England,  the  writ  of 
habeas  corpus  is,  like  all  other  writs,  issued  at 
the  discretion  of  the  courts ;  at  least  such  has 
been  the  decision  of  the  courts  of  England,  and 
such  has  been  the  practice. 

In  the  Revised  Statutes  of  the  Commonwealth, 
I  find  the  following  provisions  in  regard  to  this 
writ : — 

"  SEC.  1.  Every  person  imprisoned  in  any  com 
mon  jail,  or  otherwise  restrained  of  his  liberty, 
by  any  officer  or  other  person,  except  in  the  cases 
mentioned  in  the  following  section,  may  prosecute 
a  writ  of  habeas  corpus,  according  to  the  pro 
visions  of  this  chapter,  to  obtain  relief  from  such 
imprisonment  or  restraint,  if  it  shall  prove  to  be 
unlawful. 

"  SEC.  2.  The  following  persons  shall  not  be 
entitled,  as  of  right,  to  demand  and  prosecute 
the  said  writ: — 

"  First.  Persons  committed  for  treason  or  felo 
ny,  or  for  suspicion  thereof,  or  as  accessories  be 
fore  the  fact  to  a  felony,  when  the  cause  is  plainly 
and  specially  expressed  in  the  warrant  of  com 
mitment. 

"  Secondly.  Persons  convicted,  or  in  execution 
upon  legal  process,  civil  or  criminal. 

"  Thirdly.  Persons  committed  on  mesne  process, 
in  any  civil  action  on  which  they  were  liable  to 
be  arrested  and  imprisoned,  unless  when  exces 
sive  and  unreasonable  bail  is  required. 

"  SEC.  3.  Application  for  such  writ,  shall  be 
made  to  the  court  or  magistrate  authorized  to 
issue  the  same,  by  complaint  in  writing,  signed 
by  the  party  for  whose  relief  it  is  intended,  or  by 
some  person  in  his  behalf,  setting  forth 

"  First.  The  person  by  whom,  and  the  place 
where,  the  party  is  imprisoned  or  restrained,  nam 
ing  the  prisoner  and  the  person  detaining  him,  if 
their  names  are  known,  and  describing  them  if 
they  are  not  known. 

"  Secondly.  The  cause  or  pretence  of  such  im 
prisonment  or  restraint,  according  to  the  knowl 
edge  and  belief  of  the  person  applying. 

"  Thirdly.  If  the  imprisonment  or  restraint  is 
by  virtue  of  any  warrant  or  other  process,  a  copy 
thereof  shall  be  annexed,  or  it  shall  be  made  to 
appear  that  a  copy  thereof  has  been  demanded 
and  refused,  or  that  for  some  sufficient  reason  a 
demand  of  such  copy  could  not  be  made ;  and 

"  Fourthly.  The  facts  set  forth  in  the  complaint, 
shall  be  verified  by  the  oath  of  the  person  making 
the  application,  or  by  that  of  some  other  credible 
witness  ;  which  oath  may  be  administered  by  the 
court  or  magistrate  to  whom  the  application  is 
made,  or  by  any  justice  of  the  peace. 

"  SEC.  4.  The  court  or  magistrate  to  whom  such 
complaint  shall  be  made,  shall,  without  delay, 


award  and  issue  a  writ  of  habeas  corpus,  which 
shall  be,  substantially,  in  the  form  heretofore  es 
tablished  and  used  in  this  State,  except  in  the 
cases  provided  for  in  the  following  section  ;  and 
shall,  in  all  cases,  be  made  returnable  forthwith, 
either  before  the  supreme  judicial  court,  or  before 
any  one  of  the  justices  thereof,  and  at  such  place 
as  shall  be  designated  in  the  writ." 

Now,  the  difficulty  is,  that  our  courts,  not 
withstanding  the  language  of  the  Hevised  Statutes, 
have  taken  upon  themselves  discretion  in  every 
case,  and  issue  the  writ  of  habeas  corpus  only 
where  they  see  fit.  Every  person  restrained  of 
his  liberty — with  the  exceptions  specified — may 
prosecute  a  writ  of  habeas  corpus  to  obtain  relief. 
"  The  following  persons  shall  not  be  entitled  as  of 
right  to  demand  and  prosecute  said  writ."  Then 
follows  a  list  of  four  classes  of  persons  who  are 
excepted — persons  confined  for  treason,  felony, 
&c.  ;  and  then  the  statute  goes  on  and  says  that 
application  shall  be  made  to  the  court  in  a  certain 
manner,  and  the  court  before  which  the  applica 
tion  is  made  "  shall  issue  the  writ  without  delay." 
But,  following  the  practice  of  the  English  courts, 
and  in  apparent  ignorance  or  disregard  of  our 
statute,  our  courts  have  taken  discretion  in  all 
cases  ;  and  in  very  many  instances  in  which  the 
writ  may  be  demanded  as  a  matter  of  right,  it  is 
refused.  I  do  not  mean  to  cast  any  imputation 
upon  our  courts  for  this,  but  merely  wish  to  have 
the  matter  definitely  stated  in  our  Bill  of  Rights, 
so  that  there  may  be  110  doubt  or  difficulty  in 
regard  to  it  hereafter.  Our  courts  have  taken 
upon  them  the  right  to  exercise  a  discretion  as  to 
whether  a  writ  shall  be  granted  upon  a  petition 
presented.  The  court  undertake  to  say  that  if, 
upon  an  examination  of  the  petition,  the  Avrit 
would  not  be  of  benefit  to  the  party,  they  would 
not  issue  it.  Now,  I  understand  that  the  princi 
ple  of  the  writ  of  habeas  corpus  is,  that  the  case 
shall  be  decided  upon  the  return  of  the  writ. 
The  writ  itself  decides  nothing.  It  only  brings 
the  parties  into  court ;  but  the  question  whether 
or  not  the  party  is  to  be  liberated,  is  to  be  decided 
upon  the  return  of  the  writ.  Now,  our  legisla 
ture  has  said  distinctly  that  in  one  class  of  cases 
the  writ  shall  be  granted  as  a  matter  of  right, 
without  discretion  ;  that  in  another  class  of  cases 
there  shall  be  a  discretion  ;  that  is,  when  a  person 
is  accused  of  treason  or  felony,  or  where  he  is 
held  to  bail  in  civil  actions.  But,  as  I  have 
already  remarked,  our  courts  have  held  that  they 
have  discretion  in  all  cases,  and  undertake  to  say, 
in  the  outset,  whether  the  writ  should  issue  or 
not.  That  seems  to  me  to  be  a  violation  of  a 
fundamental  principle,  and  I  desire  to  have  a 
provision  of  this  kind  put  into  the  Constitution, 


380 


BILL  OF   RIGHTS. 


[66th  day. 


Monday,] 


HALLETT  —  DANA. 


[July  25th. 


so  that  it  shall  be  beyond  all  doubt  that  the  writ 
of  habeas  corpus  shall  be  a  writ  of  right.  I  do 
not  mean  to  say  that  the  writ  should  be  a  writ 
of  right  in  all  cases,  but  that  there  should  be  some 
exceptions ;  and  therefore  I  have  suggested  that 
it  should  be  so  in  all  cases  except  where  the  legis 
lature  specially  invests  the  court  with  a  discretion. 
I  have  also  provided  that  the  legislature  may 
prescribe  the  form  of  the  oath,  and  other  matters ; 
but  that  where  they  do  not  specify  a  discretion, 
and  all  the  forms  shall  have  been  complied  with, 
the  writ  shall  be  granted  as  a  matter  of  right.  I 
will  not  detain  the  Convention  farther  than  to 
express  my  hope  that  the  amendment  may  be 
adopted. 

Mr.  HALLETT,  for  Wilbraham.  If  I  under 
stand  the  gentleman  for  Manchester,  his  object  is 
to  have  the  court  compelled  to  grant  the  writ  of 
habeas  corpus,  in  a  case  where  it  is  perfectly 
plain  to  the  court  that  the  writ  should  not  issue ; 
that  is,  if  a  person  is  held  in  legal  custody,  and 
the  evidence  of  it  is  brought  before  the  court, 
and  the  effect  of  the  examination  under  the  writ 
would  simply  be  to  remand  him  back  again 
to  jail,  the  court  is,  nevertheless,  to  grant  the 
writ  of  habeas  corpus.  Now  it  seems  to  me, 
that  that  is  utterly  useless ;  because  the  court 
which  grants  the  writ,  has  a  right  to  deter 
mine  whether  the  writ  shall  have  effect,  or 
not ;  and  if  the  court  is  perfectly  satisfied  before 
hand,  that  the  writ  will  be  of  no  avail  to  the 
party,  what  is  the  use  of  issuing  it?  What 
possible  use  is  there  in  dragging  a  person  into  a 
court- room  simply  for  the  purpose  of  having  him 
sent  back  again  to  jail  ?  The  legislature  has  pro 
vided  for  this,  in  regard  to  every  possible  occasion 
on  which  a  man  may  be  confined  contrary  to  law, 
where  it  becomes  a  writ  of  right,  because  the 
only  exceptions  are  in  cases  where  the  party  is 
held  under  some  legal  process.  Now  if  a  party 
is  held  under  a  legal  process,  should  the  writ  of 
habeus  corpus  be  allowed  to  issue  on  the  petition 
of  any  person  who  chooses  to  make  the  applica 
tion,  and  who  may  be  prepared  with  a  force  to 
rescue  a  prisoner?  If  a  man  is  in  jail  for  robbery, 
or  murder,  or  any  other  offence,  and  application 
is  made  for  this  writ,  the  only  object  that  I  can 
see,  would  be  a  rescue.  The  third  section  of  the 
statute  which  the  gentleman  quoted,  provides 
that 

"If  the  imprisonment,  or  restraint,  is  by  virtue 
of  any  warrant,  or  other  process,  a  copy  thereof 
shall  be  annexed,  or  it  shall  be  made  to  appear 
that  a  copy  thereof  has  been  demanded  and  re 
fused." 

So  that  any  judge  to  whom  a  petition  may  be 


presented  for  a  writ  of  habeas  corpus  sees  the 
warrant,  and  thereupon  he  determines  whether 
that  is  a  sufficient  warrant  to  hold  the  party,  and 
determines  whether  the  writ  should  be  issued. 
It  seems  to  me,  that  if  any  discretion  should  be 
given  to  a  court  at  all,  it  is  precisely  in  a  case  of 
this  sort.  I  can  see  innumerable  difficulties  that 
would  grow  out  of  this  amendment,  if  adopted ; 
more  than  I  have  time  now  to  enumerate. 

Mr.  DANA.  One  word  in  reply  to  the  gen 
tleman  for  Wilbraham.  If  he  will  notice  my 
amendment,  he  will  see  that  I  do  not  say  that  the 
court  shall  grant  the  writ  of  habeas  corpus  in  all 
cases.  I  say  that  where  the  legislature  has  not 
specifically  given  the  judges  a  right  of  discretion, 
that  then  the  writ  may  be  demanded  as  a  matter 
of  right.  Now,  if  the  legislature  says  that  the 
court  shall  exercise  a  discretion  whenever  a  party 
is  imprisoned  for  treason,  or  felony,  or  whenever 
a  party  is  imprisoned  on  execution,  or  mesne  pro 
cess;  in  all  these  cases,  a  person  will  not  be  enti 
tled  as  of  right.  And  if  the  legislature  should  go  a 
step  farther,  and  describe  any  other  class  of  cases, 
and  say  that  in  regard  to  them  the  court  should 
have  a  discretion,  as  a  matter  of  course,  the  court 
would  exercise  it.  But  in  that  class  of  cases  in 
which  the  legislature  thinks  they  ought  not  to 
have  a  discretion,  where  they  think  that  the  ex 
ercise  of  discretion  and  delay  incident  to  it, 
might  end  in  the  ruin  of  the  party  praying  for 
the  writ,  in  such  cases  the  court  must  grant  the 
writ,  and  the  gentleman  for  Wilbraham,  (Mr. 
Ilallett,)  need  be  under  no  alarm  ;  for  the  grant 
ing  of  the  writ  does  not  liberate  the  party,  but 
merely  brings  him  into  court.  Now  there  are 
many  cases  in  which  inconceivable  injury  may 
be  done  by  refusing  to  grant  a  writ.  A  party 
may  be  carried  off  beyond  your  jurisdiction,  and 
thus  be  left  utterly  without  remedy,  while  the 
court  is  deciding  the  question  on  the  petition. 

In  such  case,  unless  you  can  have  your  writ 
immediately,  you  will  be  too  late.  If  you  are  to  file 
your  petition,  and  to  give  notice  to  the  opposite 
party,  and  go  through  sundry  other  forms,  by 
which  delay  is  caused,  there  are  many  instances  in 
which  your  case  would  be  beyond  all  redress. 
Let  the  legislature,  therefore,  say  that  the  courts 
shall  have  discretion  in  certain  cases  where  the 
public  welfare  requires  it ;  and  let  them  leave  other 
classes  of  cases  open,  and  the  courts  be  obliged,  as 
they  now  are,  to  issue  the  writ.  The  Revised 
Statutes  are  right  enough  now,  as  I  understand 
them,  upon  this  subject ;  but  the  difficulty  is,  that 
the  courts  have  so  construed  them  as  to  make 
them  powerless.  My  object  is  to  have  a  plain 
provision  in  the  Constitution,  so  that  while  the 
discretion  of  the  judges  may  be  exercised  in  cer- 


66th  day.] 


BILL    OF   RIGHTS. 


381 


Monday,] 


HALLETT  —  SUMNER  —  LOUD. 


[July  25th. 


tain  cases,  controllable  by  the  legislature,  there 
shall  be  a  general  right  to  demand,  and  have  the 
benefit  of  this  writ,  as  of  right. 

Mr.  HALLETT.  I  do  not  think  the  gentle 
man  for  Manchester  states  the  matter  exactly  as 
it  stands.  If  I  understand  it,  his  proposition  is 
a  direct  proposition  to  enable  persons  on  petition, 
to  take  out  of  the  hands  of  judicial  and  ministe 
rial  officers,  persons  who  are  held  there  by  legal 
process.  Now,  I  contend  that  that  cannot  be 
done  without  creating  conflicts  in  jurisdiction, 
and  conflicts  of  officials,  and  endless  troubles  that 
will  arise.  As  it  is  now,  your  courts  have  dis 
cretion.  Does  anybody  suppose  that  the  su 
preme  court  of  Massachusetts  would  not  issue  a 
writ  of  habeas  corpus  in  a  case  where  a  matter  of 
right  was  concerned,  and  only  a  possible  case 
was  made  out  ?  Nobody  can  suppose  it.  I  trust, 
therefore,  that  we  will  not  disturb  this  matter, 
because  nothing  can  be  plainer  than  the  law,  and 
the  construction  of  the  courts  as  they  now  stand  ; 
and  if  you  attempt  to  change  them,  it  seems  to 
me  that  you  at  once  embark  upon  a  sea  of 
trouble. 

The  question  was  taken  on  the  amendment, 
and  a  division  being  demanded,  there  were — 
ayes,  85  ;  noes,  22. 

So  the  amendment  was  adopted. 

The  question  then  recurring  on  the  resolution 
as  amended,  it  was  adopted. 

The  next  question  was  upon  the  third  resolu 
tion,  as  follows  : — 

Resolved,  That  the  Bill  of  Rights  be  amended 
in  the  last  sentence  of  the  29th  article,  by  striking 
out  the  words  "  so  long  as  they  behave  themselves 
well,  and  that  they,"  and  inserting,  "  by  tenures 
established  by  the  Constitution,  and  "  ;  also,  by 
striking  out  the  words  "  ascertained  and  estab 
lished  by  standing  laws,  "  and  inserting,  "  which 
shall  not  be  diminished  during  their  continuance 
in  office,"  so  that  the  whole  sentence,  as  amended, 
shall  read  as  follows  : — 

It  is  therefore  not  only  the  best  policy,  but 
for  the  security  of  the  rights  of  the  people',  and 
of  every  citizen,  that  the  judges  of  the  supreme 
judicial  court  should  hold  their  office  by  tenures 
established  by  the  Constitution,  and  should  have 
honorable  salaries,  which  shall  not  be  diminished 
during  their  continuance  in  office. 

The  resolution  was  agreed  to,, 

The  next  resolve  was  then  read,  as  follows  : — 

4.  Resolved,  That  the  Bill  of  Rights  be  amended, 
by  inserting  between  the  29th  and  30th  articles, 
the  following  additional  article  : — 

This  enumeration  of  rights  shall  not  impair 
others  retained  by  the  people,  and  no  powers 
shall  ever  be  assumed  by  the  legislature,  that  are 
not  granted  in  this  Constitution. 


Mr.  HALLETT,  for  Wilbraham.  I  would  in 
quire  if  the  Chair  has  the  original  bill  before  him, 
as  reported  by  the  Committee,  as  my  understand 
ing  of  the  article  was,  that  the  word  "  expressly  " 
should  come  in  before  the  word  "  granted."  In 
the  printed  copy  that  word  appears  to  be  left  out. 

The  CHAIRMAN.  The  Chair  would  inform 
the  gentleman  that  he  read  the  article  from  the 
original  bill,  as  reported  by  the  Committee. 

Mr.  HALLETT.  Then  I  move  to  insert  the 
word  "  expressly,  "  after  the  words  "  are  not ;  " 
so  that  the  latter  part  of  the  article  shall  read, 
"  and  no  powers  shall  ever  be  assumed  by  the 
legislature,  that  are  not  expressly  granted  in  this 
Constitution." 

Mr.  SUMNER,  for  Marshfield.  I  do  not  under 
stand  that  the  resolution  passed  the  Committee, 
in  the  shape  in  which  it  is  proposed  to  be  amend 
ed  by  the  gentleman  for  Wilbraham.  The  res 
olution  as  it  came  from  the  Committee,  was  in  a 
different  form.  It  was — "  this  enumeration  of 
rights  shall  not  impair  others  retained  by  the 
people,  and  no  powers  shall  ever  be  assumed  by 
the  legislature,  that  are  not  granted  in  this  Con 
stitution."  And  now  it  is  proposed,  as  I  under 
stand,  by  the  gentleman  for  Wilbraham,  to  insert 
the  word  "  expressly"  before  the  word  "  granted," 
and  I  understand  him,  farther,  to  suggest  that  it 
passed  the  Committee  in  that  form. 

Mr.  HALLETT.  What  I  said,  was,  that  I, 
and  other  gentlemen  of  the  Committee,  so  under 
stood  it.  That  was  my  express  understanding  of 
it ;  but  in  being  copied  from  the  book  of  minutes 
it  became  altered,  and  the  word  "  expressly  " 
omitted.  I  am  very  sure  it  was  meant  to  be 
there. 

Mr.  SUMNER.  The  Report  was  made  up 
from  the  records  of  the  Committee.  My  impres 
sion  is,  that  the  matter  was  discussed  in  the  Com 
mittee  whether  the  word  "  expressly"  should  be 
inserted,  and  a  large  majority  were  inclined 
against  it ;  and,  it  seems  to  me,  this  Convention 
would  make  a  mistake  if  they  now  undertake  to 
go  so  far  as  to  say  that  the  legislature  shall  have 
no  powers  that  are  not  expressly  granted  in  this 
Constitution.  There  must  be  implied  powers 
connected  with  legislation,  and  with  every  legis 
lative  body. 

Mr.  LORD,  of  Salem.  I  do  not  exactly  un 
derstand  the  gentleman  for  Wilbraham,  as  to  his 
amendment,  whether  it  is  meant  as  a  side  cut  to 
Hoosac,  because  if  the  legislature  cannot  grant 
any  authority  whatever,  except  such  as  are  ex 
pressly  granted  by  the  Constitution,  we  must  put 
into  the  Constitution  a  word  in  favor  of  Hoosac, 
or  it  will  not  go.  [Laughter.] 

Mr.  HALLETT.    The  phraseology  of  this  reso- 


382 


BILL   OF   RIGHTS. 


[66th  day. 


Monday,]  * 


HALLETT —  LORD  —  WILSON  —  NEWMAN. 


[July  25th. 


lution  is,  that  "  the  legislature  shall  assume  no 
powers."  Now,  if  this  Convention  mean  any 
thing  by  this  resolution  that  "  the  legislature 
shall  assume  no  powers  that  are  not  granted  by 
this  Constitution,"  they  mean  powers  that  shall 
be  expressly  granted,  like  the  terms  "public 
good  "  and  "  general  welfare."  That  power  is 
expressly  granted.  The  implication  under  that 
power  is  a  different  proposition.  The  legislature 
are  not  at  all  limited  in  relation  to  powers  granted 
in  the  Constitution,  but  they  are  limited  expressly 
to  powers  granted.  If  you  say  "  powers  granted 
in  this  Constitution,"  why  then  you  assume  still 
other  things,  a  higher,  or  a  general  power,  which 
may  be  there  without  being  exactly  granted  by 
the  Constitution.  If  I  understand  anything  of 
republican  doctrine,  it  is  opposed  to  all  implied 
powers.  We  go  for  express  powers.  I  do  not 
say  that  the  legislature  shall  do  no  act  not  ex 
pressly  granted  in  the  Constitution,  but  the 
amendment  of  the  Committee  is,  that  the  legisla 
ture  shall  exercise  no  power  not  granted,  and 
my  amendment  proposes  to  say  "  not  expressly 
granted." 

Mr.  LORD,  of  Salem.  I  desire  to  ask  the 
gentleman  for  Wilbraham,  whether  he  means 
that  the  words  "  general  welfare"  is  an  express 
delegation  of  any  power  which  the  legislature 
chooses  to  consider  as  being  exerted  for  the  gene 
ral  welfare  ? 

Mr.  IIALLETT.  It  is  an  express  grant  of  a 
general  power,  and  the  power  goes  just  as  far  as 
expressed  in  that  grant. 

Mr.  LORD.  And  just  as  far  as  the  legislature 
chooses  to  consider  that  it  goes,  under  the  phrase 
"  general  welfare  "? 

Mr.  IIALLETT.  No,  Sir ;  that  is  a  different 
question.  That  is  a  state  to  which  the  gentleman 
desires  to  get — to  have  a  legislature  with  all 
powers — an  omnipotent  legislature.  I  do  not 
think  the  people  of  this  Commonwealth  desire  to 
have  it  so  understood ;  and  therefore  I  want  to 
put  this  beyond  the  possibility  of  a  question.  If 
you  mean  anything  by  the  phrase  "  not  granted 
in  this  Constitution  "  you  mean  "  not  expressly 
granted."  And  what  does  that  mean?  Why, 
that  which  is  not  expressed  in  the  Constitution. 

Mr.  WILSON,  of  Natick.  It  seems  to  me 
that  this  whole  resolution,  which  is  proposed  to 
be  put  into  the  Constitution,  is  of  very  little  value 
indeed,  and  of  little  importance.  And  now 
the  gentleman  for  Wilbraham,  (Mr.  Hallett,)  pro 
poses  to  amend  even  this,  which  I  take  to  be  of 
very  little  value ;  for  the  legislature,  under  the 
provisions  of  the  Constitution,  which  authorizes 
them  to  do  such  things  as  will  promote  the  gene 
ral  welfare,  and  under  other  general  terms,  can 


do  very  many  things,  and  I  do  not  believe  that  it 
is  of  the  slightest  consequence  to  put  this  resolu 
tion  into  the  Constitution.  But,  nevertheless,  I 
am  willing  to  assent  to  its  insertion  into  the  or 
ganic  law,  but  not  with  the  word  "  expressly  "  in 
it.  I  think  if  that  is  inserted,  we  shall  have 
trouble  enough  in  the  future  to  carry  on  the  gov 
ernment  of  the  State.  I  see  no  necessity  for  the 
amendment,  and  I  hope  the  Convention  will  not 
indorse  it. 

Mr.  BRADFORD,  of  Essex.  I  call  for  a  di 
vision  of  the  question. 

Mr.  SUMNER.  The  question  is  upon  adopt 
ing  the  word  "  expressly." 

Mr.  BRADFORD.  I  ask  for  a  division  of  the 
question  when  it  is  taken  upon  the  resolution, 
and  move  that  the  question  upon  the  latter  clause 
of  the  resolve  be  taken  by  yeas  and  nays. 

The  CHAIRMAN.  The  motion  is  not  strictly 
in  order  now,  as  the  question  pending  is  upon 
the  motion  to  amend,  made  by  the  gentleman  for 
Wilbraham. 

Mr.  HALLETT.  I  will  relieve  gentlemen 
from  the  trouble  of  voting  upon  my  amendment. 
There  is  but  little  of  strict  construction  in  this 
Convention,  and  I  am  very  apprehensive  that  we 
shall  have  a  "  general  welfare "  clause  put  in 
stronger  than  it  is  in  the  old  Constitution,  and  I 
fear  that  we  may  lose  what  there  is  there,  by  gen 
tlemen  whom  I  thought  were  inclined  to  hold  the 
legislature  to  some  powers,  and  to  make  a  power 
of  attorney  for  them,  by  which  we  should  give 
them  to  understand  what  we  mean  shall  be  their 
duties.  But  I  see  that  the  purpose  is  to  make  a 
Constitution,  and  then  let  the  legislature  do  as 
they  please.  To  avoid  the  possibility  of  such  a 
result,  and  being  very  desirous  to  have  some  re 
striction  upon  the  powers  of  the  legislature,  I 
withdraw  the  amendment,  hoping  thereby  to  be 
able  to  save  the  rest. 

Mr.  NEWMAN,  of  Bolton.  I  believe  I  can 
not  vote  for  the  proposition  reported  by  the  Com 
mittee,  without  some  explanation.  It  appears  to 
me  that  the  resolve  is  entirely  useless,  as  was 
remarked  by  the  gentleman  from  Natick,  (Mr. 
Wilson).  The  fourth  article  of  section  first,  of 
chapter  first,  of  the  Constitution,  it  appears  to  me, 
confers  general  powers  upon  the  legislature.  It 
not  only  gives  general  powers,  but  it  makes  the 
government  one  not  of  special  rights,  but  of  gen 
eral  powers  entirely.  The  end  accomplished  by 
the  resolve  appears  to  me  to  be  useless,  unless  we 
alter  the  phraseology  of  the  fourth  article. 

I  move  to  amend  by  striking  out  the  words — 
"  This  enumeration  of  rights  shall  not  impair 
others  retained  by  the  people ;  and  no  powers 
shall  ever  be  assumed  by  the  legislature  that  are 


66th  day.] 


BILL    OF   RIGHTS,  &c. 


383 


Monday,] 


BRADFORD  —  WILSON  —  LORD —  STEVENSON. 


[July   2oth. 


not  granted  in  this  Constitution,"  and  insert  in 
lieu  thereof  the  words  :  "  We  declare  that  every 
thing  in  this  Bill  of  Rights  is  excepted  out  of  the 
general  powers  of  the  government,  and  shall  for 
ever  remain  inviolate,"  so  that  the  resolve  shall 
read : — 

4.  Resolved,  That  the  Bill  of  Rights  be  amended, 
by  inserting  between  the  twenty-ninth  and  thir 
tieth  articles  the  following  additional  article : — 

We  declare,  that  everything  in  this  Bill  of 
Rights  is  excepted  out  of  the  general  powers  of 
the  government,  and  shall  forever  remain  inviolate. 

The  question  was  then  taken  upon  the  amend 
ment  of  the  gentleman  from  Bolton,  (Mr.  New 
man,)  and  it  was  decided  in  the  negative. 

So  the  amendment  was  not  agreed  to. 

The  question  then  recurring  upon  the  adoption 
of  the  resolve  as  reported  by  the  Committee, 

Mr.  BRADFORD,  of  Essex,  renewed  his  call 
for  a  division  of  the  question. 

The  question  was  accordingly  first  taken  upon 
the  first  clause  of  the  resolution,  viz.  :  "  This 
enumeration  of  rights  shall  not  impair  others  re 
tained  by  the  people,"  and  was  decided  in  the 
affirmative ;  and  then  the  question  upon  the 
second  clause,  viz.  :  "  and  no  powers  shall  ever 
be  assumed  by  the  legislature,  that  are  not  granted 
in  this  Constitution,"  and  it  was  decided  in  the 
affirmative. 

So  the  resolution  as  reported  by  the  Committee, 
was  adopted. 

Mr.  WILSON,  of  Natick.  Here  is  a  series  of 
resolutions  reported  in  different  documents  of  the 
Convention,  all  from  the  Committee  on  the  Bill 
of  Rights.  Cannot  the  Committee  rise  and 
report  these  resolves  to  the  Convention,  and  have 
them  acted  upon,  and  ask  leave  to  sit  again  upon 
the  other  propositions  ? 

The  CHAIRMAN.  The  Chair  thinks  that 
might  be  done. 

Mr.  WILSON.  Then  I  make  the  motion  that 
the  Committee  rise  and  report  these  resolves  as 
amended,  to  the  Convention,  with  a  recommend 
ation  that  they  do  pass,  and  ask  leave  to  sit  again 
upon  the  other  resolutions  which  have  not  been 
acted  upon. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

The  Committee  accordingly  rose,  and 

IN    CONVENTION, 

The  chairman  of  the  Committee  of  the  Whole, 
Mr.  Schouler,  reported  that  the  Committee  had 
had  under  consideration  resolves  relating  to  the 
Bill  of  Rights,  and  had  instructed  him  to  report 
the  same  to  the  Convention,  with  an  amendment, 
with  a  recommendation  that  they  do  pass,  and  to 


ask  leave  to  sit  again  upon  other  resolves  not 
yet  acted  upon. 

Leave  was  granted  to  sit  again. 

The  question  first  being  upon  agreeing  to  the 
amendment  to  the  second  resolve,  as  reported 
from  the  Committee  of  the  Whole,  it  was  put  and 
decided  in  the  affirmative. 

So  the  amendment  was  agreed  to. 

The  question  being  then  upon  the  adoption  of 
the  resolves  as  amended, 

Mr.  LORD,  of  Salem,  said :  I  suppose  it  is 
desirable  upon  so  important  a  subject  as  the  Bill 
of  Rights,  to  have  the  question  taken  separately 
upon  each  resolve. 

The  PRESIDENT.  The  Chair  would  suggest 
that  there  is  another  stage  in  the  passage  of  the 
resolves. 

Mr.  LORD.  There  is  the  difficulty.  There  is 
a  first  stage,  and  there  we  are  not  allowed  to  de 
bate,  and  when  we  arrive  at  the  second  stage,  they 
won't  let  us  debate,  because  there  was  a  first  stage 

The  PRESIDENT.  Does  the  gentleman  ask 
for  a  division  of  the  resolution  ? 

Mr.  LORD.  I  move  that  the  farther  consid 
eration  of  these  resolves,  be  assigned  for  to-mor 
row  morning,  at- ten  o'clock. 

Mr.  HAL  LETT.     I  second  that  motion. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

Justices  of  the  Peace. 

Mr.  STEVENSON,  of  Boston,  from  the  Special 
Committee  to  whom  was  referred  the  resolves  in 
relation  to  justices  of  the  peace,  reported  back  the 
resolves  and  amendments  in  a  new  draft,  as  fol 
lows  : — 

Resolved,  That  it  is  expedient  to  amend  the 
Constitution  so  as  to  provide  that 

1.  Trial   Justices  shall  be  elected  by  the  legal 
voters  of  the  several  towns  and  cities  where,  at 
the  time  of  such  election,  there  is  no  police  court 
established  by  law,  who  shall  hold  their  offices 
for  a  term  of  three  years. 

Every  such  city  or  town  shall  elect  one  such 
Justice,  and  may  elect  one  additional  for  each  two 
thousand  inhabitants  therein,  according  to  the 
next  preceding  decennial  census. 

They  shall  have  the  same  jurisdiction,  powers 
and  duties,  as  are  now  exercised  by  Justices  of 
the  Peace,  which  jurisdiction,  powers  and  duties, 
may  be  changed  by  the  legislature  :  provided,  that 
no  Trial  Justice  shall  act  as  such  upon  his  ceasing 
to  reside  in  the  town  in  which  he  was  elected. 

2.  Justices  of  the  Peace,  Justices  of  the  Peace 
and  Quorum,  Justices  of  the  Peace  throughout 
the  Commonwealth,  and  Commissioners  to  qualify 
civil  officers,  may  be  appointed  by  the  Governor 
and  Council  for  a  term  of  seven  years ;  and  those 
now  in  office  shall  continue  therein  according  to 
the  terms  of  their  respective  commissions :  pro- 


384 


THE   JUDICIARY,  &c. 


[67th   day. 


Tuesday,] 


MIXTER  —  BARTLETT  —  BUTLER. 


[July  26th. 


vided,  that  the  jurisdiction  of  all  such  justices 
shall  not  extend  to  the  hearing  or  trial  of  any 
causes,  or  the  issuing  of  warrants  in  criminal 
cases. 

3.  Justices  and  Clerks  of  the  police  courts  of 
the  several  cities  and  towns  of  the  Common-wealth, 
shall  be  elected  by  the  legal  voters  thereof,  for  a 
term  of  three  years. 

4.  In  case  of  vacancy  by  resignation,  or  other 
wise,  of  any  State,   County,  or  District  officer, 
excepting  members  of  the  legislature,  whose  elec 
tion  is  provided  for  in  the  Constitution,  and  whose 
term  of  office  does  not  expire  at  the  next  annual 
election,  the  Governor  shall  issue  his  warrant  to 
the   mayors  and  aldermen  of  the  several  cities, 
and  the  selectmen  of  the  several  towns,  to  fill  the 
vacancy  at  the  next  annual  election  after  it  shall 
have  happened ;  and  the  Governor,  with  the  ad 
vice   and   consent  of  the  Council,    may   appoint 
suitable  persons  to  fill  such  vacancies  until  an  elec 
tion  by  the  people. 

Mr.  STEVENSON  moved  that  the  resolves  be 
laid  upon  the  table,  and  printed. 

The  motion  was  agreed  to. 

On  motion  of  Mr.  BREED,  of  Lynn,  at  six 
o'clock  forty- five  minutes,  the  Convention  ad 
journed. 


TUESDAY,  July  26,  1853. 

The  Convention  assembled  pursuant  to  ad 
journment,  and  was  called  to  order  by  the  Presi 
dent  pro  tempore>  at  nine  o'clock. 

Prayer  by  the  Chaplain. 

The  journal  of  yesterday  was  read. 

Distribution  of  Books. 

Mr.  MIXTER,  of  New  Braintree,  introduced 
the  following  order  : — 

Ordered,  that  the  Clerk  of  each  of  the  towns  in 
this  Commonwealth  that  have  not  sent  a  delegate 
to  this  Convention,  shall  receive,  for  the  use  of 
the  town,  one  copy  of  the  Constitutions  of  the 
United  States,  and  one  copy  of  the  Debates  of  the 
Massachusetts  Convention  of  1820. 

Mr.  MIXTER.  I  introduced  this  order,  Sir, 
at  the  recommendation  of  some  of  the  towns 
which  are  not  represented  in  this  Convention.  It 
will  be  seen  that  those  towns  which  are  repre 
sented,  will  be  provided  for  through  their  delegates ; 
but  those  which  are  unrepresented,  do  not  possess 
the  same  facility  for  obtaining  copies  of  these 
Constitutions.  I  consider  that  they  are  valuable 
to  each  one  of  the  inhabitants  of  every  town,  and 
particularly  so  as  books  of  reference.  There  are 
many  towns,  as  is  well  known,  which,  though 
not  through  any  neglect  of  theirs,  are  not  repre 


sented  in  this  Convention.  These  towns,  I  think, 
are  as  much  entitled  to  these  books  as  any  other 
towns  are ;  and  for  these  reasons,  and  at  their 
request,  I  ask  the  passage  of  this  order. 

Mr.  WESTON,  of  Duxbury,  desired  that  the 
order  be  laid  over  until  to-morrow. 

The  order,  accordingly,  in  obedience  to  the 
rule,  lies  over  for  consideration  to-morrow. 

Orders  of  the  Day. 

On  motion  of  Mr.  BUTLER,  of  Lowell,  the 
Convention  proceeded  to  the  consideration  of  the 
Orders  of  the  Day,  the  first  subject  on  the  Orders 
being  the  resolve  introduced  by  the  gentleman 
from  Lowell,  (Mr.  Butler,)  on  the  subject  of 

Judicial  Tenure  of  Office. 
The  resolve  was  read,  as  follows  : — 

Resolved,  That  all  judicial  commissions  which 
shall  issue  to  any  person  from  and  after  the  first 
day  of  August,  in  the  year  one  thousand  eight 
hundred  and  fifty- three,  shall  confer  no  greater 
tenure  of  office  than  the  term  of  ten  years. 

The  question  being  on  its  final  passage. 

Mr.  BARTLETT,  of  Boston.  I  should  be 
glad  if  the  gentleman  from  Lowell  would  explain 
to  us  the  purpose  of  this  proposition. 

I  will  put  a  case  to  the  gentleman ;  a  case 
which  would  be  one  of  some  embarrassment,  I 
think :  Suppose  before  this  Constitution,  which 
we  are  now  forming,  goes  into  effect — and  it  can 
not  do  so  until  after  it  shall  have  been  voted  upon 
by  the  people,  in  November  next,  or  at  such  time 
as  may  be  fixed — suppose,  in  the  interim,  an  ap 
pointment  of  a  judge  is  made,  and  a  commission 
issues.  In  what  form  will  that  commission  be  ? 
Shall  it  be  in  the  alternative  ?  Shall  the  appoint 
ment  be  for  life,  unless  the  alternative  be  accept 
ed  ?  And  I  submit  to  the  gentleman  from  Lowell, 
whether  the  object  to  be  attained,  makes  it  worth 
while  to  put  into  the  Constitution  a  fragmentary 
provision  of  this  description.  I  hope  it  will  not 
be  made  a  part  of  our  fundamental  law. 

Mr.  BUTLER.  I  endeavored  to  explain  the 
reasons  why  I  introduced  this  resolve,  at  the  time 
I  offered  it,  but  owing  to  the  limitation  of  time  by 
our  rules,  I  only  partially  succeeded.  We  have 
agreed  that  all  judges  to  be  appointed  here 
after,  shall  hold  their  office  for  the  term  of  ten 
years.  We  have  also  provided  that  the  present 
judges  shall  retain  their  office  according  to  the 
tenors  of  their  commission.  Now,  it  is  evident 
that  this  Constitution  cannot  go  into  effect  until 
sometime  hence,  say  the  first  of  January,  and 
there  will  be  five  months  intervening,  when, 
without  intimating  that  any  wrong  will  be  done, 


67th    day.] 


THE   JUDICIARY. 


385 


Tuesday,] 


BUTLER  —  DAWES  —  BARTLETT  —  WALKER. 


[July  2Gth. 


many  of  the  judges  may  die,  and  young  men 
whom  we  do  not  now  think. of,  may  be  put  in 
their  places,  who  will,  of  course,  hold  their  office 
for  life.  It  is  merely  for  the  purpose  of  reaching 
all  such  cases,  that  I  have  introduced  this  resolu 
tion.  Almost  every  one  is  agreed  as  to  what  is 
its  intent  and  force ;  but  the  gentleman  from  Bos 
ton  finds  two  difficulties.  He  asks  :  How  shall 
the  commissions  issue  under  these  circumstances  ? 
I  reply,  they  will  issue  just  as  they  do  at  the 
present  time.  The  governor  does  not  know 
whether  this  Constitution  will  go  into  effect ;  he 
acts  under  the  present  Constitution,  and  officially 
knows  nothing  of  the  changes  which  have  been 
made,  until  the  Constitution  we  are  now  amend 
ing  has  been  accepted  by  the  people.  It  therefore 
has  no  binding  force  whatever  upon  him.  I 
submit  it  to  the  legal  opinion  of  the  gentleman, 
that  if  we  should  say  nothing  about  the  judges, 
and  make  no  provision  for  them,  whether  the 
commissions  they  at  present  hold  will  not  expire 
immediately  upon  the  adoption  of  the  new  Con 
stitution,  whether  those  commissions  were  granted 
ten,  or  fifty  years  ago  ?  To  prevent  such  an  oc 
currence,  we  have  provided  that  they  shall  not 
expire  during  their  good  behavior.  So  that  I 
do  net  see  that  we  can  do  any  harm  by  carrying 
out  what  is  the  intention  of  the  Convention.  All 
that  the  governor  has  to  do  is  to  issue  the  com 
missions  under  the  old  Constitution,  and  then  the 
Convention  says  that  the  commission  shall  have  a 
ten  years'  tenure. 

Now  it  has  been  said  that  this  had  better  not  be 
done  ;  that  it  is  not  of  sufficient  consequence  to 
be  put  into  the  fundamental  law.  Sir,  if  every 
man  would  do  just  as  he  ought,  we  should  be  in 
no  need  of  a  Constitution,  of  a  law,  or  of  judges ; 
but  unfortunately,  it  has  been  found  since  the 
days  of  Adam,  that  men  will  not  do  as  they  ought ; 
and,  consequently,  need  the  restraint  and  guid 
ance  of  some  rule  and  law.  Now,  if  nobody 
would  die,  if  I  could  be  insured  that  nobody 
would  resign  between  the  present  time  and  the 
time  when  this  Constitution  will,  if  adopted,  go 
into  effect,  I  would  not  have  introduced  this  reso 
lution.  But  I  do  not  wish  that  the  whole  judi 
ciary  of  the  State  shall  be  changed  in  five  months, 
and  their  places  filled  by  young  and  inexpe 
rienced  men,  who  will  be  fastened  on  us  for 
life ;  especially  when  I  find  it  authoritatively  pro 
claimed  by  one  of  the  governor's  council,  in  a 
paper  which  he  edits  called  the  North  Adams 
Transcript,  that  the  only  qualification  for  the 
office  of  judge  of  probate,  is  that  he  should  be  "  a 
live  young  Whig."  It  is  the  official  expression 
of  one  of  the  governor's  council,  published  in  the 
Transcript,  and  indorsed  by  the  Atlas. 

26 3 


Mr.  DAWES,  of  Adams.  Will  the  gentleman 
permit  me  to  ask  him  a  question  ? 

Mr.  BUTLER.     A  thousand,  Sir. 

Mr.  DAWES.  I  would  inquire  whether  he 
would  prefer  to  have  a  dead  old  fogy,  or  a  live 
young  Whig  ?  [Laughter.] 

Mr.  BUTLER.  I  explained  that  the  other 
day.  A  live  young  Whig  grows  naturally  into  a 
dead  old  fogy.  One  is  the  green  sapling,  the 
other  is  the  dry  old  tree.  [Laughter.] 

I  will  not  detain  the  Convention  longer,  how 
ever.  I  introduced  the  resolution  for  the  pur 
poses  I  have  already  stated,  and  it  has  received 
the  sanction  and  support  of  the  most  eminent 
legal  gentlemen  of  this  body. 

Mr.  BARTLETT.  Then  the  result  is  about 
this  :  The  gentleman  from  Lowell  desires,  in  ma 
turing  this  provision,  to  cover  the  least  possible 
point  of  time.  I  would  not  say  that  I  do  not 
think  that  consideration  so  valuable  or  important 
as  to  make  it  worth  while  to  take  so  much  pains 
to  accomplish  it.  The  strongest  argument,  how 
ever,  in  favor  of  this  provision,  seems  to  be  the 
probable  abuse  of  political  power.  Now,  Sir,  if 
the  history  of  the  Commonwealth  furnishes 
ground  for  an  allegation  of  that  sort,  then  the 
proposition  of  the  gentleman  is  a  proper  and  wise 
one.  But,  Sir,  I  hardly  think  any  gentleman 
here  will  undertake  to  show  that  any  such  dan 
ger  exists ;  and  I  hope,  therefore,  that  the  provi 
sion  we  have  adopted  upon  this  subject,  shall 
remain  where  it  is. 

Mr.  WALKER,  of  North  Brookfield.  I  de 
sire  to  inquire  of  the  gentleman  from  Lowell, 
whether  he  intends  this  provision  to  be  inserted 
as  a  part  of  the  Constitution  r 

Mr.  BUTLER.  Certainly  I  do.  The  resolve 
cannot  mean  anything  else. 

Mr.  WALKER.  I  made  the  inquiry  because 
the  resolve  is  not  put  in  the  usual  form.  It  does 
not  state  that  the  Constitution  shall  be  so  amend 
ed,  but  it  is  merely  a  resolve  by  the  Convention. 

Mr.  BUTLER.  I  will  accept  the  gentleman's 
suggestion,  and  so  modify  the  resolve.  I  did  not 
know  that  it  was  necessary,  like  the  Dutchman's 
picture  of  a  horse,  to  write  over  it  to  show  that 
it  was  a  horse.  I  thought  every- body  understood 
what  it  meant.  I  do  not  know  what  else  the 
Convention  have  to  do,  but  to  amend  the  Consti 
tution. 

Mr.  WALKER.  I  merely  suggested  that  the 
resolve  was  not  in  the  usual  form. 

Mr.  BUTLER.  I  accept  the  gentleman's 
amendment. 

Mr.  DAWES,  of  Adams.  I  am  glad  my 
friend  from  Lowell,  (Mr.  Butler,)  has  ascertained 
the  authorship  of  that  newspaper  article  to  which 


386 


THE   JUDICIARY. 


[67th  day. 


Tuesday,] 


DAWES  —  HILLARD  —  CADY. 


[July  26th. 


he  alluded.  I  am  glad  that  he  is  not  disposed  to 
detract  from  its  merits,  by  charging  it  upon  me, 
as  he  did  the  other  day. 

I  was  a  little  surprised,  however,  to  hear  the 
gentleman  object  to  the  appointment  of  that 
judge  of  probate  on  account  of  his  being  a  live 
young  Whig,  and  because  I  thought  the  gentle 
man  himself  belonged  to  the  "Young  America" 
party.  I  had  heard  the  gentleman  say  so  much, 
heretofore,  about  old  fogies,  that  his  speech  the 
other  day,  and  again  this  morning,  has  set  me  to 
wondering  whether  he  has  not,  by  a  death- bed 
repentance,  become  an  old  fogy  himself.  But 
now  the  trouble  is,  that  he  is  afraid  a  live  young 
Whig  will  grow  into  an  old  fogy.  Now,  Sir, 
although  I  had  nothing  to  do  with  the  article 
alhided  to,  yet  I  am  disposed  to  stand  by  it,  and, 
if  nothing  worse  can  be  found  against  that  ap 
pointment,  than  that  it  is  of  "  a  live  young 
Whig,"  to  believe  that  it  will  prove  a  good  one. 
But  1  submit,  in  all  candor,  whether  it  is  worth 
while  to  put  an  article  into  your  Constitution, 
about  this  matter,  because  a  country  newspaper 
has  seen  fit  to  give  a  reason  for  the  appointment 
of  a  judge  of  probate  that  does  not  suit  the 
gentleman  from  Lowell  ?  I  submit  that  is  hardly 
of  sufficient  importance  to  be  made  the  ground  of 
a  constitutional  provision.  If  my  friend  from 
Lowell  cannot  find  graver  reasons  for  bringing 
forward  constitutional  provisions,  it  seems  to  me 
it  is  very  much  like  trifling  with  the  Constitu 
tion.  I  have  no  objection  to  the  gentleman's 
being  satisfied,  and  I  think  there  is  a  fair  chance 
of  satisfying  us  all.  For  one  I  shall  be  satisfied, 
and  I  presume  my  friend  from  Lowell  will  be  as 
much  so,  if  we  have  appointed  to  the  bench  of 
the  supreme  court  of  Massachusetts,  and  to  a 
seat  on  the  bench  of  the  other  courts,  men  quali 
fied,  in  every  respect,  to  discharge  the  duties  of 
the  office,  whether  they  be  old  fogies  or  live 
young  Whigs.  That  is  all  I  seek  for,  and,  I  pre 
sume,  is  all  the  gentleman  is  seeking  for. 

But,  I  submit  farther,  whether  it  is  worth  while 
to  arraign  an  individual  upon  this  floor,  who  can 
not  come  in  and  defend  himself?  I  would  ask 
the  gentleman  from  Lowell,  whether  it  is  a  mark 
of  that  courage  which  stands  out,  like  the  phy 
lacteries  of  old,  upon  the  brow  of  the  gentleman 
assuming  to  be  a  leader  of  this  Convention,  to 
hunt  up,  for  attack,  men  who  are  absent  at  the 
safe  distance  of  one  or  two  hundred  miles,  and 
make  onslaught  upon  them  in  this  Convention  ? 
It  seems  to  me,  that  if  no  other  consideration 
would  deter  from  such  a  course,  our  time  has 
become  too  precious.  If  we  wish  to  go  upon 
such  errands,  there  will  be  an  opportunity  after 
the  Convention  has  adjourned. 


Mr.  HILLARD,  of  Boston.  The  gentleman 
from  Lowell,  (Mr.  Butler,)  did  me  the  honor  to 
consult  me,  before  submitting  this  proposition  to 
the  Convention.  I  said  to  him,  as  I  say  now, 
that  I  think  it  is  no  more  than  the  legitimate  right 
of  the  majority — if  they  choose  to  insist  upon  it. 
It  is  in  the  nature  of  a  provision  against  a  remote 
contingency  ;  but  if  the  majority  of  the  Conven 
tion  choose  to  adopt  such  a  provision,  I  must  say, 
that  they  are  fairly  entitled  to  do  so.  The  Con 
vention,  here  and  now,  have  determined  that  the 
commissions  of  the  judges  shall  run  for  ten  years, 
instead  of  during  good  behavior.  Thus  far  it 
may  be  considered  as  an  expression  of  the  will  of 
the  people,  whom  we  represent.  But  the  people, 
in  their  primary  capacity,  will  pass  upon  this 
change.  I  hope  that  they  will  reject  it.  If  they  do, 
that  ends  the  whole  matter ;  this  provision  in 
cluded.  If  they  do  not,  we  must  consider  it  to 
be  the  will  of  a  majority  of  the  people  of  Massa 
chusetts,  that  their  judges  shall  hold  their  com 
missions  for  ten  years,  and  no  more.  To  that 
expression  of  their  will,  when  made,  I  shall  bow 
with  submission.  In  that  event,  I  think  that  it  is 
a  right  of  the  majority  now,  and  here,  to  provide 
that  the  decision  of  the  people  in  November,  if 
favorable  to  their  doings,  shall  have  a  retroactive 
effect,  so  as  to  cover  the  interval  between  the 
action  of  the  Convention  and  the  action  of  the 
people ;  so  that  no  commission  issued  in  the 
meantime,  shall  be  upon  a  tenure  to  which  their 
wishes  are  opposed.  I  think  it  would  be  an  un 
fair  advantage  gained  by  such  party  as  might  be 
in  power  during  such  an  interval,  if  a  life  com 
mission  were  issued. 

This  measure  is  analogous  to  a  well  known 
legal  proceeding.  We  often  attach  real  estate 
on  the  issuing  of  a  writ.  By  that  attachment, 
the  estate  is  held  in  abeyance,  as  it  were,  until 
the  final  decision  of  the  cause.  If  the  plaintiff 
fail  to  obtain  judgment,  the  attachment  ceases, 
and  the  estate  is  released.  If  he  do  obtain  judg 
ment,  the  attachment  transfers  the  title.  Now, 
our  vote  upon  the  judicial  tenure,  is  analogous 
to  the  attachment  of  real  estate  on  mesne  pro 
cess.  Whether  we  are  to  have  judgment  or  not, 
depends  upon  the  popular  vote  in  November. 
But,  in  the  interval,  the  majority  of  the  Con^en- 
tion  have  a  right  to  be  in  the  position  of  the 
plaintiff,  in  such  a  suit.  They  have  a  right  to 
say  that  the  commissions  of  the  judges  shall  be 
in  abeyance  in  the  interval  before  final  judgment. 
Mr.  CADY,  of  Monson.  I  am  opposed  to  the 
adoption  of  the  resolve  before  the  Convention.  I 
can  see  no  reason  for  its  adoption.  Suppose  a 
vacancy  should  occur  in  the  mean  time,  before 
the  adoption  of  the  Constitution,  under  what  law 


67th  day.]  UNIFORMITY   OF   RECEIVING   VOTES,  &c. 


387 


Tuesday,] 


MORTON  —  BUTLER  —  BRIGGS  —  DUNCAN. 


[July  26th. 


would  the  appointment  to  fill  it,  be  made  ?  What 
would  be  the  duty  of  the  governor,  whose  busi 
ness  it  is  to  make  the  appointment  ?  What  would 
be  the  tenure  of  office  ?  I  submit  that  it  could 
not  be  left  indefinite.  It  must  be  either  that 
provided  by  the  old  Constitution,  or  it  must  be 
under  that  which  we  are  now  framing.  Sir,  this 
Constitution  cannot  take  effect  until  the  people 
have  ratified  it ;  and  therefore,  appointments 
made  before  that  time,  must  be  made  under  the 
present  Constitution.  Now,  to  make  a  provision 
changing  the  commissions  of  officers  thus  ap 
pointed,  it  seems  to  me  is,  to  all  intents  and  pur 
poses,  an  ex  post  facto  law.  It  seems  to  me  that 
this  provision  is  entirely  uncalled  for  ;  and  unless 
I  can  see  some  reason  other  than  those  which  have 
been  thus  far  presented,  I  shall  vote  against  it. 
[Cries  of  "  Question  !"  "  Question  !"] 
The  question  was  then  taken,  and  the  resolve 
ordered  to  its  final  passage. 

Motion  to  go  into  Committee. 

Mr.  MORTON,  of  Taunton.  There  is  a  sub 
ject  upon  yoxir  calendar,  in  Committee  of  the 
Whole,  which  is  of  some  considerable  importance, 
and  which  has  remained  there  for  some  time.  I 
presume  it  will  not  occupy  any  considerable  time 
in  its  consideration,  but  I  desire  that  it  shall  be 
taken  up  and  disposed  of.  It  has  by  some  means 
been  jostled  out  of  its  place,  so  that  other  subjects 
which  were  behind  it  in  their  order,  have  taken 
precedence  of  it  in  their  consideration.  I  now 
move  that  the  Convention  resolve  itself  into  Com 
mittee  of  the  Whole,  upon  the  resolves  on  the 
mode  of  submitting  the  question  of  representation 
to  the  people. 

Mr.  BUTLER.  If  the  gentleman  from  Taun 
ton  will  pardon  me  for  a  moment,  there  are  two 
subjects  which  it  is  very  necessary  the  Com 
mittee  on  Revision  should  have  before  them  at 
the  earliest  possible  moment.  It  will  require  but 
a  very  short  time  to  dispose  of  them,  and  then  the 
gentleman  can  accomplish  his  object.  I  hope  he 
will  allow  these  to  be  disposed  of  first. 

Mr.  MORTON.  I  would  inquire  if  it  is  not 
also  important  to  have  this  subject  disposed  of, 
and  whether  this  may  not  go  to  the  Committee 
on  Revision  as  well  as  anything  else  ? 

Mr.  BUTLER.  This  is  an  independent  sub 
ject  ;  but  those  to  which  I  have  referred,  are  so 
interwoven  with  other  sub  ects  that  the  Com 
mittee  011  Revision  can  hardly  proceed  with  their 
work  upon  those  other  subjects,  until  these  are 
disposed  of  by  the  Convention. 

Mr.  BRIGGS,  of  Pittsfield.  I  am  very  anx 
ious  that  the  gentleman  from  Taunton,  (Mr. 
Morton,)  should  accomplish  his  object;  but  I 


would  say  in  support  of  the  suggestion  of  the 
gentleman  from  Lowell,  (Mr.  Butler,)  that  it  is 
exceedingly  necessary  that  these  subjects  should 
go  to  the  Committee  on  Revision.  I  would  sug 
gest,  therefore,  that  the  gentleman  from  Taunton 
should  waive  his  motion  for  the  present,  with  the 
understanding  that  when  these  subjects  are  dis 
posed  of,  his  matter  shall  come  up  next. 

Mr.  MORTON,  of  Taunton.  If  I  could  be 
assured  that  such  was  the  general  understanding, 
I  would  waive  my  motion  for  the  present.  I 
have  tried  on  several  occasions  to  bring  the  sub 
ject  before  the  Convention,  but  have  hitherto 
failed.  But  with  the  understanding  that  it  shall 
come  up  sometime  in  the  course  of  the  day,  I 
will  withdraw  my  motion. 

On  motion  of  Mr.  BUTLER,  of  Lowell,  the 
Convention  then  resolved  itself  into 

COMMITTEE    OF    THE   WHOLE, 

Mr.  Nayson,  of  Amesbury,  in  the  chair,  and 
proceeded  to  the  consideration  of  the  resolve  sub 
mitted  by  Mr.  Duncan,  of  Williamstown,  upon 
the  subject  of 

Uniformity  of  Receiving  Votes. 

The  resolve  was  read  by  the  Secretary,  as  fol 
lows  : — 

Resolved,  That  the  Constitution  ought  to  be 
amended  so  as  to  make  the  provisions  for  receiv 
ing,  assorting,  counting,  and  recording  of  votes, 
uniform  in  the  election  of  all  officers  whose  elec 
tion  is  provided  for  in  the  Constitution. 

Mr.  DUNCAN,  of  Williamstown.  Mr.  Chair 
man  :  Called  as  we  are  to  amend  the  Constitu 
tion,  it  becomes  our  duty  to  make  it  as  perfect  an 
instrument  as  the  language  will  admit.  It  is  to 
be  the  chart  by  which  the  political  navigators  are 
to  steer  the  ship  of  state  ;  it  is,  therefore,  neces 
sary  that  the  directions  be  simple,  plain,  and  in 
telligible.  And  for  the  purpose  of  giving  greater 
precision  to  one  of  its  departments,  I  introduced 
the  resolve  for  making  an  uniform  provision  for 
the  receiving,  assorting,  and  counting  of  votes,  in 
all  elections  provided  for  in  the  Constitution.  If 
gentlemen  will  turn  to  chap.  1,  sec.  2,  art.  2, 
they  will  find  it  the  duty  of  the  selectmen  to  re 
ceive,  assort,  and  count  the  votes,  in  the  presence 
of  the  town  clerk,  who  shall  make  a  fair  record  of 
the  same,  in  the  presence  of  the  selectmen ;  and 
now,  if  we  turn  to  chap.  2,  sec.  1,  art.  3,  we 
shall  find  it  to  be  the  duty  of  the  selectmen,  as  in 
the  first  instance,  to  receive  and  assort  the  votes, 
but  the  duty  of  the  town  clerk  to  count  them, 
and  make  a  fair  record  of  the  same,  in  presence 
of  the  selectmen.  I  admit  that  a  difference  so 


388 


JUSTICES    OF   THE   PEACE,   &c. 


[67th  day. 


Tuesday,; 


DUNCAN  —  LELAND  —  ELY  —  BOUTWELL  —  BUTLEH. 


[July  2Gth. 


trifling  as  this  seems  to  be,  would  not  be  a  suffi 
cient  reason  for  calling  a  Convention  to  amend 
the  Constitution  ;  but  since  it  has  been  taken  in 
pieces,  and  the  separate  parts  in  our  hands,  I  see 
no  reason  why  each  part  may  not  be  perfected  as 
far  as  \\  e  are  able  to  do  so,  that  when  it  is  again 
joined,  it  shall  be  as  perfect  as  a  whole  as  it  is  in 
any  of  its  parts.  The  Constitution  has  been  con 
sidered—and  justly,  too— a  work  of  great  merit 
and  perfection  ;  but  not  as  perfect  as  to  be  entirely 
free  from  that  species  of  blunders  which  has  lately 
been  styled  Bunsbyisms  ;  for  instance,  in  chap.  1, 
sec.  1,  it  reads  thus  :  "  The  legislative  body  shall 
assemble  on  the  first  Wednesday  in  January,  and 
at  such  other  times  as  they  shall  judge  necessary, 
and  shall  dissolve  and  be  dissolved  on  the  day 
next  preceding  the  said  first  Wednesday  in  Janu 
ary,"  &c.  By  this  provision,  a  dissolution  of  the 
legislature  is  made  obligatory  at  least  one  day  be 
fore  it  meets.  I  suppose  this  error  crept  in 
through  the  loose  use  of  the  words  "said"  and 
"aforesaid";  they  are  words  of  great  repute  in 
the  legal  profession,  and  have  a  magisterial  sound 
in  professional  documents,  but  are  not  quite 
adapted  to  constitutional  perspicuity.  And 
again,  in  chap.  1,  sec.  3,  it  reads :  "  Every 
member  of  the  House  of  Representatives  shall 
be  chosen  by  written  votes,  and  for  one  year  at 
least  next  preceding  his  election,  shall  be  an 
inhabitant  within  the  town  he  shall  be  chosen  to 
represent,  and  shall  cease  to  represent  the  said 
town  immediately  on  his  ceasing  to  be  qualified 
as  aforesaid." 

So  uncertain  was  the  language,  in  its  meaning, 
that  it  was  necessary  to  resort  to  an  opinion  of 
the  supreme  court  to  ascertain  what  intention  the 
framers  of  the  Constitution  had  in  view  when 
they  adopted  that  section.  If  it  be  important  that 
we  have  a  Constitution,  it  becomes  equally  im 
portant  that  we  have  one  that  can  be  understood 
by  every  person  without  the  intervention  of  a 
judicial  opinion  ;  if  we  cannot  do  it,  then  I  opine 
that  our  constituents  made  a  mistake  in  sending 
us  here  to  meddle  with  the  old  one. 

For  myself,  I  desire  it  to  go  forth  as  free  from 
doubt  and  uncertainty  as  any  human  Constitution 
can  be.  And  to  bring  it  right  home  to  the  peo 
ple,  I  hope  the  time  is  coming  when  it  will  be 
published  in  our  school  books,  that  the  children 
of  this  Commonwealth  may  early  learn  its  pro 
visions,  and  estimate  the  worth  of  such  an  ad 
dition  to  our  school  literature. 

The  question  was  taken,  and  the  resolve  was 
agreed  to— ayes,  117  ;  noes,  35. 

On  motion  of  Mr.  EARLE,  of  Worcester,  the 
Committee  then  rose,  and  the  President  having 
resumed  the  chair  of 


THE     CONVENTION, 

The  chairman  reported  that  the  Committee  of  the 
Whole,  to  whom  had  been  referred  the  resolution 
in  relation  to  the  manner  of  sorting  and  counting 
votes,  had  had  the  same  under  consideration,  and 
had  instructed  him  to  report  the  same,  with  a  re 
commendation  that  it  pass. 

The  PRESIDENT.  The  question  is  upon  or 
dering  the  resolution  to  a  second  reading. 

Mr.  LELAND,  of  Holliston.  We  have  here 
tofore  introduced  a  resolution,  that  state  and 
town  officers  may  be  elected  by  secret  ballot. 
This  resolve  says  :  "  that  the  Constitution  ought  to 
be  amended  so  as  to  make  the  provisions  for  receiv 
ing,  assorting,  counting,  and  recording  of  votes, 
uniform  in  the  election  of  all  officers  whose  election 
is  provided  for  in  the  Constitution."  It  seems  to 
me,  if  we  adopt  that  resolve,  we  shall  get  into 
difficulty,  as  it  will  conflict  with  a  provision 
which  we  have  already  adopted. 

Mr.  ELY,  of  Westfield.  It  seems  to  me  this 
matter  is  well  understood .  throughout  the  Com 
monwealth,  and  a  change  would  make  the  matter 
much  worse  than  it  was  before.  I  therefore  move 
an  indefinite  postponement  of  the  whole  matter. 

Mr.  BOUTWELL,  for  Berlin.  I  think  that 
the  motion  of  the  gentleman  from  Westfield  (Mr. 
Ely)  ought  to  be  sustained  by  the  Convention. 
I  think  that  the  existing  provisions  are  perfectly 
plain,  and  generally  well  understood.  There 
may  be  some  difference  of  opinion  as  to  the  mode 
of  receiving,  counting,  and  recording  votes  for  the 
different  officers  who  are  to  be  elected  by  the 
people.  Whatever  those  modes  are,  they  are  well 
understood.  I  think  this  provision  will  operate 
in  conflict  with  some  provisions  which  have  al 
ready  passed  the  Convention.  In  addition  to 
that,!the  Committee  on  Revision  have  made  Con 
siderable  progress.  Some  of  their  work  is  in  the 
hands  of  the  printer ;  but  the  passage  of  this  res 
olution,  so  far  as  I  understand  it,  will  throw  a 
considerable  part  of  it  into  confusion.  This  Com 
mittee  have  as  much  work  as  they  can  possibly 
do,  and  we  should  not  throw  upon  them  any  un 
necessary  work.  I  believe  the  passage  of  this 
resolution  is  unnecessary,  that  it  will  lead  to  a 
great  amount  of  labor  in  the  Committee,  and  will 
be  of  no  possible  benefit  to  the  people. 

The  question  was  taken  upon  Mr.  Ely's  mo 
tion,  and  it  was  agreed  to. 

So  the  resolution  was  indefinitely  postponed. 

Election  of  Justices  of  the  Peace. 

Mr.  BUTLER,  of  Lowell.  I  move  that  the 
Report  of  the  Special  Committee  upon  Justices  of 
the  Peace,  be  taken  from  the  table. 


67th  day.] 


JUSTICES   OF   THE   PEACE. 


389 


Tuesday,] 


BUTLER. 


[July  26th. 


The  motion  was  agreed  to. 

Mr.  BUTLER.  I  now  move  that  the  rule  by 
which  it  is  required  that  this  subject  shall  be  re 
committed  to  a  Committee  of  the  Whole,  be  sus 
pended,  and  that  the  resolve  be  considered  at  this 
time. 

The  motion  was  agreed  to. 

The  Report  of  the  Select  Committee  was  then 
read,  as  follows : — 

Resolved,  That  it  is  expedient  to  amend  the 
Constitution  so  as  to  provide  that 

1.  Trial  Justices  shall  be  elected  by  the  legal 
voters  of  the  several  towns  and  cities  where,  at 
the  time  of  such  election,  there  is  no  police  court 
established  by  law,  who  shall  hold  their  offices  for 
a  term  of  three  years. 

Every  such  city  or  town  shall  elect  one  such 
Justice,  and  may  elect  one  additional  for  each  two 
thousand  inhabitants  therein,  according  to  the 
next  preceding  decennial  census. 

They  shall  have  the  same  jurisdiction,  powers, 
and  duties,  as  are  now  exercised  by  Justices  of  the 
Peace,  which  jurisdiction,  powers,  and  duties, 
may  be  changed  by  the  legislature :  provided,  that 
no  Trial  Justice  shall  act  as  such  upon  his  ceasing 
to  reside  in  the  town  in  which  he  was  elected. 

2.  Justices  of  the  Peace,  Justices  of  the  Peace 
and  Quorum,  Justices  of  the  Peace  throughout  the 
Commonwealth,   and  Commissioners   to    qualify 
civil  officers,  may  be  appointed  by  the  Governor 
and  Council  for  a  term  of  seven  years ;  and  those 
now  in  office  shall  continue  therein,  according  to 
the  terms  of  their  respective  commissions :  pro 
vided,  that  the  jurisdiction  of  all  such  justices 
shall  not  extend  to  the  hearing  or  trial  of  any 
causes,  or  the  issuing  of  warrants  in   criminal 
cases. 

3.  Justices  and  Clerks  of  the  police  courts  of  the 
several  cities  and  towns  of  the  Commonwealth, 
shall  be  elected  by  the  legal  voters  thereof  for  a 
term  of  three  years. 

4.  In  case  of  vacancy  by  resignation,  or  other 
wise,  of  any  State,  County,  or  District  officer,  ex 
cepting  members  of  the  legislature,  whose  election 
is  provided  for  in  the  Constitution,  and  whose 
term  of  office  does  not  expire  at  the  next  annual 
election,  the  Governor  shall  issue  his  warrant  to 
the  mayors  and   aldermen  of  the  several  cities, 
and  the  selectmen  of  the  several  towns,  to  fill  the 
vacancy  at  the  next  annual  election  after  it  shall 
have  happened ;  and  the  Governor,  with  the  ad 
vice  and  consent  of  the  Council,  may  appoint 
suitable  persons  to  fill  such  vacancies  until  an 
election  by  the  people. 

Mr.  BUTLER,  of  Lowell.  In  the  absence  of 
the  chairman  of  this  Committee,  I  will  simply 
state  that  these  resolves  were  reported  with  en 
tire  unanimity  by  the  Committee,  as  regards  all 
the  details.  Two  gentlemen  of  the  Committee, 
who  are  well  known  to  be  opposed  to  an  elective 
judiciary  in  any  form,  opposed  the  election  of 
trial  justices,  and  justices  of  the  police  court. 


With  that  exception,  the  entire  details  were  ar 
ranged  with  perfect  unanimity  by  the  Committee. 
The  first  resolution  provides,  as  will  be  seen  : — 

Trial  Justices  shall  be  elected  by  the  legal 
voters  of  the  several  towns  and  cities  where,  at 
the  time  of  such  election,  there  is  no  police  court 
established  by  law,  who  shall  hold  their  offices 
for  a  term  of  three  years. 

Every  such  city  or  town  shall  elect  one  such 
justice,  and  may  elect  one  additional  for  each  two 
thousand  inhabitants  therein,  according  to  the 
next  preceding  decennial  census. 

They  shall  have  the  same  jurisdiction,  powers, 
and  duties,  as  are  now  exercised  by  Justices  of  the 
Peace ;  which  jurisdiction,  powers,  and  duties, 
may  be  changed  by  the  legislature :  provided,  that 
no  Trial  Justice  shall  act  as  such  upon  his  ceasing 
to  reside  in  the  town  in  which  he  was  elected. 

The  proviso  contained  in  the  last  clause,  is  to 
prevent  a  man  getting  elected  as  justice  in  one 
town,  and  then  moving  into  another  town  where 
he  could  not  have  been  elected,  to  carry  on  the 
business  of  a  justice  of  the  peace.  An  amend 
ment  was  offered  here  in  Convention  yesterday, 
and  favored  by  some  gentlemen,  that  trial  justices 
should  have  jurisdiction  only  in  the  towns  where 
they  were  elected.  There  would  be  infinite  mis 
chief  arising  from  such  a  provision.  Suppose,  for 
instance,  that  a  trial  justice  of  the  town  is  sick. 
Then  no  other  trial  justice  having  jurisdiction  in 
that  town,  if  there  should  be  robbery,  theft,  or 
murder,  the  offender  must  go  un  whipped  of  justice, 
because  there  is  nobody  to  try  him,  until  that 
trial  justice  gets  well.  Suppose,  in  a  civil  case 
the  trial  justice  should  be  interested,  or  one  of  the 
parties  interested  in  the  suit,  should  be  a  brother, 
father,  cousin,  or  some  other  relative  of  the 
justice.  There  would  be  nobody  in  that  event, 
to  try  the  case,  because  there  is  no  jurisdiction.  I 
might  enumerate  other  cases,  showing  the  mis 
chief  which  would  arise  from  the  adoption  of 
such  an  amendment. 

The  second  clause  provides  as  follows,  that 

Justices  of  the  Peace,  Justices  of  the  Peace  and 
Quorum,  Justices  of  the  Peace  throughout  the 
Commonwealth,  and  Commissioners  to  qualify 
civil  officers,  may  be  appointed  by  the  Governor 
and  Council  for  a  term  of  seven  years  ;  and  those 
now  in  office  shall  continue  therein  according  to 
the  terms  of  their  respective  commissions  :  pro 
vided,  that  the  jurisdiction  of  all  such  justices 
shall  not  extend  to  the  hearing  or  trial  of  any 
causes,  or  the  issuing  of  warrants  in  criminal 
cases. 

This  provision  leaves  these  officers  to  take 
acknowledgment  of  deeds,  to  marry  people,  to 
administer  oaths,  to  take  depositions,  hear  cases  of 
jail  delivery,  to  issue  warrants  for  parish  and 


390 


JUSTICES    OF   THE  PEACE. 


[67th  day. 


Tuesday,] 


BUTLER  —  EA.K.LE. 


[July  26th. 


town  meetings,  to  stay  rioters,  and  to  do  various 
other  things  which  have  heretofore  attached  to 
this  ancient  and  honorable  office  of  the  justice  of 
the  peace.  Some  gentleman  here  have  contended 
that  every  justice  should  have  the  power  to  issue 
warrants.  I  can  give  you  an  illustration  of  how 
the  thing  would  work.  Justices  of  the  peace 
having  an  opportunity  to  issue  warrants,  go  to 
work  and  get  up  cases,  so  that  they  may  have  all 
the  business  they  want.  This  thing  has  been  done 
in  one  case.  It  might  be  done  again  ;  and,  there 
fore,  it  was  thought  best  to  take  that  power  away. 
The  third  clause  reads  as  follows  : — 

Justices  and  Clerks  of  the  Police  Courts  of  the 
several  cities  and  towns  of  the  Commonwealth, 
shall  be  elected  by  the  legal  voters  thereof  for  a 
term  of  three  years. 

Mr.  EARLE,  of  Worcester.  I  wish  to  make 
an  inquiry  of  the  gentleman,  whether,  by  the 
Constitution,  trial  justices  have  the  same  powers 
with  justices  of  the  police  courts  ?  If  I  understand 
it  rightly,  they  do  not,  and  by  acts  of  legislature 
establishing  some  police  courts,  they  have  not  the 
same  power. 

Mr.  BUTLER.  I  thank  the  gentleman  for 
calling  my  attention  to  this  matter.  Police  jus 
tices  are  not  known  .as  such  by  the  Constitution, 
but  have  been  included  under  the  term  of  judicial 
officers.  Police  courts  have  been  established  in 
various  towns,  and  they  have  everywhere  been 
given  the  powers  and  jurisdiction  of  justices 
of  the  peace,  with  a  single  exception,  and  that  is 
in  the  city  of  Worcester,  which  was  omitted  by 
a  mistake  in  framing  the  act.  I  believe  I  speak 
correctly.  I  know  that  in  Salem,  Newburyport, 
Lawrence,  Lowell,  and  in  Boston,  police  justices 
have  the  same  jurisdiction  to  try  causes  in  the 
county,  that  justices  of  the  peace  have  ;  but  by  a 
mistake  in  the  act  of  the  legislature,  those  officers 
in  the  city  of  Worcester  have  jurisdiction  only 
over  crimes  committed  in  that  city.  It  is  better 
that  the  legislature  should  provide  a  remedy  for 
this  single  case,  than  to  make  any  provision  for  it 
in  the  Constitution,  as  the  difficulty  can  be  easily 
remedied.  We  were  fortunate  enough  to  have 
upon  the  Committee  a  gentleman  from  Worcester, 
(Mr.  Chapin,)  who  had  that  thing  in  mind,  and 
who  agrees  in  the  view  which  we  have  taken  of 
this  matter.  These  justices  and  clerks  of  the 
police  court  are  judicial  officers  of  the  same  class 
as  trial  justices,  and  it  was  thought  best  by  a  ma 
jority  of  the  Committee,  that  they  should  be 
elected  as  trial  justices  are,  and  upon  that  ques 
tion  only,  was  there  any  division  of  opinion  upon 
the  part  of  the  Committee.  The  Committee  fol- 
1owcd  out  what  they  conscientiously  believed  to 


be  the  true  rule  in  regard  to  the  election  of  jus 
tices  of  this  character. 

In  regard  to  the  resolutions  contained  in  docu 
ment  No.  104,  which  were  submitted  to  us,  the 
Committee  agreed  that  it  was  best  to  strike  out 
the  second  resolution,  which  reads  as  follows  : — 

2.  Resolved,  That  it  is  expedient  so  to  amend 
the  Constitution,  that  the  Governor  may  remove 
any  officer  in  the  former  resolves  of  this  Commit 
tee  mentioned,  within  the  term  for  which  he  shall 
have  been  elected,  giving  such  officer  a  copy  of  the 
charges  against  him,  and  an  opportunity  of  being 
heard  in  his  defence. 

It  was  stricken  out  entirely,  because  it  would 
seem  to  give  the  governor  the  power  to  remove 
every  officer  in  the  Commonwealth,  from  the  at 
torney-general  down. 

The  fourth  resolution,  corresponding  to  the 
third  in  the  Report  of  the  Committee,  Document 
104,  we  reported  with  a  slight  amendment. 

In  case  of  vacancy  by  resignation,  or  other 
wise,  of  any  State,  County,  or  District  officer, 
excepting  members  of  the  legislature,  whose  elec 
tion  is  provided  for  in  the  Constitution,  and 
whose  term  of  office  does  not  expire  at  the  next 
annual  election,  the  Governor  shall  issue  his  war 
rant  to  the  mayors  and  aldermen  of  the  several 
cities,  and  the  selectmen  of  the  several  towns,  to 
fill  the  vacancy  at  the  next  annual  election  after 
it  shall  have  happened ;  and  the  Governor,  with 
the  advice  and  consent  of  the  Council,  may  ap 
point  suitable  persons  to  fill  such  vacancies  until 
an  election  by  the  people. 

This  was  done  so  that  where  there  is  an  elective 
officer,  such  as  county  commissioner,  for  instance, 
or  district- attorney,  who  shall  be  elected  for  three 
years,  and  die  in  the  middle  of  the  first  year,  the 
governor  might  issue  his  warrant  at  the  next  an- 
uual  election,  to  make  an  election  to  fill  the 
vacancy,  and  in  the  mean  time,  might  appoint 
some  one  to  take  the  place.  That  prevents  the 
calling  of  the  people  too  frequently  to  make  an 
election,  and  at  the  same  time  secures  the  ends  of 
justice. 

There  was  a  slight  doubt  in  the  minds  of  some 
gentlemen,  as  to  whether  the  clerks  of  the  district 
court  were  county  officers,  or  the  justices ;  and  in 
order  to  do  away  with  that  doubt,  we  propose  to 
amend  by  inserting  after  the  word,  "  officer,"  the 
words,  "and  clerks  or  justices  aforesaid."  That 
will  settle  the  question,  without  any  farther 
trouble  ;  for  it  struck  the  Committee,  that  there 
might  be  some  sharp  person  who  would  find  that  a 
clerk  of  a  district  court  was  neither  a  district  nor  a 
county  officer,  and  then  there  might  be  a  ques 
tion  how  he  could  be  reappointed  in  case  of  a 
vacancv.  The  addition  of  the  words  which  we 


67th   day.] 


JUSTICES   OF   THE   PEACE. 


391 


Tuesday," 


BUTLER  —  SIMONDS  —  HUNTINGTOX  —  DUNCAN. 


[July  26th. 


propose,  will  cover  the  case,  both  of  the  justices 
of  the  police  court,  and  trial  justices. 

Now,  one  thing  farther.  One  gentleman  seemed 
to  have  the  belief  that  there  was  no  way  of  re 
moving  a  justice  of  the  peace.  I  agree  with  him. 
I  have  defended  before  legislative  committees,  two 
or  three  justices  of  the  peace,  and  I  have  prose 
cuted  one  or  two  in  my  time,  and  I  can  only 
repeat  what  I  said  the  other  day,  that  the  ma 
chinery  seemed  like  a  sledge-hammer  for  killing 
a  musquito.  It  never  seemed  to  hit  him.  You 
cannot  remove  a  justice  of  the  peace.  A  gentle 
man  observed,  that  the  people  remove  the  trial 
justices  once  in  three  years  ;  and  they  are  subject 
to  impeachment  for  any  gross  outrage  besides. 
The  people  will  take  care  of  that.  The  justices  of 
the  peace  have  little  or  nothing  to  do  but  to  marry 
persons,  and  they  cannot  do  that  without  their 
consent,  so  that  they  cannot  do  much  mischief. 
We  leave  that  as  it  is.  I  have  to  beg  pardon  for 
so  imperfect  an  explanation  of  these  matters,  as 
the  duty  devolved  on  the  chairman  of  the  Com 
mittee. 

Mr.  SIMONDS,  of  Bedford.  I  wish  to  inquire 
of  the  delegate  from  Lowell,  whether  in  the 
enumeration  of  the  powers  of  the  second  class  of 
justices  of  the  peace,  they  are  prohibited  from 
issuing  warrants  in  civil  actions  ? 

Mr.  BUTLER.  The  issuing  of  a  writ,  Mr. 
President,  if  I  understand  it,  is  only  an  incident 
to  the  power  to  try.  He  cannot  issue  a  writ  re 
turnable  before  anybody  else,  and  if  he  cannot 
try  the  case  himself,  the  writ  which  he  issues  will 
be  as  innoxious  as  a  last  year's  almanac  ;  it  will  do 
no  harm  to  anybody.  I  think,  that  if  we  take 
away  the  power  to  try  and  determine  a  case,  we 
take  away  the  power  to  issue  a  writ. 

Mr.  HUNTINGTON,  of  Northampton.  I 
would  suggest,  that  there  seems  to  me  to  be  a  very 
material  omission  here.  Supposing  these  resolu 
tions  to  be  adopted  by  the  people,  obviously  under 
the  first  resolution  some  time  must  elapse  before 
the  trial  jiistices  can  act  in  that  capacity.  The 
second  resolution  provides,  that  the  jurisdiction  of 
all  other  justices  of  the  peace,  shall  be  taken 
away.  Now,  it  seems  to  me  there  will  be  an  in 
terregnum,  a  time  between  the  adoption  of  this 
amendment,  or  the  ratification  of  it  by  the  peo 
ple,  and  the  election  of  the  trial  justices,  so  that 
there  will  be  no  one  to  issue  warrants  for  the  trial 
of  criminals.  I  do  not  see  why  the  jurisdiction 
cf  the  justices  of  the  peace  is  not  taken  away  ac 
cording  to  the  phraseology  of  the  second  resolu 
tion  ;  and  I  see  no  manner  in  which  a  criminal  can 
be  tried  in  the  mean  time  between  the  adoption  of 
the  Constitution,  and  the  election  of  trial  justices. 
The  second  resolution  provides,  as  follows  : — 


Justices  of  the  Peace,  Justices  of  the  Peace 
and  Quorum,  Justices  of  the  Peace  throughout 
the  Commonwealth,  and  Commissioners  to  qualify 
civil  officers,  may  be  appointed  by  the  Governor 
and  Council  for  a  term  of  seven  years ;  and  those 
now  in  office  shall  continue  therein  according  to 
the  terms  of  their  respective  commissions :  pro 
vided,  that  the  jurisdiction  of  all  such  justices 
shall  not  extend  to  the  hearing  or  trial  of  any 
causes,  or  the  issuing  of  warrants  in  criminal 
cases. 

The  provision  is,  then,  that  they  shall  have  no 
power  to  issue  a  warrant  after  the  adoption  of  this 
amendment.  It  seems  to  me  there  should  be  a 
clause  extending  the  jurisdiction  of  the  present 
justices,  until  the  the  trial  justices  shall  be  elected. 

Mr.  DUNCAN,  of  Williamstown.  Mr.  Presi 
dent  :  I  wish  to  make  an  inquiry.  I  wish  to 
ask,  if  at  this  juncture,  a  motion  to  strike  out 
and  insert,  would  be  in  order  ? 

The  PRESIDENT.     It  would. 

Mr.  DUNCAN.  Then  I  move  to  strike  out 
of  this  Report  all  after  the  words  "  Resolved,  that 
it  is  expedient,"  and  insert  the  following  resolu 
tion  :  "  That  justices  of  the  peace  shall  be  elected 
by  the  legal  voters  in  the  several  towns  and  cities, 
as  may  be  hereafter  determined  by  law."  Among 
the  reasons  which  induce  me  to  offer  this  substi 
tute  for  the  Report  of  the  Committee,  is,  that  it 
simplifies  the  proposed  amendment,  and  avoids 
the  misconstruction  which  must  necessarily  fol 
low  the  introduction  of  so  cumbersome  an  article 
into  the  Constitution.  A  short  time  since,  it  was 
urged  as  an  objection  to  the  passage  of  a  report, 
that  its  length  implied  a  prodigal  waste  of  money 
and  paper,  which  the  economizing  people  would 
reject  on  the  ground  of  waste.  If  that  argument 
was  entitled  to  any  consideration  then,  it  cer 
tainly  applies  with  greater  force  now.  Again, 
it  is  in  the  nature  of  a  compromise,  when  none 
was  called  for,  or  desired  ;  and  instead  of  getting 
just  what  every  one  wants,  a  hybrid  has  been 
engendered  which  bears  no  very  striking  resem 
blance  to  either  dam  or  sire.  It  reminds  me  of 
a  schism  which  took  place  among  the  Quakers  a 
few  years  since,  with  regard  to  the  personal 
appearance  of  his  satanic  majesty,  one  party 
believed  him  to  have  horns,  and  the  other,  that  he 
was  amooley ;  so  the  horns,  and  the  no  horns  battled 
each  other  in  a  gallant,  but  unquaker  like  man 
ner,  till  at  last  it  was  obvious  that  the  matter 
must  be  settled,  or  the  society  ruined  ;  so  they 
agreed  to  a  compromise.  They  settled  it  by 
voting  that  the  devil  was  an  unicorn  ;  a  creature 
which  neither  party  loved  or  wanted,  but  was 
infinitely  better  than  being  foiled  by  an  opponent. 
It  is  pretty  much  so  in  this  case ;  if  this  Report 
is  adopted,  we  shall  have  what  no  one  precisely 


392 


JUSTICES    OF   THE   PEACE. 


[67tli   day. 


Tuesday,] 


DUNCAN  —  WATERS. 


[July  26th. 


wants,   and  all  the  consolation   we   shall  have, 
will  be  the  satisfaction  of  a  compromise. 

It  will  be  remembered,  Sir,  that  not  many 
years  since,  the  legislature  passed  an  act  author 
izing  the  governor  to  appoint  trial  justices,  and 
so  repugnant  was  that  act  to  the  people,  that  the 
following  legislature  repealed  it  almost  without 
debate.  It  was  urged  that  none  but  partisans 
were  appointed  ;  and  so  notoriously  true  was  it, 
that  a  trial  justice  was  looked  upon  as  a  common 
nuisance ;  some  exceptions  of  course,  but  this 
was  the  general  feeling.  And  now,  shall  we  pro 
ceed  deliberately  to  reenact  a  law  which  was 
repudiated  so  soon  after  its  passage,  and  to  perpetu 
ate  the  same,  by  making  it  a  finality  ?  It  is  a 
reasonable  presumption,  that  in  all  small  towns 
entitled  to  but  one  trial  justice,  his  political 
stripe  will  correspond  with  the  local  dominant 
party,  and  the  evil  heretofore  complained  of  will 
be  increased.  The  minority  will  look  upon  such 
justices  with  suspicion  ;  and  how  can  it  be  other 
wise  ?  for,  in  the  heat  of  political  contests,  ani 
mosities  will  be  engendered,  which  will  follow 
the  justice  in  his  judicial  proceedings,  and 
whether  he  decides  right  or  wrong,  complaint 
will  be  made  that  he  leaned  to,  or  from,  accord 
ing  to  the  bias  of  client  or  magistrate ;  and  the 
courts  of  justice  will  be  looked  upon  as  an  inqui 
sition  for  political  martyrdom.  And,  besides,  it 
makes  an  invidious  distinction  between  the  jus 
tices  of  the  peace,  which  seems  to  be  entirely 
uncalled  for  and  unnecessary.  I  submit  it  to 
gentlemen,  that  it  is  much  better  to  allow  the 
people  to  regulate  this  matter  themselves,  than  to 
propose  any  half  way  measure,  and  give  them  the 
alternative  of  that,  or  nothing.  This  lleport 
proposes  but  one  trial  justice  in  a  town  ;  and,  an 
additional  one  depends  upon  the  contingency  of 
numbers.  Is  it  not  perfectly  obvious  that  this 
provision  will  lead  to  great  practical  difficulties, 
which  gentlemen  from  large  towns  seem  to  en 
tirely  overlook.  A  justice  of  the  peace  is  not 
a  polypus,  but  a  being  possessed  with  the  powers 
of  locomotion;  it  will  often  happen,  therefore, 
that  he  will  be  absent  from  home,  and  some 
times  will  be  prevented  through  inability,  to 
attend  to  his  judicial  duties.  Under  such  cir 
cumstances,  those  who  seek  justice,  at  law,  will 
be  compelled  to  migrate  from  one  town  to  another, 
till  they  succeed  in  overtaking  some  wandering 
justice,  or,  in  finding  some  legal  fixture.  Another 
difficulty  suggests  itself ;  many  small  towns  have 
two  or  three  villages  within  its  borders,  and  often 
at  a  distance  from  each  other ;  and  inasmuch  as 
there  can  be  but  one  trial  justice  in  the  town, 
there  will  be  a  strife  as  to  which  village  shall  have 
him.  I  can  assure  you  that  a  justice  of  the 


peace  in  a  small  country  town,  is  no  inconsider 
able  personage,  and  the  little  village  which  is 
fortunate  enough  to  have  the  sqidrc  within  its 
limits,  will  naturally  enough  exalt  itself  above 
its  less  favored  rivals.  This  will  lead  to  animosi 
ties,  and  I  have  no  hesitation  in  saying,  that  in 
all  such  towns — and  there  will  be  many — this 
provision  in  the  Constitution  will  be  an  unfortu 
nate  one. 

I  am  decidedly  in  favor  of  the  proposed  amend 
ment — with  perhaps  a  modification,  if  it  should 
meet  the  views  of  the  Convention — and  it  is  this  : 
"  That  no  town  shall  have  less  than  one  justice 
of  the  peace,"  and  leave  it  entirely  with  the 
inhabitants  of  the  towns  to  elect  as  many  as  they 
choose.  I  have  not  the  least  doubt  but  the 
people  can  choose  men  from  their  midst,  to 
administer  justice,  much  more  to  their  satisfac 
tion  than  can  be  appointed  by  the  governor  ;  and 
there  is  not  the  least  danger  that  they  will  elect 
more  than  they  want,  or  less  than  is  necessary. 
The  safest  course,  in  my  estimation,  is,  to  let 
them  regulate  this  question  as  to  how  many  jus 
tices  they  will  have,  and  I  opine  that  the  people 
have  too  much  good  sense  to  suffer  inconvenience, 
when  they  have  the  power  to  adjust  the  number 
of  justices  to  meet  their  necessities. 

Mr.  WATERS,  of  Millbury.  The  mover  of 
the  amendment  now  under  consideration,  Mr. 
Duncan,  of  Williamstown,  has  said  that  these 
resolutions  providing  for  the  election  of  justices  of 
the  peace  by  the  people,  were  not  called  for  by  the 
people.  In  that  remark,  he  may  speak  for  his 
constituents,  but  he  certainly  does  not  for  mine. 
Doubtless,  to  members  representing  cities  and 
farming  districts,  this  subject  seems  to  be  one  of 
minor  importance,  and  to  occupy  altogether  too 
much  time  of  the  Convention.  But  I  assure  all 
such  members,  that  in  some  districts,  especially  in 
manufacturing  districts,  there  is  no  subject  before 
us  which  excites  a  deeper  or  more  general  interest. 

The  office  of  justice  of  the  peace,  though  limit 
ed  in  powers  and  subordinate  in  jurisdiction,  is 
one  of  the  most  important  in  the  Commonwealth. 
He  stands  in  the  nearest  relation  to  the  people  of 
any  judicial  officer,  and  in  criminal  matters,  has 
jurisdiction  to  a  certain  extent  over  all  the  per 
sons  and  property  of  his  county.  Before  him  the 
accused,  whether  innocent  or  guilty,  are  usually 
first  arraigned — before  his  court,  any  person  is 
liable  at  any  moment  to  be  summoned  to  appear, 
either  as  principal  or  witness,  and  for  failure 
thereof  to  be  committed  for  contempt  of  court. 

This  office,  like  that  of  sheriff,  is  one  of  the 
most  ancient  known  to  common  law.  Originally 
they  were  chosen  in  England  by  the  people,  from 
the  most  sufficient  knights,  esquires,  and  lords  of 


67th  day.] 


JUSTICES   OF   THE   PEACE. 


393 


Tuesday,] 


WATERS. 


[July  26th. 


the  realm,  and  two  or  three  to  each  county  only 
were  allowed.  Then,  to  be  an  "  esquire"  in  old 
England,  was  an  honor  worth  possessing,  and 
history  informs  us  that  they  were  mostly  noble 
champions  of  popular  rights.  But  at  length,  one 
of  England's  tyrants,  King  Edward  II.,  finding 
these  esquires  unsubmissive  to  his  sovereign  will, 
wrested  from  the  people  the  power  of  their  elec 
tion,  and  vested  it  in  the  crown  ;  and  there,  in  the 
crown  of  England,  it  has  remained  full  five  hun 
dred  years,  to  the  present  hour.  Copying  from 
the  institutions  of  England,  we  have  vested  the 
power  of  appointing  these  officers  also  in  the  ex 
ecutive.  As  a  natural  consequence,  the  number 
of  commissions  granted,  has  been  vastly  in 
creased,  and  the  dignity  of  the  office  immensely 
degraded  from  its  ancient  estate.  A  commission 
is  -anted  to  nearly  all  who  apply,  to  many  gra 
tuitously,  without  regard  to  their  qualifications  ; 
and  the  whole  number  now  holding  commissions 
throughout  the  State,  is  about  five  thousand. 
As  might  be  expected,  from  such  an  army  of 
executive  appointments,  many  very  unsuitable, 
and  some  perfectly  unscrupulous  and  desperate 
persons  have  been  appointed,  and  clothed  with 
magisterial  powers  over  the  persons  and  property 
of  their  fellow-citizens.  Such  persons  usually 
regard  the  office  not  so  much  as  one  of  honor,  as 
of  private  emolument — a  means  by  which  they 
are  to  get  their  living  out  of  the  public,  at  some 
rate  or  another.  With  this  view,  they  readily 
issue  their  warrants  upon  all  applications,  how 
ever  frivolous,  and  at  the  instigation  of  personal 
malice,  it  may  be,  on  the  part  of  the  complainant. 
By  a  natural  law,  action  produces  reaction, 
parties  are  formed,  new  difficulties  and  new 
issues  spring  up,  and  the  result  is  a  bountiful 
crop  of  law-suits,  which  destroys  the  peace  and 
happiness  of  the  community  around ;  and  while  it 
impoverishes  the  clients,  fills  the  pockets  of  the 
magistrate.  Thus,  an  officer  of  this  stamp,  es 
pecially  if  to  his  other  qualifications  be  added 
that  of  pettifogger,  as  sometimes  happens,  will 
manage  to  keep  a  whole  community  in  constant 
commotion,  and  boiling  like  a  cauldron  year  in 
and  year  out,  and  that,  too,  under  the  sacred  but 
prostituted  forms  of  law  and  justice.  Such  a 
magistrate,  though  professing  to  act  as  a  keeper  of 
the  peace,  is  really  the  greatest  disturber  of  the 
peace — a  piece  of  injustice — a  social  sliver  which 
keeps  up  a  constant  irritation  around,  and  there 
can  be  110  peace  until  he  is  withdrawn  from  his 
position.  By  him  the  temple  of  justice  is  con 
verted  into  a  mill  to  grind  clients  and  exact  toll. 
I  recollect  an  instance  where  a  peace-loving  citizen 
was  committed  to  jail  by  one  of  these  dogberrys, 
for  contempt  of  court,  because  he  refused  to 


proceed  in  a  criminal  action  after  it  was  all  settled ; 
and  when  he  applied  to  counsel  for  relief,  they 
told  him  there  was  no  remedy,  for  every  magis 
trate  was  supreme  judge  in  his  own  court,  as  to 
matters  of  contempt  of  court.  So  true  it  is  that 

"Man,  proud  man! 
Dressed  in  a  little  brief  authority ; 
Most  ignorant  of  what  he's  most  assured, 
Plays  such  f  .ntas'ic  tricks  before  high  Heaven 
As  make  the  angels  weep." 

In  the  practice  of  a  justice,  nothing  requires  a 
more  careful  discrimination  and  sound  judgment, 
than  to  decide  when  to  issue,  and  when  to  refuse 
to  issue  his  warrants  ;  for  it  is  clearly  as  much  his 
duty  in  some  cases  to  withhold,  as  in  others  to 
grant  them. 

A  young  man  of  my  acquaintance,  once  went 
to  a  justice,  in  high  excitement,  for  a  warrant  to 
arrest  one  with  whom  he  had  difficulty.  The 
justice  heard  his  story — told  him  to  go  home, 
sleep  upon  it  one  night,  and  come  to  him  the 
next  morning.  Pie  did  so,  and  at  once  exclaimed, 
"  I  thank  you,  Sir,  and  I  thank  God,  that  my 
request  last  evening  was  not  granted  ;  for  if  it  had 
been,  I  should  have  been  embroiled  in  a  quarrel 
which  might  have  lasted  during  my  life.  Now 
it  is  all  settled,  and  we  are  good  friends  !" 

What  a  different  result  would  have  ensued, 
had  he  applied  to  a  justice  of  the  stamp  above 
described. 

Various  attempts  have  been  made  to  remove 
justices  of  the  peace,  and  though  in  some  instances 
the  most  gross  fraud,  corruption,  oppression,  and 
malpractice  of  various  kinds  were  fully  proved, 
yet  no  one  has  ever  been  removed  under  our 
present  Constitution,  owing  to  an  ambiguity  in 
its  provisions  as  to  the  manner  of  removing  them, 
— one  construction  being  by  address — the  other 
by  impeachment.  One  of  the  most  remarkable 
cases  of  this  kind,  will  be  found  reported  at  length 
in  Senate  Document,  1850,  No.  10L  From  this, 
it  appears  that  the  citizens  of  one  of  the  interior 
towns  of  the  State,  finding  their  peace  and  quiet 
constantly  disturbed  by  petty  justice  courts,  and 
feeling  aggrieved  by  the  oppressive  decisions  of 
the  magistrate,  sent  to  the  legislature  a  petition 
containing  thirty- five  distinct  allegations,  signed 
by  a  majority  of  the  voters  of  the  town,  and 
praying  for  an  investigation.  This  petition  was 
presented  in  the  Senate,  and  referred  to  a  prelimi 
nary  committee,  to  report  what  court  of  investi 
gation  the  Constitution  required.  This  committee 
decided  to  proceed  by  address,  and  recommended 
the  appointment  of  a  joint  committee  of  the  Senate 
and  House,  consisting  of  nine.  Such  a  committee 
was  accordingly  appointed,  of  whom  the  honorable 
member  from  Adams,  (Mr.  Dawes,)  was  chairman. 


394 


JUSTICES    OF   THE   PEACE. 


[67th  day. 


Tuesday,] 


WATERS  —  CHAPIX. 


[July  26th. 


After  a  very  long  protracted  trial,  in  which  about 
one  hundred  and  fifty  witnesses  were  examined, 
and  eminent  counsel  were  heard  on  both  sides, 
the  committee  unanimously  reported  that  most  of 
the  allegations  were  sustained — that  the  respond 
ent  had  been  commissioned  as  justice  of  the  peace 
fifteen  years,  during  which  he  had  collected  a  vast 
many  fines,  not  one  dollar  of  which  had  he  paid 
over  to  the  State,  as  the  law  required,  but  appro 
priated  the  whole  to  his  own  use.  Also,  that  in 
some  cases  he  had  acted  both  as  magistrate  and 
counsel,  and  received  fees  for  services  in  both  ca 
pacities — that  he  had  used  his  office  for  gambling, 
and  otherwise  conducted  in  a  manner  calculated 
to  bring  the  government  and  laws  into  disrepute 
among  the  people.  Whereupon  the  committee 
unanimously  adopted  the  form  of  an  address  to 
his  excellency,  the  governor,  to  remove  said 
justice  from  office.  When  the  report  came  up 
for  consideration  in  the  Senate,  a  distinguished 
member  of  that  body,  no  w  on  the  supreme  bench 
of  this  State,  arose  and  opposed  its  adoption,  on 
the  ground  that  justices  of  the  peace  were  not 
removable  by  address ;  and  while  he  conceded 
fully  that  the  respondent  ought  to  be  removed, 
yet  his  regard  for  the  Constitution  would  not 
allow  him  to  see  it  perverted  for  that  purpose. 
Thus,  the  wishes,  feelings,  and  interests  of  the 
petitioners,  and  the  arduous  labors  of  that  com 
mittee,  involving  an  expense  to  the  State  and 
others  of  at  least  two  thousand  dollars,  were  all 
baffled,  and  fell  to  the  ground,  merely  from  a  de 
fect  in  our  present  Constitution ;  and  yet  some 
members  contend  that  it  needs  no  amendment. 
If,  with  such  a  strong  case,  the  attempt  to  re 
move  failed,  it  may  well  be  conceded  that  no 
attempt  can  ever  succeed.  Several  others  have 
been  made,  but  they  have  all  proved  alike  abor 
tive. 

In  this  regard,  compare  our  government  with 
the  executive  of  the  United  States.  When  a  new 
administration  comes  into  power,  the  president 
sweeps  by  the  board  secretaries,  treasurers,  for 
eign  ministers,  collectors  and  postmasters,  by  the 
thousand — all  at  one  fell  swoop  ;  and  that,  too, 
not  because  they  are  dishonest,  incapable,  or  un 
faithful,  but  simply  because  they  do  not  agree 
with  him  in  political  sentiment. 

But  here  in  Massachusetts,  there  is  not  power 
enough  in  either  the  executive,  judicial,  or  legis 
lative  departments  of  government,  or  in  all  com 
bined,  with  an  expenditure  of  thousands  of 
dollars,  to  turn  out  a  petty  justice  of  the  peace  for 
the  most  outrageous  frauds,  corruptions,  and  op 
pressions,  committed  for  fifteen  years  !  Such 
imbecility  on  the  part  of  any  government  is  cal 
culated  to  bring  it  into  disrespect  and  contempt 


among  the  people.     It  has  been  said  with  more 
truth  than  poetry, 

"  For  forms  of  government  let  fools  contest, 
That  which  is  best  administered,  is  best." 

The  adoption  of  the  resolutions  now  before  us 
will  remove  most  of  the  evils  of  the  existing  sys 
tem.  They  reduce  the  term  of  office  to  three 
years,  and  make  the  incumbents  elective  by  the 
people.  The  people  must  be  supposed  to  be  better 
judges  of  the  qualifications  of  candidates  than  his 
excellency,  who  was  perhaps  never  within  the 
purviews  of  the  town  where  they  reside.  They 
will  be  careful  to  select  those  who  have  least  in 
ducements  to  promote  litigation,  and  in  whose 
integrity  and  sound  judgment  they  have  full  con 
fidence.  This  litigation  will  be  checked,  both  in 
the  number  of  suits  instituted,  and  in  the  number 
of  appeals  taken.  Finally,  the  office  will  be  re 
stored  to  its  pristine  dignity  and  honor  among 
the  people. 

Mr.  CHAPIN,  of  Worcester.  I  rise  to  say  one 
word  in  relation  to  our  police  courts,  upon  which 
subject  I  find  a  difficulty  in  the  minds  of  some 
members  of  the  Convention.  There  is  an  act, 
passed  in  1852,  which  provides  that 

"The  several  police  courts  in  the  Common 
wealth  may  exercise  all  the  powers  and  perform 
all  the  duties  given  to  and  required  of  Justices  of 
the  Peace,  by  the  laws  of  this  Commonwealth,  in 
and  for  the  several  counties  in  which  said  courts 
are  respectively  located." 

Now  this  resolution  leaves  these  courts  pre 
cisely  as  they  are,  without  any  change  whatever. 
It  leaves  the  matter  of  the  police  courts  in  Wor 
cester  County,  and  in  the  other  counties,  pre 
cisely  where  it  should  be.  In  reference  to  the 
motion  which  is  already  made,  I  have  simply  to 
say,  that  I  hope  the  amendment  will  not  be 
adopted.  It  seems  to  me  that  this  resolution  pro 
vides,  justly  and  properly,  for  the  wants  of  the 
community.  The  only  complaint  which  has  been 
made  in  the  section  of  country  where  I  reside, 
grows  out  of  the  judicial  jurisdiction  of  j  ustices 
of  the  peace.  There  is  and  has  been  no  complaint 
in  regard  to  their  ministerial  duties.  Men  have 
been  appointed,  have  undertaken  to  try  cases, 
have  interfered  with  their  neighbor's  property  and 
liberty,  who  were  utterly  incompetent  to  perform 
the  sacred  duties  which  belong  to  the  office  of 
justice  of  the  peace.  All  we  ask,  and  all  the  peo 
ple  wish,  is,  that  those  officers  who  are  to  exercise 
these  duties,  which  are  so  important  to  the  citi 
zens  of  the  several  towns,  should  be  elected  by  the 
people  of  those  towns  ;  and  although  I,  for  one, 
do  not  agree  to  the  doctrine  of  electing  judicial 


67th  day.] 


JUSTICES   OF   THE   PEACE. 


395 


Tuesday,] 


LORD  —  DAWES  —  BUTLER. 


[July  26th. 


officers  when  their  decisions  are  to  be  final,  yet 
in  this  case  I  will  agree  to  it.  I  will  go  farther, 
and  say  that  I  wish  this  Convention  had  power 
to  amend  the  Constitution  of  the  United  States 
in  regard  to  the  election  of  postmasters.  Officers 
of  that  kind,  who  are  brought  into  such  intimate 
relations  with  the  people  of  the  several  towns, 
should  be  elected  by  the  people.  I  think  we 
have  provided  here  for  precisely  what  we  want ; 
and  here,  as  in  all  other  cases,  I  wish  to  have  our 
acts  as  free  as  possible  from  doubt  and  uncer 
tainty. 

Mr.  LORD,  of  Salem.  I  wish  to  submit  an 
amendment  or  two,  which  I  will  now  state.  I 
should  like  to  amend  the  first  resolve  by  striking 
out  the  words  "  are  now  exercised  by,"  and  in 
serting  the  words  "now  have,"  after  the  word 
"  peace,"  and  also  by  striking  out  the  words 
"  which  jurisdiction,  powers,  and  duties,  may  be 
changed  by  the  legislature,"  so  that,  as  amended, 
that  clause  will  read  as  follows  : — 

They  shall  have  the  same  jurisdiction,  powers, 
and  duties,  as  justices  of  the  peace  now  have : 
provided,  that  no  trial  justice  shall  act  as  such 
upon  his  ceasing  to  reside  in  the  town  in  which 
he  was  elected. 

The  reason  suggested  by  my  friend  from  An- 
dover,  yesterday,  in  relation  to  this  change,  that 
the  legislature  might  have  power  to  diminish  the 
jurisdiction,  seems  to  me  not  a  valid  reason  for 
retaining  this  phraseology,  because  the  power  to 
change  is  the  power  to  enlarge,  as  well  as  the 
power  to  diminish.  I  see  no  constitutional  ob 
jection,  if  that  phrase  is  put  there,  to  the  legis 
lature's  providing,  to  put  an  extreme  case,  for  the 
trial  of  the  very  highest  offences  by  a  justice  of 
the  peace,  who  should  preside  over  a  jury.  I 
think  the  legislature  have  not  had  power  to  make 
the  justice  of  the  peace  any  different  officer  from 
what  the  office  was  understood  to  be  at  the  time 
of  the  adoption  of  the  Constitution — an  office  of 
inferior  jurisdiction — and  which  could  not  be 
changed,  the  office  being  established  and  recog 
nized  by  the  Constitution. 

Mr.  DAWES,  of  Adams.  I  want  to  ask  the 
gentleman  from  Salem,  if  he  will  permit  me, 
whether,  since  this  Constitution  was  adopted,  the 
legislature  have  not  granted  or  conferred  power 
on  justices  of  the  peace  to  preside  at  jury  trials  ? 

Mr.  LORD.  I  think  the  legislature  has  con 
ferred  power  on  them  to  bring  in  six  men,  in 
certain  cases,  as  referees.  The  gentleman  for 
Wilbraham,  the  other  day,  told  us  that  we  had 
improved  our  institutions  which  we  brought  over 
here  from  England.  Here  is  an  illustration  of  it : 
the  trial  by  jury  is  so  changed  that  we  now  have 


three  men,  or  six  men,  instead  of  twelve.  But, 
Sir,  I  never  believed  that  six  men  made  a  jury. 
When  the  Constitution  says  that  the  right  of  trial 
by  jury  shall  be  preserved,  it  means  a  jury  of 
twelve  men,  not  a  jury  of  six  men,  or  of  three 
men,  cr  two  men,  or  one  man.  Calling  in  three 
or  four  men  does  not  make  them  a  jury,  according 
to  the  good  old  ideas  of  the  common  law.  If  the 
law  providing  what  is  called  a  jury  of  six,  had 
made  the  decision  of  those  six  final,  and  allowed  no 
appeal  to  a  real  constitutional  jury,  composed  of 
twelve  men,  I  should  not  hesitate  at  all  to  say 
that  such  provision  was  unconstitutional.  There 
was  no  more  right  to  reduce  a  jury  to  six  men, 
than  to  one  man. 

Mr.  DAWES.  I  would  like  to  be  permitted 
to  ask  the  gentleman  another  question.  Will  he 
tell  me  whether,  at  the  time  the  Constitution  was 
adopted,  a  justice  of  the  peace  had  the  right  to 
demand  of  a  pedlar  whether  he  had  a  license  ? 

Mr.  LORD.  I  think  it  was  competent  for  the 
legislature,  if  they  chose,  to  put  that  power  \ipon 
them. 

Mr.  DAWES.  That  does  not  answer  my  ques 
tion.  I  understood  the  premises  of  the  gentleman 
to  be,  that  the  legislature  could  not  confer  any  new 
power,  except  that  which  j  ustices  of  the  peace  had 
at  the  time  when  the  Constitution  was  formed. 
I  understand  that  there  has  been  a  course  of  legis 
lation  ever  since  the  Constitution  was  adopted, 
which  had  the  effect  to  change  or  diminish  the 
powers  of  justices  of  the  peace.  I  understand 
that  to  have  been  the  course  of  legislation  ;  it  may 
have  been  all  wrong.  The  gentleman  can,  per 
haps,  answer  me,  as  in  relation  to  justices  of  the 
peace,  he  thinks  the  jury  trials  with  six  men  are 
unconstitutional. 

Mr.  LORD.  I  did  not  say  that  it  was  an  un 
constitutional  provision  to  make  what  is  called  a 
jury,  with  six  men.  I  said  that  it  would  be  un 
constitutional  if  you  made  their  jurisdiction  final ; 
and  if,  in  a  suit  involving  more  than  twenty  dol 
lars,  you  could  have  no  other  tribunal  than  this 
six- men  jury. 

Mr.  BUTLER.  If  the  gentleman  will  permit 
me,  I  will  ask  him  a  question  upon  that  subject. 
I  should  like  to  have  him  tell  me  whether  the 
legislature  did  not  pass  a  practice  act,  by  which  a 
jury  of  twelve  men  could  be  summoned  by  a 
justice  of  the  peace  in  a  case  of  forcible  entry  and 
detainer— a  jury  of  twelve  men— a  jury  in  every 
sense  of  the  word,  equal  in  number  to  the  twelve 
apostles. 

Mr.  LORD.  I  am  not  responsible  for  an  act 
which  the  legislaure  passed  in  1851,  and  repealed 
again  in  1852.  I  do  not  propose  to  consider  that 
at  all.  And  in  answer  to  the  suggestion  of  the 


396 


JUSTICES    OF   THE   PEACE. 


[67th  day. 


Tuesday,; 


LOUD  —  DAWES. 


[July  26th. 


gentleman  from  Adams,  I  did  not  say  that  no 
change  whatever  could  have  heen  made  by  the 
legislature — no  duties  could  have  been  imposed. 
What  I  said,  or  what  I  meant  to  say,  at  any  rate, 
was,  that  the  judicial  jurisdiction  of  justices  of  the 
peace  could  not  be  elevated  by  the  legislature  into 
the  higher  judicial  duties,  such  as  devolve,  for 
example,  upon  the  supreme  judicial  court.  My 
proposition  was  this :  that  by  this  proposition,  in 
asmuch  as  you  say  in  your  Constitution,  by  ex 
press  words,  that  the  jurisdiction  may  be  changed, 
and  do  not  confine  it  to  subjects  of  like  nature, 
you  may  give  justices  of  the  peace  any  jurisdiction 
that  you  choose,  provided  you  keep  within  the 
provision  of  the  United  States  Constitution,  and 
the  Bill  of  Rights  in  our  own  Constitution,  if  that 
be  saved  to  us,  that  they  shall  not  have  any  juris 
diction  against  trial  by  jury.  But  I  have  no 
time  to  discuss  that  point  now. 

I  want  to  suggest,  also,  the  propriety  of  strik 
ing  out  the  words  "  the  issuing  of  warrants  in 
criminal  cases."  This  is  a  matter  which  ought 
to  be  amended  by  law.  Take  all  those  cases  in 
which  there  are  police  courts.  The  law  provides 
now  that  justices  of  the  peace  may  issue  warrants, 
and  those  warrants  shall  be  made  returnable  be 
fore  the  police  courts.  No  mischief  is  done  because 
these  justices  of  the  peace,  have  110  power  to 
try.  They  merely  issue  warrants,  and  those  war 
rants  arc  returnable  before  the  police  courts.  In 
those  places  where  you  have  police  courts,  you 
have  no  trial  justices ;  but  it  sometimes  happens 
in  Boston,  Salem,  Newburyport,  Lowell,  and 
New  Bedford,  and  perhaps  in  other  places  where 
there  are  police  courts,  that,  in  the  absence  of  the 
police  justice,  there  is  a  necessity  for  immediate 
action,  and  a  warrant  must  be  issued  by  some 
magistrate,  and  made  returnable  before  that  police 
court.  I  think  that  if  we  say,  by  a  constitutional 
provision,  that  no  magistrate  whatever,  in  the 
city  of  Boston,  shall  issue  a  warrant,  no  matter 
what  the  circumstances  may  be,  returnable  be 
fore  the  police  court,  that  will  be  unwise ;  and  it 
seems  to  me  that  the  whole  difficulty  is  remedied 
by  the  phrase  that  "  the  jurisdiction  of  all  such 
justices  shall  not  extend  to  the  hearing  or  trial  of 
any  causes."  The  difficulty  has  not  been  the 
issuing  of  warrants  made  returnable  before  any 
tribunal ;  but  the  only  difficulty  has  resulted  from 
the  attempt  to  try  causes  by  incompetent  magis 
trates.  As  it  is  not  in  order  now,  to  move  the 
amendments  which  I  have  suggested,  I  have 
merely  made  these  remarks ;  and  if  they  strike 
other  persons  favorably,  they  can  move  them.  I 
tried  very  hard  yesterday,  but  I  could  not  get  a 
vote  of  the  Convention  in  favor  of  my  proposi 
tions.  Although  the  Convention  rejected  them, 


I  still  think  there  is  good  sense  in  them ;  and 
this  is  in  accordance  with  the  legislation  of  the 
last  fifteen  years,  upon  the  subject  of  the  police 
courts,  and  in  accordance  with  public  sentiment. 

When  you  provided  that  trial  justices  should  be 
deemed  to  have  vacated  their  office  when  they 
removed  from  the  town  by  which  they  were 
elected,  it  seemed  to  me  that  the  purpose  was  to 
prevent  justices  elected  in  one  town  from  having 
jurisdiction  in  another  town  ;  and  the  proposition 
that  I  made,  was  this  :  that  where  all  the  parties 
— of  course  I  mean  parties  to  a  civil  cause — have 
a  residence  within  the  Commonwealth,  then  the 
trial  justice  shall  not  have  jurisdiction,  unless 
some  one  of  them  has  a  residence  within  his 
town.  If  there  are  two  parties,  it  should  be 
either  the  plaintiff  or  the  defendant ;  or  if  there 
are  three  parties,  then  it  should  be  either  the 
plaintiff,  or  defendant,  or  trustee.  However  many 
parties  there  may  be,  if  there  should  be  three  or 
four  defendants  or  trustees,  if  they  all  have  a 
residence  in  the  town  in  which  the  justice  re 
sides,  then  he  shall  have  jurisdiction.  That  is 
just  what  we  say  in  relation  to  police  courts. 
Wherever  we  establish  police  courts,  if  both  par 
ties  reside  in  the  town,  then  the  justice  has  juris 
diction. 

If  I  understand  the  amendment  that  was  read, 
and  which  is  offered  as  a  substitute,  I  am  inclined 
to  think  that  that  is  the  best  proposition — that 
the  legislature  should  have  power  to  classify  and 
define  the  powers  of  the  several  kinds  of  justices 
of  the  peace — and  it  seems  to  me  that  that  is  a 
matter  in  regard  to  which  we  ought  to  have 
some  constitutional  provision. 

Mr.  DAWES.  There  are  two  or  three  objec 
tions  to  this  proposition,  in  regard  to  which  I 
wish  to  say  a  few  words ;  and  first,  as  to  the 
jurisdiction.  The  apprehension  of  the  gentle 
man  from  Salem,  seems  to  me,  to  be  unfounded. 
Our  present  Constitution  leaves  the  jurisdiction 
of  all  the  courts  to  the  legislature.  It  establishes 
your  supreme  judicial  court,  and  provides  for 
such  other  courts  as  the  legislature  may  see  fit  to 
adopt.  The  Constitution,  therefore,  clothes  the 
legislature  with  the  power  to  create  just  such 
courts  as  they  please.  It  does  not  even  define 
the  jurisdiction  of  the  supreme  judicial  court,  but 
leaves  the  matter  entirely  open  to  the  legislature. 
The  legislature  may  clothe  it  with  few  or  with 
many  powers.  They  may  make  it  a  higher  court, 
for  the  hearing  of  capital  cases,  or  for  the  hearing 
and  deciding  questions  of  law,  only,  or  for  the 
hearing  of  jury  trials  also. 

It  was  thought,  by  members  of  the  Committee 
to  whom  this  matter  was  yesterday  committed, 
as  it  was  by  those  who  framed  the  old  Corstitu- 


67th  day.] 


JUSTICES    OF   THE   PEACE. 


397 


Tuesday,] 


DAWES  —  LORD  —  MOKTOX. 


[July  26th. 


tion,  that  it  was  best  to  leave  this  matter  of  juris 
diction  entirely  to  the  legislature ;  and  as  it  was 
apprehended  that  no  danger  would  arise  in  rela 
tion  to  the  other  courts,  so  it  was  not  appre 
hended  that  any  danger  would  arise  if  this  mat 
ter  was  left  to  the  legislature  also. 

Mr.  LORD.  I  desire  to  ask  the  gentleman 
whether  he  believes  it  would  be  competent  for  the 
legislature  to  make  justices'  courts  courts  of  re 
cord? 

Mr.  DAWES.  Undoubtedly.  But  I  will  ask 
the  gentleman  from  Salem  a  question  which  will 
answer  his,  and  that  is,  whether  he  is  perfectly 
certain  that  they  are  not  courts  of  record  now  ? 

Mr.  LORD.     They  are  not. 

Mr.  DAWES.  The  supreme  court,  I  believe, 
has  given  an  opinion  upon  that  point,  and  that 
must  decide  the  matter  between  us. 

But,  to  proceed.  The  gentleman  wishes  to 
amend  by  giving  justices  power  to  issue  warrants 
in  criminal  cases.  Why,  Sir,  the  great  evil  com 
plained  of,  and  to  be  remedied,  is  the  power  which 
justices  have  all  over  the  Commonwealth  to  issue 
criminal  warrants.  I  do  not  believe,  with  the 
gentleman  from  Salem,  that  the  only  difficulty  is 
in  trying  criminal  cases ;  cases  are  instituted  that 
ought  never  to  be  tried  before  any  justice  of  the 
peace.  I  think  it  is  a  matter  of  quite  as  much 
moment  to  determine  when  a  warrant  shall  be 
issued,  as  it  is  who  shall  try  the  cause.  When 
once  instituted,  the  case  must  be  tried,  however 
improperly  begun.  I  do  not  think  that  every 
man  who  holds  the  office  of  justice  of  the  peace 
should  have  the  power  to  issue  a  warrant  against 
anybody  that  he  pleases.  I  think  the  community 
has  felt  the  evil  of  this  long  enough,  and  a  reme 
dy  will  not  be  effected  unless  we  cut  off  this 
power  to  issue  warrants.  If  one  trial  justice  is 
appointed  in  every  town,  and  as  many  more  as 
the  increased  ratio  of  population  may  require,  I 
think  that  the  police  of  the  towns  will  be  in  safe 
hands.  As  has  been  suggested  by  another  gen 
tleman,  I  think  that  in  the  issuing  of  warrants, 
these  justices  lend  themselves  more  to  the  gratifi 
cation  of  malice  and  ill  will,  and  spite  of  neighbor 
against  neighbor,  than  to  the  promotion  of  the 
ends  of  justice  in  the  trial  of  causes  ;  and  I  am 
glad  that  the  Convention  has  come  back  so  nearly 
as  it  has  to  the  legislation  of  1850,  when  the  act 
was  passed  in  relation  to  trial  justices.  I  believe 
that  that  was  a  good  law,  and  had  it  lived  until 
this  time  it  would  have  brought  about  the  good 
fruits  which  we  are  now  seeking.  As  to  the 
mode  of  electing  justices  of  the  peace,  I  have  no 
particular  choice. 

But  there  is  another  objection  of  the  gentleman 
from  Salem  in  reference  to  their  jurisdiction, 


which,  I  think,  should  be  left  to  the  legislature  ; 
and  that  is  :  that  none  of  the  justices  should  have 
jurisdiction  unless  one  of  the  parties  resides  in 
the  town  for  which  the  justice  is  elected.  Sir, 
the  gentleman  forgets  that  justices  are  now  county 
officers,  having  jurisdiction  all  over  the  county  ; 
and  I  am  not  aware  of  any  evil  ever  having  arisen 
from  the  fact  that  a  justice  of  the  peace  can  sum 
mon  a  man  before  him  from  another  town  in  the 
county.  How  will  the  gentleman's  suggestion 
operate  in  practice  ?  In  many  of  the  towns  there 
are  not  to  be  found  men  of  the  legal  profession  ; 
and,  unless  justices  have  this  power,  and  a  man 
wishes  a  lawyer  to  conduct  his  case,  or  collect 
such  debts  as  he  has  against  his  own  townsmen, 
he  must  go  to  considerable  additional  expense  in 
bringing  a  professional  man  from  a  distance.  If 
the  provision  is  limited  to  the  county,  so  that  no 
justice  in  one  county  shall  summon  a  man  from 
another  county,  I  think  the  limit  will  be  perfectly 
safe. 

I  hope,  therefore,  that  the  resolves  will  pass. 
I  am  not  in  favor  of  the  amendment  of  the  gen 
tleman  from  Williamstown,  for  it  seems  to  me 
that  it  would  only  be  perpetuating  and  establish 
ing  what  is  felt  to  be  a  growing  evil  in  the  Com 
monwealth.  I  should  have  thought  that  nobody 
could  have  been  so  blind  to  the  evil.  In  many 
towns  of  the  Commonwealth  we  have  nothing 
more  than  a  perfect  mockery  of  justice.  The 
law,  in  consequence,  has  been  brought  into  disre 
spect,  and  has  been  made  the  instrument  of  pri 
vate  malice  and  revenge,  so  that  in  many  of  our 
towns  the  very  name  of  "justice's  court"  has  be 
come  a  stench  in  the  nostrils  of  all  respectable 
men ;  and  I  hope,  if  this  evil  cannot  be  remedied 
in  any  other  way  than  by  a  constitutional  provis 
ion,  that  we  may  have  such  a  provision. 

Mr.  WALKER,  of  North  Brookfield,  moved 
that  all  farther  debate  on  this  subject  cease  at 
fifteen  minutes  past  eleven  o'clock. 

The  motion  was  agreed  to. 

The  question  was  then  taken  on  the  amendment 
of  Mr.  Butler,  and  it  was  agreed  to. 

The  question  next  recurred  on  the  amendment 
offered  by  the  gentleman  from  Williamstown, 
(Mr.  Duncan). 

Mr.  MORTON,  of  Taunton.  I  think  the  sub 
ject  embraced  in  these  resolves  is  one  of  very 
great  practical  importance.  We  spent  a  good 
deal  of  time  yesterday  in  the  examination  of  this 
subject,  and  took  a  great  many  votes ;  but  it  was 
very  apparent,  then,  that  the  subject  was  not 
sufficiently  matured.  Neither  the  Committee  to 
which  it  was  referred,  nor  the  Convention,  had 
digested  the  matter  so  as  to  arrange  it  satisfacto 
rily;  and,  notwithstanding  the  anxiety  of  the 


398 


JUSTICES    OF   THE   PEACE. 


[67th  day. 


Tuesday,] 


MORTON  —  BUTLEI*  —  HATHAWAY  —  HALLETT. 


[July  26th. 


Convention  to  close  their  business,  they  thought 
it  expedient  to  recommit  the  suhject  to  a  Special 
Committee,  and  I  am  happy  to  bear  my  testimony 
in  favor  of  the  labors  of  that  Committee.  I  fear 
that  the  subject  has  not  commanded  quite  so  much 
attention  on  the  part  of  the  Convention  as  it  de 
serves.  I  think  that  the  multiplication  of  justices 
is  felt  to  be  a  great  and  growing  evil,  and  that  the 
resolves  reported  by  the  Committee  are  well  cal 
culated  to  remedy  many  of  the  evils  complained 
of.  I  approve  of  it  from  the  beginning  to  the 
end  ;  and  yet  I  think  there  is  one  proposition  in 
it  which  it  seems  to  me  did  not  command  quite 
sufficient  attention  on  the  part  of  the  Committee. 
In  the  first  resolution  it  is  provided,  that "  no  trial 
justice  shall  act  as  such  upon  his  ceasing  to  reside 
in  the  town  in  which  he  was  elected."  That  pro 
vision  is  a  very  proper  one ;  but  it  might  so  hap 
pen  that  a  justice  might  leave  the  town  in  which 
he  was  elected,  without  any  ability  to  substitute 
any  one  in  his  place ;  and  the  substance  of  the 
amendment  I  was  about  to  propose  is,  that  his 
removing  from  the  town  shall  vacate  the  office, 
and  leave  somebody  else  to  be  elected.  I  move 
to  strike  out  all  after  the  word  "  Provided,"  in 
the  first  resolution,  and  insert : — 

That  every  trial  justice  who  shall  remove  from 
the  town  in  which  he  was  elected,  shall  thereby 
vacate  his  office. 

Mr.  BUTLER,  of  Lowell.  I  rise  merely  to  say 
that  that  matter  has  been  called  to  the  attention  of 
some  members  of  the  Committee  since  they  re 
ported,  and  they  quite  agree  to  it.  The  words 
used  ia  the  Report  were  not  well  adapted  to  the 
object  in  view,  and,  for  one,  I  am  much  obliged 
to  the  gentleman  from  Taunton  for  the  amend 
ment  he  has  suggested. 

The  amendment  was  agreed  to. 

Mr.  HATHAWAY.  I  rise  for  the  purpose  of 
moving  an  amendment  to  these  resolves,  with  the 
view  of  perfecting  them,  as  far  as  they  can  be 
perfected,  before  the  question  is  taken  on  the  mo 
tion  to  strike  out.  I  move  to  strike  out  the  words 
"  or  the  issuing  of  warrants  in  criminal  cases," 
from  the  second  resolution,  in  the  last  line.  My 
reasons  for  making  this  motion  are  these  :  If  the 
Convention  will  notice  the  first  resolution,  they 
will  perceive  that  no  town  is  to  have  more  than 
one  trial  justice,  unless  it  have  more  than  two 
thousand  inhabitants.  There  are  a  great  many 
towns  in  the  Commonwealth  which  border  upon 
other  States,  many  of  which  would  only  be  en 
titled  to  one  trial  justice  ;  and  it  seems  to  me,  that 
in  such  cases  there  are  many  circumstances  which 
might  arise  whereby  the  ends  of  public  justice 
would  be  promoted  by  giving  to  justices  of  the  peace 


the  power  to  issue  a  warrant  for  the  apprehension 
of  the  party,  but  would  not  give  any  justice  of  the 
peace  the  power  to  try  the  matter.  Your  trial 
justice  may  be  absent  from  home,  or  sick,  or  in 
other  ways  be  prevented  from  issuing  a  warrant  in 
a  case  of  urgency,  and  yet  it  may  be  a  matter  of 
necessity  that  a  person  should  be  arrested  imme 
diately.  I  happen  to  live  but  a  few  miles  from 
the  border  of  the  State  of  Rhode  Island,  and  with 
the  present  facilities  for  expeditious  travelling, 
there  would  be  nothing  easier  than  for  an  offender 
to  step  beyond  the  boundary  of  the  State.  I  think 
that  no  possible  inconvenience  could  result  to  the 
community  from  granting  to  a  justice  of  the  peace 
the  right  and  power  to  issue  warrants.  The  great 
difficulty  has  been  that,  heretofore,  trials  before 
ustices  of  the  peace  have  been  anything  but  what 
trials  ought  to  be,  and  their  courts  anything  but  a 
court  of  justice.  Trials  in  justices'  courts  fre 
quently  have  been  such,  that  you  would  dignify 
them  if  you  called  them  by  no  worse  name  than 
mock  trials  ;  and  I  have  no  question  that,  in  many 
instances,  and  frequently,  too,  warrants  have  been 
by  them  issued  because  of  the  miserable  small 
sum  in  the  shape  of  fees  they  received  therefor, 
thus  gratifying  their  avaricious  passions,  if  they 
have  not  been  sometimes  issued  for  the  gratifica 
tion  of  a  still  viler  passion — that  of  malice. 

It  seems  to  me  that  the  public,  as  well  as  many 
of  the  municipal  communities,  may  find  them 
selves  surrounded  with  great  difficulty,  unless 
some  officers  besides  the  trial  justices,  have  the 
right  to  issue  warrants  in  criminal  cases.  When 
the  question  of  the  basis  of  the  House  of  Rep 
resentatives  was  under  discussion,  it  was  said 
that  there  were  sixty-four  towns  containing  less 
than  one  thousand  inhabitants,  and  I  have  no 
doubt  that  there  is  at  least  sixty-four  towns 
more,  which  do  not  contain  two  thousand  inhab 
itants.  If  that  is  so,  then  you  have  at  least  one 
hundred  and  twenty- eight  towns,  more  than  one- 
third  of  the  whole,  which  would  have  but  one 
trial  justice,  and  only  one  person,  in  each  of  those 
towns,  having  the  right  to  issue  warrants  ;  and  if, 
in  the  providence  of  Heaven,  the  trial  justice  in 
such  towns  should  be  sick,  or  if  he  should  be 
absent,  no  matter  how  high  the  offence  that  may 
have  been  perpetrated,  or  with  which  a  man  may 
be  charged,  the  individual  charged  with  the  com 
mission  of  it  may  escape  for  the  want  of  a  mag 
istrate  who  is  authorized  to  issue  a  warrant  for 
his  arrest.  Hence,  I  think  it  is  proper  to  strike 
out  these  words. 

Mr.  HALLETT,  for  Wilbraham.  I  am  sure 
my  friend  from  Freetown,  (Mr.  Hathaway,)  will 
not  insist  upon  his  amendment,  if  he  will  but 
look  at  it  for  a  moment.  This  provision  is  the 


67th  day.] 


JUSTICES  OF   THE   PEACE. 


399 


Tuesday,] 


HALLETT  —  HATHAWAY  —  BUTLER  —  LORD. 


[July  26th. 


most  important  amendment  suggested  in  regard 
to  the  judicial  department  which  is  in  the  hands 
of  justices  of  the  peace.  You  have  now  the 
great  principle,  the  interposition  of  the  grand 
jury,  by  which  no  man  can  be  charged  for  crime 
in  your  courts,  unless  his  case  has  been  heard 
beforehand — without  his  knowledge,  to  be  sure — 
before  the  grand  jury  ;  yet  you  have  now,  and 
will  have,  if  this  amendment  prevails,  some  eight 
or  nine  thousand  persons  who  have  it  in  their 
power,  maliciously,  or  for  other  motives,  privately, 
and  unknown  to  any  man,  to  issue  a  warrant  by 
which  a  man  may  be  taken  out  of  his  bed,  and 
away  from  his  family,  and  carried  to  prison,  and 
there  be  confined  until  the  trial  justice  can  be 
found.  And,  unless  you  can  prove  that  the  jus 
tice  issued  the  warrant  maliciously  or  corruptly, 
the  man  has  no  remedy  whatever.  In  that  case, 
then,  we  shall  be  in  the  hands  of  every  ma,n  who 
chooses  to  make  a  causeless  charge  against  an 
individual,  and  your  great  principle,  a  presenta 
tion  by  a  grand  jury,  the  great  bulwark  of  the 
liberties  of  the  people,  becomes  entirely  worth 
less  ;  because,  by  this  process  of  complaint,  you 
can  always  charge  any  man  you  please  with  an 
offence — and  to  charge  with  crime  an  innocent 
man,  is  as  bad  for  him,  as  is  the  conviction  of  a 
guilty  man  for  him.  If  this  provision  remains, 
that  great  evil  is  taken  away,  and  what  is  the 
inconvenience  ?  It  is  almost  impossible  for  cases 
to  arise  where  you  cannot  get  a  warrant,  and  if 
you  cannot  get  a  warrant  in  season,  the  officer 
can  detain  a  person  until  a  warrant  can  be  found. 
I  hope  the  Convention  will  not  change  this  most 
important  provision. 

Mr.  HATHAWAY.  One  word  only,  in  re 
ply  to  the  remarks  of  the  gentleman  for  Wilbra- 
ham.  I  do  not  propose  to  permit  these  magis 
trates  to  try  any  causes,  nor  do  I  propose  to  so 
arrange  it,  so  that  a  man  upon  being  arrested  by 
a  warrant  issued  by  a  justice  who  is  not  a  trial 
justice,  shall  be  thrown  into  prison,  to  wait  until 
the  return  or  recovery  from  sickness,  of  the  trial 
justice  of  the  town  where  he  happens  to  be  ar 
rested.  I  do  not  propose  any  such  thing  ;  for  if 
the  trial  justice  of  one  town  is  absent,  another 
can  be  found  in  an  adjoining  town,  not  ten  miles 
distant  probably.  I  would  not  put  a  power  into 
the  hands  of  a  justice  which  could  be  so  abused ; 
by  no  means.  I  merely  would  give  the  magis 
trate  the  power  of  issuing  warrants,  so  that, 
where  there  is  really  an  offence,  he  can  arrest  the 
criminal. 

Mr.  BARTLETT,  of  Boston.  The  clause  un 
der  debate  attracted  the  attention  of  some  mem 
bers  of  the  Committee,  and  it  is  really  a  balance 
question. 


[Here  the  President's  hammer  fell,  the  hour  of 
eleven  o'clock  and  fifteen  minutes  having  arrived, 
at  which  the  Convention  had  ordered  that  the 
question  should  be  taken.] 

The  question  first  recurring  upon  the  amend 
ment  offered  by  the  gentleman  from  Freetown, 
(Mr.  Hathaway,;  it  was  put  and  decided  in  the 
negative,  upon  a  division — ayes,  43  ;  nays,  144. 

So  the  amendment  was  rejected. 

The  question  next  recurring  upon  the  amend 
ment  offered  by  the  gentleman  from  Williams- 
town,  (Mr.  Duncan,)  it  was  put,  and  decided  in 
the  negative. 

So  the  amendment  was  rejected. 

The  question  was  then  taken  upon  ordering 
the  resolves,  as  amended,  to  a  second  reading,  and 
it  was  decided  in  the  affirmative. 

The  PRESIDENT.  The  resolves  will  take 
their  second  reading  to-morrow. 

Mr.  BUTLER,  of  Lowell.  As  this  question, 
has  been  fully  discussed  and  considered,  I  there 
fore  move,  that  the  rule  requiring  the  resolves  to 
take  their  second  reading  to-morrow  be  suspend 
ed,  and  that  they  take  their  final  reading  at  this 
time,  so  that  they  can  pass  into  the  hands  of  the 
Revising  Committee,  who  are  now  waiting  for 
them. 

Mr.  LORD,  of  Salem.  Have  these  resolves 
been  read  ?  I  had  supposed  that  we  had  done 
nothing,  except  to  substitute  this  Report  for  the 
Report  of  the  first  Committee. 

The  PRESIDENT.  The  whole  subject  was 
referred  to  a  Special  Committee,  and  the  Com 
mittee  made  their  Report,  and  the  Convention 
have  acted  upon  it,  and  ordered  it  to  a  third  read 
ing.  Now  the  gentleman  from  Lowell,  (Mr. 
Butler,)  moves  to  suspend  the  rule  which  re 
quires  their  second  reading  to-morrow,  and  put 
them  upon  their  final  passage  at  this  time. 

Mr.  LORD.  I  desire  to  know  if  the  Standing 
Committee  of  this  body,  which  had  this  matter 
under  consideration,  and  of  which  the  gentleman 
from  Lenox,  (Mr.  Bishop,)  was  the  chairman, 
did  not  report  a  series  of  resolves,  and  whether 
these  resolves  were  not  reported  as  an  amendment 
to  those  ?  The  amendment  offered  by  the  gentle 
man  from  Bernardston,  (Mr.  Cushman,)  was 
under  discussion,  and  after  the  first  resolves  were 
amended,  they  were  referred,  and  afterwards  the 
resolves  which  have  been  now  considered,  were 
reported  as  an  amendment  to  the  original  Report 
of  the  Committee. 

The  PRESIDENT.  If  the  gentleman  from 
Salem  will  look  at  the  Report,  he  will  see  that 
the  whole  matter  was  referred  to  the  Special 
Committee,  and  the  whole  subject  was  reported 
back  in  a  new  draft.  The  question  is  now  upon 


400 


JUSTICES    OF   THE   PEACE. 


[67th  day. 


Tuesday,] 


LORD  —  WHITNEY. 


[July  26th. 


the  motion  made  by  the  gentleman  from  Lowell, 
(Mr.  Butler,)  to  suspend  the  rules,  and  put  the 
resolves  upon  their  final  passage. 

The  question  was  taken,  and  decided  in  the 
affirmative. 

So  the  rules  were  suspended. 

The   question   then  recurring  upon  the   final 


Mr.  LORD,  of  Salem.  I  would  inquire  of  the 
Committee  who  reported  this,  whether,  if  a  va 
cancy  in  the  delegation  in  congress  should  hap 
pen  in  the  early  part  of  December,  we  shall  be 
obliged  to  wait  until  the  next  November,  until  a 
writ  can  issue  for  a  new  election,  whether  the 
vacancy  is  caused  by  resignation  or  otherwise  ? 
Now  we  have  representative  districts  for  mem 
bers  of  congress,  and  we  have  provided  that  they 
shall  be  chosen  by  a  plurality  vote,  and  it  was 
said,  when  that  matter  was  under  discussion,  that 
the  districts  included  representatives  to  congress. 
In  my  judgment  it  does  include  them.  They  are 
to  be  chosen  by  a  plurality  of  votes,  as  we  have 
provided  in  the  Constitution  ;  and,  therefore,  the 
manner  of  election  is  provided  for,  although  the 
election  itself  is  not  strictly  according  to  the  terms 
provided  for.  But,  whether  it  does  or  does  not, 
I  desire  to  understand  it.  The  language  of  the 
resolution  is,  "  whose  election  is  provided  for." 
If  it  were  "  whose  office  is  created  by  the  Con 
stitution,"  then  I  should  have  no  difficulty.  But 
the  Constitution  does,  to  some  extent,  provide  for 
their  election,  and  when  the  plurality  question 
was  under  consideration,  every-body  agreed  that 
the  word  "  district "  covered  representatives  to 
congress.  "Whether  it  does  or  does  not,  I  do  not 
know.  If  it  does  not,  it  is  all  well  enough,  but 
if  it  does,  then  the  resolve  is  objectionable. 

I  desire  to  ask  the  gentleman  from  Taunton, 
(Mr.  Morton,)  whether  the  effect  of  his  amend 
ment,  which  provides  that  the  removal  of  a  trial 
justice  from  the  town  in  which  he  resides  shall 
vacate  his  office,  will  prevent  the  completion,  by 
him,  of  the  trial  of  causes,  or  the  finishing  up  of 
cases  already  commenced  before  him  before  his 
removal,  and  pending  at  the  time  of  his  removal  ? 
I  should  like  to  knowr  what  his  construction  of 
it  is? 

Mr.  WHITNEY,  of  Conway.  I  rise  to  renew 
the  amendment  suggested  by  the  gentleman  from 
Freetown,  (Mr.  Hathaway,)  on  a  previous  read 
ing  of  these  resolves.  I  have  not  had  the  benefit 
of  the  previous  discussion,  but  it  seems  to  me  that 
the  amendment  is  an  important  one.  I  think  you 
will  find  that  there  are  one  hundred  and  seventy 
towns  in  this  Commonwealth,  which  will  have 
but  one  man,  according  to  this  resolve,  who  will 
possess  the  power  of  issuing  warrants.  Now,  Sir, 


suppose  that  it  should  happen — as  in  many  cases 
it  will — that  a  man  whom  the  people  elect  as  a 
justice  shall  not  be  disposed  to  issue  a  warrant ; 
take,  for  instance,  the  violation  of  the  license  law, 
when  a  tavern  keeper  is  the  justice.  Now,  I 
think,  upon  every  principle,  there  should  be  more 
than  one  man  in  a  town  of  two  thousand  inhabi 
tants,  who  has  the  right  to  issue  a  warrant.  I 
would  not  increase  the  number  of  justices  em 
powered  to  try  cases,  but  I  would  have  more 
than  is  here  proposed,  authorized  in  criminal 
cases,  and  empowered  to  issue  warrants. 

Then,  again,  look  to  the  condition  of  the  border 
towns  of  the  Commonwealth.  There,  a  man  who 
has  committed  a  crime,  may  run  across  the  line 
before  he  can  be  arrested,  if  it  should  happen 
that  the  one  trial  justice  is  sick  or  absent  for  a 
time.  There  would  be  a  necessity  that  he  should 
be  at  home  at  all  times,  if  he  is  the  only  man 
who  can  institute  proceedings.  There  is  no  man 
who  does  not  leave  the  town  at  some  time  or 
another ;  and  in  that  case,  a  criminal,  happening 
then  to  commit  crime,  could  get  out  of  the  Com 
monwealth  before  he  could  be  arrested. 

There  is  a  good  deal  in  this  amendment,  though 
it  did  not  meet  with  much  favor  before.  It  strikes 
me  as  an  amendment  of  great  importance,  and  one 
which  should  be  considered  before  we  pass  these 
resolves.  If  you  give  to  one  man,  and  only  one 
man,  the  right  to  issue  warrants,  it  will  introduce 
a  new  element  into  our  elections.  It  will  trouble 
us  all  over  the  Commonwealth.  The  question 
will  be  asked  of  a  candidate,  whether  he  will 
issue  a  warrant  in  this  matter  or  that  matter, 
before  he  can  be  elected  a  trial  justice.  This 
matter  will  return  to  trouble  its  inventors ;  and  it 
becomes  you,  and  it  becomes  me,  and  others,  to 
consider  this  matter  well  before  we  act  upon  it.  I 
undertake  to  say,  that  if  you  make  this  provision 
a  constitutional  one — and  therefore  out  of  the  reach 
of  the  legislature  for  the  next  twenty  years — you 
will  greatly  inconvenience  the  people  of  Massa 
chusetts,  and  subject  them  to  trouble  in  the  exe 
cution  of  their  criminal  laws.  It  has  been  decided 
that  in  this  Commonwealth  a  man  has  a  right  to 
defend  himself  against  arrest,  unless  the  officer 
making  the  attempt  has  a  warrant  to  justify  him. 
If  a  man  pursues  me  for  a  crime,  without  a  war 
rant  or  advertisement,  I  have  a  right  to  defend 
myself  against  arrest.  In  one  case,  I  believe,  life 
was  taken,  and  the  courts  discharged  the  criminal 
on  the  ground  that  no  warrant  had  issued.  I 
would  not,  therefore,  make  it  so  difficult  to  pro 
cure  a  warrant.  Now,  it  will  be  very  difficult  to 
obtain  warrants  in  many  cases,  if  this  provision  is 
adopted. 

I  therefore  propose,  that  in  this  second  resolu- 


67th  day.] 


JUSTICES    OF   THE  PEACE. 


401 


Tuesday,] 


WHITNEY  —  BARTLETT  —  GOOCH. 


[July   26th. 


tion,  all  and  after,  and  including  the  word  "  or," 
be  stricken  out.  And  I  hope  this  amendment 
will  prevail.  The  gentleman  for  Wilbraham,  (Mr. 
Hallett,)  says  we  have  the  grand  jury.  It  is  true, 
and  we  have  the  district- attorney.  But  that 
does  not  meet  the  wants  of  the  case.  There  are 
many  cases  occurring  which  require  an  immediate 
arrest.  Yet  none  ot  these  officers  are  bound  to 
arrest  a  man  unless  a  warrant  is  issued.  They 
can  take  the  responsibility  of  arresting  a  man  if 
they  choose ;  but  you  cannot  compel  them  to  take 
the  responsibility.  I  see  no  reason,  therefore,  why 
this  power  should  not  be  committed  to  your  jus 
tices  of  the  peace.  There  has  been  no  abuse  of 
the  power,  heretofore,  that  I  can  learn  ;  and  I  can 
see  no  good  reason  for  taking  the  power  from  them. 
It  is  certainly  important  that  more  than  one  should 
be  provided  for  a  town  of  two  thousand  inhab 
itants.  There  are  many  cases  where  much  in 
convenience  would  be  occasioned  by  this  provision. 
Most  of  the  towns  in  the  Commonwealth,  with  a 
population  of  2,000  inhabitants,  cover  a  large  ex 
tent  of  territory,  and  the  appointment  of  more  than 
one  officer  with  the  power  of  issuing  warrants,  is 
a  matter  of  almost  absolute  necessity.  I  move, 
therefore,  to  strike  out  at  the  close  of  the  second 
resolution  the  words  "  or  for  issuing  warrants  in 
criminal  cases." 

Mr.  BARTLETT,  of  Boston.  I  was  about  to 
state  upon  a  former  occasion,  that  these  questions 
were  not  lost  sight  of  in  the  Committee  to  which 
this  matter  was  referred ;  but  the  consideration 
which  probably  had  much  influence  in  control 
ling  this  action,  was,  that  the  proposition  of  the 
gentleman  from  Con  way,  when  weighed  and  ex 
amined,  must  result  in  balancing  convenience 
against  personal  liberty.  The  theory  upon  which 
this  provision  for  distributing  the  powers  of  jus 
tices  of  the  peace  rests,  is  that  you  are  to  provide 
a  class  of  magistrates  who  are,  from  their  expe 
rience  and  more  elevated  character,  better  fitted 
for  the  trial  of  causes,  and  exercising  judicial  func 
tions,  than  a  large  portion  of  the  persons  usually 
created  justices  of  the  peace. 

Now,  Sir,  the  case  put  by  the  gentleman  from 
Freetown,  (Mr.  Hathaway,)  is  undoubtedly  a 
very  strong  one  in  support  of  the  argument 
founded  on  inconvenience.  It  is  no  doubt  true 
that  in  cases  where  the  party  to  be  arrested  is  on 
the  borders  of  the  Commonwealth,  or  of  different 
towns,  he  might  escape  before  a  warrant  could  be 
obtained  for  his  arrest ;  but  when  you  take  into 
view  the  fact  that  your  police  force — your  con 
stables — are  to  a  certain  extent,  authorized  to 
arrest  without  a  warrant,  and  bring  the  accused 
before  a  magistrate ;  and  as,  practically,  in  all  cases 
of  well  ascertained  guilt  the  officer  incurs  slight 

27 » 


risk,  which  rarely  deters  him  from  action,  I  think 
the  suggested  defect  is  not  of  grave  importance. 
At  all  events,  cases  of  the  character  supposed,  will 
be,  I  should  suppose,  unfrequent ;  and  I  ask  gen 
tlemen  here,  whether  it  is  worth  while,  in  order 
to  meet  such  contingencies,  to  place  this  power  of 
issuing  warrants  of  arrest  in  the  hands  of  all  jus 
tices  of  the  peace  ? — a  numerous  class  of  officers, 
many  of  them  appointed  by  the  governor  by  way 
of  compliment,  or  for  various  reasons  having  but 
little  connection  with  their  qualifications  by  ex 
perience  and  judgment  for  the  exercise  of  so  deli 
cate  a  power  as  that  of  arresting  a  man  upon  a 
complaint  which  they  are  not  to  try,  and  turning 
the  case  and  responsibility  over  to  another  class  of 
magistrates.  I  would  rather  this  power  should 
be  delegated  to  a  trained  and  less  numerous  class 
of  persons  than  the  great  body  of  the  justices  of 
the  peace ;  and  so  long  as  it  shall  be  found,  as  I 
think  it  practically  will,  that  escapes  from  pro 
cess,  or  ultimate  legal  investigation,  are  unusual, 
I  am  averse  to  extending  the  power  of  issuing 
warrants  beyond  the  class  of  persons  selected  and 
authorized  by  the  proposition  of  the  Committee. 

Mr.  WHITNEY,  of  Boylston.  I  want  to  say 
one  word  in  reference  to  the  amendment  proposed 
by  my  friend  from  Con  way,  (Mr.  Whitney).  I 
think  the  reason  given  by  him  for  striking  out 
the  words  which  he  proposes  to  strike  out,  is  the 
very  reason  why  they  should  not  be  stricken  out. 
The  gentleman  objects  that  in  many  cases  it 
would  require  too  long  to  get  a  warrant.  Now, 
I  think  if  they  would  only  allow  time  for  the 
parties  to  cool  down  a  little,  in  many  cases  war 
rants  would  not  be  taken  out  at  all.  A  case  came 
under  my  observation  where  one  man  swore  at 
another,  and  the  other  shook  his  fist  in  the  first 
man's  face.  Well,  Sir,  without  giving  time  for 
their  tempers  to  cool,  the  matter  was  brought 
before  a  justice  of  the  peace,  and  one  man  got 
his  case ;  then  it  was  brought  before  another 
justice,  and  the  other  got  his  case.  Finally  the 
matter  was  carried  up  to  Worcester,  and  the 
judge  threw  it  out  of  court  at  once,  and  neither 
got  his  case.  The  difficulty  was  that  a  justice  of 
the  peace  was  too  convenient.  They  did  not 
allow  time  for  their  tempers  to  cool  off.  If  the 
parties  were  obliged  to  wait  two  or  three  days 
before  a  warrant  could  be  issued,  I  think  much 
difficulty  would  be  avoided.  I  think  the  sugges 
tion  that  of  two  evils  we  shall  choose  the  least,  by 
limiting  the  exercise  of  this  power  to  the  trial 
justices,  is  a  good  one  ;  and  I  shall  therefore  vote 
against  the  amendment. 

Mr.  GOOCH,  of  Melrose.  I  think  there  is  an 
objection  to  the  resolution  as  it  now  stands,  and 
at  the  same  time  I  do  not  like  the  amendment  of 


402 


JUSTICES    OF   THE   PEACE. 


[67th  day. 


Tuesday,] 


GOOCH  —  BUTLER —  HALLETT. 


[July   26th. 


the  gentleman  from  Con  way.  I  prefer  giving  the 
power  of  issuing  warrants  only  to  the  trial  jus 
tices,  but  I  think  there  should  be  more  than  one 
trial  justice  in  a  town  of  two  thousand  inhabi 
tants.  In  the  first  place,  your  trial  justice  may  be 
absent ;  in  the  second  place,  he  may  be  sick  ;  and 
in  the  third  place,  he  may  be  dead.  So  that  there 
will  be  likely  to  be  a  great  many  towns  where 
there  will  be  no  trial  justice  at  all  for  a  great 
portion  of  the  year.  I  think,  therefore,  that  it 
would  be  advisable  to  elect  two  trial  justices  in 
every  town.  There  are  a  great  many  towns  con 
taining  less  than  two  thousand  inhabitants,  in 
which  two  villages  are  located  four  or  live  miles 
apart.  In  such  cases  it  becomes  almost  a  matter 
of  necessity  that  a  trial  justice  should  be  elected 
for  each  village.  I  propose,  when  the  opportunity 
shall  present  itself,  to  offer  an  amendment  that 
there  shall  be  two  trial  justices  for  every  town  of 
less  than  two  thousand  inhabitants,  instead  of 
one.  If  this  amendment  be  adopted,  it  will  ob 
viate  the  necessity  of  the  amendment  of  the 
gentleman  from  Con  way,  (Mr.  Whitney). 

Mr.  ADAMS,  of  Lowell.  I  move  the  previ 
ous  question. 

The  previous  question  was  seconded,  and  the 
main  question  ordered  to  be  put. 

The  question  being  first  upon  the  amendment 
of  Mr.  Whitney,  of  Conway,  it  was  put,  and  the 
amendment  was  disagreed  to. 

The  question  then  recurred  upon  the  final  pas 
sage  of  the  resolves. 

Mr.  GOOCH.  Must  the  question  not  be  taken 
upon  my  amendment  ? 

The  PRESIDENT.  The  Chair  did  not  under 
stand  the  gentleman  as  offering  an  amendment. 

Mr.  GOOCH.     I  intended  to  offer  one. 

The  PRESIDENT.  The  Chair  cannot  answer 
for  the  gentleman's  intention. 

Mr.  GOOCH.  Is  it  in  order  to  offer  an  amend 
ment  at  this  time  ? 

The  PRESIDENT.  It  is  not  in  order,  the 
main  question  having  been  ordered. 

Mr.  GOOCH.  I  move  to  reconsider  the  vote 
by  which  the  main  question  was  ordered. 

The  PRESIDENT.  The  Convention  ordered 
the  main  question  to  be  put  now,  which  main 
question  extended  first  to  the  amendment  pend 
ing,  and  then  to  the  final  passage  of  the  resolves. 
The  amendment  has  already  been  voted  upon,  and 
the  Chair  thinks  it  is  not  in  order  to  move  to 
reconsider  the  vote  by  which  the  main  question 
was  ordered.  By  general  consent,  however,  the 
Chair  will  entertain  the  motion. 

Mr.  BUTLER,  of  Lowell.    I  object. 

The  resolves  were  then  ordered  to  their  final 
passage. 


Mr.  HALLETT.  I  now  move  to  reconsider 
the  vote  by  which  the  resolves  were  finally  passed. 
I  make  the  motion  for  the  purpose  of  giving  an 
opportunity  for  the  alteration  suggested  by  the 
gentleman  from  Melrose,  (Mr.  Gooch,)  to  be 
made.  I  think  it  is  a  very  proper  amendment, 
and  should  be  made. 

The  PRESIDENT.  The  motion  will  go  over 
until  to-morrow,  under  the  rule. 

Mr.  BUTLER,  of  Lowell.  I  move  to  suspend 
the  rule,  and  that  the  motion  to  reconsider  be 
taken  up  now  for  consideration. 

The  motion  was  agreed  to. 

Mr.  BUTLER.  Now,  Mr.  President,  I  am 
opposed  to  the  motion  to  reconsider,  for  the  pur 
pose  indicated.  I  am  not  able  to  see  the  great 
inconvenience  of  which  the  gentleman  from  Con- 
way,  (Mr.  Whitney,)  and  his  friends  are  afraid. 
In  every  county,  except  Dukes  and  Nan  tucket, 
there  will  be  as  many  as  from  ten  or  twelve  up 
to  fifty  or  eighty,  and  I  do  not  know  how  many 
more,  of  these  officers.  With  that  state  of  things, 
I  do  not  see  that  anybody  would  have  to  go 
whaling.  [Laughter.]  You  provide  that  there 
shall  be  at  least  one  in  every  town  in  the  State, 
and  this  will  make  at  least  three  hundred  and 
twenty- eight  of  these  officers  who  are  authorized 
to  issue  warrants.  Then,  besides  that,  every  man 
in  the  Commonwealth,  whether  constable,  or 
otherwise,  is  authorized  to  pursue,  overtake,  and 
seize,  without  a  warrant,  any  man  who  may  be 
guilty  of  a  State  Prison  offence,  and  to  hold  him. 
until  he  can  find  a  trial  justice. 

But  it  has  been  said  that  if  a  trial  justice 
refuses  to  issue  a  warrant  in  certain  cases,  that 
will  be  made  a  test  question  in  his  election. 
Well,  Sir,  suppose  it  is,  if  he  exercises  his  power 
improperly,  there  is  a  power  to  punish  him.  I 
do  not  doubt,  however,  that  cases  may  arise  in 
which  some  inconvenience  may  occur  ;  but  there 
is  another  consideration.  If  the  plan  proposed 
by  my  friend  from  Conway,  (Mr.  Whitney,)  were 
adopted,  and  the  power  of  issuing  warrants  were 
conferred  upon  all  the  justices  of  the  peace,  it 
would  lead  to  the  multiplication  of  these  officers, 
until  they  would  come  to  be  a  nuisance.  It 
would  be  in  their  election,  as  it  has  been  in  their 
appointment,  every  man  wants  another  in  his 
town,  and  the  governor  has  gone  on  appointing 
them  until  there  are  as  many  as  four  thousand, 
and  I  do  not  know  how  many  more,  in  the  Com 
monwealth.  That  will  be  the  difficulty.  Now, 
I  say  if  we  have  one  in  each  town  with  the  power 
of  trying  causes  and  issuing  warrants,  there  is  no 
occcasion  for  any  more,  for  those  purposes.  Sir, 
we  want  men  to  try  causes  of  a  more  elevated 
character  than  the  general  run  of  justices  of  the 


67th.  day.] 


JUSTICES  OF   THE   PEACE. 


403 


Tuesday,] 


BRIGGS  —  KEYES  —  CHAPIN. 


[July  26th. 


peace.  We  want  men  of  capacity,  and  it  has 
been  ascertained  by  experience,  as  a  general 
principle,  that  the  fewer  there  are,  the  more  ele 
vated  in  character  they  are  likely  to  be. 

But,  again,  if  you  have  two  in  a  town,  one 
will  run  in  opposition  to  the  other,  like  two  stage 
lines.  One  will  tell  you  that  he  is  the  cheaper 
justice,  and  that  you  can  get  your  business  done 
cheaper  at  his  shop  than  the  other  one ;  and  in  my 
opinion,  you  will  find  in  the  end  more  inconven 
ience  arising  from  multiplying  these  trial  justices, 
than  by  limiting  them  in  number.  I  hope, 
therefore,  the  motion  to  reconsider  will  not  pre 
vail  for  this  purpose. 

Mr.  BRIGGS,  of  Pittsfield.  If  I  were  to  vote 
for  the  motion  to  reconsider,  I  should  do  it  for  a 
different  reason  from  that  stated  by  the  mover. 
I  think  the  difficulty  is,  that  we  have  provided  for 
quite  too  many  trial  justices.  I  think  if  we  had 
provided  not  more  than  a  quarter  as  many,  and 
had  properly  distributed  them  throughout  the 
Commonwealth,  that  they  would,  as  the  gentle 
man  from  Lowell  says,  be  much  more  likely  to  be 
selected  on  account  of  their  qualifications  and 
fitness  for  the  office,  and  that  such  a  system 
would  be  a  much  better  one  than  that  you  have 
adopted.  I  cannot  see  the  necessity  for  the  great 
number  of  trial  justices  which  is  seen  by  some 
gentlemen.  I  do  not  suppose  in  one- half  or 
three-quarters  of  the  towns  in  the  Commonwealth, 
there  is  a  warrant  issued  from  the  beginning  of 
the  year  to  the  end.  But,  if  a  man  wants  a  war 
rant  issued,  what  does  he  do  ?  He  goes  to  a 
lawyer  and  applies  to  him,  and  he  institutes  pro 
ceedings  in  the  case. 

Now,  I  think  it  is  not  only  worth  while  to 
deprive  the  justices  of  the  peace  of  the  power  of 
issuing  warrants,  but  if  I  had  my  way  I  would 
limit  the  power  still  farther  than  it  is  done  in  the 
proposition. 

The  gentleman  from  Freetown,  (Mr.  Hatha 
way,)  stated  a  very  strong  case  in  which  incon 
venience  would  arise  from  the  number  of  trial 
justices  not  being  greater.  But,  at  the  same  time, 
he  stated  a  fact  in  connection  with  it,  which 
seemed  to  me  obviated  the  whole  difficulty.  In 
the  case  mentioned  by  him  where  the  trial  jus 
tice  was  absent,  he  said  that  in  all  probability  the 
trial  justice  in  the  next  town  would  not  be  more 
than  ten  or  fifteen  minutes  off,  and  that  they  would 
send  and  get  him.  So  that  after  all  a  delay  of 
only  ten  or  fifteen  minutes  would  be  caused. 

I  think,  however,  the  case  stands  very  well  as 
it  is,  and  I  shall  therefore  vote  against  the  motion 
to  reconsider. 

Mr.  KEYES,  for  Abington.  I  rise  for  very 
much  the  same  purpose  that  I  did  the  other  day, 


because  I  could  not  sit  and  listen  any  longer 
without  taking  some  part  in  the  debate. 

Since  this  discussion  has  been  going  on,  my 
mind  has  been  turned  a  little  to  the  town  where 
I  reside — not  the  town  I  represent.  We  have 
there  nearly  5,000  inhabitants,  and  out  of  those 
there  are  but  very  few  persons  who  would  take 
the  office  of  trial  justice.  When  the  trial  justice 
law  went  into  operation,  several  years  ago,  a  man 
was  appointed  of  more  than  eighty  years  of  age  ; 
but  since  that  act  was  repealed,  as  well  as  before 
it  went  into  operation,  most  of  the  trial  business 
has  been  performed  by  the  register  of  probate. 
Now,  one  of  these  two  persons  would  most  likely 
be  elected  to  the  office  under  this  provision  which 
we  have  just  adopted. 

Now,  Sir,  I  believe  they  are  both  of  them  hon 
est  men  ;  they  would  endeavor  to  transact  the 
business  which  their  duty  required  of  them  under 
this  law  according  to  their  conscience  ;  but  they 
are  no  more  alike  than  snow  and  soot ;  they  are 
entirely  opposite  by  nature,  by  education,  and  by 
ideas.  There  might  be  some  difference  of  opinion 
on  the  part  of  these  two  persons  on  particular 
questions.  I  suppose  a  majority  of  the  people 
would  decide  that  the  judge  of  probate,  being  the 
younger  man,  should  be  the  trial  officer.  He  has 
to  go  about  the  country  with  his  green  bag,  and 
is  often  away  from  his  home.  What  would  be 
the  state  of  affairs  in  case  he  should  be  wanted 
while  absent  ?  It  appears  to  me  that  if  there  is 
any  use  in  having  any  sort  of  officer  at  all — I  do 
not,  myself,  know  of  any  great  use  for  any — but 
if  there  is  any  use  for  one,  is  there  not  use  for 
two? 

Mr.  CHAP  IN,  of  Worcester.  I  propose  to  vote 
against  the  amendment,  and  certainly  if  I  were 
disposed  to  vote  in  its  favor,  it  would  not  be  for 
the  reason  given  by  the  gentleman  from  Pittsfield. 
After  the  act  was  passed  authorizing  trial  justi 
ces,  ordinary  justices  of  the  peace  were  deprived 
of  the  power  to  try  causes.  But  the  act  worked 
well,  and  if  the  chief  magistrate  of  the  Common 
wealth  had  appointed  one  trial  justice  in  every 
town  in  the  Commonwealth,  it  would  have  re 
mained  upon  the  statute  book  to  this  hour.  The 
excitement  against  the  act  arose  from  the  circum 
stance,  that  parties  were  carried  from  the  town 
where  they  resided  to  have  causes  tried  at  a  dis 
tance  from,  their  homes,  and  the  question  natur 
ally  arose,  whether  they  could  not  have  a  person 
nearer  home  qualified  to  try  their  cases.  The 
answer  was,  that  they  could  not.  This  proposi 
tion  provides  for  what  we  want ;  it  provides  sub 
stantially,  for  a  police  court  in  every  town.  Take, 
for  example,  the  city  of  Worcester,  with  twenty 
thousand  inhabitants,  and  there  is  not  a  man 


404 


CONSTITUTIONAL   CONVENTIONS,  &c. 


[67th  day. 


Tuesday,] 


CHAPIN  —  HALLETT  —  GRISWOLD  —  LIVERMORE. 


[July  26th. 


there  authorized  to  issue  a  warrant,  in  a  criminal 
case,  except  a  police  justice.  This  is  a  strong 
case.  Take  the  city  of  Boston,  and  other  places 
where  they  have  police  courts,  and  there  they 
have  no  trial  justices,  nor  any  other  magistrates 
authorized  to  issue  warrants  in  criminal  cases, 
and  who  complains  ?  There  is  another  reason 
why  I  would  be  opposed  to  the  amendment,  and 
in  favor  of  the  original  proposition.  If  we  have 
various  justices  in  the  towns,  not  qualified  to  try 
causes,  they  will  not  be  prepared  to  do  any  busi 
ness  relating  to  criminal  cases,  which  will  bear 
the  test  of  criticism  or  examination.  If  there 
was  such  a  justice  of  the  peace  in  the  town  where 
an  offence  had  been  committed,  I  would  not  go  to 
him,  but  to  a  trial  justice  in  the  next  town,  who 
would  of  course  be  prepared  for  such  business, 
and  would  prepare  the  papers  in  such  a  manner 
that  they  would  stand  the  test  before  a  higher 
tribunal.  Therefore,  I  am  satisfied  that  this 
resolution  should  be  adopted. 

Mr.  FREEMAN,  of  Franklin,  called  for  the 
previous  question,  and  it  was  ordered. 

The  first  question  was  on  the  reconsideration 
of  the  vote  by  which  the  resolutions  were  passed. 

The  motion  to  reconsider  was  decided  in  the 
negative. 

Conventions  to  Revise  the  Constitution. 

Mr.  HALLETT,  for  Wilbraham,  from  the 
Special  Committee  on  the  subject  of  Conventions 
to  Revise  the  Constitution,  reported  the  following 
resolutions,  with  a  recommendation  that  they  do 
pass : — 

1.  Resolved,  That  it  is  expedient  to  provide  in 
the  Constitution,  that 

A  Convention  to  revise  or  amend  this  Con 
stitution,  may  be  called  and  held  in  the  following 
manner :  At  the  general  election  in  the  year 
one  thousand  eight  hundred  and  seventy-three, 
and  in  each  twentieth  year  thereafter,  the  quali 
fied  voters  in  State  elections  shall  give  in  their 
votes  upon  the  question  :  "  Shall  there  be  a  Con 
vention  to  revise  the  Constitution  ?  "  which  votes 
shall  be  received,  counted,  recorded,  and  declared, 
111  the  same  manner  as  in  the  election  of  Governor ; 
and  a  copy  of  the  record  thereof,  shall,  within  one 
month,  be  returned  to  the  office  of  the  Secretary 
of  State,  who  shall,  thereupon,  examine  the  same 
and  shall  publish,  in  the  newspapers  in  which 
the  laws  are  then  published,  the  number  of  yeas 
and  nays  given  upon  said  question,  in  each  town 
and  city,  and  if  a  majority  of  said  votes  shall  be 
in  the  affirmative,  it  shall  be  deemed  and  taken  to 
be  the  will  of  the  people  that  a  Convention  should 
meet  accordingly ;  and  thereafter,  on  the  first 
Monday  of  March  ensuing,  meetings  shall  be 
held,  and  delegates  shall  be  chosen,  in  all  the 
towns,  cities,  and  districts,  in  the  Commonwealth, 
in  the  manner  and  number  then  provided  by  law 


for  the  election  of  the  largest  number  of  represent 
atives,  which  the  towns  and  cities  shall  then  be 
entitled  to  elect.  And  such  delegates  shall  meet 
in  Convention  at  the  State  House,  on  the  first 
Monday  of  May  next  ensuing,  and  when  or 
ganized,  shall  have  all  the  powers  necessary  to 
execute  the  purpose  for  which  such  Convention 
was  called  ;  and  may  establish  the  compensation 
of  its  officers  and  members,  and  the  expense  of 
its  session,  for  which  the  Governor,  with  the  ad 
vice  and  consent  of  the  Council,  shall  draw  his 
warrant  on  the  treasury.  And  if  such  alterations 
and  amendments  as  shall  be  proposed  by  the  Con 
vention,  shall  be  adopted  by  the  people  voting 
thereon,  in  such  manner  as  the  Convention  shall 
direct,  the  Constitution  shall  be  deemed  and  taken 
to  be  altered  or  amended  accordingly.  And  it 
shall  be  the  duty  of  the  proper  officers,  and  per 
sons  in  authority,  to  perform  all  acts  necessary  to 
carry  into  effect  the  foregoing  provisions. 

2.  Resolved,    That   whenever   towns   or   cities 
containing  not  less  than  one- third  of  the  qual 
ified    voters    of    the    Commonwealth    shall,    at 
any  meeting  for  the  election  of  State  officers,  re 
quest  that  a  Convention  be  called  to  revise  the 
Constitution,  it  shall  be  the  duty  of  the  legisla 
ture,  at  its  next  session,  to  pass  an  act  for  the 
calling  of  the  same,  and  submit  the  question  to 
the  qualified  voters  of  the  Commonwealth,  whether 
a  Convention  shall  be  called  accordingly :  provided, 
that  nothing  herein  contained  shall  impair  the 
power  of  the  legislature  to  take  action  for  calling 
a  Convention,  without  such  request,  as  heretofore 
practised  in  this  Commonwealth. 

3.  Resolved,  The  foregoing  provisions  shall  in 
nowise  restrain  or  impair  the  reserved  right  of  the 
people,  in  their  sovereign  capacity,  and  by  such 
mode  of  proceeding  as  shall  fully  and  fairly  col 
lect  and  ascertain  the  will  of  the  majority,  at  all 
times,  to   reform,  alter,   or  totally  change  their 
Constitution  and  Frame  of  Government. 

Mr.  HALLETT  moved  that  the  rule  be  sus 
pended,  and  that  the  Convention  now  proceed  to 
the  consideration  of  the  resolutions  just  reported. 

Mr.  GRISWOLD,  for  Erving.  I  would  in 
quire  whether  it  would  not  be  better  to  have  the 
resolutions  printed,  and  take  up  other  matters 
now  ?  I  fear  that  by  a  suspension  of  the  rules  we 
may  delay  the  business. 

Mr.  HALLETT.  If  we  suspend  the  rule,  the 
resolutions  can  be  read  the  first  time  now,  and 
then  be  printed. 

The  motion  to  suspend  the  rule  was  agreed  to. 

The  resolutions  were  read  the  first  time,  laid  on 
the  table,  and  ordered  to  be  printed. 

Bill  of  Rights. 

On  motion  by  Mr.  LIVERMORE,  of  Cam 
bridge,  the  Convention  proceeded  to  the  consider 
ation  of  the  unfinished  business  of  yesterday, 
being  the  resolves  in  relation  to  the  Bill  of  Rights. 

The  question  being  on  ordering  the  resolves,  as 
amended,  to  a  second  reading. 


67th  day.] 


IMPRISONMENT   FOR,   DEBT. 


405 


Tuesday,] 


STRONG. 


[July  26th. 


The  second  resolve  having  been  amended,  on 
motion  of  Mr.  Dana,  for  Manchester,  so  as  to 
read  as  follows  : — 

2.  Resolved,  That  the  Bill  of  Rights  be  amend 
ed  by  inserting,  between  the  eleventh  and  twelfth 
articles,  the  following  additional  article,  being 
identical  with  one  now  in  another  chapter  of  the 
Constitution,  and  which  more  appropriately  be 
longs  to  the  Bill  of  Rights,  viz.  : — 

"  VII.  The  privilege  and  benefit  of  the  writ  of 
habeus  corpus  shall  be  enjoyed  in  this  Common 
wealth  in  the  most  free,  easy,  cheap,  expeditious, 
and  ample  manner  ;  and  shall  not  be  suspended 
by  the  legislature,  except  upon  the  most  urgent 
and  pressing  occasions,  and  lor  a  limited  time,  not 
exceeding  twelve  months."  And  said  writ  shall 
be  granted  as  of  right  in  all  cases  where  the  legis 
lature  shall  not  especially  confer  a  discretion 
therein  upon  the  court ;  but  the  legislature  may 
prescribe  preliminary  proceedings  to  the  obtaining 
of  said  writ. 

Imprisonment  for  Debt. 

Mr.  STRONG,  of  Easthampton.  If  it  is  in 
order,  I  wish  to  offer  the  following  as  an  ad 
ditional  resolution : — 

Resolved,  That  the  Bill  of  Rights  be  so  amend 
ed,  that  no  person  in  this  Commonwealth  shall 
be  subjected  to  imprisonment  for  debt  founded 
upon  any  contract,  expressed  or  implied,  unless 
in  case  of  fraud. 

Mr.  STRONG,  of  Easthampton.  Mr.  Presi 
dent  :  The  humanity  of  the  age  is  against  im 
prisonment  for  debt ;  but  that  it  is  the  law  of  the 
Commonwealth,  and  is  considered  just,  by  many, 
admits  of  no  doubt.  If  there  wras  but  one  way 
to  produce  poverty,  and  that  through  a  criminal 
channel,  more,  or  even  everything,  might  be  said 
in  favor  of  confinement ;  but  almost  endless  are 
the  ways  by  which  men  become  poor.  Does  it 
not  often  arise  from  causes  which  no  human 
sagacity  can  indicate,  or  care  prevent  ?  such  as 
protracted  sickness,  loss  of  sight,  limbs,  failure  of 
crops,  death  of  stock,  loss  of  property  in  the 
hands  of  agents,  and  often  through  the  opera 
tions  of  swindlers  and  scoundrels  ;  immense  for 
tunes  lost  at  sea,  buried  in  a  rolling  ocean,  which 
no  human  exertion  could  control ;  loss  by  sud 
den  political  changes,  which  put  a  stop  to  na 
tional  as  well  as  individual  progress  and  prosper 
ity.  Yet  in  all  these  several  misfortunes,  the 
sufferer  has  incurred  no  guilt.  Why,  then,  should 
a  punishment  from  the  law  await  him  ?  Why 
should  the  vengeance  of  the  law  break  in  upon 
innocence  ?  Whoever  is  willing  to  acknowledge 
that  rational  liberty  is  the  choicest  gift  that  Heav 
en  has  bestowed  upon  man,  must  also  acknowl 
edge  that  to  be  deprived  of  it,  is  the  greatest  evil. 


There  is  a  spirit  in  man  that  induces  him  to 
break  through  difficulty,  and  live  to  triumph  over 
all  misfortune ;  and  when  the  calamities  I  have 
mentioned  have  overtaken  him,  we  behold  him 
making  head  against  them,  with  courage,  and 
even  cheerfulness ;  but  the  moment  you  insult 
his  calamities,  by  adding  contempt  and  imprison 
ment,  it  can  never  fail  to  break  the  force  of  a 
generous  mind.  He  feels  that  these  evils  that 
have  already  fallen  to  his  lot  are  enough — the 
voice  of  reason  cries  enough.  Why,  then,  should 
the  law  interfere  to  render  those  calamities  irrep 
arable  ? 

As  a  nation,  we  are  unwilling  to  acknowledge 
the  dominion  of  a  foreign  power  over  us,  in  the 
smallest  degree.  What,  then,  must  be  the  feel 
ings  of  an  individual,  when  he  finds  himself  a 
candidate  for  persecution  and  confinement,  in  the 
bosom  of  his  own  State,  and  by  its  own  laws, 
without  being  guilty  of  any  crime  but  that  of 
being  an  unfortunate  man  r  A  short  time  after 
the  close  of  the  war  of  1812,  wi'.h  England, 
there  were  more  men  confined  in  the  jails  of  this 
Commonwealth  for  debt,  than  were  made  prisoners 
by  the  enemy  during  the  entire  war,  from  any 
one  State  in  this  Union.  Thus,  in  the  midst  of 
peace,  society  was  suffering  an  outrage  worse  than 
war.  Again,  if  the  debtor  is  poor,  and  can  pay 
nothing,  the  creditor  gets  nothing,  except  it  may  be 
a  malicious  joy  he  may  derive  from  the  reflection 
that  he  is  punishing  a  man  as  a  criminal  who  is 
guilty  of  no  crime.  No,  Sir ;  it  seldom  proves 
beneficial  to  the  creditor,  and  has  been  the  ruin 
of  thousands  of  good  and  honorable  men.  It  is 
no  matter,  Sir,  whether  he  be  confined  one  day 
or  twenty  ;  no  matter  whether  his  liberty  is  lim 
ited  to  a  room  ten  feet  square,  or  whether  he 
have  an  acre  of  ground  to  walk  upon  ;  it  is  con 
finement,  in  both  cases,  and  it  is  the  principle  I 
contend  against.  And,  Sir,  with  this  numerous 
class  of  unfortunate  men,  hunted  by  the  officers 
of  the  law,  and  thrust  into  jail  for  misfortune 
alone,  the  sinews  of  exertion  relax,  the  objects  of 
time  lose  their  allurements,  creation  turns  to  a 
vault,  wherein  joy  is  entombed. 

It  is  a  pause — a  calm  on  the  ocean  of  life  when 
the  mind  sickens  and  expires.  It  would  be  slan 
der  on  the  aborigines  of  this  country  to  call  it  a 
savage  custom ;  for,  as  I  read  their  history,  there 
never  was  such  a  custom  among  them.  But  when 
ever  those  sons  of  nature  are  unfortunate  in  hunt 
ing,  or  otherwise,  they  do  not  send  out  one  of 
their  runners  to  catch  and  confine  them ;  they 
have  no  civilized  hell-hounds  to  prowl  in  the  ken 
nel  of  justice.  No,  Sir  ;  far  different  is  the  prac 
tice  of  the  red  man  of  the  forest ;  each  one  throws 
in  his  mite  for  the  unfortunate  among  them,  to 


406 


IMPRISONMENT   FOR   DEBT. 


[67th   day. 


Tuesday,] 


STRONG. 


[July  26th. 


bring  him  up  on  a  level  with  the  rest,  and  to 
spare  him  the  pain  of  feeling  little  among  them  ; 
but,  although  not  a  savage  practice,  it  may  well 
be  called  a  barbarous  one,  though  nowhere  to  be 
found  but  where  man  pretends  to  love  his  neigh 
bor  as  himself,  and  prays  for  the  welfare  of  those 
who  despitefully  use  him.  The  unmerciful  prac 
tice  of  confining  men  in  jail  for  debt,  had  its 
origin  in  the  dark  and  unlettered  ages  of  the 
world,  and  the  cupidity  of  mankind  has  retained 
the  practice  to  the  present  hour  ;  but  if  this  mon 
strous  practice  has  been  perpetuated  for  ages,  is 
that  a  reason  why  it  should  never  end  ?  That 
men  should  be  compelled  by  law  to  pay  their 
debts — as  far  as  lies  in  their  power — is  beyond 
dispute ;  their  property  ought  all  to  be  surren 
dered  to  their  creditors,  and  disposed  of  in  an 
equitable  manner,  except  those  articles  which  are 
necessary  to  the  support  of  life,  and  a  small  free 
hold  estate  for  the  protection  and  shelter  of  the 
family. 

Sir,  he  that  takes  up  goods  with  the  intention 
of  never  making  a  just  remuneration,  degrades 
himself  to  the  character  of  a  thief ;  and  to  send 
such  a  man  to  prison,  at  the  expense  of  the  cred 
itor,  until  restored  to  his  liberty  by  being  allowed 
to  swear  that  he  is  poor,  is  a  punishment  too 
light ;  but  he  that  has  been  overtaken  by  the 
misfortunes  alluded  to — which,  with  due  deference, 
may  fall  to  the  lot  of  any  member  of  this  Con 
vention — instead  of  persecution  and  imprison 
ment,  deserves  patronage  and  protection,  and  to 
confine  such  a  man  at  all,  is  an  outrage  upon 
justice  and  civilization.  The  question  is  not, 
whether  men  should  be  compelled,  by  law,  to  pay 
their  debts  ;  but  whether,  under  our  our  laws, 
poverty  shall  be  treated  as  a  crime  ?  for  the  law 
upon  our  statutes  operates  indiscriminately  upon 
the  fraudulent  and  unfortunate.  Would  it  not, 
Sir,  be  more  equitable  to  punish  no  man  with 
the  loss  of  his  liberty  for  debt,  than  to  couple  the 
honest  man  and  the  knave  together,  and  punish 
both  alike  ?  Sir,  if  only  the  idle  and  vicious  were 
poor,  and  only  the  industrious  and  honorable 
were  rich,  the  subject  would  appear  in  a  far  dif 
ferent  light ;  but  is  wealth  always  acquired  by 
honorable  and  legal  means  ?  Is  it  not  often  pos 
sessed  in  superabundance  by  the  worst  of  men  ? 
Does  not  vast  wealth  often  owe  its  origin  to  fraud 
or  violence  ?  May  not  a  man  be  poor,  and  pos 
sess  all  the  noble  faculties  of  mind  ? 

Successful  actions  are  called  wise  ones,  and, 
for  the  most  part,  they  may  be  so  ;  but  to  this  rule 
there  are  many  exceptions.  Well  matured  plans 
often  fail,  while  those  constructed  upon  appar 
ently  less  economy,  succeed  in  human  affairs. 
Can  the  human  mind  explore  a  future  period  ? 


Is  it  in  man  that  walketh  to  direct  his  steps  ?  Is 
the  race  to  the  swift,  or  the  battle  to  the  strong, 
or  riches  to  the  man  of  understanding  ?  These 
questions,  Sir,  are  answered  from  a  law  that 
teaches  a  different  doctrine  from  the  law  of  im 
prisonment  upon  our  statutes.  The  farmer  that 
sows,  knows  not  that  he  shall  reap ;  the  enter 
prising  commercial  man  of  Boston,  when  he  em 
barks  the  mass  of  his  fortune  on  board  of  his 
ships,  knows  not  that  they  will  reach  their  des 
tined  port  in  safety ;  the  sea  rages,  and  in  a  mo 
ment  his  fortune  is  gone.  Is  he  a  man  of  forti 
tude  and  integrity,  does  he  possess  a  cool  and 
sensible  courage  ?  Even  if  all  this  can  be  said  of 
him,  it  gives  him  110  power  over  the  elements, 
and  to  this  providential  event  he  is  bound  to 
submit  in  silence.  lie  has  no  right,  as  a  Chris 
tian,  a  philosopher,  or  a  man,  to  repine ;  for  all  a 
man  has  is  under  the  dominion  of  fortune,  and  it 
is  but  for  man  to  suffer  the  lot  of  humanity. 
There  is  nothing  in  this  case  imagined  that  does 
not  apply  to  all  unforseen  events  that  await  us 
on  the  journey  of  life,  whether  of  minor  consid 
eration  or  not ;  and  fortunate  might  this  luckless 
victim  of  frowning  fate  consider  himself,  were 
his  misfortunes  to  end  with  the  loss  of  his  prop 
erty  ;  but,  Sir,  they  will  not,  for,  under  the  law 
of  imprisonment,  a  scene  of  persecution  and  cap 
tivity  will  open  before  him ;  at  the  beck  of  his 
creditors  the  prison  doors  will  grate  upon  their 
hinges,  and  open  their  ponderous  jaws  to  receive 
him  into  confinement ;  and  what  renders  it  intol 
erable  is,  that  it  is  cast  upon  him  without  just 
grounds  of  legal  complaint. 

Again,  various  are  the  ways  by  which  property 
is  drawn  from  its  rightful  possessor  by  unjust 
means.  The  intriguing  speculator  often  subtracts 
from  the  property  of  his  credulous  neighbor,  by 
slow  degrees.  The  unsuspecting  man  perceives 
his  property  wasting  away,  and  though  done  be 
fore  his  eyes,  knows  not  the  cause,  until  ruin 
overwhelms  him  ;  and  when  poor  and  imprisoned, 
all  must  agree  that  the  wrong  man  has  gone  to 
jail.  But  it  may  be  observed  that  men  are  some 
times  actuated  by  fear  to  do  the  things  that  are 
just ;  and  when  that  fear,  which  the  terrors  of  the 
jail  excite,  is  removed,  men  would  not  make  that 
exertion  to  pay  their  debts  they  otherwise  would. 
Sir,  neither  the  jail  nor  its  terrors  ever  made  a 
man  rich,  nor  did  they  ever  add  one  farthing 
to  his  ability  to  discharge  his  obligations ;  but 
when  once  he  becomes  poor  and  imprisoned,  the 
imprisonment  has  a  direct  tendency  to  keep  him 
poor, — it  dampens  his  courage,  and  takes  away  all 
that  dignity  that  belongs  to  self-respect.  The 
law  accepts  of  the  body  of  the  debtor — the  oath 
is  administered,  and  the  execution  is  discharged 


67th  day.] 


IMPRISONMENT   FOR   DEBT. 


407 


Tuesday,] 


3TP.ONG —  WAKD  —  FIIENCH  —  XEYES. 


[July  26th. 


until  property  can  be  found.  A  strange  kind  of 
payment,  Sir ;  for  the  debtor  pays  that  which  is 
dearer  than  life,  and  the  creditor  gets  nothing  ! 

It  is  true  that  the  body  cannot  be  sold  but  once 
for  the  same  debt,  but  why  sell  it  at  all  if  it  bring 
nothing  ?  If  it  be  a  crime  to  obtain  credit  or  con 
tract  debt,  the  creditor  is  a  partaker  of  the  guilt — 
if  there  is  any  guilt  about  it — for  in  all  transac 
tions  where  two  are  equally  concerned,  that  are 
attended  with  evil  consequences,  which  ought  to 
suffer  ?  Why  does  a  man  grant  my  reqiiest  when 
I  am  ignorant] y  demanding  my  ruin  ?  If  he 
grant  it  knowingly,  and  suffers  by  the  transaction, 
it  will  be  but  the  natural  and  just  consequence 
that  should  follow  an  inconsiderate  bounty. 

Should  the  debtor,  from  obstinacy,  prefer  to  go 
to  jail  and  there  spend  his  property  rather  than 
to  pay  his  just  debts,  by  the  adoption  of  my 
amendment  he  could  not  get  there,  and  the  poor 
man  who  has  nothing  to  pay,  would  not  be  obliged 
to  suffer  the  outrage.  To  punish  a  man  for  being 
blown  out  of  Ids  path  by  a  hurricane,  goes  to 
overthrow  every  principle  of  humanity  and  jus 
tice.  Confinement  is  not  rendered  just  by  the 
debtor's  being  admitted  to  his  oath,  nor  legal  by 
a  statute  which  contravenes  the  fundamental  and 
moral  maxims  of  our  government.  All  a  man 
has,  in  this  world,  will  he  give  for  his  life,  and 
often  as  much  for  his  liberty.  A  creature  must 
be  more  or  less  than  human,  who  can  endure 
confinement  and  not  feel  it.  Highly  as  men  prize 
wealth  and  glory,  they  fade  to  nothing,  when 
compared  with  freedom. 

As  summer  produces  no  sunshine  to  the  clouded 
mind,  so  in  vain  shall  man  look  for  joy  amid  the 
prison's  gloom.  It  has  been  well  said  that  the  law 
of  imprisonment  is  harmless  to  the  rich,  but  ter 
rible  to  the  poor.  In  the  hands  of  unprincipled 
men,  it  has  ever  been  used  as  a  successful  engine 
to  oppress  and  torture  the  poor.  The  deep  de 
pravity  and  fiendish  wickedness  of  the  law,  will  not 
allow  the  poor  man  the  miserable  privilege  of 
swearing  he  is  poor,  without  he  buys  it ;  and  if  he 
cannot  command  the  pittance,  he  must  lie  in  jail 
without  limit,  at  the  behest  of  the  creditor.  Be 
tween  one  and  two  thousand  of  the  citizens  of 
this  State  are  annually  obliged  to  suffer  the  out 
rage  of  being  thrust  into  cells  with  felons,  there 
to  be  educated  in  habits  of  demoralization,  as  a 
preparatory  step  to  crime  and  State  Prison. 

The  amount  actually  paid  to  creditors  by  the 
exercise  of  the  privilege  of  imprisonment,  is 
wholly  insignificant,  as  official  statistics  show  that 
not  more  than  four  per  cent,  upon  the  sums  for 
which  the  commitments  were  made,  were  realized 
to  the  creditors.  Sir,  four- fifths  of  the  States  have 
abolished  imprisonment  for  debt.  Ten  States 


have  set  us  the  glorious  example  of  constitutional 
prohibition. 

Sir,  I  envy  no  man  the  glory  or  happiness  he 
can  derive  from  raising  his  voice,  here  or  else 
where,  to  vindicate  or  perpetuate  this  remnant  of 
barbarism,  which  requires  nothing  but  justice 
from  us  to  blot  it  from  the  statute  book  forever, 
and  redeem  the  old  Commonwealth  from  stand 
ing  in  the  position  of  isolated  barbarism — the 
"  Shylock  of  States." 

Sir,  I  believe  that  there  is  a  principle  of  justice 
embraced  in  this  amendment,  which,  if  adopted, 
will  brighten  the  hope  and  prospects  of  the  un 
fortunate  and  despairing,  and  wring  a  formidable 
weapon  from  the  heartless  extortioner. 

Mr.  STRONG  moved  that  when  the  question 
be  taken,  it  be  taken  by  yeas  and  nays ;  which 
was  agreed  to,  on  a  division — ayes,  57  ;  noes,  119 
— more  than  one-fifth  voting  therefor. 

Mr.  WARD,  of  Newton  moved  that  the  words 
"upon  execution"  be  inserted  after  the  word 
"imprisonment,"  so  that  as  amended,  the  resolu 
tion  would  read  as  follows  : — 

Resolved,  That  the  Bill  of  Rights  be  so  amended 
that  no  person  in  this  Commonwealth  shall  be 
subject  to  imprisonment  upon  execution  for  debt, 
founded  upon  any  contract,  expressed  or  implied, 
unless  in  case  of  fraud. 

Mr.  WARD  said :  Until  there  is  a  trial  for 
fraud  it  is  not  ascertained  whether  there  is  a  fraud 
or  not,  and,  therefore,  I  want  to  provide  that  he 
may  be  committed  upon  a  writ.  I  do  not  under 
stand  that  the  gentleman  means  to  exclude  him 
from  being  committed  at  all. 

The  question  being  then  taken  on  the  amend 
ment  offered  by  Mr.  Ward,  it  was  not  agreed  to. 

Mr.  FRENCH,  of  New  Bedford.  I  am  in 
favor  of  the  amendment  of  ray  friend  upon  my 
right,  to  abolish  imprisonment  for  debt;  but  I 
regret  that  he  has  called  for  the  yeas  and  nays. 
I  think  it  will  be  carried  by  a  large  majority, 
without  taking  the  yeas  and  nays,  and  the  calling 
of  the  roll  will  be  an  unnecessary  consumption 
of  time  ;  and  I  therefore  move  a  reconsideration 
of  the  vote  by  which  the  yeas  and  nays  were 
ordered. 

The  question  being  taken  on  the  motion  to  re 
consider,  it  was  agreed  to. 

The  question  then  recurred  on  the  motion  of 
Mr.  STRONG,  that  the  yeas  and  nays  be  ordered 
on  the  amendment  proposed  by  him  ;  and  upon  a 
division  there  were — ayes,  47  ;  noes,  165 — so  the 
yeas  and  nays  were  again  ordered. 

Mr.  KEYES,  for  Abington.  Mr.  President: 
I  hope,  Sir,  that  this  amendment  will  prevail.  It 
wrill  at  least  show  a  good  disposition  upon  the  part 


408 


IMPRISONMENT   FOR   DEBT. 


[67th  day, 


Tuesday,] 


KEYES. 


[July  26th. 


of  the  Convention  if  they  adopt  it,  whether  it 
shall  practically  avail  much  or  not.  I  know  that 
there  is  an  impression  existing  among  nearly  all 
the  inhabitants  of  this  State,  that  there  is  no  such 
thing  as  imprisonment  for  debt  unless  some  dis 
honesty  has  been  proved  ;  but  still,  upon  looking 
over  the  annual  return  of  the  number  of  persons 
imprisoned,  we  find  that  a  vast  number  have 
been  imprisoned  for  debt.  I  was  sorry  that  the 
speech  of  the  gentleman  from  Easthampton,  (Mr. 
Strong,)  was  not  more  distinctly  heard  by  the 
members  of  this  Convention ;  for  I  believe  if  they 
could  have  heard  it,  it  would  have  produced 
a  powerful  effect.  The  gentleman  read  some 
statistics,  and  as  I  have  the  advantage  of  him  in 
one  respect,  that  of  having  a  voice  which  can  be 
better  heard,  perhaps  it  may  be  of  some  conse 
quence  that  I  should  repeat  the  number  of  persons 
who  have  been  committed  for  debt.  I  hold  in  my 
hands,  through  the  kindness  of  that  gentleman,  a 
long  and  care  fully  prepared  table,  exhibiting  the 
number  of  persons  who  have  been  committed  to 
the  Boston  Jail  for  debt  during  the  last  seventeen 
years.  I  will  not  go  into  the  details  of  each  par 
ticular  year,  but  the  whole  number  is  9,404. 
The  whole  number  who  were  confined  for  debt 
in  all  the  prisons  in  the  Commonwealth  in  the 
year  1852,  was  1,362.  But,  Sir,  without  reading 
these  dry  statistics  any  farther  than  to  give  a  gen 
eral  view,  allow  me  to  refer  to  one  statement 
made  by  that  gentleman,  which  ought  to  have  a 
great  influence,  as  it  has  a  direct  bearing  upon  the 
whole  of  this  matter. 

Out  of  something  like  five  thousand  whom  he 
said  were  imprisoned  for  debt  in  Suffolk  County 
in  eight  years,  only  about  six  per  cent,  of  the 
demands  were  collected  by  that  process.  I  have 
no  doubt,  Sir,  that  more  than  double  that  sum 
was  expended  in  the  prosecutions.  Now  I  am 
not  only  in  favor  of  the  amendment  the  gentle 
man  has  proposed  upon  the  ground  of  humanity, 
but  because  I  believe  it  to  be  a  good  thing  if  it 
were  to  be  considered  simply  as  a  matter  of  policy. 
I  am  also  in  favor  of  it  on  another  ground.  I  hope 
the  time  will  come  when  all  laws  for  the  collection 
of  debts  will  be  abolished.  This  idea  is,  I  con 
fess,  somewhat  startling,  but  it  is  beginning  to  be 
regarded  with  more  favor  than  it  was  a  few  years 
ago,  when  first  announced.  I  believe  that  it  would 
be  a  matter  of  economy  and  wisdom,  not  only 
in  this  State,  but  throughout  the  world,  if 
the  people  should  be  compelled  to  trust  to  the 
honor  of  men,  instead  of  the  law,  for  the  collection 
and  security  of  debts.  The  first  good  effect  that 
would  be  produced  by  the  adoption  of  such  a 
measure,  would  be  to  restrain  the  enormous  and 
ruinous  credits  which  are  now  a  curse  to  the  peo 


ple,  greater  than  any  one  thing  else,  except  it  be 
the  use  of  intoxicating  drinks.  The  disposition 
to  run  in  debt,  and  the  consumption  of  the  purse 
which  grows  out  of  it,  is  the  great  evil  of  the 
present  state  of  society.  Any  provisions  that  will 
tend  to  restrain  it  must  be  salutary ;  and,  there 
fore,  I  believe  that  this  amendment  will  do  much 
good  and  no  damage  to  anybody.  It  may  some 
times  restrain  a  man  in  the  exercise  of  his  passions, 
when,  perhaps,  they  are  reasonably  excited  ;  but 
all  such  will  thank  you  for  it,  at  any  time  after 
his  passions  become  cool. 

If  a  man  knows  that  he  has  no  power  to  put 
any  person  in  prison  because  he  refuses  to  pay  a 
debt,  it  will  be  a  caution  for  him  not  to  trust  men 
whom  he  does  not  know  to  be  trustworthy.  The 
effect  of  this  will  be  to  secure  him  against  loss. 
Under  the  present  law,  if  he  thinks  a  man  can 
pay  who  refuses  to  pay,  he  may  sometimes  feel 
justified  in  pursuing  him  with  vengeance,  while 
at  the  same  time,  if  he  should  be  restrained,  he 
would,  twenty- four  hours  afterwards,  think  better 
of  it,  and  would  be  thankful  for  the  law  which 
restrained  him.  In  nine  cases  out  of  ten,  the 
creditor  is  the  greatest  sufferer,  pecuniarily,  of 
the  two,  under  the  operations  of  the  present  sys 
tem. 

Sir,  we  have  the  credit,  all  over  the  country, 
of  having  abolished  imprisonment  for  debt,  and, 
at  the  same  time,  we  imprison  nearly  fifteen  hun 
dred  persons  annually,  in  our  jails  for  debt.  It 
seems  to  me  to  be  a  kind  of  hypocrisy,  for  us  to 
have  the  credit  of  doing  what  we  don't  do.  I 
do  not  know  much  of  the  detail  of  the  laws  now 
in  force,  in  relation  to  this  subject ;  I  never  had 
much  experience  in  being  sued  for  debt,  and  I 
never  much  helped  anybody  else  to  experience  on 
the  subject.  I  would  not  do  it.  I  would  much 
rather  take  fifty  cents  on  a  dollar,  of  a  debt,  if  I 
could  get  it,  than  to  sue  any  man  for  debt ;  and 
I  think  it  would  be  for  the  pecuniary  interest  of 
every-body  in  the  Commonwealth,  if  that  prin 
ciple  could  be  universally  adopted.  I  believe 
that  the  effect  of  the  adoption  of  the  amendment 
would  be  to  benefit  both  debtor  and  creditor,  and 
the  only  trouble  or  mischief  that  would  grow  out 
of  it  would  be,  that  it  might  prevent  what  would, 
in  many  cases,  be  only  a  justifiable  exhibition  of 
vengeance  on  the  part  of  the  creditor.  This 
might  go  against  his  grain  at  the  time,  but  he 
would  be  glad  of  it  afterwards,  for  it  would  save 
him  a  good  deal  of  expense,  trouble,  and  diffi 
culty.  I  think,  among  all  the  acts  of  this  Con 
vention,  we  have  not  done  a  great  many  things 
that  are  to  be  classed  among  real  humanitary  re 
forms  ;  and  it  seems  to  me  that  it  is  the  duty  of 
Conventions  that  are  held  only  once  in  twenty 


67th  day.] 


IMPRISONMENT   FOR   DEBT. 


409 


Tuesday,] 


HILLARD  —  STRONG  —  HALLETT  —  HALE  —  LOUD. 


[July  26th. 


or  thirty  years,  to  do  something  to  show  that  the 
people  have  advanced  in  civilization,  and  that 
they  are  doing  something  to  sweep  away  that 
barbarism  which  is  part  of  the  nature  of  man 
kind  in  the  early  stages  of  society— that  we  are 
doing  something  by  degrees,  to  raise  ourselves  to 
the  standard  of  a  higher  and  purer  civilization. 
The  adoption  of  this  amendment  will  give  an 
indication  that  this  Convention  is  animated  by 
such  a  spirit ;  and  it  will  be  of  some  influence  in 
conciliating  the  good  wishes  of  the  people  in  re 
gard  to  the  result  of  our  labors  here. 

Mr.  HILLARD.  I  know  that  the  Conven 
tion  are  not  in  the  mood  for  long  discussions,  and 
I  shall  only  speak  a  moment  or  two ;  but  it  seems 
to  be  no  more  than  fair  that  some  one  member  of 
the  Committee  on  the  Bill  of  Rights,  should  de 
fend  their  own  work.  This  proposition  was 
under  discussion  in  that  Committee,  and  was 
considered  by  them,  and  it  was  deemed  unadvi- 
sable  to  propose  it  for  the  action  of  the  Conven 
tion.  The  law  stands  now,  that  no  person  can 
be  arrested  on  mesne  process,  or  any  action  found 
ed  upon  contract,  unless  the  person  who  has  the 
claim,  or  some  one  upon  his  behalf,  makes  oath 
that  the  debtor  is  about  to  leave  the  Common 
wealth.  A  person  can  be  arrested  on  an  execu 
tion  ;  but,  besides  that,  all  persons  arrested  may 
discharge  themselves  by  giving  bail ;  it  is  made 
the  duty  of  the  officer  when  he  arrests  a  debtor, 
whether  on  mesne  process  or  execution,  to  com 
municate  to  him  the  provisions  of  law  by  which 
he  may  discharge  himself,  on  taking  what  is 
called  the  poor  debtor's  oath,  within  twenty- four 
hours. 

If  he  takes  the  poor  debtor's  oath,  he  is  only 
confined  for  twenty-four  hours,  and  that  is  as 
short  a  time  as  it  is  possible  to  give  notice  to  the 
creditor,  and  make  arrangements  with  the  magis 
trates.  The  only  possible  hardship,  therefore,  is, 
that  sometimes  a  man  may  lie  in  prison  twenty- 
four  hours,  and  that  such  hardship  may  some 
times  result  from  vindictive  motives  on  the  part 
of  the  creditor ;  but,  after  all,  as  one  gentleman 
said  this  morning,  it  is  a  balancing  of  con 
veniences.  I  have  been  about  twenty  years  in  the 
practice  of  the  law ;  and  for  many  years,  as  master 
in  chancery,  I  administered  the  insolvent  law.  I 
have,  therefore,  had  some  opportunity  of  com 
paring  together  the  two  great  classes  into  which 
society  is  divided — the  debtor  and  the  creditor. 
The  whole  current  of  sympathy  has  been  in  favor 
of  the  debtor,  and  nobody  has  said  anything  in 
favor  of  the  creditor.  In  my  opinion,  the  credi 
tors,  as  a  class,  deserve  the  sympathy  of  the 
community  quite  as  much  as  the  debtors.  There 
is  a  large  class  of  men,  and  not  unfrequently  of 

28s 


women,  too,  struggling  for  subsistence,  keeping 
boarding-houses,  or  small  shops,  Avho  are  obliged 
to  give  credit.  It  is  of  no  use  to  say  that  they 
should  not ;  they  must  do  so.  It  is  our  usage 
and  custom  ;  and  there  is  a  great  number  of 
debtors — reckless  persons  who  have  property,  or 
who,  by  a  little  economy  or  sacrifice,  could  pay 
their  debts  ;  and,  if  called  upon,  either  to  pay 
their  debts  or  to  take  the  poor  debtor's  oath,  they 
are  put  into  the  position  of  either  making  the 
payment  or  committing  perjury.  I  do  think, 
therefore,  that  if  you  take  away  this  power  of 
coercing  a  debtor  in  behalf  of  the  claim  of  a 
poor  but  honest  creditor,  you  introduce  a  very 
great  evil — one  which,  I  think,  will  be  found  to 
operate  to  the  injury  of  many  well- deserving 
members  of  the  community.  Regarding  the 
balance  of  conveniences  and  inconveniences,  I 
think  you  had  better  let  the  matter  stand  as  it  is. 

Mr.  STRONG.  I  wish  to  modify  the  amend 
ment  by  substituting  the  word  "inhabitant"  for 
the  word  "  person."  I  think  that  will  better 
answer  the  object  I  have  in  view. 

Mr.  HALLETT.  I  merely  wish  to  say  that 
with  that  amendment  I  think  it  is  perfectly  safe 
to  ingraft  this  provision  upon  the  Constitution. 
It  is  an  amendment  which  appears  to  me  to  be 
in  accordance  with  the  spirit  of  the  times,  and  it 
shall  have  my  vote. 

Mr.  HALE,  of  Bridgewater.  It  seems  to  me 
that  we  are  likely  to  act  with  more  haste  in  this 
matter  than  is  judicious.  Let  me  suppose  a  case. 
Suppose  that  I  owe  any  man  a  thousand  dollars, 
and  not  being  either  able  or  willing  to  pay,  and  I 
pack  up  what  I  have  and  direct  my  steps  to  one 
of  our  wharfs,  and  take  passage  for  California ;  is 
the  creditor  in  such  case  not  to  have  the  right  to 
arrest  me  ? 

Mr.  STRONG.  Upon  reflection  I  think  I  will 
withdraw  the  modification  I  suggested  a  few 
moments  ago. 

Mr.  LORD.  I  move  to  amend  the  amendment 
by  striking  out  the  words  "  on  any  contract, 
express  or  implied,"  and  insert  the  words  "  upon 
any  civil  process." 

Mr.  STRONG.  In  the  amendment  I  have 
proposed,  I  beg  to  say  that  the  language  I  have 
used  is  that  which  is  found  in  the  Constitutions 
of  ten  of  the  States  of  this  Union  ;  and  I  supposed 
that  under  such  a  state  of  facts,  it  would  not  be 
inappropriate  to  insert  it  in  the  Constitution  of 
Massachusetts. 

Mr.  LORD.  My  reason  for  offering  this 
amendment,  is,  in  order  that  if  we  adopt  this 
principle  at  all,  we  should  adopt  it  entirely  ;  so 
that  the  civil  proceedings  of  one  party  against 
another,  in  the  way  of  contract,  should  not  con- 


410 


IMPRISONMENT   FOR    DEBT. 


[67th  day. 


Tuesday," 


LORD  —  BUTLER. 


[July  26th 


stitute  a  foundation  on  which  either  party  should 
put  the  other  into  jail. 

Now,  there  are  very  few  contracts  that  may  be 
entered  into  in  the  Commonwealth  of  Massachu 
setts,  which  may  not  be  converted,  by  a  certain 
process,  into  a  tort,  and  being  converted  into  a 
tort,  the  imprisonment  for  debt  will  remain.  Let 
me  put  an  illustration.  There  is  nothing  more 
generally  understood  in  this  Commonwealth, 
than  that  females  are  not  liable  to  imprisonment 
for  debt ;  yet  the  very  same  provision  which  says 
this,  also  says  that  they  shall  not  be  imprisoned 
for  debt,  except  when  they  are  charged  as  trus 
tees  on  a  process  of  foreign  attachment.  If  you 
want,  therefore,  to  put  a  woman  in  jail,  all  that 
you  have  to  do  is,  to  sue  somebody  whom  she 
owes,  trustee  her  for  a  debt  which  she  cannot 
pay,  and  then  the  execution  runs  against  her 
body.  Let  me  illustrate  a  little  farther.  Say 
that  a  female  is  indebted  to  me  and  cannot  pay. 
I  cannot  put  her  in  jail  for  that  debt ;  but  I  am 
indebted  to  the  gentleman  for  Marshfield.  He 
sues  me,  and  the  woman  who  owes  me  is  trusteed 
by  him  for  the  amount  of  her  debt  to  me.  But, 
she  cannot  pay  that  debt  to  him,  any  more  than 
she  could  to  me.  She  can  no  more  pay  it  as 
trustee  for  the  benefit  of  another,  than  she  could 
to  the  original  creditor  ;  and  under  such  circum 
stances,  by  the  laws  of  Massachusetts,  to-day, 
she  is  liable  to  imprisonment ;  and  I  have  known 
people  try  to  use  that  process  for  purposes  of 
imprisonment.  Indeed,  I  can  safely  say,  that  I 
never  knew  any  one  who  was  aware  of  the  process, 
who  was  not  willing  to  use  it  for  that  purpose. 

Now,  perhaps  nine-tenths  of  all  the  cases  of 
tort  between  parties,  are  substantially  such  cases 
as  arise  on  the  obligations  of  contracts ;  and 
when  one  party  recovers  a  judgment  against 
another  for  a  tort,  unless  he  shall  have  done 
something  which  shall  render  him  amenable  to 
the  criminal  law  of  the  Commonwealth,  I  see 
no  more  reason  why  a  debt  created  in  that  mode 
should  give  authority  for  one  man  to  imprison 
another,  than  if  it  was  created  upon  contract. 
And,  in  reality,  there  is  not  now  any  substantial 
difference  in  the  law  between  tort  and  contract ; 
and  some  of  the  cases  of  contract  are  so  little 
distinguishable  from  cases  of  tort,  that  the  new 
practice  in  court  provides,  that  if  a  plaintiff  cannot 
tell  whether  it  is  a  tort  or  a  contract  that  he  is  going 
to  sue  upon,  he  may  declare  twice,  once  on  tort, 
and  once  on  contract,  and  put  at  the  bottom  of 
his  declaration  that  he  does  not  know  which  it  is, 
but  may  sue  for  the  same  thing  in  both  wavs. 
Now,  if  we  declare  the  principle  at  all,  it  seems 
to  me  to  be  proper  that  we  should  declare  it  to 
tho  fullest  extent;  and  when  ono  party  has 


obtained  a  judgment  against  another,  to  be  satis 
fied  by  money,  that  he  should  not  have  the  power 
to  imprison  him.  That  is  the  only  limit  we  can 
put  to  it.  It  seems  to  me  that  if  we  do  not  go  to 
this  extent,  we  only  half  do  our  work,  if  we 
adopt  a  principle  to  apply  in  cases  of  contract, 
and  not  of  tort. 

Mr.  BUTLER,  of  Lowell.  Perhaps  I  do  not 
understand  this  matter,  but  if  I  do,  I  should  be 
sorry  to  suppose  that  there  would  be  any  danger 
of  its  passing  through  this  Convention.  I  am 
content,  for  one,  that  where  men  make  contracts, 
and  where  a  thing  is  a  matter  of  bargain  between 
two  men,  they  should  understand  that  if  they 
make  such  a  contract,  they  shall  not  enforce  it  by 
arresting  and  imprisoning  the  person  of  either  the 
one  or  the  other.  That  is  one  thing  to  be  con 
sidered  ;  because  with  this  provision  before  them 
in  the  Constitution,  they  can  make  a  contract  or 
not,  as  they  please.  But  when  we  come  to  the 
amendment  of  the  gentleman  from  Salem,  that 
imprisonment  shall  not  lie  for  debt  in  any  civil 
action,  I  am  not  willing  to  go  for  it. 

The  gentleman  has  stated  a  rather  fanciful  case 
— that  of  trusteeing  a  woman  for  a  debt.  I  have 
been  in  the  practice  of  law  for  at  least  ten  or 
twelve  years,  and  have  never  known  a  woman 
imprisoned  under  such  circumstances,  and  should 
like  to  see  or  hear  from  the  gentleman  who  ever 
did.  If  there  be  any  one  here,  I  will  sit  down 
for  him  to  speak  and  tell  the  case.  [Mr.  B.  here 
paused  for  some  seconds ;  but  there  was  no  re 
sponse.]  Sir,  we  represent  this  Commonwealth 
here  pretty  well ;  and  if  a  woman  had  been  put 
into  jail  under  such  circumstances,  the  fact  would 
not  have  been  hidden  under  a  bushel.  The  case 
put  by  the  gentleman  from  Salem,  therefore,  I 
cannot  but  regard  as  merely  fanciful. 

But  that  is  not  all  the  trouble.  That  gentle 
man  proposes  that  whatever  a  man  may  do  under 
which  he  can  escape  punishment  in  the  State 
Prison,  the  party  whom  he  may  swindle  shall  be 
entirely  beyond  all  legal  remedy. 

Mr.  LOUD.  Not  quite,  Sir.  I  say  that  if 
you  put  anything  in  the  Constitution  in  reference 
to  this  subject,  it  should  be  a  provision  to  this 
effect — that  a  man  shall  not  be  put  in  jail  unless 
he  has  violated  the  criminal  law  of  the  Common 
wealth. 

Mr.  BUTLER,.  So  I  understand  the  gentle 
man  at  least.  Let  us  take  two  or  three  cases. 
Suppose  that  a  man  comes  and  steals  my  horse, 
and  he  is  put  into  prison  for  the  felony.  He  goes 
to  prison  and  has,  it  may  be,  any  quantity  of 
money  in  his  pocket,  and  I  want  to  get  redress. 
He  can  take  his  bank  bills  and  shake  them  in  my 
face  and  I  have  no  redress. 


67th  day.] 


IMPRISONMENT   FOR   DEBT. 


411 


Tuesday,] 


STRONG  —  BUTLER  —  ALLEN  —  HALLETT. 


[July  26th. 


Again,  take  another  case.  Suppose  that  a  man 
seduces  a  father's  daughter,  and  all  the  remedy 
he  can  get  is  against  his  person  ;  for  when  sued 
he  may  put  his  property  into  the  hands  of  a  third 
party,  or  secretes  it,  or  turns  it  into  money  ;  and 
thus  he  may  stand  in  a  court-house  and  shake 
his  money  in  that  father's  face,  and  say,  "  True, 
you  have  got  your  judgment,  but  what  are  you 
going  to  do?" 

Mr.  STRONG .  If  the  gentleman  from  Lowell 
will  allow  me  to  say  a  word  here,  I  would  remind 
him  that  the  law  always  presiimes  a  man  to  be 
innocent  until  he  is  proved  guilty,  and  a  man 
should  not  be  charged  with  having  fraudulently 
put  away  his  property  until  it  is  satisfactorily 
proved.  When  that  is  proved,  he  would  then  be 
subject  to  the  operation  of  the  statute  law,  and 
might  be  sent  to  jail  on  the  ground  of  fraud. 

Mr.  BUTLER.  Let  us  see  about  that.  It  is 
not  quite  so  certain. 

Mr.  STRONG.     Not  for  debt,  but  for  fraud. 

Mr.  BUTLER.  But  let  me  go  on.  Say  that 
I  do  not  owe  anybody  a  dollar  to-day,  I  can  then 
go  on  and  dispose  of  my  property  as  I  please. 
Then  I  am  sued  for  seduction ;  and  I  stand  up  in 
court  with  the  bills  in  my  hand ;  and  if  the 
amendment  proposed  by  the  gentleman  from  Sa 
lem  passes,  I  should  like  to  know  what  you  are 
going  to  do  about  it  ?  Put  me  in  jail  ?  That  you 
cannot  do.  Get  the  money  ?  No,  you  cannot  do 
that  either,  for  it  is  in  my  pocket.  What  fraud 
is  there  about  that  ?  It  is  simply  a  disposal  of 
my  property  when  I  had  a  perfect  right  to  do  so. 
Or  say  that  a  man  comes  and  takes  the  coat  off 
my  back,  and  says  it  is  his  coat.  I  sue  him  for 
it,  and  get  an  execution  against  him.  But  he 
replies,  "  I  have  the  coat  upon  my  back,  and  what 
are  you  going  to  do  about  it  ?  " 

But  the  difficulty  I  find,  is  this :  that  this  is  a 
matter  of  simple  legislation.  I  am  against  im 
prisonment  for  debt  as  a  matter  for  the  en 
forcement  of  a  contract;  every  man  can  un 
derstand  that ;  but  when  a  man  does  me  a  wrong — 
when  he  chooses  to  do  me  a  wrong,  knowing  that 
so  long  as  he  has  no  property  he  is  safe  in  doing 
it,  if  there  is  110  way  of  getting  hold  of  his  person, 
that  is  another  thing.  A  man  knocks  me  down, 
beats  me,  tramples  upon  me,  and  when  he  gets 
through,  I  may  punish  him  through  the  criminal 
law  or  not,  as  I  please.  But  if  there  was  no  way 
of  getting  hold  of  his  person  in  that  way,  why, 
what  remedy  have  I  in  prosecuting  ?  He  woxild 
say  to  me,  pay  your  lawyer  and  go  home.  I  do 
not  know  but  it  would  be  all  right ;  but  I  should 
not  like  it. 

The  gentleman's  proposition  is  too  radical  for 
me.  When  he  goes  much  farther  than  I  do,  I 


do  not  know  how  to  follow  him.  When  I  get 
lost,  that  is  one  thing ;  but  when  some  one  of  the 
stand-bys  gets  lost,  the  hold-backs  are  all  gone. 
There  is  the  difference  between  the  gentleman  and 
myself.  My  friend  from  Salem,  (Mr.  Lord,)  is 
so  conservative,  usually,  that  when  he  goes  for  a 
radical  doctrine,  I  begin  to  think  there  is  some 
thing  in  it.  He  proposes  to  take  away  imprison 
ment  in  cases  of  all  torts.  If  you  do,  that  amend 
ment  would  leave  men  without  remedies.  But 
if  the  Convention  are  ready  for  it,  I  am  content. 
I  wanted  to  say  sufficient  to  put  myself  right, 
because  I  shall  vote  against  it ;  that  is,  to  impris 
onment  for  debt  on  matters  of  contract,  I  am 
opposed.  As  to  imprisonment  in  matters  of  tort, 
I  am  in  favor  of  it ;  because  it  is  the  only  mode 
which,  in  many  cases,  you  can  avail  yourself  of 
to  collect  a  debt.  Now  I  agree,  that  in  nine  cases 
out  of  ten,  in  matters  of  contract  or  debt,  by 
having  the  power  of  putting  a  man  into  jail  you 
get  no  pay.  I  was  going  to  say  that  in  ninety- 
nine  cases  out  of  one  hundred,  but  I  will  only 
say  in  six  cases  out  of  ten,  for  fear  of  being  put 
into  jail  for  a  matter  of  tort,  a  man  will  pay. 

Mr.  ALLEN,  of  Worcester.  I  think  it  like 
ly  that  the  proposition  of  the  gentleman  from 
Southampton  may  need  amendment ;  and  as  there 
will  be  an  opportunity  to  consider  it  before  it 
passes  another  stage  in  its  progress,  gentlemen 
will  have  an  opportunity  in  the  mean  time  to 
give  it  consideration,  and  perhaps  be  able  to  sug 
gest  such  amendments  as  will  prevent  it  from 
doing  any  mischief.  For  my  own  part,  I  will 
take  the  proposition  for  the  present  as  it  has  been 
presented  by  the  gentleman  from  Easthampton. 
As  the  opportunity  has  been  afforded  to  express 
opinions  upon  the  general  principle,  whether  im 
prisonment  should  be  allowed,  I  am  willing  and 
ready  to  vote  for  the  great  principle  that  poverty 
shall  not  hereafter  be  classed  with  crime.  I 
therefore  prefer  the  proposition  now  without  the 
amendment,  and  take  opportunity,  before  the 
case  comes  up  again,  to  consider  it,  and  propose 
any  amendments  which  may  be  needed  ;  so  that 
the  principle,  benevolent  in  its  character,  shall  not 
be  productive  of  mischief. 

Mr.  HALLETT,  for  Wilbraham.  Let  me  say 
one  thing  which  gentlemen  understand  as  well  as 
I  do.  The  distinction  between  actions  of  tort  and 
actions  of  contract,  is  this  :  that  in  action  of  con 
tract  there  is  an  agreement,  or  understanding,  of 
some  sort,  between  the  two  parts.  They  trade, 
they  confer  together,  and  one  of  them  gets  the 
other's  property  by  his  consent.  In  actions  of 
tort,  one  man  takes  another  man's  property 
without  his  consent,  or  injures  his  property,  or 
destroys  his  reputation,  all  without  his  consent. 


412 


IMPRISONMENT   FOR   DEBT. 


[67th  day. 


Tuesday,] 


LORD  —  HALLETT  —  HILLARD  —  STRONG  —  HOPKINSON. 


[July  26th. 


That  is  the  distinction.  Wherever  two  men  get 
together  in  any  relation  in  which  they  trust  each 
other,  and  where  the  party  owning  the  property 
has  the  right  to  refuse  it,  there  should  be  no  right 
of  imprisonment  for  debt.  But  where  a  man 
takes  another's  property  without  his  consent,  or 
cuts  down  his  trees,  destroys  his  property,  or  com 
mits  a  malicious  mischief,  that  is  another  case. 

Mr.  LORD,  of  Salem.  I  desire  again  to  be 
exactly  right  about  this  matter.  The  position 
which  I  propose  to  stand  upon,  is  this  :  that  pun 
ishment  for  offences  committed,  is  the  prerogative 
of  the  government ;  that  it  is  not  policy  to  put 
the  power  of  punishment  of  one  man  in.  the 
hands  of  his  neighbor.  That  is  the  general  prin 
ciple  upon  which  I  stand,  and  I  would  no  more 
give  that  power  to  one  man — the  power  to  punish 
another,  because  he  wras  mistaken  in  a  contro 
versy  of  tort,  about  a  piece  of  property — than  I 
would  give  it  to  him  to  use,  because  the  other 
did  not  pay  a  debt. 

Now,  Sir,  there  has  not  been  a  single  case 
mentioned,  not  one,  but  what,  if  this  was  made 
a  constitutional  provision,  would  be  provided 
against  as  a  matter  of  fraud.  Not  one.  When 
the  gentleman  says  that  a  man  will  hold  bank 
bills  in  his  hands,  and  shake  them  in  his  face,  and 
say  you  shan't  have  them,  why,  if  there  is  an  obli 
gation  to  pay  a  debt,  and  the  man  has  the  bills  to 
pay  it,  he  cannot  do  it.  Because  that  act  is  a 
fraud,  one  which  the  legislature  will  define  to  be 
a  fraud,  and  every  case  which  has  been  put  by 
way  of  illustration,  if  it  is  not  a  fraud  now,  will 
be  made  a  fraud.  The  gentleman  says  that  when 
a  man  is  guilty  of  the  commission  of  malicious 
mischief,  I  could  have  him  punished,  and  the 
law  punishes  him — would  have  him  punished 
twice.  The  Commonwealth  already  punishes 
him  by  complaint  and  trial  for  malicious  mischief, 
and  in  that  very  case  which  he  has  put,  the  party 
is  liable  to  imprisonment  in  the  State  Prison. 
Now,  will  you  say,  that  besides  the  public  rem 
edy  by  confinement  in  State  Prison,  the  party 
shall  have  a  remedy,  and  keep  the  man  in  State 
Prison  until  he  rots  ?  Will  you  let  the  public 
punish,  and  let  the  individual  punish  also  ?  Be 
cause,  if  you  allow  the  party  to  be  sworn  out  by 
proving  that  he  has  no  property,  then  you  admit 
it  to  be  a  mere  simple  civil  obligation. 

Now,  Sir,  I  am  charged  with  breaking  loose, 
and  going  farther  than  every-body  else.  Well, 
Sir,  when  I  come  to  a  principle  which  I  think  is 
right,  I  am  very  apt  to  follow  that  principle 
where  it  leads,  without  stopping  to  consider 
r-^hether  it  would  be  safer  for  my  party  to  go  so 
far,  and  then  chop  around  and  say  it  is  not  safe 
to  go  any  farther.  Wherever  I  find  a  principle 


which  I  believe  to  be  a  just  and  true  principle,  I 
adopt  it,  wherever  it  is  practicable  to  do  so. 
Well,  Sir,  I  really  think  there  is  humanity  in  this 
provision,  and  I  only  wonder  that  the  reformers 
have  not  gone  farther  and  proposed  anti-capital 
punishment.  I  say,  Sir,  I  am  very  happy,  indeed, 
to  express  my  gratification  at  the  prospect  of  the 
majority  doing  a  humane  thing  ;  but  to  show  that 
I  have  no  disposition  to  interfere  with  it,  I  with 
draw  the  amendment  which  I  proposed ;  and  I 
withdraw  it  for  the  reason  suggested  by  the  gen 
tleman  from  Worcester,  (Mr.  Allen,)  that  in  the 
next  stage  there  would  be  an  attempt  to  mature 
it. 

Mr.  HALLETT.  I  move  to  strike  out  the 
word  "persons,"  and  substitute  in  lieu  thereof 
the  word  "inhabitants." 

Mr.  HILLAKD,  of  Boston.  I  would  ask 
whether  we  have  the  right  to  make  a  provision 
which  shall  be  applicable  to  inhabitants,  and  not 
to  transient  persons  who  may  be  here,  and 
whether  that  does  not  come  in  conflict  with  that 
clause  of  the  Constitution  of  the  United  States 
which  gives  to  the  citizens  of  all  the  States  the 
same  rights,  &c.,  in  every  State? 

Mr.  HALLETT.  As  it  reads  now,  it  is  that 
no  "person"  of  this  Commonwealth,  &c.  Now, 
I  do  not  know  what  that  means. 

Mr.  STRONG,  of  Easthampton.  I  will  modify 
my  amendment,  and  substitute  the  word  "in" 
for  the  word  "of,"  and  that  will  remove  the  dif 
ficulty. 

Mr.  HOPKINSON,  of  Boston.  I  think,  Mr. 
President,  that  the  Convention  wrill  act  inconsid 
erately,  if  they  pass  this  without  farther  discus 
sion.  I  understand  that  it  is  the  intention  of 
some  gentlemen  to  consider  this  matter  more 
maturely  in  the  next  stage ;  yet  it  seems  to  me 
not  amiss  to  throw  out  some  considerations,  af 
fecting  the  main  question,  at  this  stage.  I  think 
the  gentleman  for  Abington,  (Mr.  Keyes,)  put 
the  question  upon  the  right  ground.  If  the  pro 
vision  is  defensible  in  any  way,  it  is  defensible 
upon  the  ground  that  it  is  not  expedient  to  take 
any  steps  to  enforce  a  debt  against  a  person  in 
any  form  whatever.  I  wrill  go  farther — and  I 
think  his  proposition  went  farther — to  take  any 
steps  to  enforce  a  debt  against  property,  because 
to  say  that  you  will  not  enforce  it  against  the 
property  except  when  it  is  visible  and  open,  is 
about  the  same  thing.  The  proposition,  there 
fore,  is  to  say,  that  in  all  cases  founded  upon  con 
tract,  there  shall  be  no  provision  by  which  a  debt 
can  be  enforced.  The  distinction  between  cases 
of  contract  and  cases  of  tort,  has  been  pointed 
out  in  its  broader  shades  ;  but  the  equity  of  the 
case  is  about  the  same,  in  a  large  number  of  cases. 


67th  day.] 


INPHISONMENT  FOR    DEBT. 


413 


Tuesday,] 


HOPKINSON. 


[July  26th. 


They  shadow  into  each  other  until  you  can 
hardly  tell  which  is  contract,  and  which  is  tort, 
and  it  frequently  depends  upon  the  lawyer  draw 
ing  the  pleadings,  whether  it  sounds  in  tort,  or 
in  contract.  For  instance,  if  a  man  goes  to  a 
poor  woman  and  boards  with  her,  and  gets  his 
living  from  her,  and  then  refuses  to  pay  the  bill, 
he  does  a  great  wrong,  but  it  is  not  a  fraud ;  and, 
let  me  say,  in.  reference  to  a  remark  made  by  an 
other  gentleman,  the  legislature  cannot  make  it  a 
fraud ;  because,  when  we  are  framing  a  Consti 
tution,  we  use  language  as  it  is,  and  the  legisla 
ture  cannot,  by  giving  a  new  definition  to  the 
words  we  use,  say  that  the  meaning  is  different 
from  what  we  intended. 

Another  man,  by  accident,  takes  yoxir  umbrel 
la,  thinking  it  is  his  own,  but,  by  mistake,  gets 
your  property,  and  that  becomes  the  foundation 
of  an  action  of  trespass  or  trover,  and  the  remedy 
can  be  enforced  by  imprisonment  of  the  person. 
Yet  I  submit,  there  is  no  great  difference  in  favor 
of  the  last  case  over  the  former.  The  former  is, 
in  fact,  much  more  deserving  of  imprisonment. 
The  distinction  between  the  case  founded  on  con 
tract,  and  the  case  founded  on  a  claim  of  prop 
erty,  where  the  defendant  honestly  supposed  it  to 
be  his  own,  is  one  without  essential  difference  in 
morals  or  equity,  and  yet  you  give  a  remedy  in 
the  one  case  against  the  person,  and  in  the  other 
only  against  the  property. 

But  I  pass  by  all  these  distinctions,  and  ask 
whether  it  is  expedient  and  right  to  say  that  you 
will  take  no  means  whatever  to  force  a  man  to 
deliver  up  his  property  to  pay  his  debts,  unless 
you  can  seize  upon  the  property  specifically  ?  And 
I  think  all  that  the  gentleman  from  Lowell,  (Mr. 
Butler,)  has  said  in  relation  to  claims  founded  on 
tort,  may  be  said  here.  A  man  who  owes  a  debt, 
with  his  pockets  full  of  money,  and  every  means 
in  the  world  to  pay  it  with,  can  shake  that  money 
in  your  face,  and  say,  I  will  not  pay  you.  A 
debtor  is  going  out  of  the  State,  having  with  him 
ten  thousand  dollars,  visible  to  your  eyes,  and 
yet  you  cannot  take  it,  you  cannot  arrest  him. 
You  will,  say  that  perhaps  the  law  will  provide 
that,  in  case  a  debtor  is  going  to  depart  from  the 
State,  you  shall  have  some  means  to  arrest  him. 
But  suppose  it  were  so,  unless  the  man  was  fool 
enough  to  tell  that  he  means  to  avoid  the  pay 
ment  of  the  debt  by  running  out  of  the  State, 
you  cannot,  ordinarily,  get  hold  of  him.  You 
cannot  swear  that  you  have  reason  to  believe  that 
he  is  going  away,  for  you  know  nothing  about  it, 
and  you  cannot  enforce  the  payment  of  the  debt. 
The  answer  to  this  is,  that  the  creditor,  by  consent 
ing  to  the  credit,  does  the  wrong  to  himself;  ~be- 
cause  he  need  not  to  have  trusted  him.  There  was 


no  necessity  of  creating  a  debt,  and  he  need  not 
have  subjected  himself  to  a  loss.  He  might  have 
required  payment  in  advance.  That  is  easily 
said,  but  every  man  knows  that  such  a  provision 
will  not  change  the  course  of  business.  Every 
man  knows,  for  instance,  that  when  a  person 
goes  to  board  with  a  poor  woman — who  gets  her 
living  by  feeding  others,  and  makes  but  little  at 
that,  and  perhaps  nothing — he  does  not  deposit  a 
pledge  in  advance,  and  will  not  do  it.  So  in 
most  cases  where  a  day  laborer  engages  to  work. 
It  is  a  mockery  to  say  such  persons,  or  small 
traders,  need  not  give  credit.  The  every-day 
course  of  business  compels  them  to  give  it. 

My  friend  from  Lowell  knows  that  there  are 
hundreds  and  thousands  of  persons  among  his 
constituents,  who  live  in  that  way,  and  who 
would  have  no  means  to  collect  a  debt  in  the 
world,  without  some  provision  by  which  a  person 
could  be  detained  until  he  disclosed  his  means  of 
payment.  It  is  not,  therefore,  a  premium  upon 
honesty.  It  is  no  boon  to  honest  poverty  that 
you  propose.  It  is  not  a  provision  which  can 
benefit  honest  men,  or  poor  men  ;  but  it  is  a 
premium  upon  rascality.  It  is  a  boon  to  that  class 
of  persons  who  mean  to  get  their  living  from  the 
sweat  of  other  brows,  without  laboring  them 
selves.  That  is  the  amount  of  it. 

But,  it  is  said,  that  unless  this  provision  is 
made,  you  declare  that  poverty  is  a  crime.  I  deny 
it.  The  mere  fact  that  a  person  is  detained  and 
held  until  he  discloses  his  means  of  payment,  is 
not  to  charge  him  with  any  crime.  He  need  not 
be  restrained  in  any  case  as  the  law  now  stands, 
according  to  my  understanding  of  it,  unless  it  is 
in  the  case  where  he  is  about  to  run  away  without 
paying  his  debts,  or  unless  the  creditor,  by  his 
oath,  declares  his  belief  that  he  is.  All  the  debtor 
needs,  is  to  go  into  court,  which  he  can  do  at  any 
time,  without  costing  him  anything,  or  with  cost 
ing  him  next  to  nothing,  and  take  the  poor  debtor's 
oath.  When  he  has  done  that,  he  cannot  be 
restrained  for  any  such  cause.  No  process  can 
then  issue  against  his  body,  before  j  udgment,  that 
is  on  mesne  process,  if  he  can  only  be  restrained 
upon  the  oath  of  the  creditor  that  he  is  about  to 
escape.  So  that  the  only  case  where  a  man  can 
be  imprisoned  for  debt,  is  simply  until  he  makes 
his  oath  that  he  has  no  property,  or  that  he  has 
given  it  all  up ;  and  he  can  make  that  oath  im 
mediately.  It  is  simply  a  cheap  and  effectual  bill 
of  discovery.  Without  such  a  provision,  any  dis 
honest  debtor  can  cover  up  or  conceal  his  means 
of  payment,  and  defraud  honest  creditors. 

I  submit,  therefore,  that  it  is  not  worth  while 
to  take  away  this  only  remedy  which  small  dealers 
have  of  collecting  their  small  bills  from  persons 


414 


IMPRISONMENT   FOR   DEBT. 


[67th  day. 


Tuesday,] 


HOFKINSON  —  BREED  —  YEAS. 


[July  26th. 


who  are  disposed  to  escape  without  paying  them. 
I  do  not  believe  that  such  a  provision  would 
receive  the  sanction  of  this  community. 

But,  Sir,  I  do  not  expect  by  any  argument  of 
mine,  to  change  the  action  of  this  Convention. 
I  only  desire  to  protest  against  the  adoption  of  a 
measure  like  this,  for  I  believe  it  is  one  of  which 
we  shall  repent,  and  one  against  which  a  majority 
of  the  people  will  protest. 

I  am  for  having  every  person  escape  with  his 
liberty  who  will  disclose  his  property  and  deliver 
it  up  to  his  creditors.  I  can  see  no  stain  put  upon 
his  character  by  detaining  him  until  he  has  an 
opportunity  of  doing  so,  or  of  taking  the  poor 
debtor's  oath.  I  repeat,  that  such  a  provision  will 
act  as  no  restraint  upon  those  who  are  disposed  to 
be  honest.  It  is  only  a  restraint  upon  those  whose 
intention  it  is  to  commit  a  shameless  fraud,  by 
concealing  their  property,  and  refusing  to  pay  their 
debts.  It  makes  no  charge  upon  anybody  else. 
It  is  entirely  a  misstatement  of  the  case  to  say 
that  it  charges  poverty  as  a  crime.  It  makes  no 
imputation  upon  poverty. 

I  see  no  difference  in  principle,  between  this 
provision  as  it  now  stands,  and  that  proposed  by 
the  gentleman  from  Salem,  (Mr.  Lord).  There 
are  cases  for  seduction,  for  slander,  or  for  oxit- 
rageous  frauds  against  property,  which  arc  in  the 
nature  of  crimes,  and  widely  different  from  debts 
of  contract ;  for  such  cases,  imprisonment  is  an 
appropriate  punishment.  But  the  majority  of 
actions  of  tort  are  founded  on  claims  of  prop 
erty,  and  should  be  collected  in  the  same  manner 
as  claims  for  debt.  They  shadow  into  each  other 
until  there  is  really  no  distinction  between  them. 
Take,  for  instance,  the  case  of  a  man  who  hires  a 
horse  to  go  twenty  miles.  That  would  be  a  con 
tract.  But,  suppose  he  had  occasion,  when  he 
arrived  there,  to  go  a  mile  or  two  farther ;  he 
knows  that  the  owner  of  the  horse  would  not  have 
made  the  slightest  objection,  if  he  had  asked  to 
hire  the  horse  to  go  those  two  miles,  and  he  will 
not  hesitate  to  drive  or  ride  the  horse  there  ;  but 
when  you  come  to  the  matter  of  law,  he  is  liable 
for  the  horse,  for  the  distance  for  which  he  hired 
him  only,  as  a  matter  of  contract ;  but  if  he  drives 
him  two  miles  farther,  he  is  liable  to  an  action  of 
trover  or  trespass,  yet  there  is  no  moral  distinction 
between  the  two  cases.  It  is  a  mere  technical  dis 
tinction.  In  many,  if  not  most  cases,  it  is  a  dis 
tinction  without  a  difference;  while  in  other 
cases,  the  distinction  is  wide  and  marked.  Leave 
the  legislature,  then,  to  make  the  appropriate  dis 
tinction.  It  seems  to  me  not  worth  while  to  per 
petuate  forever,  in  your  Constitution,  a  distinction 
so  unfounded  and  absurd  in  its  general  applica 
tion. 


Mr.  BREED,  of  Lynn.  I  move  the  previous 
question. 

The  previous  question  was  seconded,  and  the 
main  question  ordered  to  be  put. 

The  question  was  first  upon  the  amendment,  on 
which  the  yeas  and  nays  were  ordered,  and  being 
taken,  the  result  was — yeas,  120  ;  nays,  45 — as 
follows : — 


YEAS. 


Allen,  Charles 
Allis,  Josiah 
Alvord,  D.  W. 
At  wood,  David  C. 
Baker,  Hillel 
Beal,  John 


Hobbs,  Edwin 
Howard,  Martin 
Hoyt,  Henry  K. 
Hunt,  Charles  L\ 
Huntington,  George  H. 
Jacobs,  John 


Blagden,  George  W.  Kellogg,  Giles  C. 

Boutwell,  Scwell  Keyes,  Edward  L. 
Bradford,  William  J.  A,  Kimball,  Joseph 

Breed,  Hiram  N.  Kingman,  Joseph 

Briggs,  George  N.  Knight,  Jefferson 

Bronson,  Asa  Knight,  Joseph 

Brownell,  Joseph  Knowlton,  J.  S.  C. 

Buck,  Asahel  Knowlton,  William  H. 

Bullock,  Rufus  Ladd,  Gardner  P. 

Burlingame,  Anson  Lawrence,  Luther 

Butler,  Benjamin  F.  Lawton,  Job  G.,  Jr. 

Cady,  Henry  Leland,  Aldcn 

Carter,  Timothy  W.  Loomis,  E.  Justin 

Chandler,  Arnariah  Merritt,  Simeon 

Chapin,  Daniel  E.  Morton,  Elbridge  G. 

Churchill,  J.  McKean  Morton,  Marcus 

Cogswell,  Nathaniel  Morton,  Marcus,  Jr. 

Copeland,  Benjamin  F.  Morton,  William  S. 

Crane,  George  B.  Newman,  Charles 

Crittenden,  Simeon  Nute,  Andrew  T. 

Cross,  Joseph  W.  Ober,  Joseph  E. 

Dana,  Richard  II.,  Jr.  Oliver,  Henry  K. 

Dean,  Silas  Packer,  E.  Wing  » 

Denton,  Augustus  Partridge,  John 

Eaiie,  John  M.  Pease,  Jeremiah,  Jr. 

Eaton,  Lilley  Penniman,  John 

Edwards,  Elisha  Perkins,  Jesse 

Ely,  Joseph  M.  Phelps,  Charles 

Fay,  Sullivan  Pierce,  Henry 

Fisk,  Lyman  Pomroy,  Jeremiah 

Fiske,  Emery  Pool,  James  M. 

Freeman,  James  M.  Richards,  Luther 

French,  Charles  A.  Rogers,  John 

French,  Rodney  Schouler,  William 
Frothingham,  Rich'd,  Jr.  Sheldon,  Luther 

Gilbert,  Wanton  C.  Stacy,  Eben  II. 

Giles,  Charles  G.  Stevens,  Joseph  L.,  Jr. 

Giles,  Joel  Stiles,  Gideon 

Gooding,  Leonard  Strong,  Alfred  L. 

Gouldiiig,  Dalton  Sumuer,  Char. 

Green,  Jabcv,  Sumner,  Increase 

lladley,  Samuel  P.  Tuber,  Isaac  C. 

Hallett,  B.  F.  Tuft,  Arnold 

Harmon,  Phineas  Thomas,  John  W. 

Hawkes,  Stephen  E.  Tilton,  Abraham 

Hayden,  Isaac  Turner,  David 

Ha/ewell,  Charles  C.  Tyler,  William 

Horsey,  Henry  Wales,  Bradford  L. 

Hewes,  William  H.  Wallace,  Frederick  T. 

Hindsdale,  William  Walker,  Samuel 


67th  day.] 

IMPRISONMENT   FOR  DEBT. 

415 

Tuesday,] 

NAYS  —  ABSENT. 

[July  26th. 

Ward,  Andrew  II. 

Whitney,  James  S.               Davis,  John 

Jenks,  Samuel  H. 

Wheeler,  William.  F. 

Wilbur,  Daniel 

Davis,  Robert  T. 

Johnson,  John 

White,  Benjamin 
White,  George 

Wilson,  Henry 
Wilson,  Willard 

Dawes,  Henry  L. 
Day,  Gilman 

Kellogg,  Martin  R. 
Kinsman,  Henry  W. 

Dehon,  William 

Knowlton,  Charles  L. 

NAYS. 

Deming,  Elijah  S. 

Ladd,  John  S. 

Denison,  Hiram  S. 

Langdon,  Wilber  C. 

Abbott,  Alfred  A. 

Knight,  Hiram 

De  Witt,  Alexander 

Lincoln,  Frederic  W.,  Jr. 

Adams,  Beiijamin  P. 

Knox,  Albert 

Doane,  James  C. 

Little,  Otis 

Allen,  Parsons 

Kulm,  George,  H. 

Dorman,  Moses 

Littleiicld,  Tristram 

Bartlett,  Russel 

Lincoln,  Abishai 

Duncan,  Sanmel 

Livermore,  Isaac 

Bennett,  Zephaniah. 

Miller,  Seth,  Jr. 

Dunham,  Bradish 

Lord,  Otis  P. 

Bigelow,  Edward  B. 

Morey,  George 

Durgin,  John  M. 

Lothrop,  Samuel  K. 

Bird,  Francis  W. 

Park,  John  G. 

Eamcs,  Philip 

Loud,  Samuel  P. 

Booth,  William  S. 

Parker,  Samuel  D. 

Easland,  Peter 

Lowell,  John  A. 

Boutwell,  Geo.  S. 

Parris,  Jonathan. 

Easton,  James,  2d 

Marble,  William  P. 

Brown,  Artemas 

Peabody,  Nathaniel 

Eaton,  Calvin  D. 

Marcy,  Laban 

Cooledge,  Henry  F. 

Perkins,  Noah  C. 

Edwards,  Samuel 

Marvin,  Abijah  P. 

Davis,  Solomon 

Rantoul,  Robert 

Ely,  Homer 

Marvin,  Theophilus  R. 

Foster,  Abram 

Richardson,  Daniel 

Eiistis,  William  T. 

Mason,  Charles 

Fowle,  Samuel 

Richardson,  Samuel  II. 

Farwell,  A.  G. 

Header,  Reuben 

Fowler,  Samuel  P. 

Ross,  David  S. 

Fellows,  James  K. 

Mixter,  Samuel 

Gooch,  Daniel  W. 

Thayer,  Willard,  2d 

Fitch,  Ezekiel  W. 

Monroe,  James  L. 

Goulding,  Jason 

Tilton,  Horatio  W. 

Foster,  Aaron 

Moore,  James  M. 

Hillard,  George  S. 

Wallis,  Freeland 

French,  Charles  II. 

Morss,  Joseph  B. 

Hopkinson,  Thomas 

Wilson,  Milo 

French,  Samuel 

Nash,  Hiram 

Hotighton,  Samuel 

Winslow,  Levi  M. 

Gale,  Luther 

Nayson,  Jonathan 

Hubbard,  William  J. 

Wood,  Natnaniel 

Gardner,  Henry  J. 

Nichols,  William 

Jackson,  Samuel 

Wright,  Ezekiel 

Gardner,  Johnson 

Norton,  Alfred 

Kendall,  Isaac 

Gates,  Elbridge 

Noyes,  Daniel 

Gilbert,  Washington 

Orcutt,  Nathan 

j 

Gould,  Robert 

Orne,  Benjamin  S. 

J 

^    * 

Graves  John  W. 

Osgood,  Charles 

Abbott,  Jo.=iah  G. 

Brown,  Hiram  C. 

Gray,  John  C. 

Paige,  James  W. 

Adams,  Shubael  P. 

Brownell,  Frederick 

Greene,  William  B. 

Paine,  Benjamin 

Aldrich,  P.  Emory 

Bryant,  Patrick 

Greeiileaf,  Simon 

Paine,  Henry 

Allen,  James  B. 

Bullen,  Amos  II. 

Griswold,  Josiah  W. 

Parker,  Adolphus  G. 

Allen,  Joel  C. 

Biimpus,  Cephas  C. 

Griswold,  Whiting 

Parker,  Joel 

Alley,  John  B. 

Caruthers,  William 

Hale,  Artemas 

Parsons,  Samuel  C. 

Andrews,  Robert 

Case,  Isaac 

Hale,  Nathan 

Parsons,  Thomas  A. 

Appleton,  William 

Chapin,  Chester  W. 

Hall,  Charles  B. 

Payson,  Thomas  E. 

Aspinwall,  William 

Chapin,  Henry 

Hammond.  A.  B. 

Peabody,  George 

Austin,  George 

Childs,  Josiah 

Hapgood,  Lymaii  W. 

Perkins,  Daniel  A. 

Ayres,  Samuel 

Choate,  Rums 

Hapgood,  Seth 

Perkins,  Jonathan  C. 

Bollard,  Alvah 

Clark,  Henry 

Haskcll,  George 

Phinney,  Silvanus  B. 

Ball,  George  S. 

Clark,  Ransom 

JIaskins,  William 

Plunkett,  William  C. 

Bancroft,  Alpheus 

Clark,  Salah 

Hathaway,  Elnathan  P. 

Powers,  Peter 

Banks,  Nathaniel  P.,  Jr.  Clarke,  Alpheus  B. 

Hayward,  George 

Preston,  Jonathan 

Barrows,  Joseph 

Clarke,  Stillman 

Heard,  Charles 

Prince,  F.  O. 

Bartlett,  Sidney 

Cleverly,  William 

Heath,  Ezra  2d, 

Putnam,  George 

Barrett,  Marcus 

Coggin,  Jacob 

Henry,  Samuel 

Putnam,  John  A. 

Bates,  Eliakim  A. 

Cole,  Lansing  J. 

Hewes,  James 

Rawson,  Silas 

Bates,  Moses,  Jr. 

Cole,  Sumner 

Hey  \vood,  Levi 

Reed,  Sampson 

Beach,  Erasmus  D. 

Coiikey,  Ithamar 

Hobart,  Aaron 

Read,  James 

Beebe,  Janies  M. 

Cook,  Charles  E. 

Hobart,  Henry 

Rice,  David 

Bell,  Luther  V. 

Cressy,  Oliver  S. 

Holder,  Nathaniel 

Richardson,  Nathan 

Bennett,  William,  Jr. 

Crockett,  George  W. 

Hood,  George 

Ring,  Elkanah,  Jr. 

Bigelow,  Jacob 

Crosby,  Lcander 

Hooper,  Foster 

Rockwell,  Julius 

Bishop,  Henry  W. 

Crowell,  Seth 

Howland,  Abraham  H. 

Rockwood,  Joseph  M. 

Bliss,  Gad  O. 

Crowninshield,  F.  B. 

Hunt,  William 

Royce,  James  C. 

Bliss,  Willam  C. 

Cummings,  Joseph 

Huiitington,  Asahel 

Sampson,  George  R. 

Bradbury,  Ebenezer 

Curtis,  Wilber 

Huntington,  Charles  P. 

Sanderson,  Amasa 

Braman,  Milton  P. 

Cushman,  Henry  W. 

Huiiburt,  Samuel  A. 

Sanderson,  Chester 

Brewster,  Osmyn 

Cushman,  Thomas 

Hurlbut,  Moses  C. 

Sargent,  John 

Brinley,  Francis 

Cutler,  Simeon  N. 

Hyde,  Benjamin  D. 

Sherman,  Charles 

Brown,  Adolphus  F. 

Davis,  Charles  G. 

Ide,  Abijah  M.,  Jr. 

Sherril,  John 

Brown,  Alpheus  R. 

Davis,  Ebenezer 

James,  William 

Sikes,  Chester 

Brown,  Hammond 

Davis,  Isaac 

Jenkins,  Jolm 

Simmons,  Perez 

416 


BILL   OF   RIGHTS,  dtc. 


[67th  day. 


Tuesday,] 


MORTON  —  SCHOULER  —  CHANDLER  —  ALLEN. 


[July  26th. 


Simonds,  John  ~W. 
Sleeper,  John  S. 
Smith,  Matthew 
Souther,  John 
Sprague,  Mekar 
Spooiier,  Samuel  W. 
Stetson,  Caleb 
Stevens,  Charles  G. 
Stevens,  Graiiville 
Stevens,  William 
Stevenson,  J.  Thomas 
Storrow,  Charles  S. 
Stutson,  William 
Swain,  Alanson 
Talbot,  Thomas 
Taylor,  Ralph 
Thayer,  Joseph 
Thompson,  Charles 
Tilcston,  Edmund  P. 
Tower,  Ephraim 
Train,  Charles  R. 
Turner,  David  P. 
Tyler,  John  S. 
Underwood,  Orison 


Upham,  Charles  W. 
Upton,  George  B. 
Yiles,  Joel 
Vinton,  George  A. 
Walcott,  Samuel  B. 
Walker,  Amasa 
Warner,  Marshal 
Warner,  Samuel,  Jr. 
Waters,  Asa  H. 
Weeks,  Cyrus 
Westori,  Gershom  B. 
Wetmore,  Thomas 
Whitney,  Daniel  S. 
Wilbur,  Joseph 
Wilder,  Joel 
Wilkins,  John  H. 
Wilkinson,  Ezra 
Williams,  Henry 
Williams,  J.  B. 
Wiiin,  Jonathan  B. 
Wood,  Charles  C. 
Wood,  Otis 
Wood,  William  H. 
Woods,  Josiah  B. 


Absent  and  not  voting,  254. 

So  the  amendment  was  adopted. 

The  question  then  recurred  upon  ordering  the 
resolves  to  a  second  reading. 

Mr.  WHEELER,  of  Lincoln,  moved  that  the 
Convention  adjourn. 

Mr.  MORTON,  of  Taunton,  remarked  that  the 
Convention  had  this  morning  imposed  upon  the 
Committee  on  the  Judiciary  a  very  important 
duty,  which  it  would  be  impossible  for  them  to 
perform  in  time  unless  they  were  allowed  to  sit 
during  the  session  of  the  Convention.  He  there 
fore  asked  that  the  motion  to  adjourn  be  with 
drawn,  until  he  could  make  a  motion  that  the 
Committee  on  the  Judiciary  have  leave  to  sit 
daring  the  session  of  the  Convention. 

Mr.  WHEELER  withdrew  the  motion.  The 
Orders  of  the  Day  were,  on  motion,  laid  upon  the 
table. 

On  motion  of  Mr.  MORTON,  of  Taunton,  it 
was  then 

Ordered,  That  the  Committee  on  the  Judiciary 
have  leave  to  sit  during  the  session  of  the  Con 
vention. 

On  motion  of  Mr.  BUTLER,  of  Lowell,  the 
Orders  of  the  Day  were  again  taken  up,  the 
question  being  upon  ordering  to  a  second  reading 
the  resolves  in  relation  to  the  Bill  of  Rights. 

Mr.  SCHOULER,  of  Boston,  gave  notice  that 
when  the  resolves  come  up  again  upon  their  final 
passage,  he  should  move  to  amend  them. 

The  resolves  were  then  ordered  to  a  second 
reading,  when 

On  motion  of  Mr.  WHEELER,  of  Lincoln, 


the  Convention  adjourned  until  this  afternoon  at 
three  o'clock. 

AFTERNOON    SESSION. 
The  Convention  reassembled  at  three   o'clock. 
On  motion  of  Mr.  MORTON,  of  Andover,  the 
Convention  resolved  itself  into 

COMMITTEE  OF  THE  WHOLE, 

Mr.  Schouler,  of  Boston,  in  the  chair,  and  re 
sumed  the  consideration  of  the  resolutions  re 
ported  by  the  Committee  on  the 

Bill  of  Rights. 

The  Committee  first  proceeded  to  consider  the 
following  Minority  Report : — 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  18,  1853. 
The  undersigned,  a  Minority  of  the  Committee 
on  so  much  of  the  Constitution  as  is  contained  in 
the  Preamble  and  Bill  of  Rights,  report  that  the 
second  Article  of  the  Bill  of  Rights  ought  to  be 
so  altered  as  to  change  the  words—"  for  his  relig 
ious  profession  or  sentiments"  to  the  words  "for 
his  profession  or  sentiments  concerning  religion." 
So  that  it  will  read,  if  so  amended — "And  no 
subject  shall  be  hurt,  molested  or  restrained,  in 
his  person,  liberty  or  estate,  for  worshipping  God 
in  the  manner  and  season  most  agreeable  to  the 
dictates  of  his  own  conscience,  or  for  his  profes 
sion  or  sentiments  concerning  religion." 

B.  F.  HALLETT. 

ANSON  BURLINGAME. 

CHARLES  SUMNER. 

HENRY  WILLIAMS. 

GEO.  S.  HILLARD. 

Mr.  CHANDLER,  of  Greenfield.  I  move  to 
amend  by  striking  out  the  word  "  subject"  in  the 
first  line  of  the  article,  and  inserting  the  word 
"  person,"  so  that  it  would  read,  "  and  no  person 
shall  be  hurt,"  &c. 

I  also  move  to  add  at  the  end  of  the  article  the 
following  proviso : — 

Provided  he  does  not  interfere  with  the  rights 
or  privileges  of  other  worshippers. 

I  fully  approve  of  the  alterations  proposed  in 
the  Report,  but  it  seems  to  me  that  proviso  is 
necessary,  because  we  know  that  there  have  been, 
and  are,  fanatics  who  will  interfere  with  the  priv 
ileges  of  other  worshippers. 

Mr.  ALLEN,  of  Worcester.  I  should  like  to 
have  some  gentleman  who  is  in  favor  of  the  alter 
ations  proposed  in  this  Report,  state  to  the  Con 
vention  what  evils  we  labor  under  at  the  present 


67th  day.] 


BILL  OF   RIGHTS. 


417 


Tuesday,] 


LORD  —  SUMNER  —  CHANDLER  —  CHAPIN. 


[July  26th. 


time,  and  what  occasion  there  is  for  making  any 
change  ?  If  it  is  true  that  there  is  entire  religious 
freedom  in  the  Commonwealth  at  this  time,  then 
I  think  no  better  language  can  be  employed  than 
is  contained  in  the  Constitution  as  it  now  stands. 
But  perhaps  reasons  can  be  given  why  this  change 
should  be  made.  At  any  rate,  before  adopting 
this  amendment,  I  should  be  glad  to  hear  the 
reasons  given  for  proposing  it. 

Mr.  LORD,  of  Salem.  I  desire  to  know  of 
some  member  of  the  minority  of  the  Committee 
which  reported  this  amendment,  whether,  in 
changing  the  language  of  the  present  Constitu 
tion,  which  is,  that  no  person  shall  be  hurt,  mo 
lested,  &c.,  for  "  his  religious  profession  and 
sentiments,"  to  the  words  "  for  his  profession  or 
sentiments  concerning  religion,"  they  mean  to 
say  that  men  may  avow  in  just  such  terms  as 
they  choose,  as  blasphemously  as  they  please, 
sentiments  in  relation  to  religion,  by  this  provis 
ion  which  they  recommend,  or  whether  it  is  to 
give  farther  security  to  persons  in  their  religious 
professions  ? 

Mr.  SUMNER,  for  Marshfield.  Does  the  gen 
tleman  appeal  to  me  ? 

Mr.  LORD.     I  do. 

Mr.  SUMNER.  I  regret  that  the  member  for 
Wilbraham,  (Mr.  Hallett,)  is  not  in  his  seat,  for 
this  Report,  though  signed  by  others,  was  brought 
in  by  him.  Still,  I  am  very  willing  to  respond 
to  the  gentleman,  so  far  as  I  comprehend  the  im 
port  of  his  inquiry. 

The  existing  Bill  of  Rights  declares  that  no 
subject  shall  be  molested  "  for  his  religious  pro 
fession  or  sentiments."  It  is  now  proposed  to 
say  "for  his  profession  or  sentiments  concerning 
religion."  Now,  it  seems  to  me,  that  these  two 
propositions,  literally  and  properly  interpreted, 
are  substantially  alike.  I  do  not  think  that  un 
der  the  original  words  any  person  can  be  justly 
molested  for  any  profession  or  sentiments  con 
cerning  religion ;  always  provided  that  he  keeps 
himself  within  the  accompanying  limitation  of 
the  Constitution,  that  is  :  "provided,  he  doth  not 
disturb  the  public  peace  or  obstruct  others  in  their 
religious  worship." 

Mr.  CHANDLER,  of  Greenfield.  I  desire  to 
ask  the  gentleman  for  Marshfield  if  the  proviso 
he  has  just  read  is  in  the  Constitution  ? 

Mr.  SUMNER.     Certainly  it  is. 

Mr.  CHANDLER.  Then  I  will  withdraw 
the  proviso  I  offered. 

Mr.  SUMNER.  But  the  gentleman  from  Sa 
lem  asks,  why  introduce  the  proposed  amend 
ment  ?  For  this  simple  reason.  A  question  has 
arisen  as  to  the  meaning  of  the  language  now 
employed,  and  it  well  becomes  the  Convention, 

29 3 


in  revising  its  Bill  of  Rights,  to  place  a  right  of 
such  importance  beyound  doubt.  Surely,  while 
the  religious  worship  of  others  is  unobstructed, 
and  the  public  peace  is  undisturbed,  every  man 
should  be  at  liberty  to  speak  his  mind  freely  on 
matters  of  religion,  as  on  all  other  matters  ;  nor 
can  I  accept  any  restraint  of  this  liberty,  beyond 
the  requirements  of  the  public  peace  and  the  re 
ligious  worship  of  others.  Religious  toleration  is 
one  of  the  boasts  of  our  country,  as  it  is  one  of 
the  aspirations  of  all  generous  lovers  of  liberty 
everywhere ;  but  if  any  person  may  be  molested 
for  his  profession  or  sentiments  concerning  relig 
ion,  expressed  within  the  existing  limitations  of 
the  Constitution,  permit  me  to  say,  Sir,  that  relig 
ious  toleration  does  not  prevail  in  reality ;  it  is  a 
name,  and  nothing  more.  Let  us  now  help  to 
make  it  a  reality. 

Mr.  LORD,  of  Salem.  I  understand  that 
what  has  merely  a  tendency  to  disturb  the  public 
peace,  will  not  make  a  man  liable  to  be  punished 
for  a  disturbance  of  the  public  peace.  Now  what 
I  ask  the  gentleman  for  Marshfield,  (Mr.  Sumner,) 
is  this  :  whether  an  infidel  has  not  the  right,  un 
der  this  provision,  to  introduce  into  every  shop 
window  in  Washington  Street,  and  into  every 
public  place  in  the  Commonwealth,  the  grossest 
caricatures,  burlesques,  and  denunciations  of  the 
Christian  religion  ?  I  ask  whether  he  may  not, 
in  this  way,  promulgate  his  sentiments  concern 
ing  religion  ?  I  ask  the  gentleman  to  tell  me  if 
every  caricature,  and  every  burlesque  of  every 
person  professing  the  Christian  religion,  and  of 
every  principle  of  the  Christian  religion,  hung  up 
upon  every  sign-board  and  in  every  shop-window 
in  the  Commonwealth,  may  not,  under  this  pro 
vision,  be  a  legitimate  means  for  persons  to  pro 
mulgate  their  sentiments  concerning  religion  ? 

Mr.  CHAPIN,  of  Webster,  moved  to  strike 
out  the  word  "restrained,"  so  that  instead  of 
"  and  no  subject  shall  be  hurt,  molested  or  re 
strained,"  it  would  read  "  and  no  subject  shall  be 
hurt  or  molested." 

Mr.  SUMNER,  for  Marshfield.  I  venture  to 
suggest  to  the  gentleman  from  Greenfield,  who 
proposes  to  strike  out  the  wonl  "  subject,"  that 
the  word  "  man  "  would  be  more  appropriate  in 
that  particular  place  than  "  person."  The  latter 
word  occurs  in  the  next  line  of  the  same  clause, 
and  in  a  sense  different  from  that  it  would  have 
in  the  first  line.  I  presume  the  gentleman  would 
not  desire  to  see  such  a  repetition  in  the  text  of 
the  Constitution,  even  if  it  were  not  slightly  in 
congruous  also. 

Mr.  CHANDLER.  I  accept  the  suggestion, 
and  will  move  that  the  word  •«  man  "  be  inserted 
in  the  place  of  the  word  "  subject," 


418 


BILL   OF   RIGHTS. 


[67th  day. 


Tuesday,] 


SUMNEB  —  BRIGGS. 


[July  26th. 


Mr.  SUMXEIl.  I  am  glad  the  gentleman  has 
called  attention  to  this  point,  though  its  discussion 
at  this  moment  seems  to  interfere  with  the  main 
question.  Unquestionably  there  are  differences 
of  opinion  as  to  the  expediency  of  change  in  the 
existing  language  of  the  Bill  of  Rights.  All  will 
agree  that  such  a  document,  from  such  a  pen, 
drawn  from  such  sources,  with  such  an  origin  in 
all  respects,  and  which  for  more  than  three- score 
years  and  ten  has  been  a  household  word  to  the 
people  of  Massachusetts,  should  be  touched  by 
the  Convention  only  with  extreme  care.  Its 
principles  are  justly  dear  ;  and  its  very  words, 
vigorous  and  expressive,  though  not  always  those 
we  should  select,  have  become  associated  in  our 
thoughts  with  the  liberties  which  they  guard. 
Still,  had  my  desires  prevailed  in  the  Committee, 
there  are  expressions  which  I  would  have  remov 
ed  or  changed,  in  order  to  bring  the  text  into 
better  harmony  with  our  times ;  but  I  was  over 
ruled  by  the  Committee,  who  preferred  to  leave 
the  words  as  they  came  from  the  first  Convention, 
and  as  they  are  now  stamped  upon  the  minds 
and  hearts  of  the  people  of  the  Commonwealth. 
Some  additional  provisions  I  would  have  incor 
porated,  also;  and  here  again  I  was  overruled, 
except  so  far  as  appears  in  the  Report  of  the  Com 
mittee  ;  but  I  say  nothing  of  these  now.  I  am 
speaking  simply  of  the  language. 

I  am  not  strenuous  in  condemnation  of  the 
word  "  subject.  '  It  does  not  hurt  me  to  be  call 
ed  a  subject  of  the  Constitution  and  laws.  But 
I  am  bound  to  confess  that  there  are  other  equiv 
alent  expressions  which  would  do  full  as  well,  and 
would  be  more  in  accordance  with  the  language 
of  our  day.  It  will  be  observed  that  this  word 
occurs  in  several  different  clauses  of  the  Bill  of 
Rights.  In  the  second  clause  I  would  supply  its 
place  by  "  man,"  according  to  the  motion  of  the 
gentleman  from  Greenfield.  In  the  eleventh 
clause,  where  it  occurs  once ;  and  in  the  twelfth 
clause,  where  it  occurs  three  times,  I  would  sup 
ply  its  place  by  "  person  ;"  but  in  the  fourteenth 
and  twenty- fifth  clauses,  in  each  of  which  it  occurs 
once,  I  would  substitute  "  man."  In  making 
this  change  in  the  last  two  clauses,  we  should  get 
back  to  the  original  draft  of  John  Adams,  which 
was  altered  in  the  Convention  from  "  man  "  to 
"  subject." 

Mr.  DANA,  for  Manchester.  I  would  suggest 
the  word  "  citizen." 

Mr.  SUMNER.  This  is  a  word  of  art,  and  is 
not  so  comprehensive  and  universally  applicable 
as  the  word  "  man."  It  may  be  restricted  to 
persons  who  enjoy  the  rights  of  citizens  in  Mas 
sachusetts. 

Mr.  BRIGGS,  of  Pittsfield.     I  came  in  when 


the  gentleman  for  Marshfield  was  speaking,  and 
I  would  be  glad  to  understand  more  fully  the 
object  of  the  amendment.  If  there  is  any  good 
reason  for  our  interfering  to  change  the  form  of 
a  sentence  in  this  part  of  the  Bill  of  Rights,  I 
have  no  disposition  to  oppose  it.  But  what  rea 
son  there  is,  any  farther,  when  the  gentleman 
says,  as  I  understand  him,  that  a  liberal  construc 
tion  gives  precisely  the  same  import  to  both  expres 
sions,  but  there  is  some  danger  of  a  misconstruc 
tion  of  the  language  of  the  Bill  of  Rights  as  it  is 
now,  I  do  not  perceive.  Now,  what  that  mis 
construction  is,  or  may  be,  I  am  not  informed. 
I  wish  for  some  light  on  this  subject.  If  there  is 
any  import  to  this  new  phrase  different  from  that 
which  strikes  the  ear  or  the  mind,  I  should  like 
to  know  what  it  is.  If  there  is  any  meaning  in 
the  present  term  which  is  liable  to  misconstruction, 
and  in  any  way  to  interfere  with  the  unrestrained 
freedom  of  religious  opinion,  I  should  like  to 
know  what  it  is.  I  would  like  to  know  what 
that  danger  of  misconstruction  is,-  or  how  it  may 
happen  that  any  man  in  Massachusetts  may  be 
restrained,  or  curtailed,  or  deprived  of  any  free 
dom  of  religious  opinion  and  action  consistent 
with  the  rights  and  interests  of  others,  under  the 
present  Bill  of  Rights.  When  I  know  what  it 
is,  I  will  go  as  quick,  and  as  far  as  any  one,  to 
redress  it,  and  to  provide  against  the  evil.  There 
fore,  I  wish  to  have  my  friend  say  what  this 
danger  of  misconstruction  is,  that  will  give  a 
different  interpretation  to  the  old  form  of  expres 
sion,  which,  he  says,  by  a  liberal  construction, 
means  the  same  as  the  other,  if,  by  this  altera 
tion  any  such  liberty  is  intended  to  be  given  as 
the  gentleman  from  Salem  (Mr.  Lord)  argues 
may  be  given ;  if  by  the  language  of  the  present 
Bill  of  Rights,  which  gives  to  every  man  freedom 
of  religious  opinion,  he  would  not  be  permitted 
in  language,  in  words,  in  actions,  or  by  pictures, 
to  ridicule  and  bring  into  disrespect,  and  treat  with 
ignominy,  the  Christian  religion,  and  this  new 
mode  of  expression  gives  that  right,  or  gives  that 
liberty,  I  will  not  go  for  the  change.  If  there  is  any 
thing  which  will  give  a  man  who  has  no  religion, 
who  mocks  at  religion  and  its  Author,  who  scoffs  at 
the  Creator,  and  tramples  under  foot  all  forms  of 
Christianity, — if  this  amendment  will  give  any 
man  that  privilege  unrestrained,  then  I  cannot 
vote  for  it.  But,  I  say  sincerely,  I  am  in  doubt. 
I  do  not  know  what  different  idea  is  intended  to 
be  introduced,  and  therefore  I  ask  my  friend  to 
say  what  danger  there  is  under  the  present  Bill 
of  Rights,  of  doing  violence  to"  any  man's  relig 
ious  opinions,  and  what  new  security  is  given  by 
the  new  form  of  expression  ?  I  ask  with  a  sin 
cere  desire  to  be  informed.  If  necessary,  I  go 


67th  day.] 


BILL   OF   RIGHTS. 


419 


Tuesday,] 


KEYES  —  DANA  —  WILSOX. 


[July   26th. 


for  it  freely  ;  but  if  not  necessary,  I  should  not 
think  it  wise  to  change  the  present  form. 

Mr.  KEYES,  for  Abington.  The  gentleman 
for  Marshfield  having  once  answered  that  ques 
tion,  and  that  not  being  the  first  question  before 
us,  I  wish  to  make  a  remark  on  the  amendment 
offered  by  the  gentleman  from  Greenfield,  which 
is  to  substitute  the  word  "  man "  for  the  word 
"subject."  I  suppose  that  the  word  "man,"  is 
intended  to  be  used  in  its  most  comprehensive 
sense,  and  to  include  the  whole  race.  But,  it  is 
not  always  held  to  mean  so  much,  and  the  fact 
that  it  has  been  used  with  other  meanings  than 
that,  has  led  the  world  into  some  difficulty  here 
tofore.  If  it  is  necessary  for  the  harmony  of  the 
sentence,  I  would  prefer  that  the  word  "  individ 
ual"  should  be  introduced  instead  of  the  word 
"  man,"  although  it  does  not  sound  quite  as  well. 
I  think  the  Convention  ought  to  decide  to  change 
the  word  "subject,"  for  one  or  the  other  of 
the  words  named.  We  have  no  subjects  of  gov 
ernment  here,  we  are  all  partners.  "We  have 
subjects  of  other  things,  of  parties  and  powers, 
but  not  of  the  government.  I  had  the  impres 
sion  that  the  word  subject  was  stricken  out,  in 
most  cases,  by  the  Convention  of  1820,  but  it 
seems  it  was  not.  I  trust  that  we  live  at  a  period 
when  we  shall  use  no  such  unmeaning  term  as 
the  word  "  subject."  I  would  prefer  the  word 
"  individual,"  rather  than  the  word  "  man," 
which  properly  construed,  I  suppose  woxild  mean 
all  mankind.  .But  that  word  has  been  so  con 
strued  heretofore  as  to  deprive  a  portion  of  the 
people  of  a  portion  of  their  just  rights. 

Mr.  DANA.  I  was  not  in  when  the  question 
was  propounded  ;  but,  if  I  understand  it,  it  is  on 
striking  out  the  word  "  subject,"  and  inserting 
the  word  "man."  The  gentleman  for  Abington 
proposes  to  insert  the  word  "individual."  I  do 
beg  that  we  shall  not  call  it  "individual."  Every 
scholar  has  an  aversion  to  that  word,  where  it  can 
be  avoided.  I  would  rather  see  all  the  rust  re 
main,  than  put  the  word  "individual"  into  our 
organic  law. 

Mr.  KEYES.  I  do  not  object  to  the  word 
"  person." 

Mr.  DANA.  There  is  a  difficulty  about  that, 
because  it  will  occur  twice  in  the  same  sentence. 
I  am  decidedly  in  favor  of  the  word  "  subject." 
We  discussed  the  matter  in  Committee,  and  there 
was,  at  first,  a  little  natural  pride  exhibited,  like 
that  which  the  gentleman  for  Abington  has  mani 
fested  with  regard  to  using  the  word  "  subject." 
We  came  to  the  conclusion,  finally,  that  our  an 
cestors — who  had  as  much  pride  as  we — under 
stood  the  matter  perfectly  well  when  they  called 
themselves  subjects.  I  do  not  believe  that  John 


Adams,or  Samuel  Adams,  or  James  Bowdoin,  made 
any  mistake  when  they  called  themselves  subjects. 
They  understood  perfectly,  quite  as  well  as  we 
do,  that  they  were  not  subjects  of  any  king  ;  but 
they  took  a  proper  pride  in  acknowledging  that 
tbat  they  were  subject  to  the  law.  They  took  a 
proper  pride  in  saying  that  every  Massachusetts 
man,  while  he  was  a  sovereign  as  a  law-maker,  was 
— the  proudest  of  us — a  subject  to  the  laws  when 
made. 

Now,  I  am  happy  to  be  able  to  say,  that  when 
ever  the  people  of  Massachusetts  pass  a  law,  I  am 
subject  to  that  law.  I  take  pride  in  saying  that, 
while  I  am  one  of  the  sovereigns,  as  a  law-maker, 
yet,  as  a  la\v-obeyer,  I  am  one  of  the  subjects. 
For  one,  I  desire  to  have  this  term  remain,  that 
the  idea  of  duty  may  remain  somewhere  in  our 
laws  and  Constitution.  We  are  too  much  in  a  state 
of  feeling  which  can  recognize  nothing  but  power 
in  ourselves.  The  duty  of  obedience  seems  to  be 
almost  lost  sight  of.  Now,  my  pride  is  not  at  all 
affected  or  hurt  by  calling  myself  a  subject  of  the 
laws,  or  of  the  State.  I  should  not  wish  to  be  the 
subject  of  any  one  man  ;  but  I  am  quite  willing 
to  be  the  subject  of  the  State,  and  to  recognize 
the  fact  that  in  one  aspect  we  are  all  kings,  but 
in  another  aspect  we  are  all  subjects.  I  submit 
whether  this  is  not  running  the  matter  a  little 
too  fine  to  refuse  to  acknowledge  this  relation. 
Our  ancestors  acknowledged  it  in  1780,  John 
Adams,  and  all  the  rest ;  and,  in  1820,  there  was 
a  discussion  on  striking  out  the  word  "  subject," 
and  inserting  the  word  "citizen,"  or  "person." 
It  was  opposed,  and  was  rejected  by  a  vote  of  two 
hundred  and  eight  to  two  hundred  and  twenty- 
seven  in  committee ;  and  afterwards,  when  it 
came  up  in  Convention,  it  was  rejected  without  a 
count,  and  the  term.  "  subject "  remained.  Let 
it  be  declared  that  every  man — the  proudest  and 
wealthiest — is  still  a  subject  of  the  State.  I  hope, 
therefore,  the  word  may  still  remain  in  the  Con 
stitution. 

Mr.  KEYES.  I  wish  to  say,  that  if  we  main 
tain  these  two  characters  of  sovereign  and  subject, 
that  perhaps  we  may  as  well  introduce  the  word 
"sovereign"  instead  of  the  word  •"  subject,"  be 
cause,  according  to  the  gentleman's  own  state 
ment,  we  are  just  as  much  sovereign  as  subject. 
When  that  discussion,  in  1820,  took  place,  they 
were  not  so  far  advanced  as  we  are  by  thirty- three 
years,  and  the  men  who  then  voted  in  favor  of 
the  change  expressed  the  almost  universal  senti 
ment  of  this  day,  while  the  men  who  voted 
against  it  expressed  sentiments  that  are  outlawed. 

Mr.  WILSON,  of  Natick.  I  find  the  word 
"  individual,"  the  word  "  man,"  and  the  word 
"  citizen,"  used  in  the  Constitution  in  the  same 


420 


BILL    OF   RIGHTS. 


[67th    day. 


Tuesday,] 


CHAPIN  —  BIRD  —  HILLAKD. 


[July  26th. 


sense  in  which  this  word  "  subject "  is  used. 
In  most  of  the  Constitutions  of  other  States,  I 
find  the  word  "person"  is  generally  used.  In 
the  new  States,  the  word  "person"  is  used  in 
stead  of  the  word  "  subject."  This  is  the  only 
State  that  retains  the  word  "  subject,"  unless  it 
be  one  or  two  of  the  older  Southern  States.  I  do 
not  feel  degraded  by  it ;  I  agree  with  the  gentle 
man  for  Manchester,  that  there  is  nothing  derog 
atory  in  it.  We  are  all  sovereigns,  and  all 
subjects  to  our  own  government.  But  at  the 
same  time,  I  do  not  like  the  word  very  well,  and 
I  should  prefer  to  see  the  word  "  person  "  used 
throughout,  as  it  is  used  in  the  Constitutions  of 
most  of  the  new  States  of  the  Union. 

Mr.  CHAPIN,  of  Webster.  I  hope  this  whole 
resolution  will  be  voted  down  ;  but,  if  it  must 
pass,  I  prefer  to  have  the  amendment  prevail.  I 
think  it  is  evident  that  this  change  which  has 
been  proposed,  is  not  presented  for  the  mere  pur 
pose  of  improving  the  phraseology  of  the  Consti 
tution.  There  is,  evidently,  a  design  behind  that, 
and,  for  one,  that  design  is  very  evident  to  my 
mind;  and  I  hope  that  before  the  Convention 
vote  upon  this  matter,  gentlemen  will  study  a 
little  upon  the  phraseology  of  this  resolution,  and 
they  must  be  able  to  see  the  real  object  of  the 
change  proposed.  I  wish  the  chairman  of  the 
Committee  was  present  to  make  an  explanation. 
I  think  we  are  not  sufficiently  acquainted  with 
the  matter.  I  hope  we  shall  not  impose  upon 
courts  of  justice  the  necessity  of  receiving  evidence 
of  persons  who  disbelieve  in  a  Divine  Being.  I 
think  this  amendment  paves  the  way  for  such  a 
result.  I  hope  the  Convention  will  be  prepared 
to  vote  upon  the  subject  understandingly. 

Mr.  BIRD,  of  Walpole.  This  amendment, 
which  is  proposed  by  the  gentleman  from  Green 
field,  (Mr.  Chandler,)  is  a  very  grave  matter,  and 
I  think  there  is  reason  for  regret  that  it  should 
have  been  introduced  at  this  late  stage  of  the 
session,  when  the  fifteen  minute's  rule  is  in  opera 
tion.  It  should  have  been  brought  in  when  the 
hour  rxile  was  in  force,  so  that  we  could  have 
had  some  speeches  that  would  have  opened  up 
the  whole  question.  I  only  want  to  say,  that  if 
gentlemen  are  disposed  to  make  any  more  speech 
es  upon  the  matter,  as  to  whether  we  shall  use 
the  word  "  man,"  "  person,"  or  "  individual," 
I  shall  feel  constrained  to  move  that  the  whole 
matter  be  referred  to  a  Special  Committee. 

Mr.  IIILLARD.  I  am  sorry,  Sir,  that  the 
gentleman  who  represents  Wilbraham,  (Mr. 
Hallett,)  is  not  here  ;  this  whole  matter  is  a 
child  of  his  begetting,  and  I  regret  that  he  is  not 
here  to  look  after  it.  It  will  be  observed  that  my 
name  is  at  the  bottom  of  those  who  propose  it ; 


and  I  will  tell  the  Committee  how  that  happened 
to  be  so.  The  gentleman  for  Wilbraham  intro 
duced  a  large  number  of  propositions  for  the 
consideration  of  the  Committee.  We  had  a 
great  many  meetings  and  a  great  many  discus 
sions,  and  I  was  obliged  to  oppose  almost  all  of 
these  propositions.  Upon  one  occasion,  when 
the  matter  before  us  was  tinder  discussion,  it  so 
happened  that  the  fact  whether  it  should  be  re 
jected  or  adopted,  would  depend  upon  my  vote. 
I  had  very  little  choice  about  the  matter,  one 
way  or  the  other  ;  and  so  I  said  to  my  friend 
who  represents  Wilbraham,  that,  having  been  so 
often  obliged  to  go  against  him  from  conscien 
tious  motives,  now,  when  I  could,  with  a  little 
straining,  go  for  him,  I  would  willingly  do  so, 
and  I  did  so  ;  and,  accordingly,  the  proposition 
was  adopted.  My  hand  being  there  to  it,  I  am 
bound  to  stand  up  arid  explain  what  I  suppose 
was  the  real  motive  that  induced  the  minority  of 
the  Committee  to  submit  the  proposition.  This 
whole  matter  grew  out  of  a  single  memorable 
trial  in  this  Commonwealth — the  trial  of  the 
Commonwealth  against  Kneeland — and,  were  I 
addressing  my  friend  from  Taunton,  (Mr.  Mor 
ton,)  I  should  say 

"  Quorum  pars  magna  fuisti." 

My  friend  who  represents  Wilbraham,  was 
much  exercised  in  his  mind  with  regard  to  that 
trial,  and  I  must  say  that,  to  some  extent,  I  went 
along  with  him.  I  was  one  of  a  certain  number 
of  persons,  who,  under  the  lead  of  my  revered 
and  beloved  friend,  the  late  Dr.  Charming,  pe 
titioned  the  executive  to  pardon  that  unhappy 
man.  I  understand  that  the  doctrine  upon  which 
that  conviction  was  obtained,  was  this :  that  al 
though  the  Constitution  said — [Mr.  Hallett  at 
this  moment  entered  the  hall] — I  can  now  say, 
as  Othello  said,  "  Here  comes  the  lady  ;  let  her 
witness  it !"  [Laughter.]  I  understand  that  the 
conviction  was  obtained  upon  the  ground  that, 
although  a  person  could  not  be  called  in  ques 
tion  for  his  religious  sentiments — he  might  utter 
any  sentiments  whatever  respecting  religion, 
or  respecting  Christianity,  so  long  as  they  were 
religious  sentiments,  but  the  moment  he  uttered 
irreligious  sentiments  he  made  himself  amenable 
to  punishment.  From  the  principle  involved  in 
this  construction,  I  must  respectfully  dissent.  It 
seems  to  me,  that  upon  this  whole  subject  of  re 
ligion,  or  more  properly,  of  Christianity,  for  that 
is  what  is  meant  here,  there  are  two  rules.  One 
of  these  is  the  rule  of  the  Romish  Church,  which 
denies  entirely  the  right  of  private  judgment. 
They  say  that  the  Church,  being  a  body  of  wise 
and  learned  men,  running  through  all  periods  of 


67th   day.] 


BILL   OF   RIGHTS. 


421 


Tuesday,] 


HILLARD  —  CHANDLER. 


[July  26th. 


time,  have  construed  the  Bible,  and  have  agreed 
upon  certain  doctrines  and  tenets  which  are  not 
only  to  be  received  as  true,  but  all  others  are 
false.  No  person  shall  preach  or  maintain  any 
doctrine  opposed  to  them ;  and,  not  only  that,  but 
no  person  shall  think  or  hold,  within  the  sanctu 
ary  of  his  own  conscience,  except  on  sufferance, 
any  other  doctrines  than  those  which  the  Church 
approves  and  teaches.  That  is  the  Romish  rule 
or  principle,  and  is  consistent  and  intelligible ; 
the  Protestant  doctrine,  on  the  other  hand,  gives 
the  right  of  private  judgment,  without  limitation, 
and  without  restriction.  Between  these  two,  I 
cannot  see  any  principle  on  middle  ground ;  and 
I  do  not  think  it  is  ever  wise  to  punish  a  man 
for  his  sentiments  or  opinions  concerning  re 
ligion.  I  humbly  think  that  the  trial  of  Knee- 
land  was  unwise  as  a  matter  of  policy,  and  that 
the  friends  of  Christianity  can  never  wisely  and 
judiciously  ask  that  the  arm  of  law  shall  be 
stretched  forth  to  silence  discussion.  So  long  as 
a  person  utters  his  sentiments,  supposing  them 
to  be  irreligious  and  opposed  to  Christianity,  so 
long  as  he  utters  them  with  decency  and  deco 
rum,  I  would  not  have  him  punished.  Among 
the  petitions  presented  to  the  Committee,  was  one 
from  an  individual  bearing  the  name  of  Le 
Barnes  ;  I  do  not  know  who  he  is,  but  his  argu 
ment  was,  indirectly  and  by  inference,  rather 
against  Christianity  ;  and,  so  far  as  it  went,  the 
language  was  perfectly  decorous.  His  arguments 
were  addressed  to  the  reason ;  but  the  difficulty 
is,  that  in  almost  all  cases,  those  who  oppose 
Christianity  are  left,  by  the  very  infirmity  of 
mind  and  heart  which  leads  them  to  do  so,  to  use 
language  which  is  indecorous,  and  which  should 
not  be  tolerated.  The  difficulty  in  Kneeland's 
case  was,  that  there  were  some  expressions  which 
he  used,  that  were  outrageous  and  indecent ;  and 
it  was  for  that  reason  that  the  sympathies  of  the 
community  were  not  excited  in  his  behalf.  Here 
is  the  difficulty  about  this  subject.  While  I 
would  not,  on  the  one  hand,  restrain  or  punish 
any  person  who  should  utter  irreligious  or  un- 
Christian  sentiments  in  decent  language,  which 
did  not  lead  to  a  breach  of  the  peace,  I  do  think 
that  society  has  a  right  to  punish  the  man  wrho 
assails  our  religious  convictions,  and  wounds  our 
religious  sensibilities  by  indecent,  contemptuous, 
and  sarcastic  language,  such  as,  from  the  infirmi 
ties  of  humanity,  leads  inevitably  to  a  breach  of 
the  peace.  Here  is  a  practical  difficulty  in  legis 
lation  which  I  hardly  know  how  to  meet.  On 
that  account,  for  one,  I  never  would  have  stirred 
in  this  matter  ;  I  never  would  have  presented  it 
to  the  Convention  ;  and,  frankly,  I  must  Confess 
that  I  have  very  great  doubts  about  the  wisdom 


or  propriety  of  submitting  it  to  the  action  of  the 
people. 

Mr.  CHANDLER,  of  Greenfield,  When  I 
first  read  this  resolution,  I  supposed  that  it  was 
intended  to  throw  open  the  whole  area  to  free 
and  perfect  competition,  and  not  that  any  conse 
quences  would  be  likely  to  follow,  such  as  have 
been  suggested  by  the  gentleman  from  Salem,  and 
by  the  gentleman  from  Pittsfield — gentlemen  who 
are  versed  in  the  law,  and  who  are  mere  capable 
of  judging  than  I  am.  I  suppose  it  was  not  de 
signed  to  give  countenance  to  any  such  thing ; 
and  if  such  an  abuse  was  to  be  made  of  it,  I  pre 
sume  it  would  be  actionable  at  law.  It  would 
come  under  the  proviso  that  the  legislature  have  a 
right  to  pass  all  wholesome  and  reasonable  laws  ; 
but  I  trust  that  no  man,  for  undertaking  to  prop 
agate  his  sentiments  concerning  religion,  will  be 
subjected  to  any  pains  or  penalties  whatever.  I 
do  not  know  but  that  my  friends  will  think  that 
I  am  taking  a  very  strange  course  for  a  man  in 
my  position ;  but  what  I  am  about  to  state  I  have 
held  for  years — I  have  declared  my  views  in  the 
private  circle,  I  have  declared  them  publicly  in 
my  own  pulpit,  and  I  am  ready  to  declare  them 
in  this  assembly.  I  have  no  sympathy  with  the 
Atheist,  who  denies  the  God  who  made  him ;  I 
have  no  sympathy  with  the  Deist,  who  denies  the 
Savior  who  bought  him  with  his  blood ;  and 
least  of  all  have  I  any  sympathy  with  the  pro 
fessed  Christian  minister,  who  acknowledges  Jesus 
as  his  highest  ideal  of  human  greatness  and  virtue, 
and  in  the  same  connection  proves  him  guilty  of 
falsehood.  No,  Sir  !  but  I  hold  to  free  compe 
tition.  I  never  feel  that  the  citadel  of  truth  is 
safe,  wrhile  it  is  surrounded  by  bulwarks  of  human 
erection ;  but,  in  maintaining  the  cause  of  the 
Bible,  I  will  retreat  into  the  citadel,  and  open 
every  door,  and  there  I  defy  the  world.  It  ap 
pears  strange  to  me  that  men  should  often  seem 
to  be  so  afraid  of  the  consequences  of  certain 
thing?.  It  \vas  but  a  year  or  two  since,  that  I 
was  conversing  with  a  gentleman  high  in  civil 
society,  of  education,  and  in  an  honorable  pro 
fession,  who  expressed  great  fears  that  geology 
was  going  to  disprove  the  Bible ;  and  with  another 
one  who  was  mightily  afraid  that  the  science  of 
phrenology  would  overthrow  the  Bible.  It  ap 
pears  to  me  that  they  really  did  not  believe  the 
Bible.  I  have  such  a  conviction  in  the  truth  of 
the  Holy  Scriptures,  that  I  say,  only  leave  the 
Bible  free,  and  leave  its  friends  free  to  defend  and 
advocate  its  truth,  and  you  may  leave  all  the  op 
position  in  the  world  free  to  attack  it ;  I  have  no 
fears  as  to  the  result.  Let  them  come  into  free 
competition ;  let  every  kind  of  error  and  delusion 
speak,  only  let  truth  be  free  to  speak  in  turn,  and 


422 


BILL   OF   RIGHTS. 


[67th  day. 


Tuesday,] 


FRENCH  —  SUMNER  —  HALLETT. 


[July  26th. 


I  fear  not.     For   this   reason  I  approve   of  this 
resolution,  and  hope  that  it  will  pass. 

Mr.  FRENCH,  of  New  Bedford.  I  will  merely 
say,  Mr.  President,  that  my  mind  preponderates 
in  favor  of  the  word  "  person,"  and  I  should  like 
to  have  that  word  inserted  in  preference  to  any 
other  word  that  I  have  heard  mentioned.  There 
is  a  national  odor  about  it  which  I  like. 

Mr.  SUMNER,  for  Marshfield.  I  should  like 
to  ask  the  gentleman  if  he  observed  that  the  word 
"  person  "  occurs  in  the  second  line.  I  presume 
he  would  not  desire  to  have  the  word  occur  twice 
in  the  same  sentence,  used  in  different  senses. 

Mr.  FRENCH.  There  might  be  some  differ 
ence  of  opinion  with  regard  to  that ;  it  would  not 
be  a  very  strong  objection  to  my  mind.  As  I  was 
saying,  there  is  a  kind  of  national  odor  about  this 
word  "  person  "  ;  I  find  that  it  is  frequently  used 
in  the  Constitution  of  the  United  States.  I  am 
in  favor  of  that  instrument,  let  me  here  remark, 
although  so  many  persons  suppose  that  I  am  op 
posed  to  it.  I  find,  on  a  single  page  of  the  book 
before  me,  that  the  word  "person"  occurs  three 
times  :  "  No  person  shall  be  convicted  of  treason," 
&c.  Then  again  :  "  A  person  charged  in  any 
State  with  treason,  felony,  or  other  crime,"  &c. ; 
and  again  :  "  No  person  held  to  service  or  labor," 
&c.  It  is  a  term  that  is  plain  and  simple,  and  at 
the  same  time  most  comprehensive.  If  we  turn 
over,  we  find  in  the  United  States  Constitution, 
in  another  place,  the  following :  "  No  person 
shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,"  &c.  As  the  word  "person" 
covers  the  whole  ground,  I  am  decidedly  in  favor 
of  it. 

Mr.  HALLETT.  I  was  unavoidably  detained 
from  the  Convention  until  after  the  hour  of 
meeting,  and  am  indebted  to  my  colleague  on  the 
Committee,  the  gentleman  from  Boston,  for  giv 
ing  an  explanation  of  this  proposition  ;  neverthe 
less,  I  desire  to  offer  a  word  or  two  in  order  that 
the  Convention  may  fully  understand  the  views 
with  which  this  amendment  was  suggested.  I 
understand  that  the  proposition  is  now  to  amend 
by  substituting  the  word  "person"  instead  of 
"  subject."  I  will  only  say  in  regard  to  that, 
that  the  Convention  of  1820,  containing  men  of 
all  sorts  of  views  and  feelings,  applied  their  criti 
cisms  to  it,  and  after  all,  concluded  to  let  it  stand. 
The  truth  is,  there  is  no  word  in  the  English 
language,  applicable  to  a  proposition  of  this  kind, 
which  you  can  substitute  for  it.  It  embraces 
every  human  being,  who  can  by  any  possibility 
be  within  the  Commonwealth ;  and  whoever  is 
within  the  Commonwealth  must  be  subject  to 
general  laws  of  some  kind  or  other.  As  that  is 
the  original  word,  I  propose  to  leave  it  as  it 


stands ;  if  the  Convention  think  proper  to  change 
it,  they  can  do  so,  but  I  will  remark  that  this 
change  will  render  it  necessary  to  make  a  great 
many  alterations  throughout  the  Constitution. 

The  gentleman  says  he  regards  the  words  pro 
posed  to  be  changed  as  comparatively  slight  and 
unimportant ;  because  no  man  shall  be  called  in 
question  for  his  religious  sentiments  or  opinions. 
It  is  in  vain  to  deny  that  the  practical  construction 
of  that  is,  that  a  man  must  have  some  religious 
sentiments  or  other.  He  shall  not  be  called  in 
question  for  his  religious  opinions  or  sentiments, 
but  he  may  be  for  his  irreligious  opinions.  Who 
is  to  determine  whether  his  opinions  are  religious 
or.  irreligious  r  Your  court,  and  therefore  it  is 
an  ecclesiastical  tribunal.  That  is  the  rule  of 
law  as  it  now  stands.  Let  me  refer,  simply  to 
show  the  operation  of  your  Bill  of  Rights  in  this 
respect,  to  the  case  of  the  Commonwealth  vs. 
Ivneeland,  as  laid  down  in  20  Pickering's  Re 
ports,  208  :  "  The  Universalists  believe  in  a  God 
which  I  do  not,  but  believe  that' their  God,  with 
all  his  moral  attributes  (aside  from  nature  itself) 
is  nothing  more  than  a  chimera  of  their  own 
imagination."  This  language,  which  Mr.  Knee- 
land  published,  wras  blasphemy,  as  the  judges  said, 
because  he  did  not  put  a  comma  after  God,  al 
though  the  author  of  it  declared  that  he  intended  to 
have  put  a  comma  there.  If  we  put  in  a  comma 
it  will  read  :  "  The  Universalists  believe  in  a  God, 
which  I  do  not " — that  is,  they  believe  in  a  kind 
of  God  which  I  do  not,  and  it  is  no  blasphemy 
at  all.  But  the  judges  read  it  right  on,  "  The 
Universalists  believe  in  a  God  which  I  do  not" — 
that  is,  I  do  not  believe  in  any  God  at  all — "  but 
believe  that  their  God,  with  all  his  moral  attri 
butes  (aside  from  nature  itself)  is  nothing  more 
than  a  chimera  of  their  own  imagination;  "  and 
then  it  was  blasphemy.  The  court  also  held  that 
the  law  was  not  designed  to  prevent  the  simple 
and  sincere  disavowal  of  belief  in  the  existence  or 
attributes  of  a  Supreme  Being,  upon  suitable  and 
proper  occasions,  but  to  punish  a  denial  of  God, 
made  wilfully,  and  with  a  bad  intent ;  and  the 
question  was  very  well  put,  how  on  earth  is  a 
man  to  deny  God  at  all  unless  he  does  it  wilfully  r 
If  he  does  not  believe  in  a  God,  he  must  do  it 
wilfully ;  and  yet  the  judges  say  that  he  may 
deny  God,  provided  he  does  not  do  it  wilfully  ; 
and  they  did  not  punish  him  for  denying  God, 
but  merely  because  he  denied  him  wilfully  !  This 
brings  us  back  to  the  question,  have  we  arrived 
at  this  point  in  the  Commonwealth  of  Massachu 
setts, — I  arrived  at  it  a  good  many  years  ago,  but 
perhaps  I  am  as  much  in  advance  011  this  point 
as  I  am  in  some  others ;  I  do  not  know  how  that 
may  be, — have  we  arrived  at  this  point  in  religious 


67th  day.] 


BILL   OF   RIGHTS. 


423 


Tuesday,] 


HALLETT  —  WHITNEY. 


[July  26th. 


freedom,  to  say  in  our  Constitution  that  no  man 
shall  be  molested  or  called  in  question  for  his 
opinions  or  sentiments  concerning  religion  ?  As 
to  the  manner  in  which  a  man  shall  conduct,  that 
is  a  very  different  question.  I  do  not  say  that  he 
should  be  allowed  to  go  about  the  streets  and 
proclaim  his  doctrines,  for  you  do  not  allow 
Father  Lamson  to  go  into  the  streets  and  proclaim 
orthodox  doctrines,  or  Mrs.  Folsom  to  go  about 
proclaiming  abolition  doctrines.  Whatever  doc 
trines  are  proclaimed  in  the  street,  if  they  are 
likely  to  create  a  mob  or  a  riot,  so  as  to  disturb 
the  public  peace,  that  is  quite  another  matter ;  it 
makes  no  difference  what  doctrines  they  are.  The 
question  for  us  to  decide  is,  shall  we  go  forward, 
or  shall  we  go  back  to  the  old  times  in  1637, 
when  Governor  Winthrop  with  his  Council — 
that  very  Council  that  sits  in  that  secret  room — 
called  up  that  poor  woman,  Ann  Hutchinson,  for 
blasphemy,  because  she  said  that  the  ministers  of 
Boston  preached  the  doctrine  of  works,  and  not 
the  doctrine  of  grace?  When  she  said  it  was 
matter  of  conscience,  the  reply  of  the  inquisitor, 
Governor  Winthrop,  was,  you  must  keep  your 
conscience  right,  or  we  shall  keep  it  for  you.  And, 
accordingly,  they  did  undertake  to  keep  her  con 
science.  They  banished  her ;  and,  as  history  tells 
us,  she  went  from  here  into  the  wilds  of  Connecti 
cut  ;  and  the  court  of  Massachusetts  pursued  her 
even  there,  and  demanded  that  Connecticut  should 
drive  her  out  from  their  borders ;  and  she  was 
driven  out  and  went  into  Rhode  Island  among  the 
Indians,  and  herself  and  whole  family  were  after 
wards  massacred.  Now,  Sir,  that  is  a  black  stain 
upon  the  history  of  the  Commonwealth  of  Massa 
chusetts — a  stain  which  has  remained  upon  it  to 
this  day — and  I  hope  that  by  our  action  upon 
this  amendment,  we  will  to-day  wipe  out  that 
stain. 

Why,  Sir,  even  as  late  as  1811,  a  man  could  not 
worship  God  according  to  the  dictates  of  his  own 
conscience.  He  was  obliged  to  contribute  to  the 
support  of  the  parish  minister.  Among  the  earli 
est  things  that  I  can  remember  was  the  tythe 
man  coming  to  the  house  of  my  father,  who  then 
contributed  some  $200  a  year  for  the  support  of 
a  Baptist  minister.  The  tythe  man  came  and 
seized  his  cow,  and  sold  it  for  the  payment  of  his 
parish  taxes,  because  his  conscience  would  not 
let  him  pay  them.  That  circumstance  made  an 
impression  upon  my  mind  which  I  have  felt  ever 
since;  and  from  that  hour  to  this,  I  have  thought 
it  wrong  to  put  any  restraint  upon  any  man's 
religious  sentiments.  With  the  belief,  therefore, 
that  God  himself  will  take  care  of  his  own  relig 
ion,  which  is  worth  preserving  and  sustaining,  I 
think  we  should  leave  all  men  to  the  free  exer 


cise  of  their  opinions  on  matters  of  religion,  with 
the  full  liberty  to  worship  God  or  not  to  worship 
him,  as  they  may  see  fit. 

Mr.  WHITNEY,  of  Boylston.  I  should  like 
to  say  one  word  upon  this  subject,  and  also  to 
offer  an  amendment.  I  want  to  give  my  adhe 
sion  to  the  remarks  of  the  gentleman  on  the  left 
of  the  Chair,  (Mr.  Chandler,)  and  simply  to  say 
that  I  hold  to  that  Protestantism  which  says  that 
every  man  has  a  right  to  read  and  judge,  and 
decide  for  himself,  in  all  matters  of  religion  ;  for, 
if  we  have  not  this  right,  then  we  might  as  well 
go  back  to  Catholicism  at  once.  Sir,  if  I  were 
asked  to  give  a  reason  to-day  why  it  is  that 
Catholicism,  in  this  and  other  countries,  is  gain 
ing  ground,  I  should  say  that  it  was  because 
Protestants  had  departed  from  their  own  Protest 
antism,  and  that  we  need  another  revolution  in 
this  matter ;  that  every  man  has  become,  himself, 
a  sort  of  pope,  on  a  small  scale,  and  actually  ver 
ifies  what  one  of  the  popes  once  said — that  the 
Protestants  denied  the  divine  authority  of  the 
pope,  in  order  that  they  might  set  up  themselves 
as  popes. 

It  seems  to  me,  Sir,  to  be  the  worst  of  infidelity 
to  bring  the  Word  of  God  to  sanction  crime.  He 
who  brings  forward  the  Bible  to  sustain  the  fugi 
tive  slave  law,  is,  in  my  opinion,  among  the 
greatest  blasphemers  in  the  world ;  yet  some  of 
the  clergy  seem  to  think  that  they  have  a  right  to 
blaspheme  in  this  way.  Sir,  I  repeat  it,  that  if 
they  do  so,  they  are  among  the  greatest  blasphe 
mers  that  have  ever  been  seen  on  the  face  of  the 
earth.  I  am,  therefore,  in  favor  of  this  amend 
ment  ;  but  I  want  to  offer  an  amendment  to  it, 
because  there  is  an  exception  that  I  want  to  show. 
I  want  to  say  that  no  man  shall  be  molested  for 
his  religious  opinions,  except  those  whose  opin 
ions  forbid  the  taking  of  human  life.  That  ex 
ception  is  already  made,  in  fact,  and  I  want  to 
have  it  acknowledged.  The  first  best  thing  that 
a  man  can  have  is  his  rights,  and  the  next  best 
thing  to  that  is  to  have  his  wrongs  acknowledged. 
I  do  not  mean  to  complain  here  or  anywhere  else 
of  the  action  of  the  Convention.  Why  should 
you  require  that  an  oath  or  affirmation  should 
be  taken,  by  which  every  person  by  himself  or  his 
agent  shall  accede  to  the  principle  of  taking  away 
human  life?  Myself  and  five  or  six  hundred 
others  cannot  take  that  oath.  We  have  remained 
outside  of  the  government  for  more  than  fifteen 
years,  and  men  in  all  ages  of  the  world  have 
stood  upon  this  objection,  and  I  think  our  senti 
ments  will  not  die  out  for  some  generations  to 
come.  We  have  had  an  existence  since  the  days 
of  Jesus  Christ,  and  even  before  his  days ;  and 
all  we  have  asked  for  is  a  peaceable  acknowledg- 


424 


BILL   OF   RIGHTS. 


[67th  day. 


Tuesday,] 


HILLARD  —  HALLETT—  BUTLER  —  CHAPIN  —  BRIGGS. 


[July  26th, 


ment  that  our  religious  opinions  in  this  respect 
shall  not  deprive  us  of  our  civil  rights. 

Gentlemen  may  say,  with  flippancy,  "All  you 
have  to  do  is  to  take  the  oath,"  that  "it  does  not 
mean  anything."  But,  Sir,  to  us  it  does  mean 
something ;  it  means  as  much  to  us  as  did  that 
oath  which  was  required  of  Daniel  O'Connell, 
that  he  would  support  the  Protestant  succession, 
which  oath  he,  as  a  Catholic,  could  not  take ;  and 
he  was  refused  a  seat  in  parliament  in  conse 
quence,  until  the  people  of  Ireland  and  the  Cath 
olics  of  England  knocked  so  loudly  at  the  door  of 
that  house,  that  they  were  obliged  to  repeal  the 
law,  and  pass  the  Catholic  Emancipation  Act. 
We  stand  out  upon  precisely  the  same  princi- 
pie. 

Mr.  President :  I  have  an  amendment  to  offer, 
and  I  will  give  you  the  reason  why  I  offer  it. 

The  PRESIDENT.  An  amendment  is  not  in 
order  at  this  time.  There  are  already  two  amend 
ments  pending. 

Mr.  HILLARD.  I  wish  to  state,  in  reply  to 
one  or  two  questions  that  have  been  asked  here, 
that  I  do  not  understand,  nor  was  it  the  under 
standing  of  the  minority  of  the  Committee,  that 
this  proposed  amendment  had  anything  to  do 
with  the  exclusion  of  witnesses  on  account  of  their 
religious  belief.  That  issue  was  not  before  us. 
I  do  not  understand  how  giving  testimony  in  a 
court  of  justice  can  be  said  to  be  a  privilege,  or 
how  any  person  can  be  said  to  be  restrained  in 
the  exercise  of  his  religious  freedom,  in  conse 
quence  of  being  debarred  from  giving  testimony. 
If  there  be  anybody  who  is  deprived  of  a  privi 
lege,  it  is  the  party  who  calls  the  excluded  wit 
ness  ;  not  the  witness  himself.  The  former  loses 
a  privilege ;  not  the  latter. 

Mr.  HALLETT.  This  is  a  question  of  the 
most  important  character ;  and  I  should  hardly 
conceive  that,  in  this  enlightened  age,  any  court 
would  so  construe  that  provision  as  to  impose 
any  restriction  in  this  respect  at  all. 

Mr.  HILLARD.  It  is  no  "molestation"  to 
deny  to  a  man  the  right  to  testify.  We  do  not 
allow  parties  to  testify  for  themselves.  We  seal 
their  lips,  though  they  know  more  about  the 
matter  than  anybody  else.  If  we  exclude  them, 
we  may  exclude  any  one  else. 

The  question  was  then  taken  on  the  amendment 
to  the  amendment,  which  was  to  strike  out  the 
word  "subject"  and  insert  in  place  of  it  the 
word  "  man." 

The  amendment  to  the  amendment  was  rejected. 

Mr.  BUTLERi  In  order  that  there  may  be 
perfect  unanimity  in  regard  to  this  matter,  I  now 
move  that  the  word  "subject"  be  stricken  out, 
and  the  word  "  one  "  substituted  in  its  place.  It 


will  be  better  English,  and  will  cover  the  whole 
ground.  It  will  then  read  : — "  It  is  the  right  of 
all  men  to  worship  the  Supreme  Being,"  &c., 
and  "  no  one  shall  be  molested,"  &c. 

Mr.  DANA.  I  move  to  amend  the  amend 
ment  of  the  gentleman  from  Lowell,  by  substi 
tuting  "two"  for  the  word  "one"  [laughter]; 
and  the  question  will,  of  course,  be  taken  on  the 
highest  number  first.  [Laughter.] 

Mr.  BUTLER.  The  gentleman  for  Manches 
ter  is  wrong  on  two  grounds  :  first,  in  interrupt 
ing  a  gentleman  who  has  the  floor,  [a  laugh]  ; 
and  secondly,  that  it  is  hardly  worth  while  to 
attempt  to  meet  argument  by  ridicule.  I  think, 
that  on  examining  the  matter,  the  gentleman  for 
Manchester  will  see,  that  my  proposition  makes 
better  English. 

Mr.  DANA.  What !  "  one  "  better  than  "sub 
ject." 

Mr.  BUTLER.  Yes,  "  one  "  better  than  "  sub 
ject." 

Mr.  DANA.     I  do  not  agree  to  that. 

Mr.  BUTLER.  Well,  let  us  see  how  it  is. 
You  first  say,  that  all  men  shall  worship  God,  as 
they  please,  and  then  you  say,  that  no  "  subject" 
shall  be  "  molested  or  restrained,"  £c.  You  thus 
make  a  distinction  between  men  and  subject. 
Now,  it  seems  to  me,  that  it  is  better  to  say,  that 
all  "men"  shall  worship  God  as  they  please,  and 
that  110  "  one  "  shall  be  molested  or  restrained  in 
the  exercise  of  that  right.  I  understand  it  to  be 
better  English,  and  I  think  it  will  meet  the  wishes 
of  every-body,  besides.  It  suits  the  feelings  of 
my  friend  for  Abington,  and  also  of  my  friend  for 
Manchester,  who  wants  to  be  understood  as  being 
in  favor  of  this  law,  although  he  wants  to  ridicule 
my  proposition  by  substituting  "two."  [A  laugh.] 

Mr.  CHAPIN,  of  Webster.  I  am  gratified 
that  the  gentleman  for  Wilbraham,  has  conceded 
the  points  which  I  made,  and  I  think  the  Con 
vention  now  fully  understand  the  state  of  the 
case.  I  am  glad  that  the  attention  of  the  Conven 
tion  has  been  called  to  that  particular  concession. 

Mr.  BRIGGS,  of  Pittsfield.  I  am  gratified, 
that  my  friend  for  Wilbraham  has  thrown  some 
light  upon  the  subject 

Mr.  SUMNER,  for  Marshfield.  Will  the  gen 
tleman,  from  Pittsfield  allow  me  to  say,  that  I 
would  like  to  answer  the  question  of  the  gentle 
man  for  Wilbraham,  by  stating,  that  I  thought  I 
had  properly  answered  his  question,  before  he 
took  the  floor.  That  suggestion  was  not  made  in 
Committee,  nor  did  I  hear  it  made  by  any  gentle 
man  before. 

Mr.  BRIGGS.  One  thing  is  true.  The  gen 
tleman  for  Wilbraham  avows  his  opinion  man 
fully  and  nobly ;  and  now,  it  appears,  that 


67th  day.] 


BILL   OF   RIGHTS. 


425 


Tuesday,] 


BRIGGS  —  HOLDER  —  JENKS  —  GARDNER  —  PARKER  —  SPOOKER. 


[July  26th. 


though  the  other  gentlemen  of  the  Committee 
did  not  apprehend  anything  of  this  kind,  his 
opinion  is,  that  the  law  should  be  changed  on  the 
subject  of  the  admission  of  witnesses  to  testify. 
By  the  present  law,  as  I  understand  it,  no  man 
who  denies  the  existence  of  God,  is  permitted  to 
take  an  oath  in  the  name  of  that  God  whose  ex 
istence  he  denies.  Now,  my  friend  for  Wilbra- 
ham  understands  the  effect  of  this  to  be,  that  the 
courts  would  so  construe  this,  as  that  when  a  man 
presents  himself  as  a  witness,  even  if  he  were  an 
Atheist — 

Mr.  IIALLETT.  I  did  not  say  what  the  courts 
would  do ;  but  I  spoke  of  the  manner  in  which 
they  ought  to  construe  this  provision. 

Mr.  BRIGGS.  The  gentleman  avows  plainly 
what  he  means,  and  what  he  thinks  ought  to  be 
done.  Now,  if  the  Convention  is  prepared  to 
say  that  there  shall  be  no  limitation  in  regard  to 
the  admission  of  witnesses,  then  we  vote  under- 
standingly.  I  wanted  to  know  more  explicitly 
what  are  the  evils  complained  of  in  the  present 
Constitution,  and  what  the  remedy  is  to  be.  "We 
now  have  something  tangible.  It  is  expected, 
that  if  this  amendment  is  adopted,  it  will  do 
away  with  all  restraints  upon  witnesses  produced 
in  court,  and  that  an  Atheist  is  to  be  sworn  in  the 
same  manner  as  the  man  who  believes  in  the  ex 
istence  of  that  Supreme  Being,  upon  whom  he 
calls  when  he  testifies. 

Mr.  HOLDER,  of  Lynn.  Gentlemen  are 
alarmed  unnecessarily  about  this  question.  I 
cannot  conceive  a  reason  why  a  person  who  pro 
fesses  that  he  does  not  believe  in  the  existence  of 
a  God,  should,  by  that  profession,  be  rendered 
unfit  to  give  testimony  in  a  court  of  justice.  Sup 
pose  a  man  does  believe  in  God ;  suppose  that 
that  man  has  no  regard  for  humanity,  no  princi 
ple,  perhaps,  as  good  as  we  entertain  ;  suppose  he 
have  a  God  in  his  imagination  equal  to  Nero  in 
cruelty,  invested  with  everything  odious  to  hu 
manity,  and  nothing  we  could  love,  but  every 
thing  to  hate ;  I  ask  if  that  belief  makes  his  testi 
mony  any  better,  whether  it  makes  him  more 
humane,  more  of  a  man  that  will  tell  the  truth  ? 
Does  not  the  very  fact  that  a  man,  who  disbe 
lieves  in  the  existence  of  a  God,  acknowledges 
that  disbelief  against  the  contrary  prevailing  sen 
timent,  go  to  show  that  he  is  an  honest  and  a 
truthful  man  ?  The  idea  which  I  hope  we  shall 
entertain  of  God,  if  we  believe  in  one  at  all,  is 
that  of  the  being  who  has  implanted  himself  in 
humanity  at  large. 

When  it  was  suggested  to  turn  the  word  "  sub 
ject"  into  the  word  "man,"  I  thought  that 
was  the  proper  word.  Man,  understood  in  his 
rightful  sense,  gives  power  and  efficiency  to  the 


word.  I  wish  we  all  understood  man  as  he  was 
CDmprehended  by  that  distinguished  individual 
referred  to  by  the  gentleman  from  Boston,  (Mr. 
Hillard).  I  would  that  we  all  understood  him 
in  the  greatness  and  power  which  belongs  to  him. 

I  hope  the  amendment  will  be  adopted ;  for  I 
believe  one  of  the  greatest  manifestations  of 
true  religion  is  that  which  gives  man  his  freedom, 
in  every  sense  of  the  word. 

Mr.  JENKS,  of  Boston.  I  should  like  to  in 
quire  of  the  Chair,  what  the  question  is  before 
the  Committee  ?  Is  it  not  the  motion  to  substitute 
the  word  "  one  "  for  the  word  "  subject  ?" 

The  CHAIRMAN.     It  is. 

Mr.  JENKS.  The  word  "  one,"  was  pro 
posed  by  the  gentleman  from  Lowell,  (Mr. 
Butler).  Now,  it  seems  to  be  very  difficult,  in 
this  wise  body,  to  find  any  sort  of  satisfactory 
synonyme  for  the  word  "  subject."  Some  gen 
tlemen  suggest  «•  individual,"  others  "man,"  oth 
ers  "  one,"  others  the  word  "  citizen,"  and  so  on 
with  others.  Now,  Sir,  if  they  want  to  define 
the  thing  more  nicely,  they  might  as  well  take  a 
definition  which  I  have  seen  somewhere  in  print, 
and  adopt  that  part  of  it  which  defines  "man" 
to  be  "  any  intelligent,  two-legged,  featherless  ani 
mal."  [Laughter.] 

Mr.  GARDNER,  of  Seekonk.  It  seems  to  me, 
after  all,  that  the  word  "  subject  "  is  the  correct 
word,  and  one  which  is  the  most  explicit.  I 
hope,  Sir,  we  shall  not  continue  to  debate  this 
subject  any  farther.  I  hope  the  question  will  be 
put  now,  and  the  sense  of  the  Convention  taken 
upon  the  amendment  offered  by  the  gentleman 
from  Lowell. 

Mr.  PARKER,  of  Cambridge.  The  Commit 
tee  on  the  Bill  of  Rights,  after  listening  to  a  dis 
cussion  among  themselves  very  much  like  that 
to  which  the  Convention  have  listened  this 
afternoon,  came  to  the  conclusion  that  it  was  best 
to  retain  so  much  of  the  rust  of  the  Bill  of  Rights 
as  was  embraced  in  the  word  "  subject." 

The  question  recurring  first  upon  the  amend 
ment  offered  by  the  gentleman  from  Lowell,  (Mr. 
Butler,)  it  was  put,  and  decided  in  the  affirma 
tive,  upon  a  division,  there  being — ayes,  150; 
noes,  107. 

So  the  amendment  was  adopted. 

The  question  next  recurred  upon  the  amend 
ment  proposed  by  the  gentleman  from  Webster, 
(Mr.  Chapin,)  to  strike  out  the  words  "  or  re 
strain,"  and  insert  the  word  "  or,"  before  the 
word  "molested,"  and  being  put,  it  was  decided 
in  the  negative. 

So  the  amendment  was  rejected. 

Mr.  SPOONER,  of  Warwick.  I  propose  an 
amendment  at  the  end  of  the  clause,  by  adding 


426 


BILL    OF   RIGHTS. 


[67th  day. 


Tuesday, 


SPOONER  —  LORD  —  HA.LLETT. 


[July  26th. 


the  words  "  or  any  other  subject,"  so  as  to  pro 
vide  that  he  shall  not  be  molested  for  his  senti 
ments,  not  only  on  the  subject  of  religion,  but  on 
any  other  subject. 

It  may  mean  scgnething,  or  it  may  not.  I  do 
not  know  whether  it  will.  I  think  the  gentle 
man  for  Wilbraham,  (Mr.  Hallett,)  will  recollect 
a  subject  to  which  it  might  have  applied,  some 
two  or  three  years  ago.  If  I  recollect  aright — 
for  I  was  not  deep  in  the  subject  of  politics  at  that 
time — a  governor  of  this  Commonwealth — the  gov 
ernor  who  preceded  the  gentleman  from  Taunton, 
(Mr.  Morton,) — proposed  that  a  certain  law  be 
enacted,  or  rather  that  a  certain  law  be  applied  to 
a  certain  class  of  persons  who  were  very  closely 
connected  with  a  peculiar  institution  which  exists 
in  this  country.  On  account  of  the  sentiments 
of  that  governor  upon  that  subject,  the  people  of 
the  Commonwealth  restrained  him  from  the  exer 
cise  of  his  official  duties ;  and  I  would  restrain  any 
governor  from  making  any  such  proposition  again. 

The  question  was  then  taken  upon  the  amend 
ment  offered  by  Mr.  Spooner,  and  it  was  rejected. 

The  question  then  recurring  upon  the  resolu 
tion,  as  amended, 

Mr.  LORD,  of  Salem,  said:  The  gentleman 
who  represents  Wilbraham,  (Mr.  Hallett,)  very 
frankly  told  us,  in  answer  to  an  inquiry,  or  rather 
he  volunteered  to  tell  us,  that  this  resolution  was 
intended  to  take  away  all  disqualification  of  wit 
nesses,  on  account  of  their  want  of  religious  be 
lief.  It  was  calculated  to  do  that.  Now  I  desire 
to  ask  that  gentleman  if,  in  his  judgment  also, 
this  resolution,  or  the  principle  of  it,  if  incorpo 
rated  into  the  Constitution,  would  prevent  the 
punishment  of  any  person  for  blasphemy  ? 

Mr.  HALLETT.  If  the  gentleman  will  inform 
me  what  he  means  by  the  word  "blasphemy,"  I 
will  answer  him. 

Mr.  LORD.  Just  what  the  law  of  the  Com 
monwealth  defines  blasphemy  to  be,  the  contu- 
meliously  denying  the  existence  of  the  Deity,  or 
reproaching  the  Deity.  Does  he  mean  to  say  that 
a  man,  in  the  promulgation  of  his  sentiments  con 
cerning  religion,  may  contumeliously  deny  the 
existence  of  a  God,  or  reproachfully  deny  it  ?  I 
ask  that  because  the  gentleman  knows  that  the 
language  at  the  end  of  the  sentence,  which  is 
"  provided  he  doth  not  disturb  the  public  peace," 
does  not  affect  it,  because  it  is  a  well  settled  prin 
ciple  of  law,  that  no  words  disturb  the  public  place. 

Mr.  HALLETT.  I  desire  to  ask  the  gentle 
man  another  question.:  what  does  he  mean  by 
contumeliously  ?  What  signification  has  it  ? 

Mr.  LORD.  I  will  read  the  statute  of  the 
Commonwealth ;  and  I  ask  the  gentleman  wheth 
er  tl}is  resolve  would  abrogate  that  statute? 


"  If  any  person  shall  wilfully  blaspheme  the 
Holy  name  of  God  by  denying,  cursing,  or  con 
tumeliously  reproaching  God,  his  creation,  gov 
ernment,  the  final  judging  of  the  world,  or  by 
cursing  or  contumeliously  reproaching  Jesus 
Christ  or  the  Holy  Ghost,  or  by  cursing,  or  con 
tumeliously  reproaching  the  holy  word  of  God, 
contained  in  the  Holy  Scriptures,  or  exposing 
them  to  contempt  and  ridicule,  he  shall  be  pun 
ished  by  imprisonment  in  the  State  Prison  not 
more  than  two  years,  or  in  the  county  jail  not 
more  than  one  year,  or  by  fine  not  exceeding 
three  hundred  dollars,  and  may  also  be  bound  to 
good  behavior." 

Now  I  ask  the  gentleman,  if  in  his  judgment, 
this  resolution  is  intended  to  abrogate  that  statute  ? 

Mr.  HALLETT.  The  gentleman  is  very  much 
distinguished  in  law,  and  I  presume  he  must  be 
equally  so  in  polemics,  and  if  that  be  so,  he  can 
explain  this  matter.  I  cannot.  I  do  not  know 
what  contumeliously  means.  It  may  be  that  it 
will  be  explained,  as  in  this  volume  of  Picker 
ing's  Reports,  it  is  said  "  wilfully"  means  "  in 
tentionally." 

Mr.  LORD.  I  do  not  now  ask  what  he  un 
derstands  to  be  the  meaning  of  this,  but  does  he 
intend  to  abrogate  it  ? 

Mr.  HALLETT.  I  mean  to  abrogate  every 
power  of  every  tribunal,  ecclesiastical,  civil,  relig 
ious,  or  irreligious,  to  call  any  man  in  question 
for  the  opinions  which  exist  between  him  and  his 
God.  That  is  what  I  mean.  And  then  outside 
of  that,  outside  of  religious  opinion,  there  exist 
the  duties  which  man  owes  to  society.  Neither 
a  religious  man,  or  an  atheistical  man  can  infringe 
the  duties  which  he  owes  to  society.  This  is  one 
thing,  and  the  duty  he  owes  to  God  another.  It 
is  entirely  immaterial,  as  far  as  we  have  any  con 
trol  over  them,  what  opinions  he  holds  as  to  his 
God  ;  but  his  duties  between  himself  and  his  fel 
low  men,  are  imperative  that  he  shall  so  use  his 
own  as  not  to  injure  the  possessions  of  others. 
He  shall,  therefore,  so  hold  his  opinions,  and  exer 
cise  them,  as  not  to  injure  and  abuse  the  opinions 
of  others.  In  short,  in  the  language  of  this  Con 
stitution,  he  may  do  anything,  "  provided  he  doth 
not  disturb  the  public  peace,  or  obstruct  others  in 
their  religious  worship."  A  man,  therefore, 
might  contumeliously  reproach  God  in  his  own 
closet,  and  injure  nobody ;  but,  if  he  goes  into 
the  streets  and  does  it,  it  may  be  another  tiling. 

Mr.  LORD.  Will  the  gentleman  tell  me 
whether  he  means  to  have  this  resolution  abrogate 
that  law  ?  Does  he  mean  that  it  shall  be  abro 
gated  or  not  ?  That  is  the  question. 

Mr.  HALLETT.  I  mean  that  the  courts  shall 
put  their  own  construction  upon  it. 

Mr.  LORD.  I  do  not  want  to  know  what  the 
courts  will  do,  but  what  the  gentleman  means  ? 


67th  day.] 


BILL   OF   RIGHTS. 


427 


Tuesday,] 


HALLETT  —  LORD  —  KEYES  —  KINGMAN  —  CHAPIN. 


[July  26th. 


He  can  certainly  have  no  objection  to  telling  us 
whether  he  means  to  abrogate  the  statute  I  have 
read.  Of  course  the  gentleman  has  no  conceal 
ment. 

Mr.  HALLETT.  The  gentleman  is  very  per 
tinacious  upon  this  subject.  I  mean,  if  I  can,  to 
give  such  a  direction  to  the  public  sentiment, 
bearing  upon  the  highest  judicial  tribunal  in  this 
Commonwealth,  that  it  shall  never  again  have  its 
courts  dishonored  by  another  such  trial  as  has 
been  heretofore  alluded  to. 

Mr.  LORD.  That  does  not  precisely  answer 
the  question.  The  Constitution  is  the  supreme 
law,  and  this  is  subordinate.  Now  does  he  mean 
that  that  shall  abrogate  this  ?  That  is  the  ques 
tion.  He  certainly  can  have  no  objection  to  tell 
us  what  he  means.  Does  he  mean  that  the  su 
preme  law  shall  be  in  conflict  with  this  subordi 
nate  law? 

Mr.  KEYES.  I  might  as  well  say  a  word,  as  to 
listen  any  longer  to  this  debate,  for  it  seems  to 
amount  to  nothing.  Now,  Sir,  so  far  as  regards 
my  own  vote  upon  this  subject,  I  had  made  up 
my  mind  to  give  it  for  this  resolve.  But,  as  I 
understand  gentlemen,  it  has  been  said  the  prob 
ability  is,  that  it  may  do  away  with  the  require 
ment  of  a  belief  in  God  to  render  a  man  competent 
to  give  his  testimony  in  a  court  of  justice.  Now, 
in  voting  for  this  proposition,  in  that  view,  it 
might  appear  to  some  men  in  this  Commonwealth 
that  those  so  voting,  are  rather  loose  in  their 
morals  or  religion.  I  shall  vote  for  it,  I  trust, 
without  being  understood  on  that  account,  to 
entertain  opinions  inconsistent  with  Christianity. 
I  recollect  being  myself  upon  a  jury  where  I  had 
the  opportunity  of  getting  the  opinion  of  one  of 
the  supreme  justices  of  this  State  on  this  subject. 
I  recollect  that  when  a  witness  was  brought  upon 
the  stand,  the  counsel  proposed  to  question  him 
upon  the  subject  of  his  belief  in  God.  The  judge 
who  presided  in  that  case,  not  only  indicated,  but 
said  in  so  many  words,  "Do  not  do  it,"  so  that  it 
was  heard  by  the  jury,  and  I  do  not  know  but  it 
was  heard  by  every  person  in  the  court-house. 
It  gave  me  to  understand  it  was  his  opinion,  at 
least,  that  it  was  an  improper  act.  Now,  when  it 
comes  to  this,  I  for  one,  should  like  to  have  some 
thing  in  the  Constitution  to  prevent  calling  upon 
God  to  attest  the  numerous  lies  that  are  told  upon 
the  stand.  I  think  if  there  is  any  blasphemy 
anywhere,  and  any  temptation  to  it,  it  is  that 
men  are  compelled  to  call  upon  God  to  witness 
the  streams  of  falsehoods  which  are  poured  out 
upon  the  witnesses'  stand.  It  is  not  necessary 
under  our  Constitution.  Men  are  supposed  to  be 
able  to  tell  the  truth  without  this.  One  sect  of 
Christians  are  not  required  to  do  it ;  and  that  is  a 


sect  which  all  will  admit,  tell  the  truth  more 
uniformly  and  conscientiously,  than  any  other 
portion  of  the  community,  on  the  stand,  and  every 
where  else.  They  affirm  under  the  pains  and 
penalties  of  perjury  alone,  and  it  is  those  pains 
and  penalties  alone  which  produce  any  effect. 
At  our  custom-houses  they  have  what  they  call 
a  custom-house  oath,  which  every-body  knows, 
practically  means  nothing.  Were  it  not  for  the 
pains  and  penalties  of  perjury,  men  would  be 
just  as  well  with  the  oath  as  without  it.  It  is 
not  so  much  from  my  own  observations  that  I 
have  come  to  this  conclusion,  as  from  the  testi 
mony  of  lawyers  and  others  who  are  familiar  with 
the  proceedings  in  courts.  Therefore,  in  voting 
for  this,  I  do  it  because  I  believe  it  is  useless  to 
question  a  man  as  to  his  belief  in  God.  Every 
body  believes  in  some  sort  of  a  superintending 
power,  even  if  it  be  that  of  blind  chance.  What 
ever  belief  he  may  have,  he  may  swear  if  he 
pleases  before  the  court  that  he  believes  in  a  God, 
although  he  may  be  what  is  called  an  infidel ;  and 
therefore  in  voting  for  this  proposition,  winch  may 
do  away  with  the  law  forbidding  infidels  to  tes 
tify,  I  trust  none  of  us  will  be  charged  with  any 
want  of  awe  or  reverence  for  the  Supreme  Being. 

Mr.  KIXGMAN,  of  West  Bridgewater.  I 
shall  vote  for  the  amendment  of  the  gentleman 
for  Wilbraham,  and  I  shall  do  so  because  I  am 
in  favor  of  the  greatest  liberty  being  allowed  in 
this  matter.  Why,  Sir,  if  the  prediction  of  the 
distinguished  member  for  Berlin  is  to  be  verified, 
we  shall,  in  less  than  half  a  century,  have  half 
a  million  of  Chinese  in  the  State  of  Massachu 
setts,  every  one  of  whom  is  an  idolater.  And  are 
these  Chinamen  to  be  deprived  of  the  right  of 
testifying  in  our  courts  of  justice  ?  It  certainly 
appears  to  me  to  be  a  curious  idea.  I  hope  the 
amendment  will  be  adopted,  so  that  every  man, 
be  he  Christian,  Mahometan,  or  idolater,  may 
have  the  privilege  of  testifying  in  our  courts. 

Mr.  CHAPIX,  of  Webster.  Mr.  Chairman  : 
I  should  like  very  much  to  know,  what  are  the 
main  objects  which  this  Convention  was  called  to 
consider.  It  has  been  said,  that  we  have  assem 
bled  here  for  certain  purposes,  and  we  have  con 
sidered  and  acted  upon  many  important  subjects 
but,  Sir,  I  claim  that  we  are  not  here  to  amend 
the  Constitution  in  the  manner  now  proposed. 
The  people  never  contemplated  any  such  amend 
ment  ;  they  did  not  expect  it ;  and  are  not  pre 
pared  to  vote  upon  it.  I  do  not  believe  that  the 
legal  voters  of  our  Commonwealth  are  ready  to 
deny  the  existence  of  a  Supreme  Being  in  our 
courts  of  justice ;  but,  on  the  contrary,  they  de 
sire  that  every  man  connected  -with  these  pro 
ceedings,  should  feel  and  acknowledge  His  pres- 


428 


BILL   OF   RIGHTS. 


[67th  day. 


Tuesday,] 


CHAPIN  —  HALLETT  —  PLUNKETT  —  ABBOTT. 


[July  26th. 


ence  ;  that  the  judge  upon  the  bench  should  feel 
it ;  that  the  juries  in  their  boxes  should  feel  it ; 
and,  above  all,  that  the  man  upon  whose  testi 
mony  is  depending  the  life  and  liberty  of  a  fel 
low  creature,  should  feel  that  the  Great  God  is 
looking  down  upon  him,  and  that  the  Ilecording 
Angel  is  writing  every  sentence  he  utters.  And 
yet,  from  the  remarks  of  the  gentleman  for  Wil- 
braham,  I  am  inclined  to  think  that  the  design  of 
this  amendment  is  to  effect  that  very  object. 

I  wish  to  say,  farther,  that  as  a  member  of  this 
Convention,  and  especially  from  the  peculiar  re 
lations  1  sustain  to  the  gentleman  for  Wilbraham, 
(Mr.  Ilallett,)  I  have  the  right  to  an  answer  from 
him,  to  the  question  proposed  by  the  gentleman 
from  Salem,  (Mr.  Lord).  It  so  happens,  that 
the  town  which  he  represents  is  my  native  place, 
and  I  am  very  happy  it  has  been  so  ably  and  cor 
rectly  represented  in  this  Convention.  I  wish  to 
say,  for  the  encouragement  of  the  gentleman  for 
Wilbraham,  that  my  eye  has  continually  been 
upon  him  and  his  actions,  during  this  session ; 
and  I  have  had  occasion  to  feel  proud  that  my 
native  town  has  had  so  able,  just,  and  learned  a 
representative  ;  but  I  do  feel  a  mortification  this 
afternoon,  in  seeing  the  town  of  my  birth  and 
education  represented  in  this  Minority  Report  of 
the  Committee.  I  am  sorry  that  that  Report  has 
come  from  the  gentleman  for  Wilbraham ;  I 
should  have  much  preferred  that  it  had  originated 
in  some  other  quarter,  and  1  trust  that  this  Con 
vention  will  not  fix  upon  the  town  of  Wilbra 
ham  the  disgrace  of  having  originated  an  amend 
ment  to  the  Constitution  of  this  character,  to  be 
acted  upon  by  the  people  of  the  Commonwealth. 

Mr.  HALLETT.  The  gentleman  from  Web 
ster  has  done  me  great  honor  in  his  remarks,  and 
I  thank  him  for  his  compliments.  I  will  show 
him,  however,  that  I  know  his  town  as  well  or 
better  than  he  does  himself,  and  that  it  is,  more 
over,  one  of  the  most  liberal  towns  in  the  Com 
monwealth.  To  convince  him  of  this,  I  will  call 
to  his  mind  a  single  fact  in  its  history. 

In  1741,  it  was  undertaken  to  form  a  church  in 
Wilbraham,  and  the  reverend  ecclesiastics  came 
from  Springfield  for  the  purpose  of  founding  it 
according  to  the  ecclesiastical  rules  of  the  West 
minster  platform,  or  whatever  platform  they  had 
at  that  day,  which  required  seven  persons  to 
make  a  church,  and  they  had  not  but  six  on 
whom  they  could  rely  for  this  purpose.  What  to 
do  they  did  not  know,  until  at  last  the  expedient 
was  hit  upon,  to  go  out  in  the  streets  and  seize 
the  first  man  whom  they  met.  They  accordingly 
did  so,  and  found  one  David  Warner  walking 
along,  and,  without  stopping  to  inquire  what  was 
his  creed  or  belief,  or  whether  he  had  any  at  all, 


they  carried  him  off  and  made  him  join  the  church, 
to  make  up  the  odd  number  which  was  required. 

Now  I  propose  to  do  the  very  same  thing  in 
regard  to  the  people  of  this  Commonwealth.  I 
desire  that  they  may  go  into  our  great  State 
church,  without  being  particularly  questioned  in 
reference  to  these  nice  points  of  faith.  I  would 
treat  every  man  as  David  Warner  was  treated ; 
and,  if  I  stand  well  here  in  other  respects,  I  am 
confident  that  that  generous  constituency  who 
said,  when  they  sent  me  here,  in  a  letter  which  I 
hold  in  my  possession,  "  that  they  gave  me  no 
other  instructions,  than  to  do  that  which  my  con 
science  directed  me,"  will  sustain  me  in  what 
ever  course  I  may  pursue.  At  any  rate,  whether 
or  not  I  stand  well  before  my  constituents,  in 
advocating  religious  freedom,  I  know  I  stand 
well  before  my  God. 

Mr.  PLUNKETT,  of  Adams.  I  am  not  going 
to  detain  the  Convention  by  any  lengthy  remarks, 
but  I  merely  rose  to  express  my  disagreement  and 
opposition  to  this  amendment.  I  feel  that  it  will 
not  be  safe,  and  my  impressions  are  strengthened 
by  reading  the  words  of  one  whom  every- body 
revered — the  words  of  George  Washington.  He 
says : — 

"  Of  all  the  dispositions  and  habits  which  lead 
to  political  prosperity,  religion  and  morality  are 
indispensable  supports.  In  vain  would  that  man 
claim  the  tribute  of  patriotism,  who  should  labor 
to  subvert  these  great  pillars  of  human  happiness, 
these  firmest  props  of  the  duties  of  men  and  citi 
zens.  The  mere  politician,  equally  with  the  pious 
man,  ought  to  respect  and  to  cherish  them.  A 
volume  could  not  trace  all  their  connections  with 
private  and  public  felicity.  Let  it  simply  be 
asked,  where  is  the  security  for  property,  for 
reputation,  for  life,  if  the  sense  of  religious  obli 
gation  desert  the  oaths  which  are  the  instruments 
of  investigation  in  courts  of  justice  r  And  let  us 
with  caution  indulge  the  supposition  that  morality 
can  be  maintained  without  religion.  Whatever 
may  be  conceded  to  the  influence  of  refined  edu 
cation  on  minds  of  peculiar  structure,  reason  and 
experience  both  forbid  us  to  expect  that  national 
morality  can  prevail  in  exclusion  of  religious 
principles." 

Comment  on  this  is  unnecessary ;  it  cannot  fail 
to  have  its  effect  upon  the  minds  of  those  who 
are  in  doubt  upon  the  subject,  and  it  may  possi 
bly  lead  those  who  have  become  fixed  in  their 
determination  in  favor  of  this  amendment,  to  look 
at  it  in  a  different  and  more  rational  manner. 

Mr.  ABBOTT,  of  Lowell.  Without  intending 
to  detain  the  Convention,  I  desire  to  say  a  single 
word  upon  the  point  raised,  as  to  whether  the 
adoption  of  this  resolution  would  prevent  the 
courts  from  deciding,  or  the  legislature  from 
enacting,  a  law  that  an  Atheist  might  testify  in 
courts  of  justice.  I  do  not  care  what  my  friend 


67th  day.] 


BILL    OF  RIGHTS. 


429 


Tuesday,] 


ABBOTT  —  HALLETT. 


[July  26th. 


for  Wilbraham  may  say  upon  the  subject,  but  I 
do  not  believe  for  a  moment  that  he  will  risk  his 
legal  reputation  by  saying  that  the  adoption  of 
such  a  provision  will  have  the  slightest  effect  upon 
that  question.  I  think  that  the  criticism  of  the 
gentleman  from  Boston,  so  far  as  this  matter  is 
concerned,  is  perfect.  It  is  by  no  means  a  privi 
lege,  that  men  are  allowed  to  testify.  No  man 
can  go  into  court  and  say,  "  Here  I  am,  gentle 
men  of  the  jury,  I  want  to  testify,"  but  he  is 
obliged  to  go  there — it  is  his  duty,  and  not  a 
privilege. 

In  regard  to  the  matter  under  consideration,  I 
believe  there  is  nothing  which  would,  in  the 
slightest  degree,  interfere  with  the  passage  of  this 
provision  which  has  been  reported  by  the  Com 
mittee.  Nor  do  I  believe  that  it  would  affect  the 
question,  whether  a  man  should  be  permitted  to 
testify  who  did  not  believe  in  a  Supreme  Being  ; 
for  how  can  it  be  said  that  because  you  do  not 
allow  a  man  to  testify  on  account  of  his  disbelief 
in  a  Supreme  Being,  you  restrain  him  in  his  per 
son,  his  liberty,  or  estate  ?  Besides,  the  matter 
has  been  already  passed  upon  by  the  supreme 
court  of  this  State. 

I  have  made  these  remarks  because  I  desire 
that  no  man  may  be  prevented  from  voting  for 
this  resolution  from  any  supposition  that  it  will 
affect  his  religious  belief.  I  am  free  to  say,  and 
will  not  attempt  to  disguise  it,  that  if  I  believed 
for  a  moment  that  this  wrould  be  the  effect  of  it, 
whether  it  is  progressive  or  not,  whether  it  is  a 
work  of  reform  or  not,  I  would  cut  my  right  hand 
off  before  I  would  vote  for  such  a  proposition. 

The  question  was  then  taken  upon  the  adoption 
of  the  Report  of  the  minority  of  the  Committee, 
and  upon  a  division — ayes,  121 ;  noes,  168 — it 
was  decided  in  the  negative. 

So  the  Report  was  rejected. 

Mr.  HALLETT  moved  a  reconsideration  of  the 
vote  which  had  just  been  taken. 

Mr.  LORD,  of  Salem.  Before  the  question  is 
taken  on  that  motion,  I  wish  that  the  gentle 
man  for  Wilbraham  would  answer  my  inquiry. 

The  question  being  taken  on  the  motion  to  re 
consider,  it  was  decided  in  the  negative. 

The  Committee  of  the  Whole  then  proceeded 
to  consider  the  Minority  Report  of  the  same  Com 
mittee,  on  the  subject  of 

Law  Martial. 
The  report  was  read,  as  follows  : — 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  18,  1853. 
The  undersigned,  a  minority  of  the  same  Com 
mittee,  also  report. 


To  strike  out  from  the  28th  article  of  the  Bill 
of  Rights  the  words  "  but  by  the  aiithority  of  the 
legislature." 

So  it  will  read,  if  amended, 

No  person  can  in  any  case  be  subjected  to 
law  martial,  or  to  any  penalties  or  pains  by  virtue 
of  that  law,  except  those  employed  in  the  army 
or  navy,  and  except  the  militia  in  actual  service. 

B.  F.  HALLETT. 

L.  MARCY. 

H.  WILLIAMS. 

Mr.  HALLETT.  As  this  is  a  matter  which 
is  strictly  legal  in  its  character,  I  desire  very 
briefly  to  explain  the  purpose  of  the  Committee 
in  making  that  Report.  The  Constitution  of  1780 
was  adopted  during  the  revolutionary  war ;  our 
peace  took  place  in  1783.  At  that  time  it  was  as 
a  law  of  the  camp,  deemed  necessary  to  have 
what  is  called  the  power  of  "  martial  law,"  or  the 
"  law  martial,"  and  it  was  accordingly  inserted 
in  the  Bill  of  Rights  rather  as  a  limitation  then, 
than  as  a  power  granted,  that  "  no  person  can  in 
any  case  be  subjected  to  law  martial,  or  to  any 
penalties  or  pains  by  virtue  of  that  law,  except 
those  employed  in  the  army  or  navy,  and  except 
the  militia  in  actual  service,  but  by  authority  of 
the  legislature" 

It  will  be  recollected  that  at  one  period  during 
the  revolutionary  war,  Gen.  Gage  proclaimed 
martial  law  in  the  city  of  Boston,  and  the  inhab 
itants  were  smarting  under  the  recollection  of  the 
violence  and  wrong  committed  under  this  law, 
because,  as  Blackstone  says,  martial  law  is  the 
absence  of  all  law.  It  was,  therefore,  provided 
in  the  Constitution  which  was  framed  in  1780,  for 
the  purpose  of  securing  a  greater  degree  of  pro 
tection  to  the  people,  that  that  law  should  not  be 
put  in  force  except  by  the  consent  of  the  legisla 
ture.  Now,  when  the  State  of  Massachusetts 
came  into  the  Union,  and  the  Constitution  of  the 
United  States  recognized  the  military  power  as 
belonging  to  the  United  States,  Massachusetts 
conceded  that  the  power  of  martial  law  in  the 
Commonwealth  became  entirely  incident  to  the 
camp.  So  that  as  the  present  Constitution  stands, 
this  clause  is  wholly  unmeaning,  and  is  with  but 
little  or  no  force,  except  that  in  certain  cases  it  is 
giving  to  the  legislature  a  great,  an  alarming,  and 
a  despotic  military  power,  which,  if  they  choose 
to  exercise,  might  result  in  a  reign  of  terror,  and 
in  the  most  disastrous  and  pernicious  conse 
quences.  I  do  not  apprehend  that  they  ever  will 
exercise  it ;  it  is  quite  certain  they  never  have 
exercised  it ;  and  even  during  that  stormy  and 
remarkable  period  known  as  Shay's  Rebellion, 
when  judges  were  turned  out  of  their  courts, 


430 


BILL   OF   RIGHTS. 


[67th  day. 


Tuesday,] 


HALLETT. 


[July  26th. 


there  was  no  resort  to  "martial  law."  But  yet 
I  am  opposed  ;  and  it  seems  to  me  all  who  mean 
to  restrain  despotic  power,  should  be  opposed, 
upon  principle,  to  allowing  that  power  to  remain ; 
and  I  hope  we  shall  now  take  the  necessary  steps 
to  remove  it.  If  gentlemen  have  made  up  their 
minds  in  regard  to  this  suhject,  I  have  nothing 
farther  to  say  ;  but  if  they  have  not,  and  as  they 
ought  to  vote  upon  this  question  understandingly, 
I  wish  they  would  give  me  their  attention  for  a 
few  moments,  and  see  whether  or  not  this  change 
which  is  proposed,  is  proper  to  be  made. 

Now,  the  first  question  which  arises  is,  "  what 
is  martial  law  ?  "  And  here  let  me  say  that  it  is 
entirely  different  from  "  military  law,"  and  this 
is  a  fact  which  I  wish  military  gentlemen  to 
understand.  It  has  no  identity  whatever  with 
the  courts  martial  held  in  the  militia,  or  the  navy 
and  army.  And  the  amendment  which  has  been 
proposed  by  the  minority  of  the  Committee, 
leaves  the  matter  so  that  no  person  can  in  any 
case  be  subjected  to  "  martial  law,"  except  those 
employed  in  the  army  or  navy,  and  except  the 
militia  in  actual  service.  That  is  the  only  time 
when  a  martial  law  is  required,  and  then  it  is  the 
martial  law  of  the  camp — that  law  which  Gen 
eral  Jackson,  in  a  great  and  overwhelming  emer 
gency,  proclaimed  at  New  Orleans  ;  and  yet,  as 
the  martial  law  of  the  camp,  it  left  offenders  in 
civil  matters  subject  to  all  the  penalties  of  civil 
law  for  any  violation  of  civil  rights.  Now  under 
the  Massachusetts  Constitution,  as  it  stands  at 
present,  the  legislature  may  pass  what  is  called  a 
territorial  martial  law,  and  may  thus  declare  the 
whole  territory  of  Massachusetts  under  such  law ; 
and  this  extends  all  over  the  State,  and  stops  all 
civil  remedies.  To  show  what  martial  law  is,  I 
read  from  the  seventh  of  Howard's  United  States 
Reports,  (Luther  vs.  Borden,)  where  this  subject 
is  very  deliberately  considered  by  Judge  Wood- 
bury  ;  and  I  am  sure  that  no  gentleman  who  will 
attentively  read  this  opinion  of  that  very  learned 
judge,  as  it  is  here  reported,  will  hesitate,  for  one 
moment,  about  striking  out  this  authority  given 
to  the  legislature  to  pass  such  a  monstrous  law, 
or  rather  a  power  to  abolish  all  laws  except  those 
of  a  military  despotism.  He  says  : — 

"  How  different  in  its  essence  and  forms,  as 
well  as  subjects,  from  the  articles  of  war  was  the 
'  martial  law '  established  here  over  the  whole 
people  of  Rhode  Island,  may  be  seen  by  advert 
ing  to  its  character  for  a  moment,  as  described  in 
judicial  as  well  as  political  history.  It  exposed 
the  whole  population  not  only  to  be  seized  with 
out  warrant  or  oath,  and  their  houses  broken 
open  and  rifled,  and  this  where  the  municipal 
law  and  its  officers  and  courts  remained  undis 
turbed  and  able  to  punish  all  offences,  but  to 


send  prisoners,  thus  summarily  arrested,  in  a 
civil  strife,  to  all  the  harsh  pains  and  penalties  of 
courts  martial,  or  extraordinary  commissions,  and 
for  all  kinds  of  supposed  offences.  By  it,  every 
citizen,  instead  of  reposing  under  the  shield  of 
known  and  fixed  law,  as  to  his  liberty,  property, 
and  life,  exists  with  a  rope  round  his  neck  sub 
ject  to  be  hung  up  by  a  military  despot  at  the 
next  lamp-post,  under  the  sentence  of  some 
drum-head  court  martial.  (See  Simmons's  Prac 
tice  of  Courts  Martial,  40.)  See  such  a  trial  in 
Hough  on  Courts  Martial,  383,  where  the  victim 
on  the  spot  was  '  blown  away  by  a  gun,'  « nei 
ther  time,  place,  nor  persons  considered.'  As  an 
illustration  how  the  passage  of  such  a  law  may 
be  abused,  Queen  Mary  put  it  in  force  in  1558, 
by  proclamation  merely,  and  declared  '  that  who 
soever  had  in  his  possession  any  heretical,  trea 
sonable,  or  seditious  books,  and  did  not  presently 
burn  them,  without  reading  them  or  showing 
them  to  any  other  person,  should  be  esteemed  a 
rebel,  and  without  any  farther  delay  be  executed 
by  the  martial  law.'  (Tyler  on  Military  Law,  p. 
50,  chap.  1,  sec.  1.) 

"  For  convincing  reasons  like  these,  in  every 
country  which  makes  any  claim  to  political  or 
civil  liberty,  '  martial  law  as  here  attempted,  and 
as  once  proclaimed  in  England,  against  her  own 
people,  has  been  expressly  forbidden  there,  for 
near  two  centuries,  as  well  as  by  the  principles  of 
every  other  free  constitutional  government.'  (1 
Hallam's  Court  Hist.  420.)  And  it  would  not 
be  a  little  extraordinary,  if  the  spirit  of  our  insti 
tutions,  both  State  and  National,  was  not  much 
stronger  than  in  England  against  the  unlimited 
exercise  of  martial  law  over  a  whole  people, 
whether  attempted  by  any  chief  magistrate,  or 
even  by  a  legislature." 

This  is  the  definition  of  martial  law,  by  Judge 
Woodbury,  and  it  shows  the  dangerous  power 
which  the  Constitution  places  in  the  hands  of  the 
legislature.  I  hope  that  the  amendment  of  the 
Committee  will  be  adopted,  and  that  we  shall 
strike  out  that  power  to  declare  martial  law  over 
the  whole  people  and  territory  of  this  Common 
wealth. 

The  question  was  then  taken  on  agreeing  to 
the  Report  of  the  Committee,  and  it  was  decided 
in  the  affirmative. 

The  next  question  to  be  considered  in  Com 
mittee  of  the  Whole,  was  the  following  Report 
of  the  minority  of  the  same  Committee  : — 

COMMONWEALTH  or  MASSACHUSETTS. 

Li  Convention,  July  18,  1853. 
The  undersigned,  a  minority  of  the  same  Com 
mittee,  also  Report. 

That  there  should  be  added  to  the  fifteenth 
article  of  the  Bill  of  Rights  the  following  clause  : 

In  all  trials  for  criminal  offences,  the  jury, 
after  having  received  the  instruction  of  the  court, 


67th   day.] 


BILL   OF   RIGHTS. 


431 


Tuesday,] 


HILLARD  —  BUTLER  —  SCHOULER —  HALLETT  —  YEAS. 


[July  26th. 


shall  have  the  right  in  their  verdict  of  guilty  or 
not  guilty,  to  determine  the  law  and  the  facts  of 
the  case. 

B.  F.  HALLETT. 

ANSON  BURLINGAME. 

CHARLES  SUMNER. 

L.  MARCY. 

CHARLES  ALLEN. 

H.  WILLIAMS. 

The  question  being  on  the  adoption  of  the 
above  Report, 

Mr.  IIILLARD,  of  Boston,  said  that  as  this 
was  a  very  important  question,  and  one  which 
would  require  to  be  discussed  at  length,  he  de 
sired  that  it  should  be  taken  up  at  a  time  when 
the  members  were  in  a  more  refreshed  condition' 
than  at  present.  The  question  of  enlarging  the 
powers  and  increasing  the  rights  of  juries  was 
one  of  the  greatest  importance,  and  he  would 
submit  whether  it  would  not  be  better  for  the 
Committee  to  rise  and  report  progress,  and  take 
up  something  which  would  not  require  so  much 
consideration. 

Mr.  WILSON,  of  Natick.  I  move  that  the 
Committee  rise,  report  progress,  and  ask  leave  to 
sit  again. 

The  question  being  taken  on  agreeing  to  the 
motion,  it  was,  upon  a  division — ayes,  118  ;  noes, 
39 — decided  in  the  affirmative. 

The  Committee  accordingly  rose,  and  by  their 
chairman,  Mr.  Schouler,  reported  to 

THE    CONVENTION, 

That  they  had  had  under  consideration  the  several 
Minority  Reports  of  the  Committee  on  so  much 
of  the  Constitution  as  relates  to  the  Bill  of  Rights, 
and  had  rejected  the  first  Report,  adopted  the 
second  Report,  and  upon  the  third  and  last  Re 
port  no  action  had  been  taken  ;  and  the  Committee 
accordingly  ask  leave  to  sit  again. 

Leave  was  granted. 

The  question  then  being  on  concurring  in  the 
Report  of  the  Committee  of  the  Whole,  it  was 
decided  in  the  affirmative. 

Mr.  BUTLER,  of  Lowell.  I  move  that  the 
Committee  of  the  Whole  be  discharged  from  the 
farther  consideration  of  the  third  Report. 

Mr.  SCHOULER.  I  hope  that  motion  will 
prevail,  as  the  matter  can  be  considered  in  Con 
vention  just  as  well  as  in  Committee. 

The  motion  was  agreed  to. 

Mr.  HALLETT,  for  Wilbraham.  I  move  a 
reconsideration  of  the  vote  by  which  the  Conven 
tion  concurred  in  the  Report  of  the  Committee  of 
the  Whole,  that  the  first  Report  of  the  minority 
be  rejected,  ^id  upon  that  question  I  ask  the 
yeas  and  nays. 


Mr.  LORD,  of  Salem.  I  would  suggest  to  the 
gentleman  representing  Wilbraham,  that  it  will 
be  better  to  ask  a  division  of  the  question  now, 
and  call  for  the  yeas  and  nays  upon  the  final 
passage. 

Mr.  HALLETT.  I  merely  desire  to  have  some 
stage  where  the  yeas  and  nays  can  be  taken  upon 
this  question  of  religious  freedom.  I  was  not 
quite  rapid  enough  to  keep  track  of  the  move 
ments  of  the  Convention. 

The  PRESIDENT.  By  permission  of  the 
Convention  the  Chair  will  state  that  the  question 
is  on  concurring  with  the  Report  of  the  Com 
mittee  of  the  Whole  that  the  first  resolution 
ought  not  to  pass. 

Mr.  HOLDER,  of  Lynn,  asked  for  the  yeas 
and  nays. 

The  yeas  and  nays  were  ordered.  The  question 
then  being  taken  on  concurring  in  the  Report  of 
the  Committee,  it  was  decided  in  the  affirmative 
by  the  following  vote— yeas,  133  ;  nays,  107. 


Adams,  Benjamin  P. 
Aldrich,  P.  Emory 
Alvord,  D.  W. 
Andrews,  Robert 
Aspinwall,  William 
Atwood,  David  C. 
Ayres,  Samuel 
Barrows,  Joseph 
Bartlett,  Russel 
Bartlett,  Sidney 
Bennett,  William,  Jr. 
Boutwell,  George  S. 
Bradbury,  Ebenezer 
Briiiley,  Francis 
Briggs,  George  N. 
Buck,  Asahel 
Bullock,  Rufus 
Cady,  Henry 
Carter,  Timothy  W. 
Caruthers,  William 
Chapin,  Daniel  E. 
Chapin,  Henry 
Childs,  Josiah 
Churchill,  J.  McKean 
Clark,  Salah 
CJeverly,  William 
Cogswell,  Nathaniel 
Cole,  Lansing  J. 
Conkey,  Ithamar 
Crittenden,  Simeon 
Crosby,  Leander 
Cross,  Joseph  W. 
Crowell,  Seth 
Crowninshield,  F.  B. 
Cushman,  Thomas 
Dana,  Richard  H.,  Jr. 
Davis,  Solomon 
Dawes,  Henry  L. 
Dean,  Silas 
Denison,  Hiram  S. 


DeWitt,  Alexander 
Doaiie,  James  C. 
Durgin,  John  M. 
Eames,  Philip 
Edwards,  Elisha 
Edwards,  Samuel 
Ely,  Homer 
Eustis,  William  T. 
Foster,  Aaron 
Foster,  Abram 
Fowle,  Samuel 
Freeman,  James  M. 
Gale,  Luther 
Gilbert,  Wanton  C. 
Giles,  Joel 
Goulding,  Dalton 
Goulding,  Jason 
Gray,  John  C. 
Griswold,  Josiah  W. 
Hale,  Artemas 
Hale,  Nathan 
Hammond,  A.  B. 
Hapgood,  Lyman  W. 
Harmon,  Phineas 
Haskins,  William 
Hayward,  George 
Hersey,  Henry 
Hewes,  James 
Hinsdale,  William 
Hobart,  Henry 
Hobbs,  Edwin 
Houghton,  Samuel 
Howland,  Abraham  H. 
Hunt,  William 
Huntington,  Charles  P, 
Hurlburt,  Samuel  A. 
Hurlbut,  Moses  C. 
James,  William 
Jenkins,  John 
Johnson,  John 


432 

BILL    OF    RIGHTS. 

[67th  day. 

Tuesday,] 

NAYS  —  ABSEXT. 

[July  26th. 

Kellogg,  Giles  C. 

Richards,  Luther 

Pierce,  Henry 

Thompson,  Charles 

Knight,  Joseph 

Richardson,  Daniel 

Pool,  James  M. 

Tilton,  Horatio  W. 

Kuhn,  George  II. 

Richardson,  Samuel  H. 

Ring,  Elkanah,  Jr. 

Turner,  David  P. 

Langdoii,  Wilber  C. 

Royce,  James  C. 

Ross,  David  S. 

Underwood,  Orison 

Lincoln,  F.  W.,  Jr. 

Sanderson,  Amasa 

Schouler,  William 

Viles,  Joel 

Littlefield,  Tristram 

Sargent,  John 

Simonds,  John  W. 

Wallace,  Frederick  T. 

Livermore,  Isaac 

Sikes,  Chester 

Sprague,  Melzar 

Wallis,  Freeland 

Loorais,  E.  Justin 

Smith,  Matthew 

Spooner,  Samuel  W. 

Walker,  Amasa 

Miller,  Seth,  Jr. 

Souther,  John 

Stevens,  William 

Warner,  Samuel,  Jr. 

Mixter,  Samuel 

Stetson,  Caleb 

Stiles,  Gideon 

Weston,  Gershom,  B. 

Morey,  George 

Stevens,  Charles  G-. 

Strong,  Alfred  L. 

Williams,  J.  B. 

Morton,  Marcxis,  Jr. 

Stevens,  Granville 

Sumner,  Charles 

Wilson,  Henry 

Morton,  William  S. 

Sumner,  Increase 

Swain,  Alanson 

Wilson,  Willard 

Noyes,  Daniel 

Talbot,  Thomas 

Taft,  Arnold 

Wood,  Charles  C. 

Oliver,  Henry  K. 

Turner,  David 

Thayer,  Joseph 

Wood,  Otis 

Orcutt,  Nathan 

Tyler,  William 

Thayer,  Willard,  2d 

Packer,  E.  Wing 

Wales,  Bradford  L. 

Paine,  Benjamin 

Waters,  Asa  H. 

ABSENT. 

Paine,  Henry 
Parker,  Adolplms  G. 
Parker,  Joel 
Plunkett,  William  C 
Pomroy,  Jeremiah 
Preston,  Jonathan 

Weeks,  Cyrus 
Wetmore,  Thomas 
Wheeler,  William  F. 
White,  Benjamin 
White,  George 
Wilder,  Joel 

Abbott,  Alfred  A. 
Allen,  Charles 
Allis,  Josiah 
Appleton,  William 
Ballard,  Alvah 

Eaton,  Lilley 
Farwell,  A.  G. 
Fay,  Sullivan 
Fellows,  James  K. 
Fisk,  Lvman 

__.    ,                • 

Rawson,  Silas 
Head,  James 
!R*GGcl   Scumoson 

Wilson,  Milo 
Winn,  Jonathan  B. 

Ball,  George  S. 
Banks,  Nath'l  P.,  Jr. 
Bates,  Eliakim  A. 

Fiske,  Emery 
Fitch,  Ezekiel  W. 
Fowler,  Samuel  P. 

Beach,  Erasmus  D. 

French,  Charles  II. 

Beebe,  James  M. 

French,  Rodney 

NATS. 

Bell,  Luther  V. 

Gardner,  Henry  J. 

Abbott,  Josiah  G. 

French,  Charles  A. 

Bennett,  Zephaniah 

Gardner,  Johnson 

Adams,  Shubael  P. 

French,  Samuel 

Bigelow,  Edward  B. 

Gates,  Elbridge 

Allen,  James  B. 

Frothingham,  R.,  Jr. 

Bigelow,  Jacob 

Gooding,  Leonard 

Allen,  Joel  C. 

Gilbert,  Washington 

Bishop,  Henry  W. 

Gould,  Robert 

Allen,  Parsons 

Giles,  Charles  G. 

Blagden,  George  W. 

Graves,  John  W. 

Alley,  John  B. 

Gooch,  Daniel  W. 

Bliss,  Gad  O. 

Greene,  William  B. 

Austin,  George 

Green,  Jabez 

Bliss,  William  C. 

Greenleaf,  Simon 

Baker,  Hillel 

HaUett,  B.  F. 

Braman,  Milton  P. 

Griswold,  Whiting 

Bancroft,  Alpheus 

Hawkes,  Stephen  E. 

Brewster,  Osmyn 

Hadley,  Samuel  P. 

Barrett,  Marcus 

Hazewell,  Charles  C. 

Bronson,  Asa 

Hall,  Charles  B. 

Bates,  Moses,  Jr. 

Hillard,  George  S. 

Brown,  Adolphus  F. 

Hapgood,  Seth 

Beal,  John 

Holder,  Nathaniel 

Brown,  Alpheus  R. 

Haskell,  George 

Bird,  Francis  W. 

Hopkinson,  Thomas 

Brown,  Artemas 

Hathaway,  Elnathan  P. 

Booth,  William  S. 

Howard,  Martin 

Bullen,  Amos  H. 

Hayden,  Isaac 

Boutwell,  Sewell 

Iloyt,  Henry  K. 

Bumpus  Cephas  C. 

Heard,  Charles 

Bradford,  William  J. 

A   Hunt,  Charles  E. 

Chapin,  Chester  W. 

Heath,  Ezra,  2d, 

Breed,  Hiram  N. 

Hyde,  Benjamin  D. 

Choate,  Rufus 

Henry,  Samuel 

Brown,  Hammond 

Jackson,  Samuel 

Clark,  Henry 

Hewes,  William  H. 

Brown,  Hiram  C. 

Kendall,  Isaac 

Clarke,  Stillman 

Heywood,  Levi 

Brownell,  Frederick 

Knight,  Hiram 

Coggin,  Jacob 

Hobart,  Aaron 

Brownell,  Joseph 

Knight,  Jefferson 

Cook,  Charles  E. 

Hood,  George 

Bryant,  Patrick 

Knowlton,  J.  S.  C. 

Cooledge,  Henry  F. 

Hooper,  Foster 

Burlingame,  Anson 

Knowlton,  William  H. 

Copeland,  Benjamin  F. 

Hubbard,  William  J. 

Butler,  Benjamin  F. 

Knox,  Albert 

Crane,  George  B. 

Huntington,  Asahel 

Case,  Isaac 

Ladd,  Gardner  P. 

Cressy,  Oliver  S. 

Huntiiigton,  George  H. 

Chandler,  Amariah 

Little,  Otis 

Crockett,  George  W. 

Ide,  Abijah  M.,  Jr. 

Clark,  Ransom 

Marble,  William  P. 

Cummings,  Joseph 

Jacobs,  John 

Clarke,  Alpheus  B. 

Mason,  Charles 

Curtis,  Wilber 

Jenks,  Samuel  H. 

Cole,  Sumner 

Merritt,  Simeon 

Cushman,  Henry  W. 

Kellogg,  Martin  R. 

Davis,  Ebenezer 

Monroe,  James  L. 

Cutler,  Simeon  N. 

Keyes,  Edward  L. 

Day,  Gilman 

Newman,  Charles 

Davis,  Charles  G. 

Kimball,  Joseph 

Deming,  Elijah  S. 

Nichols,  William 

Davis,  Isaac 

Kingman,  Joseph 

Deiiton,  Augustus 

Nute,  Andrew  T. 

Davis,  John 

Kinsman,  Henry  W. 

Duncan,  Samuel 

Osgood,  Charles 

Davis,  Robert  T. 

Knowlton,  Charles  L. 

Dunham,  Bradish 

Partridge,  John 

Dehon,  William 

Ladd,  John  S. 

Earle,  John  M. 

Perkins,  Daniel  A. 

Dorman,  Moses 

LawrenceJLiuther 

Easton,  James,  2d, 

Phelps,  Charles 

Easland,  Peter 

Lawton,  Job  G.,  Jr. 

Ely,  Joseph  M. 

Phinney,  Silvamis  B. 

Eaton,  Calvin  D. 

Leland,  Alden 

67th  day.] 


BILL   OF   RIGHTS. 


433 


Tuesday,] 


DANA  —  HALLETT  —  BUTLER. 


[July   26th. 


Lincoln,  Abishai 
Lord,  Otis  P. 
Lothrop,  Samuel  K. 
Loud,  Samuel  P. 
Lowell,  John  A. 
Marcy,  Laban 
Marvin,  Abijah  P. 
Marvin,  Theophilus  R. 
Meader,  Reuben 
Moore,  James  M. 
Morss,  Joseph  B. 
Morton,  Elbridge  G. 
Morton,  Marcus 
Nash,  Hiram 
Nayson,  Jonathan 
Norton,  Alfred 
Ober,  Joseph  E. 
Orne,  Benjamin.  S. 
Paige,  James  W. 
Pai-k,  John  G. 
Parker,  Samuel  D. 
Parris,  Jonathan 
Parsons,  Samuel  C. 
Parsons,  Thomas  A. 
Payson,  Thomas  E. 
Peabody,  George 
Peabody,  Nathaniel 
Pease,  Jeremiah,  Jr. 
Pemumaii,  John 
Perkins,  Jesse 
Perkins,  Jonathan  C. 
Perkins,  Noah  C. 
Powers,  Peter 
Prince,  F.  O. 
Putnam,  George 
Putnam,  John  A. 
Rantoul,  liobert 
Ilice,  David 
Richardson,  Nathan 
Rockwell,  Julias 
Rockwood,  Joseph  M. 


Rogers,  John 
Sampson,  George  R. 
Sanderson,  Chester 
Sheldon,  Luther 
Sherman,  Charles 
Sherril,  John 
Simmons,  Perez 
Sleeper,  John  S. 
Stacy,  Eben  H. 
Stevens,  Joseph  L.,  Jr. 
Stevenson,  J.  Thomas 
Storrow,  Charles  S. 
Stutson,  William 
Taber,  Isaac  C. 
Taylor,  Ralph 
Thomas,  John  "W. 
Tileston,  Edmund  P. 
Tilton,  Abraham 
Tower,  Ephraim 
Train,  Charles  R. 
Tyler,  John  S. 
TIpham,  Charles  "W. 
Upton,  George  B. 
Vinton,  George  A. 
Walcott,  Samuel  B. 
Walker,  Samuel 
Ward,  Andrew  H. 
Warner,  Marshal 
Whitney,  Daniel  S. 
Whitney,  James  S. 
Wilbur,  Daniel 
Wilbur,  Joseph 
Wilkins,  John  II. 
Wilkinson,  Ezra 
Williams,  Henry 
Winslow,  Levi  M. 
Wood,  Nathaniel 
Wood,  William  II. 
Woods,  Josiah  B. 
Wright,  Ezekiel 


Absent  and  not  voting,  179. 

So  the  Report  was  concurred  in. 

The  next  question  being  on  ordering  the  amend 
ment  reported  by  the  minority  of  the  Committee, 
on  the  subject  of  martial  law,  to  a  second  reading. 

Mr.  DANA,  for  Manchester.  The  Convention 
will  perceive  that  only  three  members  of  the  thir 
teen  who  formed  the  Committee  have  signed  this 
Minority  Report,  and  the  conclusion  of  course  will 
be  that  the  other  ten  had  some  reason  for  with 
holding  their  names.  If  gentlemen  will  turn  to 
the  twenty- eighth  article  of  the  Bill  of  Rights, 
they  will  iiiid  that  it  reads  as  follows  : — 

"  No  person  can  in  any  case  be  subjected  to 
law  martial,  or  to  any  penalties  or  pains,  by  virtue 
of  that  la\v,  except  those  employed  in  the  army 
or  navy,  and  except  the  militia  in  actual  service, 
but  by  authority  of  the  legislature." 

It  is  proposed  by  the  minority  of  this  Committee 
to  strike  out  the  words  "  but  by  authority  of  the 
legislature."  The  question,  of  course,  arises, 

SO3 


what  is  the  object  of  this  amendment?  The 
Committee  which  had  the  matter  under  consider 
ation,  did  not  think  this  a  proper  amendment  to 
the  Constitution,  because  we  believed  that  it 
ought  to  be  in  the  power  of  the  Commonwealth 
to  proclaim  martial  law  whenever  circumstances 
should  render  it  necessary.  We  all  hope  and 
pray  that  it  may  never  be  needed,  but  the  ques 
tion  is,  whether  there  shall  be  vested  in  the  legis 
lature  this  power,  to  be  used  in  case  of  any  great 
emergency  ?  For  my  own  part,  I  can  see  no  reason 
why  we  should  strike  out  this  clause  from  the 
Constitution.  It  has  never  been  abused,  and 
there  is  no  danger  that  it  ever  will  be ;  and  I  be 
lieve  that  we  should  therefore  allow  it  to  remain. 
The  question  is  not  whether  martial  law  is 
necessary  or  unnecessary,  but  whether  the  power 
to  proclaim,  it  shall  exist  as  it  has  heretofore 
existed  in  our  Commonwealth.  The  fears  of 
gentlemen  will  be  allayed,  by  considering  the 
process  which  must  precede  the  declaration  of 
martial  law.  The  bill  must  pass  the  House  of 
Representatives,  then  the  Senate,  and  afterwards 
go  to  the  hands  of  the  governor  and  be  signed  or 
rejected  by  him.  I  cannot  but  think  that  if  the 
Convention  consider  this  subject  more  maturely, 
they  will  concur  with  the  Committee. 

Mr.  HALLETT.  The  gentleman  has  not  ex 
plained  to  the  Convention,  if  I  understood  him, 
what  martial  law  is ;  but  he  asks,  is  it  possible  that 
you  will  take  from  the  legislature,  who  have  so 
long  held  it,  the  power  of  proclaiming  martial  law  ? 
Now  the  question  which  we  should  ask  ourselves 
is  this :  "  Shall  we,  or  shall  we  not,  take  from  the 
legislature  the  power  of  abrogating  all  law,  and 
proclaiming  itself  a  dictator  ? "  for,  as  Blackstone 
says,  martial  law  is  the  abrogation  of  all  law  ;  it 
is  putting  territory  under  military  authority. 

The  gentleman  says  there  may  be  a  necessity 
for  this.  When  it  is  so,  it  will  be  equally  neces 
sary  for  us  to  do  as  they  did  in  the  Roman  Re 
public — proclaim  a  Dictator. 

Mr.  BUTLER,  of  Lowell.  I  am  unwilling 
that  this  question  shall  be  taken,  without  the  ful 
lest  understanding  of  the  subject ;  and  in  order 
that  I  may  at  least,  present  .my  views  for  the  cor 
rection  of  other  gentlemen,  I  will  state  a  few  words 
in  regard  to  what  I  understand  to  be  the  princi 
ples  of  the  subject  under  discussion.  The  question 
in  dispute  seems  to  be,  whether  or  not  the  Con 
vention  are  ready  to  say,  that  to  the  legislature 
shall  be  given  the  power  at  any  time  when  it 
may  best  suit  them,  to  take  any  citizen  of  this 
Commonwealth,  however  peaceably  disposed,  and 
without  judge  or  jury,  to  try  him,  and  hang  him 
on  the  first  tree  !  If  you  are  ready  for  that,  I  am 
willing  to  take  my  chance  with  the  rest.  [Laugh- 


434 


BILL   OF   RIGHTS. 


[67th  day. 


Tuesday,] 


BUTLER  —  BIIIOGS  —  OLIVER. 


[July   26th. 


ter.]  That  is  just  the  question  which  we  are  to 
decide  upon.  Martial  law,  as  I  understand  it,  is 
this  :  that  whenever  either  the  legislature,  or  in 
some  countries  the  general,  chooses  to  proclaim 
martial  law,  from  that  moment  the  military  chief 
is  the  only  judge,  the  drum- head  the  only  trial, 
and  the  provost-martial  the  only  executioner. 
The  gentleman  for  Manchester  says,  if  a  man  is 
going  to  be  hung,  he  may  as  well  be  hung  by 
martial  law,  as  by  any  other. 

Mr.  DANA.  I  beg  pardon  of  the  gentleman 
for  interrupting  him,  but  what  I  said  was,  that 
it  was  as  well  to  be  hung  by  martial  law,  as  by 
no  law. 

Mr.  BUTLER.  I  accept  the  amendment  of 
the  gentleman.  Martial  law  then,  is  no  law  ;  it 
is  the  abrogation,  as  the  gentleman  for  Wilbra- 
ham  has  said,  of  all  law.  Now,  the  moment  u 
city  gets  to  be  a  camp,  we  shall  have  martial  law, 
and  not  before ;  and  as  such,  the  law  martial  may 
be  proclaimed  by  the  declaration  of  the  command 
ing  officer.  But  when  so  declared,  it  can  only 
apply  to  the  officers  and  soldiers  under  his  com 
mand,  and  those  who  are  in  actual  service  and  have 
consented  to  be  governed  by  such  a  law,  in  any 
great  emergency  that  may  arise.  Now,  let  me 
ask,  what  shall  be  done  with  five  thousand  insur 
rectionists,  who  may  be  disturbing  the  public 
peace,  and  laying  waste  the  public  property? 
Why,  we  will  assail  them,  cut  them  off,  destroy 
them,  get  them  hanged,  take  them  prisoners,  and 
then,  we  will  try  them  fairly  and  openly  in  our 
courts  in  as  independent  a  manner  as  the  lot  of 
humanity  will  permit,  before  the  judges  whom 
my  friend  wanted  to  be  elected  for  life. 

Sir,  I  trust  there  is  no  lawyer  in  this  body  who 
is  not  sound  in  regard  to  the  explanation  of  mar 
tial  law  ;  and  as  for  myself,  I  am  unwilling  to  have 
the  power  of  proclaiming  such  a  law  placed  in 
the  hands  of  the  legislature,  except  so  far  as 
it  may  affect  those  persons  in  actual  service. 
Soldiers  and  sailors  may  be  subject  to  martial  law 
if  they  please ;  but  I  am  unwilling  that  the  little 
child,  the  infant  in  the  cradle,  the  wife  and  the 
mother,  shall  come  within  its  reach,  to  be  hung 
up  and  whipped,  to  suit  the  capricious  and  brutal 
fancy  of  a  second  Haynau. 

Mr.  BRIGGS,  of  Pittsfield.  I  do  not  believe 
that  in  these  days  of  progress  and  civilization,  we 
stand  in  much  danger  of  being  hung  up  and 
whipped  under  a  martial  law,  by  a  second 
Haynau,  or  anybody  else.  The  experience  of 
the  past  has  shown  that  this  power  has  nev 
er  been  brought  into  requisition,  although  at 
one  period  of  our  history,  at  the  time  of  Shay's 
Rebellion,  there  was  as  much  need  for  it  perhaps, 
as  there  has  ever  been  since,  not  excepting  a  re 


cent  crisis  which  arose,  when  the  army  and  navy 
of  the  United  States  were  directed  to  turn  their 
attention  towards  this  rebellious  city.  It  is  not 
impossible,  however,  that  circumstances  may  arise 
in  future,  which  will  require  martial  law  to  be 
proclaimed  in  Massachusetts  ;  but  does  any  one 
doubt  for  a  moment,  that  here,  in  this  goodly 
Commonwealth,  a  proclamation  will  be  made  that 
all  citizens  from  Boston  Corner  down  to  Hull  shall 
cease  to  be  under  the  civil  law,  and  that  every 
man,  woman  and  child,  shall  be  subject  to  a  court 
martial  for  any  charge  brought  against  them  ?  I 
do  not  believe  that  there  is  the  remotest  proba 
bility  of  such  a  state  of  things  taking  place  ;  and 
therefore,  I  confess,  though  I  have  a  great  rever 
ence  for  ancient  things,  I  have  no  desire  to  see 
the  martial  law  among  the  people.  The  history 
of  our  country  presents  but  little  encouragement 
to  the  continuation  of  such  a  law  in  our  Constitu 
tion.  It  has  seldom  been  proclaimed  ;  I  remember 
but  a  single  instance,  and  that  was  in  the  city  of 
New  Orleans  in  the  war  of  18 12 ;  and  I  am  sorry  to 
say  that  there  were  transactions  during  that  period 
which  I  wish,  for  the  glory  and  renown  of  the 
individual  who  proclaimed  it,  could  be  expunged 
from  the  history  of  the  country.  That  same  in 
dividual  said,  that  if  Massachusetts  had  been 
within  his  military  district,  he  would  have  hung 
every  delegate.  That  is  martial  law  ;  its  pro 
cess  is  summary  ;  the  trial  is  before  a  court  mar 
tial,  and  not  before  a  court  of  law ;  there  is  no 
great  time  spent  in  examining  or  cross-examining 
the  witnesses,  but  the  case,  however  important 
it  may  be,  is  brought  to  the  most  speedy  termina 
tion.  For  these  reasons,  I  think  it  would  be  en 
tirely  safe  for  this  clause  to  be  stricken  out  of  the 
Constitution.  As  Burke  once  said,  in  speaking  of 
the  veto  power  in  England,  its  preservation  and 
repose  may  at  some  time  result  in  great  good. 
He  said  that  that  power  for  more  than  one  hun 
dred  and  thirty  years  had  been  unused,  and  its 
very  repose  had  probably  preserved  the  country. 
And  so  would  I  say  in  regard  to  this  martial  law, 
if  there  was  the  slightest  probability  that  it  wrould 
be  the  means  of  preserving  the  Constitution  and 
the  Commonwealth ;  but  I  do  not  believe  there 
will  ever  be  a  need  for  it  within  the  boundaries  of 
our  State ;  and  I  am,  therefore,  inclined  to  vote 
for  the  amendment  of  the  Committee,  and  have 
the  clause  which  provides  for  the  proclaiming  of 
the  martial  law  by  the  legislature,  stricken  from 
the  Constitution. 

Mr.  OLIVER,  of  Lawrence.  I  do  not  propose 
to  occupy  but  a  few  moments  in  discussing  this 
subject.  I  merely  desire  to  say  that  I  shall  vote 
for  the  amendment  which  has  been  proposed  by 
my  friend  for  Wilbraham,  on  the  part  of  the 


67th  day.] 


BILL   OF   RIGHTS. 


435 


Tuesday,] 


OLIVER  —  SCHOULEB  —  HALLETT  —  GRAY. 


[July  26th. 


minority  of  the  Committee,  and  I  shall  do  so  from 
the  principle  which  has  ever  guided  me,  of  en 
deavoring  to  keep  everything  of  a  military  charac 
ter  distinctly  subordinate  to  the  civil  power.  As 
it  has  already  been  observed,  the  law  martial 
travels  with  the  military  array,  and  wherever  the 
military  are,  there,  too,  is  this  law.  But  the 
question  is  asked,  if  your  law  martial  has  refer 
ence  only  to  the  military,  what  shall  be  done  with 
traitors  who  may  be  found  inside  the  lines  ?  I 
reply,  they  would  be  subject  to  arrest,  but  to  ar 
rest  only ;  for  they  would  not  be  tried  by  the 
law  martial,  but  be  turned  over  to  the  civil 
authorities,  to  be  dealt  with  by  them. 

Mr.  SCHOULER.  I  would  inquire,  if  the 
civil  authorities  were  on  the  side  of  the  enemy, 
what  would  you  do  then ;  and  who  are  to  try 
such  cases  then  ? 

Mr.  OLIVER.  I  think  that  a  case  like  the  one 
supposed  by  my  friend,  could  never  occur.  I  do 
not  believe  that  the  circumstances  could  possibly 
happen,  when  the  whole  community  who  do  not 
belong  to  the  military  organization,  would  be 
found  to  be  traitors. 

Mr.  SCHOULER.  My  question  was,  what 
are  you  going  to  do  in  case  the  civil  authorities 
are  traitors  ? 

Mr.  OLIVER.  I  cannot  inform  the  gentle 
man,  for  such  a  state  of  things  is  entirely  be 
yond  my  comprehension.  At  any  rate,  I  think 
the  community  will  be  perfectly  safe  if  we 
omit  this  provision  in  the  Constitution,  as  has 
been  proposed  by  the  Committee.  Although  I 
have  been  connected,  for  many  years,  with  the 
militia  of  our  State,  I  have  a  disrelish  for  any 
thing  which  tends  to  place  it  in  a  prominent  posi 
tion  ;  and,  as  I  said  before,  I  shall  seek  every 
opportunity  of  keeping  it  strictly  subordinate  to 
the  civil  law.  For  these  reasons  I  shall  vote  for 
the  amendment  which  has  been  proposed  by  the 
gentleman  for  Wilbraham. 

Mr.  SCHOULER.  I  do  not  suppose  it  is  very 
probable  that  the  circumstances  will  ever  arise 
that  will  make  it  necessary  for  the  martial  law  to 
be  proclaimed  ;  but  still,  I  can  conceive  the  pos 
sibility  of  such  an  exigency,  and  so  long  as  this 
exigency  exists,  I  am  unwilling  to  have  this 
clause  stricken  out.  I  do  not  believe  that  the 
legislature  would  ever  exercise  that  power  unless 
there  was  an  urgent  necessity  for  it,  and  then  it 
would  not  by  any  means  be  so  stringent  in  its 
operation  as  some  gentlemen  would  make  us  sup 
pose.  We  do  not  know  what  may  happen  in  time, 
but  at  any  rate,  it  is  best  we  should  be  provided 
for  any  emergency  that  could  arise.  So  long  as 
there  is  no  necessity  for  it,  of  course  it  will  -be  a 
dead  letter  in  the  Constitution ;  but  if  the  neces 


sity  should  arise,  we  shall  be  provided  for  it. 
I  am,  therefore,  opposed  to  the  amendment 
which  has  been  submitted  by  the  Committee,  and 
hope  that  it  will  not  be  adopted. 

Mr.  HALLETT,  for  Wilbraham.     I  do  not 
feel  that  I  can  sit  still  after  the  allusion  which 
has  been  made  by  the  gentleman  from  Pittsfield, 
to  the  memory  of  one  of  the  greatest  men  and 
patriots  who  ever  lived  in  our  country,  without 
making  some  reply.     Sir,  I  believe  that  that  gen 
tleman  entirely  mistook  the  character  and  conduct 
of  General  Andrew  Jackson.     That  distinguished 
man,  in  his  proclamation  of  martial  law  in  the 
city  of  New  Orleans,  though  he  did  it  upon  his 
own  responsibility,  saved  his  country   and    his 
country's  honor  at  a  moment  when  the  legisla 
ture  of    Louisiana,  assembled  in  New  Orleans, 
were  deliberating  upon  the  propriety  of  surren 
dering  that  city  to  the  enemy  without  striking  a 
blow.     He  took  this  step,  proclaimed  martial  law, 
and  arrested  that  inglorious  act.     Yet,  the  gentle 
man  says  it  was  a  stain  upon  his  memory,  and 
upon  the  history  of  the   country  !     What,  Sir, 
would  have  been  the    stain,   if    instead   of  the 
glorious  victory  which  now  graces  our  annals, 
we  should  have  had  a  disgraceful  defeat,  and  a 
surrender  of  our  forces  to  Packenham  ?    He  took 
upon  himself  the  responsibility,  as  a  great  man 
will  ever  do  on  a  great  occasion,  and  defended 
and  saved  his  country's  honor.     And  when  that 
was  accomplished,  what  did  he  do  ?     He  went 
into  court,  threw  down  his  sword,  and  was  tried 
for  an  infringement  of  the  existing  law.     He  paid 
his  fine  and  passed  out  of  the  court,  suppressing 
any  attempts  on  the  part  of  his  friends  who  were 
there  assembled,  to  interfere  with  that  decision ;  be 
cause  he  well  knew  that  it  was  the  principle  of  his 
country  to  hold  the  military  in  subservience  to 
the  civil  power.     Time  went  on  ;  party  feeling 
passed  away,  and  there   now  stands   upon   the 
records  of  the  national  legislature  that  act  which 
refunded  the  fine  which  Andrew  Jackson  paid. 
That  was  the  martial  law  then,  and  I  ask,  shall 
we  allow  to  remain  in  our  Constitution  a  provis 
ion  which  vests  in  the  legislature  alone  the  power 
of  proclaiming  the  martial  law.     If  necessary  at 
all,  give  that  power  to  the  commanding  officer ;  for 
as    Livingston,    one    of  the   ablest    of  political 
writers  has  said,  whenever  a  General  attempts  to 
declare  martial  law  upon  his  own  responsibility, 
if  he  is  successful,  and  protects  his  country,  his 
country  will  protect  him ;  and  if  he  does  violence 
and  wrong,  the  laws  will  punish  him.    That  is  the 
only  martial  law  I    want  to    see  in  this    free 
country. 

Mr.  GRAY,  of  Boston.     I  do  not  feel  qualified 
to  speak  upon  this  question  at  length,  because  I 


436 


DISTRIBUTION   OF    BOOKS,  &c. 


[68th  day. 


Wednesday,] 


GRAY  —  MIXTER  —  EAKLE  —  WALKER —  ALDRICH. 


[July  27th. 


do  not  know  that  I  am  aware  of  the  precise  dis 
tinction  between  the  law  martial  and  the  military 
law  ;  but  I  desire  to  refer  to  another  part  of  the 
Constitution,  which  has  not  yet  been  adverted  to. 
I  find  in  chapter  6,  article  7,  the  following 
clause : — 

"  The  privilege  and  benefit  of  the  writ  of  habeas 
corpus  shall  be  enjoyed  in  this  Commonwealth 
in  the  most  free,  easy,  cheap,  expeditious,  and 
ample  manner ;  and  shall  not  be  suspended  by 
the  legislature,  except  upon  the  most  urgent  and 
pressing  occasions,  and  for  a  limited  time,  not 
exceeding  twelve  months." 

Now,  my  question  is  this  :  If  we  say  that  the 
law  martial  ought  not  to  be  permanently  estab 
lished,  ought  we  not  likewise  to  say  that  this 
power  of  suspending  the  habeas  corpus  shall  not 
be  given  to  the  legislature  ?  If  the  legislature  are 
allowed  the  power  to  suspend  one  of  the  greatest 
rights  and  priviliges  of  a  citizen,  ought  not  the 
same  reasons  to  operate  for  the  retention  of  the 
clause  in  question  ? 

These  are  my  views  in  regard  to  the  subject, 
though  I  must  confess  my  ignorance,  as  I  said 
before,  in  regard  to  the  merits  of  the  question. 

Mr.  BATES,  of  Plymouth,  demanded  the  pre 
vious  question. 

The  demand  for  the  previous  question  was 
sustained,  and  the  main  question  ordered  to  be 
now  put. 

The  question  being  on  ordering  the  resolution 
reported  by  the  Committee  to  a  second  reading, 
it  was  taken,  and  upon  a  division — ayes,  73  ; 
noes,  41 — decided  in  the  affirmative. 

On  motion  by  Mr.  PLUNKETT,  of  Adams, 
the  Convention  then,  at  twenty-five  minutes  to 
seven  o'clock,  adjourned. 


WEDNESDAY,  July  27,  1853. 

The  Convention  assembled,  pursuant  to  ad 
journment,  and  was  called  to  order  by  the  Presi 
dent  at  nine  o'clock. 

Prayer  by  the  Chaplain. 

The  journal  of  yesterday  was  read. 

Distribution  of  Books. 

The  order  introduced  yesterday,  by  the  gentle 
man  from  New  Braintree,  (Mr.  Mixter,)  directing 
the  distribution  to  the  towns  not  represented  of  a 
copy  to  each  of  the  new  Constitution,  and  of  the 
Journal  of  the  Convention,  and  of  that  of  1820, 
was  taken  up  for  consideration. 

Mr.  MIXTER  moved  to  modify  the  order  by 
substituting  the  following  : — 


Ordered,  That  each  of  the  towns  in  this  Com 
monwealth  that  have  not  sent  a  delegate  to  this 
Convention  shall  be  entitled  to  receive  one  copy 
of  Barnes's  Constitutions  of  the  United  States, 
one  copy  of  the  Journal  of  the  Massachusetts 
Convention  of  1820,  and  one  copy  of  the  Journal 
and  Debates  of  this  Convention. 

Mr.  MIXTER  remarked  that  it  had  been  sug 
gested  to  him  that  the  towns  which  are  not  repre 
sented  here  would  not  be  furnished  with  these 
books,  unless  some  special  action  were  taken  in 
regard  to  it.  The  members  of  this  Convention 
would  doubtless  take  care  that  their  own  towns 
were  supplied,  but  those  unrepresented,  although 
equally  entitled  to  receive  them,  inasmuch  as 
they  would  be  called  upon  to  pay  their  propor 
tion  of  the  expenses,  woiild,  without  some  such 
order  as  this,  be  unsupplied. 

Mr.  EARLE,  of  Worcester.  I  have  but  one 
objection  to  the  adoption  of  the  order  that  is  pro 
posed,  and  that  objection  is,  that  1  believe  we 
have  no  power  to  do  it.  It  appears  to  me  we 
have  just  as  much  right  to  make  an  appropriation 
for  any  other  object  as  we  have  for  this  ;  as  much 
right  to  vote  an  appropriation  for  any  purpose 
under  the  sun,  as  to  do  what  is  proposed  by  this 
order. 

Mr.  WALKER,  of  North  Brookfield,  remarked 
that  it  certainly  appeared  to  him  that  the  towns 
having  no  representatives  here  were  as  much  en 
titled  to  have  these  books  for  their  information,  as 
those  which  are  represented. 

Mr.  BUTLER,  of  Lowell,  moved  that  the 
order  be  laid  upon  the  table. 

He  withdrew  the  motion,  at  the  request  of 

Mr.  BRIGGS,  of  Pittsfield,  who  moved  to 
amend  the  order,  so  that  it  would  read,  that 

the  Secretary  of  the  Convention  be  directed  to 
send  to  each  of  the  towns,"  &c. 

Mr.  ALDRICH,  of  Barre.  I  would  inquire 
whether  it  will  be  possible  to  execute  this  order  ? 
It  proposes  to  supply  these  towns  with  a  copy  of 
the  Debates  of  this  Convention.  I  ordered  three 
opies  at  the  commencement,  and  this  morning  I 
went  to  buy  three  more  copies,  and  bought  them 
at  a  premium  upon  the  ordinary  cost.  I  under 
stand  that  it  will  be  difficult  to  procure  them. 

Mr.  SARGENT,  of  Cambridge.  I  would  ask 
f  the  Convention  did  not  order  a  sufficient  num- 
Der,  so  that  they  would  have  enough  on  hand  to 
enable  the  Secretary  to  comply  with  this  order  ? 

The  PRESIDENT.  The  Chair  is  informed 
that  there  is  another  edition  to  be  published,  from 
which  this  order  could  be  filled,  if  the  Convention 
so  determine. 

The  amendment  of  the  gentleman  from  Pitts- 
field  was  agreed  to. 


68th  day.] 


BILL   OF   RIGHTS,  &c. 


437 


Wednesday,] 


BATES  —  MIXTER  —  SARGENT  —  BRIGGS  —  BURLINGAME. 


[July  27th. 


The  question  being  on  the  adoption  of  the 
order,  as  amended, 

Mr.  BATES,  of  Plymouth.  I  shouM  like  still 
farther  to  amend  this  order.  I  suppose  the  Con 
vention  of  1820  voted  to  each  town  in  the  Com 
monwealth  a  copy  of  its  Debates,  and  that  that 
copy  is  in  the  hands  of  the  clerk  of  such  town. 
This  proposition  is  to  supply  those  towns  which 
are  not  represented  here.  Now,  I  would  propose 
that,  so  far  as  relates  to  the  Debates  and  Proceed 
ings  of  this  Convention,  they  be  distributed  to  all 
the  towns,  one  copy  to  each.  It  may  as  well  be 
done  under  this  order  as  at  any  other  time.  If 
we  so  order  now,  it  will  prevent  the  necessity  for 
another  order  in  reference  to  that  matter. 

Mr.  MIXTER.  I  do  not  know  but  that  the 
Convention  of  1820  did  order  the  distribution  of 
their  Proceedings  to  all  the  towns  in  the  Common 
wealth,  but  I  do  happen  to  know  that  there  is  no 
copy  of  those  Proceedings  in  the  town  in  which  I 
live.  I  have  had  occasion  to  examine  the  books 
belonging  to  that  town,  and  I  have  never  seen  a 
copy  of  those  Proceedings. 

Mr.  SARGENT,  of  Cambridge.  In  reply  to 
the  remarks  of  the  gentleman  from  Plymouth,  I 
will  say,  that  my  impression  is  that  we  ordered  a 
certain  number  of  copies,  one  portion  thereof  to 
be  distributed  among  the  members,  another  por 
tion  to  be  placed  in  the  hands  of  the  Secretary  of 
State,  to  be  distributed  as  the  Convention  may 
direct. 

Mr.  BRIGGS.  I  hope  the  gentleman  will 
allow  this  order  to  pass,  so  as  to  provide  for  the 
towns  that  are  not  represented ;  and  in  reference 
to  those  that  are,  their  representatives  will  un 
doubtedly  take  care  of  them. 

The  amendment  was  agreed  to,  and  the  order, 
as  amended,  was  adopted. 

Rights  of  the  Jury. 

On  motion  of  Mr.  WILSON,  of  Natick,  the 
Convention  proceeded  to  consider  the  unfinish 
ed  business  on  the  Orders  of  the  Day,  being 
the  resolve  on  the  subject  of  the  rights  of  the 
jury. 

The  pending  question  being  on  the  final  pas 
sage  of  the  resolve. 

Mr.  BURLINGAME,  for  Xorthborough.  Mr. 
President :  There  is  so  little  time  to  discuss  this 
question,  that  I  scarcely  know  where  to  com 
mence.  I  do  not  complain,  however,  for  I  am 
most  anxious  to  bring  the  labors  of  the  Conven 
tion  to  a  close.  But  inasmuch  as  the  time  for 
discussion  is  so  limited,  I  ask  the  ear  of  the  Con 
vention  while  I  shall  occupy  its  attention — not 
for  my  sake,  but  for  my  cause's  sake — in  behalf 
of  a  most  important  right.  I  shall  speak  as  rap 


idly  as  I  can,  so  that  I  may  crowd  as  much  as 
possible  into  the  brief  space  allowed  me. 

The  minority  of  the  Committee,  in  asking  you 
to  adopt  their  Report,  do  not  urge  you  to  declare 
any  new  doctrine,  but  to  recognize  the  old  com 
mon  law  rights  of  juries.  We  do  not  wish  to 
assail  judges,  nor  to  reflect  upon  them,  but  rather 
to  relieve  them  from  the  imputations  to  which 
they  might  otherwise  be  subjected.  Inasmuch 
as  they  do  not  now  agree  among  themselves,  as 
to  the  extent  of  their  powers,  it  is  our  duty,  as  it 
is  our  right — for  their  good,  and  for  the  general 
safety — to  define  them,  to  bound  their  sphere 
of  action,  to  state  the  law  which  is  to  guide  them 
so  clearly  that  they  can  never  misunderstand  it ; 
so  that  juries  will  know  their  duty,  and  counsel 
how  far  to  go,  and  the  whole  people  their  rights. 
Because  in  civil  cases  the  judges  give  the  law 
to  juries,  and  because  in  criminal  cases  they  in 
struct  them  in  the  law — which  duty  we  do  not 
desire  to  relieve  them  from — juries  have  become 
to  believe,  and  the  whole  community  along  with 
them,  that  they  can  do  no  otherwise  than  follow 
the  instructions  of  the  court,  whether  those  in 
structions  be  right  or  wrong.  It  is  because  this 
is  so,  because  judges  have,  in  some  instances,  in 
these  latter  days,  usurped  the  rights  of  juries, 
denying  to  them,  in  the  pride  of  position  and  the 
pride  of  learning,  the  right,  in  criminal  cases,  to 
pass  upon  the  law  and  the  fact,  it  becomes  neces 
sary,  if  we  would  save  the  great  right  of  trial  by 
jury  in  its  integrity,  either  by  legislative  enact 
ment  or  by  more  solemn  expression  in  the  funda 
mental  law,  to  declare  the  right  of  juries,  espe 
cially  in  criminal  cases.  This  has  been  found 
necessary  many  times  heretofore.  Burke  states 
that,  up  to  his  time,  in  England,  over  forty  acts 
had  been  passed  guarding  the  rights  of  juries  ; 
and  in  our  own  country,  our  State  and  National 
statutes  are  full  of  provisions  tending  to  the  same 
end. 

I  did  intend,  and  it  would  have  been  my  pleas 
ure,  had  this  subject  arisen  earlier,  to  trace  rap 
idly  the  most  interesting  history  of  trial  by  jury, 
from  the  first  glimmer  of  anything  like  it  in  the 
classic  land,  and  in  the  warrior  land,  to  its  greater 
development  among  the  blue- eyed  sons  of  the 
north,  along  the  Baltic,  and  at  last  to  its  practical 
and  complete  realization  by  the  mingled  and 
mingling  races  of  the  British  Isles  and  this  con 
tinent.  In  this  history  its  great  value  would  be 
revealed  to  us,  and  we  should  see  why  we  ought 
to  resist,  with  all  our  strength,  the  first  attempt 
to  impair  its  vigor.  As  it  is,  I  must  content  my 
self  with  a  few  statements  and  views,  which  I 
hope  will  be  found  sustained  by  precedents,  and 
vindicated  by  reason  and  common  sense. 


438 


BILL   OF  RIGHTS. 


[68th   day. 


Wednesday,] 


BtJRLINGAME. 


[July  27th. 


In  the  first  place,  then,  I  contend  that  the  doc 
trine  of  the  Report  is  sound  law ;  that  it  has 
stood  against  all  assaults,  for  hundreds  of  years. 
Judges  have  so  decided,  commentators  have  so 
expounded,  historians  have  so  recorded,  and 
statesmen  have  vindicated  and  eulogized  this  doc 
trine.  There  are  ten  precedents  in  its  favor  where 
there  is  one  against  it.  Nearly  all  of  the  great 
lights  of  the  English  and  American  law  shine  out 
in  its  favor.  The  great  writers,  from  Bracton.  to 
Blackstone,  Littleton  to  Coke,  and  later,  and  the 
brilliant  advocates  and  the  great  judges  are  for  it 
— Holt,  and  Hale,  and  Vaughn,  and  a  host  of 
others.  We  have  in  this  country  nearly  all  of 
the  judges,  from  the  beginning  to  the  present 
time,  in  its  favor— Marshall,  Jay,  and  Kent ;  and 
in  this  State,  until  recently,  the  unstained  ermine, 
the  united  voice  of  the  court— Parsons,  Putnam, 
and  Morton,  and  the  present  chief  justice  him 
self,  until  the  extraordinary  reasoning,  not  de 
cision,  in  Commonwealth  vs.  Porter,  a  case  where 
the  authorities  on  this  subject,  pro  and  con.,  may 
be  found.  In  short,  there  is  one  great  stream  of 
authorities  in  its  favor,  flowing  down  through 
centuries.  Indeed,  it  was  never  denied,  except 
in  libel  cases,  and  in  these  not  long.  It  was  un 
doubted  at  the  Revolution,  and  in  colonial  times, 
juries  frequently  called  upon  by-standers  to  tes 
tify  as  to  the  law. 

There  are  but  two  great  authorities  on  the  other 
gide — Mansfield,  in  England,  and  Story,  in  this 
country.  Mansfield,  as  an  authority,  was  killed, 
by  act  of  parliament,  by  Fox's  bill ;  Story's  de 
cision,  in  this  country,  still  stands,  but  like  a 
leaning  tower,  toppling  to  its  fall.  I  say  there  are 
but  these  two  of  commanding  importance.  There 
are  a  few  others  in  England  and  tliis  country, 
but  they  are  lost  in  the  shadow  of  these.  I  ought 
to  say  there  is  a  respectable  authority  against  this 
doctrine,  in  New  Hampshire,  which  I  should  not 
forget  to  mention,  inasmuch  as  the  judge  who 
delivered  it  is  an  honored  member  of  this  Conven 
tion,  (Mr.  Parker,  of  Cambridge).  There  is  Dur- 
fee,  in  Rhode  Island,  and  a  few  inferior  judges  in 
other  States  have  decided,  sometimes  one  way,  and 
sometimes  another ;  and  a  judge  of  the  supreme 
court  of  the  United  States,  has  decided  both 
ways  ;  but  the  authorities  largely  preponderate  in 
favor  of  the  doctrine  we  maintain. 

I  said  Mansfield's  authority  was  destroyed  by 
Fox's  bill.  In  this  country  we  have  followed  the 
doctrines  of  that  act ;  and  if  you  will  look  over 
the  Constitutions,  and  through  the  statutes  of  the 
several  States,  you  will  find  that  in  nearly  all  it 
is  declared  that  in  cases  of  libel  the  juries  shall 
have  this  right  "the  same  as  in  other  cases"; 
these  words  "  the  same  as  in  other  cases,"  clearly 


recognizing  the  right  to  pass  upon  the  law  and  the 
fact  in  all  other  criminal  cases.  I  will  not  insult 
you  by  citing,  as  an  authority  for  the  opposite 
doctrine,  my  Lord  Jeffreys,  that  bloody  villain, 
who,  in  the  trial  of  Algernon  Sydney,  told  the 
jury  they  must  take  the  law  from  him,  and, 
forcing  them  by  threats  to  do  so,  judicially  mur 
dered  that  noble  man.  There  have  been  ship- 
money  judges  and  dispensing  judges,  and  such 
scoundrels  as  Scroggs ;  but  I  need  not  wound 
those  who  may  oppose  us  here,  by  stating  on 
which  side  of  this  question  they  were  found. 
Again,  I  say,  the  Report  we  have  made  is  sustained 
by  the  precedents ;  and  that  you  may  not  rely 
upon  my  declarations  alone,  I  beg  to  refer  to 
Mittermaier,  professor  at  Heidelberg,  the  greatest 
living  jurist,  who  has  just  published  a  book,  not 
yet  translated  into  English,  upon  the  English, 
Scotch,  and  American  criminal  law.  He,  after  a 
searching  examination  of  all  the  authorities,  states 
— and  I  have  the  extracts  here,  translated  for  me 
by  a  German  friend  of  mine  interested  in  this 
subject  (B.  Roelker) — Mittermaier  states,  I  say, 
that  in  the  United  States,  England,  and  Scotland, 
juries  have  the  right  to  pass  upon  the  law  as  well 
as  the  facts,  in  criminal  cases.  He  goes  into  a 
history  of  the  law  in  relation  to  this  subject,  and 
cites  hundreds  of  authorities  to  maintain  this 
proposition.  Even  those  judges  who  deny  to 
juries  this  right,  admit  their  power  to  exercise  it. 
Mansfield  first,  and  Story  following  him,  and 
taking  his  very  language,  adopting  his  dead  de 
cision  to  bind  it  upon  the  living  back  of  America  ; 
and  Shaw,  arguing  in  favor  of  the  same  doctrine, 
all  admit  the  2>ower  of  juries  to  pass  upon  the  law 
and  the  facts,  but  intimate  that  they  have  110 
right  to  exercise  it. 

Now,  with  all  due  deference  to  these  learned 
judges,  I  submit  that  it  borders  on  the  absurd  to 
say  juries  have  the  power  but  not  the  right. 
Does  the  law  stultify  itself  by  conferring  a  power 
without  a  right  to  use  it  ?  If  they  have  the  power 
it  is  a  legal  power,  aud  the  legal  presumption  is 
that  it  is  a  rightful  power.  If  it  is  wrong  for 
them  to  exercise  it,  then  where  is  your  remedy  ? 
It  is  said  there  is  no  wrong  without  a  remedy. 
Where  is  it  in  this  case  ?  Suppose  the  jury  does 
not  choose  to  follow  the  court ;  what  can  the 
judge  do — can  he  punish  ?  No  ;  he  cannot  touch 
a  single  juryman  ;  the  verdict  of  not  guilty  con 
cludes  the  whole  matter ;  the  prisoner  goes  free 
and  forever.  If  juries  have  not  the  right  we 
claim  for  them,  then  why  are  counsel  allowed  to 
address  them  upon  questions  of  law — a  right 
never  but  in  two  or  three  cases  (since  overruled) 
denied  them — why  should  they  be  permitted  to 
persuade  the  jury  to  do  wrong  ?  A  man  cannot 


68th  day.] 


BILL   OF   RIGHTS. 


439 


Wednesday,] 


BlTRLIXGAME. 


[July  27th. 


plead  ignorance  of  the  law  as  an  excuse  for  its 
violation  ;  he  is  presumed  to  know  the  law  ;  and 
yet  the  jury  which  is  to  try  him — which  is  to  de 
termine  his  guilt  or  innocence — is  to  be  presumed 
ignorant  of  the  law  he  is  to  be  punished  for 
violating— ignorant,  after  hearing  the  counsel  and 
the  judge.  Surely  this  position  against  us  cannot 
be  maintained.  Then  it  may  be  said — indeed,  it 
has  been  said— that  because  judges  are  clothed 
with  power  to  pass  upon  questions  of  law,  pre 
liminary  and  subsequent  to  the  trial,  that  there 
fore  they  have  exclusive  power.  Now,  I  main 
tain  that  they  have  scarcely  any  power  which 
they  can  exercise  against  the  prisoner.  All  the 
powers  lodged  with  them  are  for  his  benefit,  in 
favorem  vitos.  Is  it  not  for  his  benefit  that  the 
judge  shall  determine  what  evidence  shall  go  to 
the  jury  ?  This  is  a  power  not  likely  to  be 
abused.  Is  it  not  for  his  benefit  that  the  indict 
ment  be  quashed — that  a  demurrer  be  argued — 
that  exceptions  be  taken — that  a  new  trial,  in  case 
of  conviction,  be  granted  r  What  one  of  these 
humane  powers,  which  can  be  only  exercised  in 
favor  of  life  and  liberty,  does  our  proposition  take 
away  ?  It  leaves  the  judge  all  power  for  good, 
but  none  for  evil,  none  for  caprice,  none  for  op 
pression.  We  wish  to  throw  around  the  citizen 
every  guard.  The  judge  shall  be  his  friend,  and 
the  grand  jury  and  the  traverse  jury  ;  and  a  new 
trial  shall  be  granted  if  the  verdict  is  against  evi 
dence.  But  be  it  ever  remembered  that  this  can 
only  be  granted  in  criminal  cases,  where  the  ver 
dict  is  against  the  prisoner.  Such  is  the  humanity 
of  the  law,  and  who  would  have  it  otherwise  ? 
Thus  our  doctrine  is  sustained  by  precedent, 
sanctioned  by  reason,  and  commended  by  hu 
manity.  If  it  had  no  higher  claim  for  our  sup 
port  than  its  age,  nothing  but  precedent  to  recom 
mend  it,  I  would  not  advocate  it  here. 

The  opposite  doctrine,  in  the  first  place,  assumes 
that  all  judges  are  pure,  that  all  juries  are  corrupt 
— that  judges  are  always  wise,  and  that  juries  are 
always  ignorant.  Now,  I  assume  that  both 
are  honest,  and  I  say  one  honest  judge  is  as 
likely  to  be  corrupted  as  twelve  honest  jurymen. 
Let  history  decide  the  question.  Let  us  admit 
that  the  judge  and  the  jury  are  equally  able  to 
meet  the  requirements  made  of  them,  and  equally 
desirous  of  performing  their  duty  according  to 
law ;  which,  in  the  long  run,  taking  human  na 
ture  as  we  find  it,  ought  we  to  trust  with  the 
great  interests  of  humanity  ?  Let  history  answer. 
I  appeal  to  it  confidently ;  does  it  not  show,  that 
whenever  there  has  been  a  conflict  between  judges 
and  juries,  the  juries  have  always  been  right  and 
the  judges  always  wrong  ?  When  kings  were 
cruel  and  courts  were  corrupt,  the  jury  remained 


kind  and  pure ;  in  its  generous  bosom  the  victim 
of  oppression  found  safety  and  protection.  Again 
and  again  it  has  stood  like  a  rock  against  tyranny. 
The  things  of  which  we  most  boast  were  saved  by 
it.  Freedom  of  speech  and  freedom  of  the  press, 
and  the  long  list  of  our  rights  and  privileges.  So 
it  was  and  so  it  is  now.  Recently,  in  England, 
when  the  Earl  of  Derby,  then  Prime  Minister, 
menaced  the  refugees  from  continental  oppression, 
the  press  of  England,  with  the  Times,  its  great 
thunderer,  at  its  head,  informed  the  haughty 
earl  that  it  was  not  for  him  to  admonish  and 
threaten — it  was  not  for  him  to  say  who  should 
visit  England,  or  how  long  he  shouM  remain,  or 
when  he  should  take  his  departure.  These  were 
questions  to  be  determined  by  a  jury,  and  the 
declaration  rang  from  side  to  side  that  no  man, 
no  matter  what  his  clime  or  what  his  color,  could 
be  touched  in  his  property  or  in  his  liberty,  save 
through  the  warm  heart  of  an  English  jury. 

I  need  not  remind  you  how  many  times,  even 
in  our  free  land,  the  fierceness  and  fanaticism,  the 
madness  of  party,  and  the  tyranny  of  wealth ,  have 
lost  their  victim  in  the  jury-box.  How  often  un 
just  laws  have  been  stayed  from  cruel  execution,  or 
been  made  to  sleep  by  juries  until  they  were  swept 
from  the  statute  book  by  the  roused  spirit  of  the 
people.  Let  no  man  think  that  I  would  ask  a 
jury  to  shield  the  citizen  from  a  just  law.  You 
say  who  is  to  determine  its  justice  ?  I  reply,  an 
honest  jury,  instructed  by  an  honest  judge.  If  a 
law,  or  what  is  called  law,  outrages  all  rights  and 
the  public  conscience,  clergymen  may  preach,  and 
judges  may  instruct  until  they  are  hoarse,  juries 
will  never  convict  under  it.  This  is  a  fact,  and  he 
is  unwise  who  fails  to  recognize  it.  But  let  this 
be  said  of  juries,  and  to  their  honor,  when  judges 
have  many  times  struggled  with  great  zeal  to 
convict  under  cruel  laws,  if  juries  have  failed  in 
these  cases  to  respond  with  their  verdict,  it  has 
never  been  wanting  against  the  violator  of  a  just 
and  wholesome  enactment. 

It  may  be  said,  if  in  civil  cases  the  jury  take 
the  law  from  the  court,  why  not  in  criminal  cases  ? 
Because  the  rules  that  govern  them  are  not  the 
same.  The  law  relating  to  property  is  artificial 
and  technical,  and  there  is  little  motive  for  tyran 
ny.  The  criminal  law,  on  the  other  hand,  is 
easily  understood.  The  indictment  must  set  out 
the  charge  clearly  and  singly,  and  then,  after  the 
counsel  have  addressed  the  jury,  and  the  court 
instructed  them  on  one  single  question,  if  they 
cannot  understand  the  law  they  must  be  ignorant 
indeed.  After  this  is  done,  it  is  their  right  and 
duty  to  complicate  law  and  fact,  and  to  bring  in  a 
general  verdict  of  guilty  or  not  guilty.  They  may, 
if  they  choose,  return  a  special  verdict ;  but  this 


440 


BILL   OF  RIGHTS. 


[68th   day. 


Wednesday,] 


BUKLINGAME  —  RANTOUL. 


[July  27th. 


the  court  cannot  require,  and  this  is  still  another 
proof  that  they  have  a  right  to  pass  upon  the  law 
as  well  as  the  fact.  If  the  court  is  to  determine 
the  law,  then  I  submit  that  the  trial  by  jury  is 
little  better  than  a  farce  ;  then  a  man  is  no  longer 
tried  by  his  peers,  as  is  his  right,  but  by  the  judge, 
who  may  give  the  law  the  hue  of  his  own  mind. 
The  judge  may  be  his  bitter  enemy,  but  still  he 
must  take  his  chance ;  he  cannot  challenge  him, 
as  he  can  a  juryman,  and  exclude  him. 

Some  men  seem  to  think  that  the  moment  a 
man  is  placed  upon  the  bench,  all  human  passions 
depart  from  him,  and  all  wisdom  rushes  in  to 
take  their  place.  Now  I  have  considerable  rev 
erence,  but  I  never  could  understand  this  blind 
adoration  of  those  who  chance  for  the  time  being 
to  be  judges.  I  never  supposed,  nor  do  I  now 
suppose,  all  wisdom  will  die  with  them,  that  their 
removal  would  suspend  the  laws  of  nature,  and 
cause  the  moon  to  fall,  or  the  stars  to  rain  down 
from  heaven.  I  take  it  judges  sometimes  get  dis 
turbed—that  they  have  their  likes  and  their  dis 
likes  ;  and  it  is  said,  some  of  them  frequently  get 
angry  ;  and  that  they  hate  reformers  so  much  that  it 
would,  at  times,  be  difficult  for  them  to  detect 
enough  of  the  gentle  quality  "mercy"  in  any 
law  they  could  apply,  to  save  one  from  prison 
or  the  gallows. 

Of  this  I  feel  quite  sure — I  should  prefer  to  take 
my  chance  for  life  or  liberty,  with  twelve  of  my 
friends  and  neighbors — to  let  them  determine  the 
fact  and  the  law,  the  violation  and  the  intent — 
rather  than  to  be  in  the  power  of  any  one  man, 
no  matter  how  kind  his  heart. 

If  any  man  in  this  Convention  should  say  the 
people  are  not  competent  to  make  the  laws  by 
which  they  are  to  be  governed,  we  should  all  de 
nounce  the  imputation  ;  and  yet,  there  are  many 
here  who  seem  to  doubt  their  capacity  to  inter 
pret  the  laws  made  by  themselves  when  transfer 
red  from  this  or  any  other  place  to  the  jury-box. 
We  do  not  trust  the  making  of  our  fundamental 
laws  to  judges.  Why  not,  if  they  alone  can  un 
derstand  them  ?  Here  we  rely  somewhat  upon 
the  wisdom  of  those  who  are  or  who  have  been 
judges,  but  we  do  not  follow  them  blindly.  So 
jurymen,  when  judges  state  the  law  correctly, 
will  be  happy  to  be  guided  by  them ;  but  when 
from  ignorance,  or  bigotry,  or  dishonesty,  they 
misdirect  and  falsely  state  the  law,  then  the  jury 
must  be  its  defence,  as  well  as  the  shield  of  the 
citizen. 

It  may  be  said  juries  differ  in  their  verdicts. 
Do  judges  always  agree?  Let  the  volumes  of 
overruled  cases  answer.  The  doctrine  for  which 
we  contend  is  not  in  quiet  times  appreciated. 
When  human  affairs  are  unsettled,  when  party 


rages,  when  majorities  rule  at  the  centre,  and 
madness  takes  possession  of  accidental  presidents, 
and  governors,  and  judges,  then  it  is  the  jury 
shines  out  as  a  beacon  of  safety.  The  friends  and 
neighbors  of  a  man,  made  up  of  every  party,  form 
a  wall  of  hearts  about  him,  through  which  no 
tyranny  can  reach  him. 

In  closing,  let  me  pray  you  not  to  decide  against 
us  hastily ;  and  I  appeal  for  a  hearing  and  for 
support,  to  my  own  party  friends.  I  claim  them 
for  this  great  right,  because  of  their  devotion  to 
that  liberty  it  is  intended  to  guard.  I  claim  the 
reformers  of  every  party.  I  hold  them  to  their 
professions.  I  claim  the  conservatives,  because  they 
would  cling  to  the  ancient  ways.  Here  is  the 
pure  gold.  Here  is  a  doctrine  that  has  stood  the 
blasts  of  centuries.  I  call  upon  my  professional 
brethren  to  stand  by  it.  They  know  it  is  the  law. 
Let  them  no  longer,  in  this  Convention,  subject 
themselves  to  the  charge  of  opposing  everything 
the  people  desire.  I  know  our  profession  has  al 
ways  been  sensitive  to  anything  touching  the  laws 
and  their  administration. 

I  believe  it  was  Chatham  who,  because  of  this 
sensitiveness  of  lawyers,  launched  at  them,  in 
substance,  this  sarcasm.  I  do  not  remember  the 
precise  words,  but  it  was  something  like  this,  he 
said  :  "  The  whole  empire  might  shake  from  its 
centre  to  its  circumference,  and  every  lawyer 
would  remain  quiet  in  his  cell ;  but  touch  one 
thread  of  the  law,  and  every  spider  in  Westmin 
ster  Hall  would  crawl  forth  in  its  defence."  I 
think  the  sarcasm  is  unjust,  for  wherever  liberty 
and  humanity  have  needed  defenders  they  have 
found  them  in  our  ranks.  "We  may  point  with 
pride  to  Tronchet,  Deseze,  and  Malesherbes,  de 
fending  an  old  king  deserted  by  all  the  world,  at 
the  risk  of  their  lives ;  to  Erskine,  standing  up 
bravely  for  the  doctrine  we  advocate,  between  an 
angry  judge  and  a  quailing  jury ;  to  Curran,  in 
the  midst  of  arms,  breathing  forth  those  last  words 
of  defiance  ever  heard  in  his  native  land  ;  to  Otis 
and  Adams,  arguing  writs  of  assistance  one  day 
for  the  people,  and  then  stemming  their  wrath  by 
defending  the  soldiers  who  caused  their  blood  to 
flow  in  King  Street.  I  say  the  sarcasm  is  unjust. 
But  I  see  my  time  is  about  up.  Again  I  urge 
the  Convention  to  adopt  the  Report  of  the  Com 
mittee  ;  it  will  then  have  done  something  to  guard 
the  rights  of  the  people. 

[Here  the  President's  hammer  fell,  the  time  to 
which  the  speaker  was  entitled,  under  the  order 
of  the  Convention,  having  expired.] 

Mr.  IIANTOUL,  of  Beverly.  There  is  one 
case  to  which  the  gentleman  for  Northborough, 
(Mr.  Burlingame,)  did  not  refer,  in  which  the 
court  instructed  the  jury  that  if  they  had  doubts 


68th  day.] 


BILL   OF   RIGHTS. 


441 


Wednesday,: 


RANTOUL  —  HILLARD. 


[July  27th. 


of  the  law,  they  were  bound  to  receive  the  law 
from  the  court ;  that  they  had  the  power ',  but  not 
the  right  to  do  otherwise.  This  was  in  the  case 
of  an  indictment  against  Abner  Kneeland,  in 
Suffolk  County,  about  twenty  years  ago,  at  which 
trial  Judge  Wilde  presided.  It  may  be  that  I 
have  not  seen  a  correct  version  of  the  facts  ;  but 
as  I  have  seen  the  case  reported,  the  judge  so  in 
structed  the  jury.  This  case  occurred  to  my 
mind,  while  the  gentleman  last  up  was  speaking, 
and  I  thought  I  would  suggest  it  to  the  Conven 
tion. 

As  long  ago  as  1771,  President  John  Adams 
discussed  this  subject,  and  decided  that  the  jury 
had  the  right  to  determine  the  law,  as  well  as  the 
facts. 

In  1802,  when  Judge  Chase,  of  the  Supreme 
Court  of  the  United  States,  was  impeached,  one 
of  the  charges  against  him  was,  that  he  denied  to 
the  jury  the  right  to  determine  the  law,  as  well 
as  the  fact.  Upon  this  charge,  however,  he  was 
acquitted.  He  proved,  by  evidence,  that  he  had 
never  interfered  with  the  jury  in  that  respect ; 
but  that  on  the  contrary,  he  had  argued  that  the 
jury  had  that  right ;  that  it  was  an  ancient  and  a 
sacred  right,  and  one  which  should  not  be  inter 
fered  with. 

I  believe  there  is  another  case  which  occurred 
in  Boston,  within  two  years,  which  might  be  re 
ferred  to,  in  which  a  United  States  judge  required, 
in  impanelling  a  jury,  that  they  should  declare 
that  they  would  take  the  law  from  the  court.  But 
it  appears  to  me,  that  this  is  a  very  great  encroach 
ment  upon  the  rights  of  jurors.  It  is  a  matter  of 
the  highest  importance,  that  their  rights  should 
be  well  guarded,  and,  I  think  it  would  be  very 
proper  at  this  time  to  interpose  some  obstacle 
against  the  encroachment  of  the  courts  upon  their 
rights. 

Mr.  HILLARD.  Mr.  President :  This  is  an 
important  question,  as  has  been  said  by  my  friend 
for  Northborough,  (Mr.  Burlingame,)  and  I  have 
only  fifteen  minutes  to  discuss  it  in.  I  wish  our 
friends,  the  reporters,  would  invent  a  system  of 
short-hand  talking  as  well  as  short-hand  writing. 
I  wish  we  could  apply  to  our  debates  some  con 
densing  process  like  that  by  which  chemistry 
presents  an  acre  of  poppies  in  the  shape  of  an 
ounce  or  two  of  opium.  It  is  hardly  possible  to 
do  more  than  cross  the  threshold  of  this  subject 
in  the  limited  time  we  have. 

The  question  under  discussion  assumes  two 
aspects.  In  the  first  place,  what  is  the  law, — in 
the  second  place,  what  ought  it  to  be  ?  As  to  the 
first  point,  every  lawyer  in  the  Convention  will 
tell  you  that  in  criminal  issues  juries  are  judges 
of  the  law  as  well  as  of  the  facts.  This  is  one  of 


the  common-places  of  our  science.  But  what  do 
these  words  mean  ?  Here  is  the  rub.  One- half 
of  the  questions  which  have  convulsed  the  world 
have  been  questions  of  definition.  I  am  reminded, 
in  this  connection,  of  a  well-known  Jacobite  epi 
gram  :— 

"  God  bless  the  King !    God  bless  the  faith's  defender ! 
God  bless,  no  harm  in  blessing,  the  Pretender! 
Who  that  Pretender  is,  and  who  that  King, 
God  bless  us  all !  is  quite  another  thing." 

In  the  interpretation  of  these  words,  two  views 
or  theories  will  be  found  to  be  sanctioned  by  the 
opinions  of  courts  and  judicial  dicta.  One  is, 
that  the  jury  has  and  ought  to  have  the  right  to 
determine  or  settle  the  law,  and  in  doing  so  to 
disregard  the  instructions  of  the  court  if  they  see 
fit ;  in  other  words,  to  assume  what  are  strictly 
judicial  functions.  The  other  is,  that  while  the 
jury,  inasmuch  as  they  give  a  general  verdict  of 
guilty  or  not  guilty,  have  the  power,  or  rather 
(to  use  a  pedantic  word)  the  potentiality — for 
power  has  a  double  meaning — to  disregard  the 
instructions  of  the  court,  and  settle  the  law  for 
themselves,  they  have  no  moral  right  to  do  so  ; 
that  such  a  course  is  a  departure  from  their  proper 
line  of  duty,  and  that  they  are  bound  to  receive 
the  expositions  of  law  laid  down  by  the  court,  as 
authoritative  and  binding,  and  apply  them  to  the 
facts  as  proA'ed.  This  latter  doctrine  I  take  to  be 
the  received  law  in  this  Commonwealth,  as  laid 
down  by  the  supreme  court  of  Massachusetts  in 
Commonwealth  vs.  Porter,  (10  Metcalf,  263)  and 
also  in  the  circuit  court  of  the  United  States  by 
Mr.  Justice  Story  and  Mr.  Justice  Curtis. 

In  every  criminal  trial,  the  issue  of  guilty  or 
not  guilty,  involves  matter  of  law  as  well  as  ques 
tions  of  fact.  In  the  first  place,  were  certain  acts 
committed ;  in  the  next  place,  do  those  acts  come 
within  the  legal  definition  of  the  crime  alleged  in 
the  indictment.  This  is  true  in  all  criminal 
issues ;  but  there  are  also  many  civil  issues  which 
involve  matter  of  law  and  matter  of  fact  also. 
Two  men,  for  instance,  quarrel  in  the  street. 
One  gives  the  other  the  lie ;  and  he  is  knocked 
down  for  it.  He  brings  a  civil  suit  for  damages ; 
the  issue  is  not  guilty ;  and  the  only  defence  is  a 
legal  defence  founded  on  the  provoking  language. 
The  judge  charges  the  jury  that  words  of  provo 
cation  are  no  justification  of  an  assault,  but  may 
go  in  mitigation  of  damages.  If  the  jury  disre 
gard  these  directions  and  bring  in  a  verdict  of  not 
guilty,  the  verdict  may  be  set  aside  and  a  new 
trial  granted.  On  the  other  hand,  if  the  party 
assaulted  goes  before  the  grand  jury,  and  they 
find  a  bill,  his  opponent  is  indicted  for  the  same 
offence,  the  issue  is  the  same,  the  defence  is  the 
same,  the  charge  of  the  judge  is  the  same,  and  yet 


442 


BILL   OF   RIGHTS. 


[68th.  day. 


Wednesday,] 


HlLLABD. 


[July  27th. 


it  is  contended  that  the  jury  have  the  right  to 
disregard  the  instructions  of  the  court,  and  acquit 
the  defendant,  as  fully  as  they  have  the  actual 
physical  power,  and  there  is  no  remedy  any  where. 
I  put  it  to  any  lawyer,  to  any  man  of  candid, 
common  sense,  if  between  these  two  cases  there 
is  any  distinction  in  law,  reason,  or  natural  jus 
tice.  Can  any  man  tell  me  why  the  jury,  in  the 
one  case,  should  have  a  power  which  they  ought 
not  to  have  in  the  other  ? 

The  sensitiveness  felt  by  many  politicians,  upon 
what  are  called  the  rights  of  juries  in  criminal 
trials,  is,  I  think,  the  result  of  a  false  analogy — 
always  a  fruitful  source  of  error.  The  doctrines 
on  this  subject,  grew  up  in  England,  in  times  of 
tyranny,  when  the  government  was  an  oppressor ; 
when  men  were  hunted  to  death  under  the  forms 
of  law,  by  venal  advocates  and  unprincipled 
judges.  They  grew  up,  also,  not  in  ordinary 
trials,  but  in  state  prosecutions.  The  jury-box 
was  then  the  Thermopylae  of  liberty ;  and  I  honor, 
in  the  core  of  my  heart,  that  noble  army  of  mar 
tyrs  and  partriots,  who,  in  that  narrow  strait, 
fought  the  good  fight  of  constitutional  freedom. 
But,  applied  to  us,  the  analogy  fails.  In  a  crim 
inal  trial  here,  it  is  not  an  arbitrary  government 
crushing  one  of  its  subjects,  but  it  is  organized 
society  protecting  itself  against  crime  ;  it  is  the 
majority  enforcing  legally  its  legal  will.  And 
yet  we  claim  for  the  felon,  who  makes  war  upon 
society,  some  portion  of  that  sympathy  which 
belongs  to  the  patriot  who  resists  tyranny. 

Out  of  a  multitude  of  considerations  which 
crowd  into  the  mind,  I  can  only  present  one  or 
two.  Under  all  popular  governments  like  ours, 
a  written  Constitution  is  a  matter  of  necessity. 
The  object  of  a  Constitution  is  to  protect  the  mi 
nority  against  the  majority,  as  it  is  the  object  of 
a  court  of  justice — in  criminal  matters — to  pro 
tect  the  individual  against  the  majority.  This 
gives  rise  to  an  important  branch  of  law  called 
constitutional  law.  In  England,  they  know  noth 
ing  of  this.  Parliament  is  supreme,  and  when  a 
statute  is  passed,  there  is  an  end  of  the  matter. 
But  here  there  are  many  enactments  which  come 
under  the  head  of  constitutional  or  not  constitu 
tional.  In  regard  to  these,  as  a  man  thinks,  so 
is  it.  So  close  and  subtle  is  the  connection  be 
tween  the  will  and  the  mind,  that  where  there  is 
any  room  for  question,  every  man  conscientiously 
believes  a  law  to  be  unconstitutional  which  he 
dislikes.  I  presume  there  is  no  man  in  this  Con 
vention,  opposed  to  the  fugitive  slave  law,  who 
does  not  believe  it  to  be  unconstitutional.  I 
presume  there  is  no  man  opposed  to  the  Maine 
liquor  law,  so  called,  who  does  not  believe  it  to 
be  unconstitutional.  What  will  be  the  practical 


effect  of  giving  the  jury  the  right  of  acquitting 
every  person  tried  under  a  law  which  they  may 
deem  unconstitutional  ?  A  law  is  passed  by  a 
large  majority ;  it  is  sustained  by  public  senti 
ment  ;  the  court  charges  that  it  is  constitutional, 
and  yet,  if  one  juryman  thinks  otherwise,  no 
conviction  can  ever  be  had  under  it.  I  ask  the 
democratic  gentlemen  in  this  Convention,  if  this 
be  not  an  an ti- democratic  principle  r  if  it  does  not 
give,  to  one  man  in  twelve,  that  is,  to  one-twelfth 
of  the  community,  the  power  of  nullifying  the 
decision  of  the  majority  lawfully  expressed.  And, 
by  the  proposition  before  us,  we  invest  an  unlaw 
ful,  unwarrantable  usurpation  of  power  with  the 
character  and  privileges  of  a  lawful  right.  And, 
especially,  do  I  put  it  to  the  friends  of  temperance 
on  this  floor,  that  if  they  give  their  hands  to  this 
measure,  they  must,  forever,  forever,  resign  all 
thoughts  of  combatting  this  mountainous  mis 
chief  of  intemperance  by  legislative  weapons. 
They  may  rear  law  upon  law,  they  may  cover 
the  statute  book  with  their  enactments,  but  it 
will  all  be  in  vain.  They  will  all  be  but  waste 
paper.  Their  penalties  and  sanctions  will  be  but 
wooden  guns  that  will  not  go  off,  and  painted 
dragons  that  will  terrify  none  but  babes. 

I  am  farther  opposed  to  this  resolution,  because 
its  tendency  is  to  strengthen  what  does  not  need 
to  be  strengthened,  and  to  weaken  what  ought 
to  be  confirmed.  It  elevates  the  jury  and  de 
presses  the  court.  My  friend  for  Northborough, 
(Mr.  Burlingame,)  says,  that  in  England  the 
judges  have  been  encroaching  upon  the  province 
of  the  juries.  Is  that  true  of  this  country  ?  Are 
we  likely  to  suffer  from  the  encroaching  and  ag- 
gre*sive  spirit  of  the  bench  ?  I  submit  that  the 
danger  with  us  is  rather  the  other  way.  The 
danger  rather,  is,  that  the  currents  of  popular 
feeling,  when  strongly  moved,  will  sweep  away 
the  bench,  like  bubbles  on  a  swollen  flood.  In 
medical  books,  we  read  of  cases  of  hypochondria. 
I  have  read  of  a  man  who  thought  his  legs  were 
made  of  butter,  and  would  not  come  near  the 
fire  lest  they  should  melt.  There  is  also  such  a 
disease  as  political  hypochondria.  The  minds  of 
politicians  are  often  haunted  with  unreal  and 
fantastic  fears.  And  I  know  of  no  more  marked 
case  of  this  disease  than  an  apprehension  of  the 
usurpations  and  encroachments  of  the  judiciary — 
that  the  rights  of  the  people  are  likely  to  be 
immolated  upon  that  altar.  What  has  been,  what 
is  the  course  of  public  sentiment  on  this  point  ? 
Are  not  judges  less  respected  than  they  once  were  ? 
Are  not  magistrates  less  honored  ?  Is  not  the  spirit 
of  reverence  growing  more  and  more  faint  in  the 
general  heart  ?  All  the  old  men  in  the  Conven 
tion  will  confirm  these  statements.  It  is  the 


68th  day.] 


BILL   OF   RIGHTS. 


443 


Wednesday," 


HILLABD  —  KEYES. 


[July  27th. 


power  of  popular  sentiment,  manifesting  itself 
through  juries  and  legislatures,  which  is  gathering 
everything  into  its  irresistible  current.  The  very 
debates  of  this  Convention  show  the  weakness  of 
the  judiciary.  Let  me  here  state  a  political 
truism.  The  very  fact  that  so  many  of  our  vigi 
lant  patriots  are  so  sensitive  as  to  the  encroach 
ments  of  the  judiciary,  is  a  security  against  those 
encroachments.  Dangers  that  are  foreseen  are 
not  dangers.  Forewarned  is  forearmed.  The 
real  perils  in  States  are  those  which  are  not  appre 
hended.  Should  anything  like  a  conflict  ever 
occur  between  the  judiciary  and  the  legislature, 
or  between  the  court  and  the  jury,  we  should  learn 
where  was  the  strength  and  where  was  the  weak 
ness.  The  active  sympathies,  the  fervid  passions, 
the  strong  instincts,  would  rally  round  the  popu 
lar  institutions,  while  the  bench  would  have  the 
languid  support  of  reason  and  judgment.  The 
old,  the  timid,  the  conservative,  the  fossil  remains 
of  an  antediluvian  age  of  politics,  would  gather 
round  the  judiciary,  while  on  the  other  side 
would  be  found  the  young,  the  ardent,  the  ambi 
tious,  and  the  aspiring  ;  and  in  the  shock  of  con 
flict  the  judiciary  and  its  friends  would  not  stand 
a  moment.  And  I  object  to  this  proposition, 
because  it  is  travelling  farther  in  a  direction  in 
which  we  have  already  moved  quite  far  enough. 
So  far  as  it  has  any  practical  effect,  it  will  be  to 
lower  the  judiciary.  It  will  make  the  presiding 
judge  in  a  criminal  trial,  little  more  than  a 
respectable  ceremony.  We  require  him  to  in 
struct  the  jury,  and  yet  we  authorize  the  jury  to 
disregard  those  instructions.  We  permit  them  to 
receive  the  directions  of  the  court  simply  as  a 
piece  of  testimony  on  the  law,  which  they  may 
believe  or  not,  as  they  please.  You  will  thus 
lessen  the  desirableness  of  a  seat  on  the  bench, 
in  the  eyes  of  all  high-minded  men,  and  that  is  a 
result  which  the  community  must  deprecate. 

Lastly — I  object  to  the  proposition  because  of 
the  cruel  and  mischievous  uncertainty  it  will  in 
troduce  into  the  administration  of  criminal  law. 
If  juries  may  determine  the  law  as  well  as  the 
facts,  there  will  be  as  many  courts  of  final  juris 
diction,  as  there  are  juries.  There  will  be  one 
law  to-day,  and  another  to-morrow  ;  one  law  in 
Boston,  another  in  Worcester,  and  another  in 
Springfield.  A  man  maybe  acquitted  in  Suffolk, 
and  another  convicted  in  Middlesex,  on  precisely 
the  same  facts.  Where  the  law  is  thus  uncer 
tain  and  inconsistent,  there  can  be  no  true  liberty. 
The  government  becomes,  what  our  Bill  of  Rights 
says  it  should  not  be — a  government  of  men  and 
not  of  laws. 

Mr.  President :  The  views  I  have  advanced  are 
not  popular.  They  are  not  entertained  by  the 


majority  of  the  whole  country,  and  I  do  not  sup 
pose  that  they  will  commend  themselves  to  the 
favor  of  the  majority  in  this  Convention.  I 
expect  to  be  voted  down.  But  I  have  learned  to 
submit  to  the  will  of  the  majority  when  lawfully 
and  constitutionally  expressed.  I  shall  waste  no 
time  in  repining  or  croaking,  but  make  the  best 
of  what  is  left.  Inasmuch  as  the  jury  may 
always  return  a  general  verdict,  and  as  they  can 
not  be  interrogated  upon  the  grounds  on  which 
they  made  up  their  verdict,  the  proposed  measure 
will  have  very  little  practical  effect.  I  oppose  it 
on  principle.  It  is  going  farther  where  we  have 
gone  far  enough ;  it  is  throwing  additional 
weight  into  a  scale  already  too  heavy.  In  all 
things,  my  trust  is  the  moral  sense,  the  enlightened 
public  sentiment  of  the  community.  Where 
that  is  sound,  it  corrects  defective  institutions  ; 
where  that  is  corrupt,  good  laws  are  of  little 
value. 

Mr.  KEYES,  for  Abington.  I  have  waited 
for  others  who  are  more  competent  than  I  am, 
to  discuss  this  question.  I  do  not  propose  to  say 
anything  as  a  lawyer,  or  as  a  judge,  upon  it ;  but 
I  look  at  it  as  an  individual  sitting  upon  a 
jury,  might  look  upon  a  question  of  law.  I 
recollect  what  Judge  Wilde  once  told  me  when  I 
wras  sitting  upon  a  jury.  Speaking  of  common 
law,  he  said  that  a  man  of  good  common  sense 
could  tell  what  the  common  law  was  upon  almost, 
if  not  quite,  every  subject ;  and  I  inferred  from 
that  that  the  only  advantage  which  a  judge  had 
over  a  juror,  if  he  was  a  man  of  ordinary  capacity, 
was  that  the  judge  had  more  experience,  and  his 
information  was  more  comprehensive,  and  included 
a  greater  number  of  facts  and  cases.  That  is  all 
the  difference  ;  so  that  a  man  who  is  not  educated 
in  the  law  can  tell  very  well  what  the  law  is,  be 
cause  he  can  tell  what  it  ought  to  be.  The  com 
mon  law  is  the  science  of  reason  and  justice  ; 
and  a  man  who  can  tell  what  justice  is  can  tell 
what  the  common  law  is,  in  almost  all  cases,  and 
therefore  he  is  just  as  competent  to  decide  the  case 
as  the  judge.  I  was  glad  to  hear  the  gentleman 
from  Boston  say  that  the  probable  state  of  things 
would  be  very  much  as  it  is  now,  even  if  this 
resolution  should  pass.  I  believe  so  too.  It 
seems  to  me,  treating  this  as  we  do  other  subjects, 
that  there  is  reason  enough  for  the  adoption  of 
this  proposition,  growing  out  of  the  present  state 
of  uncertainty  which  exists  in  regard  to  it. 
Every-body  knows  that  juries  do  judge  of  the 
law  as  well  as  of  the  facts.  They  cannot  help  it ; 
they  will  do  it.  In  the  city  of  Boston,— I  was 
going  to  say  that  you  could  carry  the  fugitive 
slave  law  into  execution,  but  I  doubt  it ;  I  will 
not  accuse  the  city  of  Boston  of  that ;  I  believe 


444 


BILL   OF   RIGHTS. 


[68th  day. 


Wednesday,] 


KEYES  —  HILLARD. 


[July  27th, 


that,  bad  as  they  may  be  in  some  respects,  they 
are  not  bad  enough  for  that.  But,  Sir,  I  will  say 
this,  that  in  the  city  of  Boston  you  can  hardly 
carry  the  Maine  law  into  execution.  There  are 
reasons  for  both  of  these  facts.  I  should  like  to  see 
the  Maine  law  executed  ;  but  no  man  refuses  to 
carry  that  law  into  execution  who  does  not  have 
some  very  plausible  reasons  for  it.  There  are 
provisions  in  that  act  which  we  would  not  submit 
to  in  other  cases  ;  and  the  only  justification  of  it 
is,  that  as  liquor-selling  is  an  extraordinary  evil, 
it  requires  an  unusual  and  extraordinary  remedy. 
But  when  you  find  one  juryman  out  of  twelve, 
as  the  case  has  been  within  two  or  three  days  in 
Boston,  standing  out  against  it,  it  is  not  entirely 
without  reason  that  he  does  so.  A  few  years  ago 
there  was  a  gentleman  who  was  editor  of  a  paper 
in  Boston,  and  it  happened  that  he  was  on  a  jury, 
and  it  happened,  also,  that  he  was  found  in  a  mi 
nority  of  one,  and  he  thought  the  other  eleven 
were  extremely  unreasonable  because  they  did 
not  agree  with  him.  Sir,  according  to  the  judg 
ment  of  the  public  at  the  present  day  he  was  right, 
and  the  eleven  opposed  to  him  were  wrong.  The 
laugh  and  joke  has  passed  around  about  the  one 
who  thought  all  the  rest  on  the  jury  were  unrea 
sonable  ;  but  it  is  now  generally  believed  they 
were  unreasonable  ;  there  is  no  doubt  about  it ; 
the  minority  was  right.  Now,  Sir,  the  difficulty 
is  not  that  the  jury  are  liable  to  be  influenced  by 
the  judges.  They  will  take  the  judge's  testimony 
just  the  same  as  they  take  the  witness's  testimony. 
They  are  to  receive  it  as  testimony,  and  they  do 
receive  it  as  testimony.  Do  men  suppose  they 
will  not  place  any  reliance  upon  it  ?  Let  Judge 
Shaw  give  instructions  to  the  worst  set  of  men  in 
the  Commonwealth  who  ever  constituted  a  jury, 
and  we  know  they  would  regard  his  testimony. 
If  a  law  should  happen  to  be  passed  which  insults 
the  common  sense  and  the  humanity  of  the  people, 
they  may  so  construe  it  that  the  people  will  not 
suffer.  Now,  Sir,  the  testimony  has  been  well 
stated  here.  This  subject  was  once  before  the 
Senate,  and  I  took  occasion  to  look  at  some  books 
to  find  out  the  opinions  of  the  bench  upon  it,  and 
I  found  them  to  be,  in  a  majority  of  cases,  in  ac 
cordance  with  the  doctrines  of  the  resolution 
before  the  Convention,  viz.  :  that  the  jury  had  a 
right  to  decide  the  question  of  law,  as  well  as  the 
question  of  fact. 

Now,  Sir,  there  need  be  no  apprehension  one 
way  or  the  other,  unless  great  political  questions 
are  to  be  decided.  When  such  questions  are  to 
be  decided,  then,  of  all  times,  it  is  the  business 
for  the  jury  to  be  felt.  Take  the  great  case  in 
Pennsylvania,  the  Prigg  case,  for  example ;  that 
was  an  agitated  political  question,  but  the  judges 


did  not  decide  it  according  to  law  ;  they  did  not 
pretend  to  decide  it  according  to  law.  Then  was 
a  proper  time  for  the  jury  to  give  their  opinion  of 
the  law,  as  well  as  the  judges.  There  is  no  dan 
ger  from  these  political  questions,  because  they  do 
not  often  come  in  contact  with  the  judiciary,  and 
neither  the  judges  nor  the  jury  are  often  affected 
by  political  agitation.  Therefore  we  find  no  dif 
ficulty.  But  the  very  existence  of  a  doubt  on 
this  question  is,  in  my  opinion,  enough  to  make 
it  necessary  that  it  should  be  settled  one  way  or 
the  other  ;  because,  if  the  judge  in  one  place  is  to 
tell  a  jury  they  are  bound  to  decide  according  to 
the  law  which  the  court  lays  down,  and  a  judge 
in  another  place  allows  the  jury  free  power  to 
judge  both  of  the  law  and  the  fact,  there  arises 
the  difficulty  to  which  the  gentleman  from  Bos 
ton  (Mr.  Hillard)  so  justly  deprecates.  The  only 
way  to  avoid  that  difficulty,  is  to  have  the  matter 
decided  here,  one  way  or  the  other. 

Now,  the  judges  in  Massachusetts  have,  for  a 
few  years  past,  taken  the  law  into  their  own 
hands  in  a  totally  unjustifiable  manner.  They 
have  questioned  jurors  before  they  took  their 
seats.  But  jurors,  when  drawn,  should  be 
allowed  to  take  their  seats,  unless  they  are  chal 
lenged  by  the  accused.  If  a  judge  is  to  tell  a 
man  who  is  drawn,  that  he  is  unfit  to  sit  because 
he  entertains  certain  opinions ;  or  if  a  judge  shall 
ask  a  juror  who  is  drawn,  if  he  believes  in  the 
constitutionality  of  this  or  that  law,  the  juror 
ought  to  tell  him  it  is  none  of  his  business.  The 
moment  you  permit  the  -judge  to  put  this  ques 
tion  and  that  question,  and  compel  the  juror  to 
answer,  the  power  and  independence  of  the  jury 
are  destroyed.  Why,  Sir,  under  such  arbitrary 
ruling,  if  the  juror  says  he  does  believe  the  law 
to  be  constitutional,  then  he  can  sit ;  but  if  he 
says  he  does  not  believe  it  to  be  constitutional, 
then  he  is  rejected. 

Mr.  IIILLAIID,  of  Boston.  I  wish  to  correct 
a  statement  of  the  gentleman  for  Abington  ;  for  I 
am  sure  he  would  not  wish  to  leave  a  wrong 
impression.  The  question  put  in  the  case  to 
which  he  alludes,  was  just  this  :  Are  your  opin 
ions  upon  the  constitutionality  of  the  fugitive 
slave  law,  such  as  to  present  your  finding  a  ver 
dict  of  guilty  in  any  possible  state  of  facts  ? 

Mr.  KEYES.  No  matter;  it  comes  to  the 
same  thing.  It  is  this.  The  facts  in  the  case, 
most  of  them,  may  be  perfectly  notorious ; 
the  question  is  to  be  decided  upon  the  juror's 
ideas  of  the  law  itself.  If,  therefore,  his  mind  is 
made  up  against  the  accused,  then  he  is  allowed 
to  sit ;  if  it  is  made  up  the  other  way,  then  he  is 
not  allowed  to  sit.  But,  I  say  the  judges  have 
no  business  to  know  anything  about  it.  The  law 


68th  day.] 


BILL  OF   RIGHTS. 


445 


Wednesday,] 


SUMNER. 


[July  27th. 


provides  a  way  in  which  jurors  are  to  be  drawn, 
and  they  are  to  sit,  unless  they  are  challenged 
by  the  person  accused,  or  have  expressed  such 
opinions  as  would  show  that  they  were  unable  to 
decide  impartially,  after  all  the  forms  of  trial  had 
been  gone  through  with. 

Mr.  SUMNER,  for  Otis.  I  cannot  subscribe, 
Mr.  President,  to  the  principle  involved  in  the 
proposition  under  consideration,  notwithstanding 
the  very  respectable  authority  which  has  brought 
it  forward.  Jurors  are  now  unquestionably, 
judges  of  the  law  as  well  as  of  the  fact.  But  it 
is  a  well  settled  principle,  and  I  apprehend,  one 
which  is  regarded  throughout  this  Commonwealth, 
that  they  should  be  governed  by  the  advice  of  the 
court,  or  the  instructions  of  the  court,  in  relation 
to  the  law,  unless  they  know  that  those  instruc 
tions  are  wrong.  And  in  assuming  to  act  contrary 
to  the  instructions  of  the  court,  they  assume  a 
very  high  responsibility. 

This  proposition  before  us  seems  to  be  founded 
— for  it  is  not  a  novel  one — upon  a  feeling  of 
philanthropy  toward  the  accused  ;  and  the  ques 
tion  is,  whether,  after  all,  it  is  not  a  mistaken  and 
a  misdirected  philanthropy,  and  whether  the  pro 
posed  rule  may  not  be  prejudicial  rather  than 
otherwise  to  him.  Let  us  illustrate  it.  Suppose 
a  person  is  put  upon  trial  who  is  accused  of  crime. 
His  reputation  is  perfectly  well  known  in  the 
vicinage,  and  is  known  to  the  jurors  as  being  bad. 
Now  the  facts  which  happen  to  be  adduced  against 
him  are  weak  ;  and  the  law,  rightly  applied  to  his 
case,  would  exonerate  him  from  the  charge  against 
him.  The  law  is  correctly  given  to  the  jury  by 
the  court ;  but  the  jury,  by  reason  of  prejudices, 
of  which,  perhaps,  they  are  not  conscious,  but 
growing  out  of  the  fact  of  their  acquaintance  with 
the  reputation  of  the  accused,  make  the  law,  in 
their  hands  to  become  elastic.  They  venture, 
notwithstanding  the  plain  instructions  of  the  court, 
to  go  contrary  thereto,  and  the  consequence  is, 
that  the  accused  is  condemned,  and  condemned 
wrongfully.  All  this  may  be  the  effect  which 
this  supposed  philanthropic  rule  which  you  are 
attempting  to  fix  in  the  Constitution  will  produce. 
Other  illustrative  cases  might  easily  be  adduced, 
but  they  will  so  readily  occur  to  the  minds  of 
gentlemen  present,  that  I  need  not  take  time  to 
state  them.  And  what  is  the  remedy  against  the 
verdict  thus  found  by  the  jury  ?  If  the  jury  de 
cide  wrongfully,  who  can  interpose  to  restore  to 
the  injured  party  his  rights  ? 

No,  Sir  ;  I  think  that  upon  principles  of  philan 
thropy  in  relation  to  the  accused,  as  well  as  in 
regard  to  every  other  principle  that  can  be  brought 
into  view,  the  rule  stands  better  as  it  now  exists, 
than  it  will  by  the  incorporation  into  the  Consti 


tution  of  any  such  principle  as  the  one  proposed. 
As  the  law  and  the  practice  now  is,  if  the  court 
err  in  relation  to  the  law  which  is  given  to  the 
jury,  then  there  is  a  complete  remedy.  Then  an 
exception  may  be  taken  to  the  ruling  of  the  court, 
and  a  farther  hearing  may  be  had  upon  the  sub 
ject,  and  if  an  error  has  been  committed,  it  can 
be  corrected. 

Again,  Sir,  what  is  the  duty  of  the  court  in 
conducting  criminal  trials  ?  The  theory  of  the 
common  law,  in  relation  to  the  duty  of  the  judge 
is  not  an  unmeaning  theory ;  namely,  that  he  is  to 
be  of  counsel  for  the  accused.  It  is  incumbent  upon 
a  judge  to  see  to  it,  that  a  proper  watchfulness  is 
exercised  in  the  conduct  of  every  criminal  case, 
that  no  improper  evidence  be  introduced  ;  that  no 
erroneous  rule  is  laid  down  for  the  government  of 
the  jury  ;  in  a  word,  he  is,  I  repeat  it,  to  be  of  coun 
sel  for  the  accused. 

If  the  principle  is  to  be  adopted,  that  jurors  are 
to  be  judges  of  the  law,  irrespective  of  instructions 
from  the  court,  the  same  principle  will,  of  course, 
find  its  way  into  the  grand  jury  room.  The  regu 
lation  now  is,  that  before  every  grand  jury,  they 
are  to  have  the  aid  of  a  prosecuting  officer,  con 
versant  with  the  law,  who  is  to  inform  them  of 
the  rules  of  the  law  as  applicable  to  the  cases 
before  them.  But  if  jurors  are  to  rule  over  the 
court,  in  the  trial  of  causes,  then  why  not  suffer 
the  same  authority  to  be  adopted  in  the  grand  jury 
room ;  why  not  specially  authorize  grand  jurors 
to  take  upon  themselves  the  responsibility  of 
indicting  persons  according  to  their  own  notions 
of  law,  crude  and  imperfect  as  they  may  be  r 
The  result  might  easily  be  seen.  Indictments 
without  law,  and  against  law,  would  be  found. 

Sir,  in  looking  at  the  probable  working  of  the 
change  proposed,  who  cannot  readily  perceive  the 
confusion  and  difficulties  that  will  be  apt  to  fol 
low  ?  May  not,  and  will  not,  occurrences  and  ex 
amples  like  the  following  often  be  witnessed  ?  For 
instance,  here  are  two  cases  precisely  alike,  de 
pending,  it  may  be,  upon  the  same  facts  and  the 
same  principles ;  you  bring  one  before  the  jury 
upon  the  right  of  the  judge  ;  they  hear  the  case, 
they  hear  the  evidence,  and  they  render  a  verdict 
of  acquittal,  upon  their  law.  Another  case  comes 
before  a  jury  on  the  left  of  the  judge  ;  the  same 
evidence  is  given,  and  the  same  law  is  applicable, 
and  that  jury,  with  the  same  power  to  judge  of 
the  law,  find  a  verdict  precisely  contrary  to  that 
which  was  rendered  in  the  other  case.  What  a 
system  of  things  for  the  administration  of  justice 
that  would  be ! 

No,  Sir,  I  think  we  had  better  let  the  princi 
ples  which  now  obtain  in  Massachusetts,  remain 
as  they  are,  without  seeking  such  an  improve- 


446 


BILL   OF   RIGHTS. 


[68th  day. 


Wednesday,] 


LADD. 


[July  27th. 


ment — if  so  it  may  be  called — as  is  here  pro 
posed. 

Mr.  LADD,  of  Cambridge.  I  desire  to  say  a 
few  words  upon  this  question,  before  it  shall  be 
finally  passed  upon  by  the  Convention.  Although 
I  find  upon  the  Committee  who  reported  the  re 
solution,  the  names  of  gentlemen  of  such  charac 
ter  and  judicial  reputation,  as  will  almost  induce 
us  to  adopt,  upon  their  authority,  and  without 
careful  investigation,  a  proposition  of  this  kind, 
emanating  from  such  a  source,  yet  I  do  protest 
against  the  enunciation,  in  our  organic  law,  of 
such  a  principle  as  is  contained  in  this  resolution. 
There  are  considerations,  entirely  conclusive  to 
my  own  mind,  and  which,  it  seems  to  me,  should 
control  the  action  of  the  Convention  in  this  matter. 

The  great  principle  of  the  American  system  of 
government  consists  in  the  division  and  distribu 
tion  of  power  among  several  coordinate  depart 
ments — the  legislative,  executive,  and  judicial — 
not  as  government  existed  with  our  ancestors  in  a 
former  age,  and  another  country, — when  the 
people  were  not  governed  by  written  laws  and 
constitutions,  and  the  powers  of  the  legislature 
were  defined  and  limited  by  no  constitutional 
provisions.  Now,  by  the  Constitution,  the  power 
and  duty  of  administering,  interpreting,  and  judg 
ing  of  the  law,  devolved  upon  the  judiciary. 
That  is  the  department  of  your  government  which 
should  decide  upon  law.  Now,  the  resolution 
proposes  that  in  all  criminal  trials,  the  jury  shall 
have  the  right  to  decide,  not  only  the  fact,  but 
the  law. 

We  have  in  the  Bill  of  Eights,  art.  10,  the  fol 
io  wing  provision  :  "  Each  individual  of  the  so 
ciety  has  a  right  to  be  protected  by  it,  in  the 
enjoyment  of  his  life,  liberty,  and  property,  ac 
cording  to  standing  laws."  And  by  the  29th 
article  of  the  Bill  of  Rights,  it  is  provided  as  fol 
lows  :  "  It  is  essential  to  the  preservation  of  the 
rights  of  every  individual,  his  life,  liberty,  prop 
erty,  and  character,  that  there  be  an  impartial  in 
terpretation  of  the  laws,  and  administration  of 
justice." 

Now,  I  think  it  very  important,  either  as  a 
practical  or  a  theoretical  question,  whether  you 
shall  put  this  amendment  into  the  Constitution. 
As  the  law  now  exists,  as  I  understand  from  the 
decisions  of  our  supreme  court,  the  jury  in 
criminal  cases  may,  if  they  think  it  expedient,  re 
turn  a  special  verdict ;  that  is,  the  jury  may  judge 
and  determine  as  to  the  fact,  and  submit  the 
same  to  the  court  to  apply  the  law.  And  that  is 
a  special  verdict.  The  jury  have  also  the  right  of 
applying  the  law  as  propounded  by  the  court, 
and  of  returning  a  general  verdict ;  and  thus  they 
have  the  power — if  they  choose  to  assume  a  power 


which  they  cannot  rightfully  exercise — they  have 
the  power  to  revise  and  control  the  decision  of  the 
court.  But  the  supreme  court  has  held  that 
jurors  are  bound  by  their  duties  to  society,  by 
their  social  and  moral  obligations,  and  the  sanc 
tion  of  their  oaths,  to  receive  the  law  from  the 
court,  and  to  adopt  its  interpretation  and  con 
struction  for  their  guidance. 

Now,  I  would  inquire,  whether  in  our  Ameri 
can  system,  or  in  our  own  Constitution,  there  is 
any  meaning  or  intention  that  any  such  condition 
of  things  should  exist,  as  that,  in  the  ultimate 
decision  of  questions  of  law — the  highest  exer 
cise  of  the  judicial  authority — the  jury  should  have 
the  right  to  judge,  in  order  that,  in  the  words  of 
the  Bill  of  Rights,  "  each  individual  may  be  pro 
tected  in  the  enjoyment  of  his  life,  liberty,  and 
property,  according  to  standing  laws,"  and  "that 
there  be  an  impartial  interpretation  of  the  laws, 
and  administration  of  justice"  ? 

I  inquire,  then,  what  will  be  the  result,  if  you 
introduce  this  principle  into  the  Constitution, 
and  if  juries  should  exercise,  as  they  then  right 
fully  may,  the  power  thus  conferred  ?  You  would 
have  juries  who  would  not  hesitate  to  carry  out 
the  principle,  and  to  claim  the  right  to  decide  upon 
the  law.  With  a  rightful  authority  to  construe, 
interpret,  and  judge  of  the  law,  by  how  short  a 
step  may  juries  advance  to  the  inquiry,  whether 
the  law,  which  they  are  called  upon  to  decide,  is 
a  proper  law,  or  not  ?  If  they  are  made  the 
judges  of  the  law,  how  great  a  stretch  of  authority 
would  it  be  for  them  to  assume  to  decide  upon  the 
constitutionality  of  the  law  ?  Now,  Mr.  President, 
it  seems  to  me  that  it  is  one  of  the  great  duties  of 
the  government,  to  protect  persons  who  may  be 
accused  of  crime,  as  well  as  to  protect  the  com 
munity  against  crime.  It  is  the  right  of  every 
citizen  to  be  governed  by  "  standing  laws,"  the 
interpretation  of  which  shall  be  uniform,  and  not 
subject  to  change.  Ingraft  this  principle  upon 
the  fundamental  law  ;  give  to  juries  this  right  of 
ultimate  judgment  in  criminal  causes ;  and  you 
establish  in  every  county  of  the  Commonwealth  a 
distinct  tribunal,  which  is  to  pass  upon  the  most 
sacred  rights  of  the  citizen,  but  whose  decisions 
are  governed  by  no  uniform  rule — by  no  standing 
law — -and  from  which  there  can  be  no  exception 
or  appeal. 

What  security  for  a  fair  and  impartial  trial,  ac 
cording  to  standing  laws,  would  remain  to  the 
accused,  in  some  circumstances  in  which  he  might 
be  placed  in  relation  to  society,  or  in  periods  of 
public  excitement  ?  Establish  this  principle,  and 
if  juries  act  upon  it,  the  great  safeguards  of  the 
accused  are  removed.  He  is  no  longer  protected 
by  standing  laws. 


68th  day.] 


BILL   OF   RIGHTS. 


447 


Wednesday,] 


HALLETT. 


[July  27th. 


It  seems  to  me,  therefore,  that  in  every  point  of 
view  in  which  I  can  survey  the  question,  the 
proposed  innovation  involves  a  dangerous  princi 
ple  ;  that  it  is  contrary  to  the  general  spirit  of  our 
institutions  ;  that  it  contravenes  the  provisions  of 
our  Bill  of  Rights,  and  will  practically  introduce 
uncertainty  and  confusion  into  the  administration 
of  the  law. 

Mr.  HALLETT,  for  Wilbraham.  This  ques 
tion,  involving  the  great  right  of  juries  in  criminal 
trials,  was  much  considered  and  discussed  in  the 
Committee  on  the  Bill  of  Rights,  and  the  propo 
sition  now  under  debate,  was  reported  to  the 
Convention,  not  by  a  majority,  but  by  an  equal 
division  of  the  Committee. 

It  is  a  very  vital  question,  as  I  regard  it,  and 
one  in  which  I  have,  professionally  and  personally, 
taken  a  deep  interest  for  a  great  many  years.  I 
trust,  therefore,  that  having  been  instructed  by  one 
half  of  the  Committee  to  submit  this  proposition, 
I  shall  not  be  considered  as  intruding  upon  the 
Convention,  in  offering  some  reasons  for  its  adop 
tion,  as  a  necessary  reaffirmation  of  a  lost  right  in 
the  Constitution.  It  is  obvious,  that  under  the 
rule  limiting  a  speaker,  I  have  no  time  to  argue  ; 
I  can  but  make  suggestions,  though  I  may  enlarge 
in  revising  these  remarks,  by  adding  what  I  am 
now  obliged  to  pass  over. 

Sir,  I  claim  no  new  right  for  juries,  but  the 
restoration  of  a  very  ancient  right,  which  the 
courts  recently,  and  against  common  law,  have 
denied  to  them.  A  new  sophistry  has  sprung  up 
by  which  acute  lawyers  and  judges,  while  admit 
ting  the  poicer  of  the  jury  to  pass  upon  the  law 
and  the  fact,  proceed  to  argue  away  the  right,  and 
by  thus  alarming  or  confounding  jurors,  take 
from  them  the  power  as  well  as  the  right  to  do 
otherwise  than  to  find  a  verdict  as  the  judge  may 
direct ;  so  that  in  all  criminal  trials,  where  the 
law  is  in  doubt,  it  is  the  verdict  of  the  judge  and 
not  the  verdict  of  the  jury  alone,  which  convicts. 

Now  I  hold  that  this  is  not  the  ancient  "  trial 
by  jury  "  ;  the  "judgment  of  his  peers,"  which 
is  secured  to  every  subject  by  the  Bill  of  Rights  ; 
and  therefore  if  we  would  not  yield  up  this  old 
common  law  right  to  a  new  judicial  construction 
by  which  the  courts  evade  it,  it  must  now  or 
never  be  reaffirmed  by  the  people,  as  a  part  of 
their  organic  law. 

Hence  the  proposition  I  have  had  the  honor  to 
submit,  is  simply  the  reaffirmation  of  a  denied 
right ;  the  enunciation  of  a  great  principle,  en 
dangered  by  judicial  construction — the  reorgani 
zation,  in  fact,  of  the  ancient  charter  of  jury 
rights.  That  is  what  it  is ;  and  with  it  is  involved 
the  right  of  every  person  when  charged  with 
crime,  to  have  the  whole  verdict  of  a  jury,  guilty 


or  not  guilty,  law  and  fact  all  included.  And 
therefore  in  considering  a  proposition,  which  lies 
at  the  foundation  of  all  personal  rights  in  govern 
ment,  I  look  at  it  only  as  a  broad  fundamental 
principle.  I  can  see  no  personal  or  particular 
application,  that  I  desire  to  make  of  it ;  no  law 
that  is  to  be  enforced  by  the  judges,  depriving 
juries  of  their  rights,  or  to  be  abrogated  by  the 
juries  exercising  that  right.  Give  me  the  princi 
ple,  and  sure  I  am  that  it  will  secure  the  rightful 
administration  of  justice,  by  a  rule  of  trial  as  old 
as  the  common  law,  and  under  which  all  criminal 
causes  have  been  conducted,  consistent  with  good 
government,  for  two  hundred  years  in  this  Com 
monwealth. 

It  was  necessary  in  the  olden  time,  repeatedly 
to  reaffirm  Magna  Charta,  which  was  first  forced 
from  King  John,  was  subsequently  violated  by 
his  successors,  and  again  reenacted  by  the  people, 
until  it  was  made  treason  in  the  king  to  attempt 
its  infringement.  So  in  modern  times,  the  ju 
dicial  power,  under  the  irresponsible  life  tenure 
of  office,  has  gradually  usurped  the  ancient  right 
of  juries  in  criminal  trials,  by  construing  it  to 
mean  a  naked  and  lawless  power,  without  any 
right  to  exercise  it.  And  now  the  time  has  come 
when  the  people  of  Massachusetts  will  have  the 
opportunity  to  demand,  in  the  reenactment  of 
their  Constitution,  that  this  power  and  this  right, 
which  always  meant  one  and  the  same  thing  in 
the  organization  and  practice  of  trial  by  jury, 
shall  be  restored  with  its  original  interpretation 
and  intent. 

That  is  the  question  here  to-day.  It  is  no  in 
novation,  but  it  is  a  restoration.  We  ask  for  no 
new  law,  for  no  new  principle.  We  ask  only, 
that  this  judge- made  law,  which  is  no  part  of  the 
Constitution,  no  part  of  the  old  common  law,  no 
part  of  statute  law,  and  no  part  of  the  precedents 
or  practice  of  our  courts  until  very  recently,  shall 
be  set  aside  in  Massachusetts,  and  the  original 
construction  and  practice  in  trials  by  jury,  be 
proclaimed  anew  as  the  supreme  law  of  the  land. 

I  have  said  that  the  recent  denial  of  this  right 
by  the  courts,  was  an  usurpation.  I  use  that 
term  in  no  offensive  sense,  but  as  indicating  the 
gradual  encroachments  of  the  bench,  which  is 
always  inclined  to  amplify  its  jurisdiction.  It 
has  gone  on  here  precisely  as  it  has  gone  on  in 
England,  whenever  it  became  the  wish  or  the 
policy  of  the  courts  to  treat  the  jury  as  an  obsta 
cle  in  the  way  of  enforcing  convictions. 

The  denial  of  the  jury  right  began  in  England 
with  the  usurpations  of  the  judges  over  the  lib 
erty  of  the  press  in  trials  for  libel.  It  was  never 
applied  to  other  criminal  trials  as  a  rule  of  law. 
With  a  thorough  examination  of  English  prece- 


448 


BILL    OF   RIGHTS. 


[68th  day. 


Wednesday,] 


HALLETT. 


[July  27th. 


dents,  I  undertake  to  affirm,  that  until  after 
American  Independence,  which  freed  us  from  all 
British  criminal  practice,  unless  previously  adopt 
ed  by  our  courts,  no  authority  of  any  court  of 
common  law  in  England  can  be  found,  against 
the  right  of  the  jury  to  find  the  law  and  the  fact 
of  the  case  by  a  general  verdict  in  all  criminal 
trials,  except  in  the  judicial  murder  of  Algernon 
Sydney  in  1683,  by  Chief  Justice  Jeffreys,  who 
said  to  the  jury  "the  point  in  law,  you  are  to 
take  from  the  court,  gentlemen." — (3d  State 
Trials,  805.)  And  this  never  was  law,  even  in 
England,  for  Parliament  set  aside  the  verdict  and 
attainder  against  Sydney,  solely  on  the  ground  of 
the  misdirection  of  the  court  to  the  jury. 

The  denial  of  this  right,  in  fact,  had  its  origin 
in  the  infamous  Star  Chamber,  and  a  modern 
English  law  writer  of  high  authority,  Mr.  Starkie, 
says  :  "  After  the  abolition  of  the  Star  Chamber, 
which  in  cases  of  libel  exercised  an  unbounded 
control  over  both  law  and  fact,  the  cognizance  of 
such  offences  reverted  to  the  court  of  King's  Bench, 
to  be  exercised  in  the  constitutional  mode  by  the 
intervention  of  a  jury ;  and  till  sometime  after 
this  period,  no  doubt  seems  to  have  been  enter 
tained  of  the  right  of  a  jury,  (he  uses  the  term 
right  and  not  power,)  to  give  a  general  verdict  in 
the  case  of  libel,  as  well  as  in  any  other  criminal 
proceeding:'  And  he  then  proceeds  to  give  a 
history  of  Lord  Mansfield's  usurpation,  over  juries 
in  denying  to  them  the  right  to  determine  the  law 
and  the  fact  in  trials  for  libels.— (Starkie  on 
Slander,  617.) 

The  whole  course  of  the  common  law  was  thus 
perverted  by  this  comparatively  modern  devise,  of 
power  without  right,  which  was  invented  in  order 
to  destroy  the  free  press  of  England,  by  that 
learned,  but  most  arbitrary  of  all  the  judges  who 
ever  sat  on  the  king's  bench. 

I  am  surprised  that  American  lawyers  or  judges 
should  ever  cite  that  authority  against  juries, 
because  the  first  formal  decision  by  Lord  Mans 
field  that  the  jury  were  bound  to  take  the  law 
from  the  court  (in  the  Dean  of  St.  Asaph,  dis 
claimed  too,  at  the  time,  by  his  associate  on  the 
bench,  Mr.  Justice  Willis,  who  said  that  "  the 
jury  had  the  right  as  well  as  the  power  to  judge 
of  the  question  whether  libel  or  no  libel")  was 
given  in  1784,  long  after  our  independence,  and 
therefore  never  was  common  law  or  any  other 
law  in  this  country.  And  in  England  that  judge- 
law  was  repudiated  by  an  act  of  Parliament  in 
1792,  as  a  judicial  usurpation  over  the  rights  of 
juries  to  determine  the  law  and  the  fact  by  a 
general  verdict  in  indictments  for  libel  as  in  all 
other  criminal  causes. 

Recently,  some  British  judges  have  attempted 


to  revive  this  exploded  doctrine  of  Lord  Mans 
field,  and  the  ancient  right  of  juries  is  now  in 
danger  in  England,  as  it  is  in  this  country,  by  the 
mere  force  of  judicial  construction. — (Baron 
Parke  in  6  M.  and  W.,  and  Best,  chief  justice,  in 
4  Bing.,  195.) 

The  progress  of  judicial  usurpation  over  juries 
has  been  similar  in  this  country,  first  in  the  cir 
cuit  court  of  the  United  States  for  Massachusetts, 
and  very  recently  in  two  or  three  State  courts. 
The  lawyers  and  judges  of  the  old  school  of 
common  law  always  affirmed,  and  never  questioned 
the  right.  In  1804,  the  supreme  court  of  the 
United  States,  through  Chief  Justice  Jay,  declared 
the  opinion  that  "  the  jury  have  the  right  to  take 
upon  themselves  to  judge  of  both  law  and  fact, 
and  to  determine  the  law  as  well  as  the  fact  in  con 
troversy." — (3  Dallas,  4.)  And  yet  a  very  learned 
judge  of  the  circuit  court— Mr.  Justice  Story — 
assumed  to  set  aside  that  law  and  all  American 
common  law  on  that  point,  by  resorting  to  this 
subtle  definition  of  power  without  right,  which 
has  since  been  adopted  by  other  judges  in 
that  court,  and  by  judges  of  our  State  courts 
in  Massachusetts,  until  the  power  and  the  right 
will  both  be  taken  from  the  people  by  judicial 
construction,  unless  they  now  affirm  it  emphati 
cally,  as  a  part  of  their  fundamental  law. 

In  Massachusetts,  the  very  recent  change  in 
judicial  construction  against  jury  rights,  is  re 
markable.  From  the  earliest  period  of  the  judicial 
history  of  this  Commonwealth,  down  to  the  recent 
decision  in  the  tenth  of  Metcalf 's  Reports,  (Com 
monwealth  vs.  Porter,)  no  question  was  ever 
made  by  the  supreme  court,  cr  any  of  its  judges, 
of  the  right  of  the  jury  to  determine  the  whole 
law  and  the  whole  fact  involved  in  their  verdict 
of  guilty  or  not  guilty.  Chief  Justices  Parsons, 
Parker,  and  Shaw,  and  Justices  Putnam,  Wilde 
and  Morton,  and  others,  have  announced  this  as 
a  settled  principle  of  common  law,  over  and  over 
again.  I  have  at  hand  references  to  numerous 
cases  in  our  reports  directly  to  this  point.  It  was 
the  common  judicial  acceptation  in  charges  and 
in  arguments  to  juries  in  all  criminal  trials,  and 
if  there  be  any  common  law  settled  by  precedents, 
that  was  settled,  until  it  was  disturbed,  though 
not  even  then  expressly  denied,  by  the  decision  in 
the  case  in  Metcalf.  I  will  cite  two  authorities 
that  cover  the  whole  ground.  In  the  tenth  vol 
ume  of  Pickering,  496,  Commonwealth  vs.  Knapp, 
the  supreme  court  deliberately  say :  "  As  the  jury 
have  the  right,  and  if  required  by  the  prisoner, 
are  bound  to  return  a  general  verdict  of  guilty  or 
not  guilty,  they  must  necessarily  decide  such  ques 
tions  of  law  as  icell  as  of  fact,  as  are  involved  in 
this  general  question,  and  there  is  no  mode  in 


68th  day.] 


BILL   OF   RIGHTS. 


449 


Wednesday,] 


HALLETT. 


[July  27th. 


which  their  opinions  upon  questions  of  law  can 
be  revised  by  this  court  or  by  any  other  tribunal." 

That  was  the  solemn  decision  of  the  whole 
court  in  1830.  And  again  in  1838,  in  the  20th 
of  Pickering,  222,  the  case  of  Commonwealth  vs. 
Kneeland,  the  learned  Chief  Justice  Shaw,  in 
giving  the  opinion  of  the  court,  said :  "In  all 
criminal  cases  the  jury  are  to  pass  upon  the  whole 
matter  of  law  and  fact,  and  to  render  a  verdict  of 
guilty  or  not  guilty  upon  the  ^chole  matter)  in 
cluding  all  questions  of  law  and  of  fact," 

And  that  is  just  what  the  proposition  now 
under  consideration  is  intended  to  affirm  as  the 
meaning  of  "  trial  by  jury  "  in  Massachusetts. 
It  says,  in  very  plain  terms,  that  the  jury,  having 
the  power,  as  is  admitted  on  all  hands,  "  shall 
have  the  right,  in  their  verdict  of  guilty  or  not 
guilty,  in  all  trials  for  criminal  offences,  to  deter 
mine  the  law  and  the  facts  of  the  case."  Not  to 
violate  law,  not  to  make  law  or  to  establish  pre 
cedents  of  law  for  other  cases,  but  to  say  guilty 
or  not  guilty  upon  the  law  of  the  case  which  makes 
the  act  a  crime,  as  well  as  upon  the  act  itself, 
which  is  alleged  to  be  a  crime.  So  that  there  is 
no  pretence  for  the  objection  raised  by  those  who 
disparage  juries,  that  this  makes  the  jury  judges 
to  decide  points  of  law  or  settle  the  law  in  one 
case  for  other  cases,  or  that  they  will  make  the 
law  uncertain  by  different  verdicts — because  each 
case  stands  by  itself,  and  the  jury  decide  nothing 
but  the  particular  case  committed  to  them,  in 
cluding  therein  the  whole  issue  of  law  and  fact. 

Hence,  this  proposition,  if  put  into  the  Consti 
tution,  will  only  restore  the  right  which  the 
courts  of  Massachusetts  always  admitted  to  its 
full  extent,  until  the  case  in  the  tenth  of  Metcalf, 
which  has  left  the  power  and  taken  away  the 
right.  And  how  did  that  happen  ?  In  1845  a 
case  was  tried  before  the  court  of  common  pleas, 
in  which  the  judge  denied  to  the  counsel  the 
right  to  argue  the  law  of  the  case  to  the  jury 
at  all.  It  was  the  first  time,  in  the  exist 
ence  of  common  law  courts,  that  such  a  right 
had  been  denied  to  counsel,  and  yet  it  was  but 
the  final  step  in  this  judicial  assumption  of  taking 
the  law  of  the  case  out  of  the  hands  of  the  jury. 
It  in  effect,  set  aside  the  trial  by  jury,  and  when 
that  judge  required  of  me,  as  counsel  in  that 
case,  to  argue  the  points  of  law  to  him,  that  he 
might  order  the  jury  how  to  find  on  the  law,  and 
then  to  argue  the  facts  only,  to  the  jury,  I  said : 
"  I  will  not  argue  the  law  to  the  court,  and  the 
facts  to  the  jury  separately;  I  will  argue  the 
whole  defence  of  mixed  law  and  fact  to  the  jury, 
or  not  at  all.  The  Constitution  secures  to  every 
subject,  '  when  held  to  answer  for  any  offence, 
the  right  to  be  fully  heard  in  his  defence,  by  his 

31 3 


counsel.'  If  the  court  sees  fit  to  stop  the  defend 
ant  in  his  fiill  defence,  I  will  sit  down,  but  I  will 
not  yield  the  right  to  argue  the  full  defence  of  law 
and  fact  to  the  jury."  The  judge  persisted.  Ex 
ceptions  were  taken  to  his  ruling,  and  when  the 
question  was  argued  before  the  supreme  court,  the 
learned  judges,  after  holding  the  case  over  for  more 
than  a  year,  turned  their  backs  upon  themselves, 
and,  in  effect,  set  aside  all  the  precedents  and  prac 
tice  of  the  Commonwealth.  I  must  be  excused  for 
saying  that  it  was  the  worst  reasoned  judicial 
opinion  that  can  be  found  in  the  Massachusetts 
Reports.  It  did  not  take  the  only  consistent 
ground  against  law  which  the  common  pleas  judge 
took ;  viz.  :  that  the  counsel  should  not  argue 
the  law  to  the  jury,  because  they  had  nothing  to 
do  with  it.  They  overruled  that  as  utterly 
against  all  law  and  all  practice ;  but  after  affirm 
ing  that  the  counsel  had  a  right  to  argue  the  law 
to  the  jury,  they  then  went  on  to  say  that  the 
jury  had  no  right  to  listen  to,  or  be  convinced  by 
the  argument,  but  must  implicitly  take  the  opin 
ion  of  the  judge.  And  this  was  the  first  time 
that  the  doctrine  was  ever  broached  by  the  supreme 
court  of  Massachusetts,  that  the  jury  had  the 
power  but  had  no  right  to  determine  the  law  and 
the  fact  of  a  criminal  case. 

Now,  where  could  there  be  a  more  extreme 
judicial  paradox  than  this,  no  matter  from  what 
quarter  it  should  come  ?  Admitting  that  the 
counsel  had  a  right  to  argue  the  law  to  the  jury, 
and  then  denying  that  the  jury  had  any  right  to 
say  whether  the  argument  was  true  or  false  ! 
Why  then  argue  it  at  all  ?  The  right  of  counsel  to 
argue,  but  upon  the  express  condition  that  you 
are  not  allowed  to  convince  !  A  great  right,  truly ! 
That,  Sir,  is  conclusive  that  the  decision  of  the 
judges  in  the  case  in  the  tenth  of  Metcalf,  was 
wrong,  wholly  wrong  upon  that  point ;  and  no 
learning  or  logic  can  sustain  its  consistency. 
True,  the  supreme  court  overruled  the  case  as  it 
came  up  to  them,  and  sent  it  back  for  a  new  trial, 
so  that  the  defendant  prevailed.  But,  it  was  de 
cided  upon  a  new  arid  self- contradictory  princi 
ple,  that  juries  have  the  power  to  embrace  in  their 
verdict,  and  determine  the  whole  issue  of  law  and 
fact,  but  that  they  have  no  right  to  use  that 
power,  and  they  would  be  guilty  of  presump 
tuous  wickedness  if  they  dared  to  exercise  it ! 
Just  as  if  you  cannot  trust  juries  as  well  as  judges, 
with  the  exercise  of  every  power  which  the  Con 
stitution  and  the  law  gives  them ;  for  neither 
judge  nor  jury  can  have  a  lawful  power  to  do 
anything  which  they  would  not  have  a  lawful 
right  to  do. 

On  the  contrary,  instead  of  the  judge  being 
the  safest  depository  of  criminal  law,  all  judicial 


450 


BILL   OF   RIGHTS. 


[68 tli  day. 


Wednesday,] 


HALLETT. 


[July  27th. 


history  shows  that,  whenever  the  life  or  liberty 
of  the  people  is  concerned,  it  is  the  judges,  and 
not  the  juries,  that  are  most  to  be  feared  in  disre 
garding  law,  and  enforcing  injustice.     The  books 
are  full  of  cases  involving  great  questions  of  lib 
erty  and  law,  in  which  the  judges  have  been 
wrong,  and  the  juries  right;    and  there  is  not  a 
case  on  record,  where  a  jury  has  convicted  the 
innocent  by  disregarding  the  law  laid  down  by 
the  court,  and  never  will  be.     I  have  no  time  to 
cite  cases,  but  just  go  back  to  the  trials  for  witch 
craft,   in   Massachusetts,   in    1696.     Hutchinson 
tells  us  that  the  juries  changed  long  before  the 
judges  did.     And  so  it  was ;  by  disregarding  the 
directions  of  the  judges  as  to  the  law,  and  taking 
the  law  as  well  as  the  fact  into  their  own  "judg 
ment,"  they  averted  that  terrible  judge -law  per 
secution.     And  where  did  that  monstrous  judicial 
error  spring  from  ?     Why,  Sir,  aside  from  all  the 
province  laws,  it  came  from  the  English  common 
law  of   crime,  made  by  the   otherwise  learned 
and  upright  judge,  Sir  Matthew  Hale,  who  caused 
the  hanging  of  poor  Rose  Cullender,  by  inducing 
a  jury  to  take  his  law  which  he  laid  down  to 
them,  that  witchcraft   was  a   crime  punishable 
with  death.     That   same  judge-law  was   intro 
duced  into  the  then  supreme  court  of  Massachu 
setts,  as  the  common  law  of  England,  and  Chief 
Justice   Stoughton,   and    his    associates   on  the 
bench,  undertook  to  enforce  it,  until  they  hung 
nineteen  women,  and  had  some  seventy  accused 
arraigned  for  trial,  when  a  jury  of  Middlesex  re 
solved  to  give  a  whole  verdict  upon  the  law  as 
well  as  the  fact,  and  acquitted  the  victims,  against 
the  instructions  of  the  court,  and  determined  to 
convict   no   more.      And  thereupon   old   Judge 
Stoughton  rose   on  the  bench,  and   exclaimed  : 
"  We  were  in  a  fair  way  to  have  rid  the  land  of 
these   emissaries  of  the  devil,  but  now,  the  Lord 
have  mercy  upon  us  !  "     And  he  left  the  bench, 
and  would  sit  no  more  in  that  court. 

Now,  Sir,  I  defy  any  lawyer  to  cite  a  case  in 
which  the  jury,  where  the  judges  sought  a  con 
viction,  have  undertaken  to  determine  the  law 
and  the  fact  of  the  case,  and  have  not  decided 
rightly,  in  favor  of  life  and  liberty. 

A  word,  only,  touching  some  technical  objec 
tions  raised  here.  One  gentleman  says,  there  can 
be  no  exceptions  taken  as  to  the  law,  if  the  jury 
are  to  determine  the  law  as  well  as  the  facts. 
Cannot  except  ?  What  do  you  except  to  ?  To 
the  verdict  of  the  jury,  when  they  acquit  ?  Never. 
That  is  final,  and  no  judge  or  court  can  call  it  in 
question.  And  how  do  you  know,  or  what  right 
has  the  court  to  know,  whether  the  jury  render 
their  verdict  on  law  or  fact,  or  both  ?  That  be 
longs  to  them,  and  never  to  the  court.  If  the 


ury  convict,  the  law,  in  that  case,  has  always 
allowed  the  prisoner  to  except  either  to  the  in 
struction  of  the  court,  or  to  the  verdict  of  guilty, 
f  against  law  or  against  evidence.  That  is  the 
security  given  to  the  subject  in  favor  of  life  and 
liberty,  and  who  will  dare  to  take  it  away  ?  And 
that  is  left  by  this  proposition  as  it  now  stands. 
It  declares  that  "the  jury,  after  having  received 
the  instruction  of  the  court,  shall  have  the  right, 
in  their  verdict  of  guilty  or  not  guilty,  to  deter 
mine  the  law  and  the  facts  of  the  case."  That  is, 
they  are  to  take  the  whole  matter  in  issue,  law 
and  fact  together,  and  have  the  right  to  determine 
the  criminal  guilt,  which  is  the  law,  and  the  actual 
guilt,  which  is  the  fact.  But  the  supreme  court 
now  undertake  to  say,  as  Judge  Jeffreys  said, 
in  the  trial  of  Sydney,  "  The  point  in  law  you  are 
to  take  from  us.  We  will  find  a  verdict  upon 
the  law,  and  you  may  find  a  verdict  upon  the 
facts."  And  thus  the  judge  makes  himself  the 
jury,  and  finds  one-half  of  the  verdict,  and  the 
jury  the  other  half,  and  so  between  them  they 
convict ;  and  that,  I  maintain,  is  against  common, 
law,  because  it  is  not  the  "trial  by  jury,"  "the 
judgment  of  his  peers,"  to  which  every  man 
charged  with  crime  is  entitled  of  right. 

It  is  the  province  of  the  judge  to  instruct  the 
jury,  not  to  control  them,  against  their  "judg 
ment"  which  means  their  honest  opinion,  under 
their  oaths,  and  not  the  opinion  of  the  judge 
forced  upon  them.  It  will  happen,  only  in  ex 
treme  cases,  where  a  jury  will  not  be  able,  con 
scientiously,  to  conform  their  "judgment"  to  the 
instructions  of  the  court,  and  therefore  it  may 
be  safely  left  to  their  discretion.  In  fact,  it  is 
the  only  safeguard  against  arbitrary  and  unjust 
judges.  If  the  instructions  of  the  judge  are 
wrong,  or  if  the  verdict  of  guilty  is  wrong,  you 
go  to  the  court  for  a  new  trial,  and  therefore  this 
proposition — affirming  the  jury  right — in  nowise 
can  be  construed  to  interfere  with  the  right  of 
exception,  or  of  a  new  trial.  If  professional  gen 
tlemen  have  any  belief — which  I  have  not — that 
the  court  would  evasively  deny  exceptions,  let 
it  be  made  their  duty  to  allow  exceptions,  and 
grant  new  trials,  as  heretofore. 

Especially  is  it  unfair  for  professional  gentle 
men  to  confound  the  broad  distinction  that  exists 
between  civil  and  criminal  trials,  in  this  respect. 
In  civil  causes,  either  party,  at  the  discretion  of 
the  court,  may  have  a  new  trial,  for  law  or  fact ; 
but  in  criminal  trials,  this  right  appertains  to  the 
defendant  only  when  convicted.  Why  is  this  ? 
The  reason  covers  the  whole  ground  of  the  argu 
ment.  It  is  because  the  trial  by  jury,  in  criminal 
charges,  has  always  been  regarded  as  the  palla 
dium  of  liberty,  and  there  is  no  safety  in  trusting 


68th  day.] 


BILL   OF   RIGHTS. 


451 


Wednesday,] 


HALLETT  —  DANA. 


[July  27th. 


the  life  and  liberties  of  the  people  in  the  hands 
of  judges  ;  and  therefore,  neither  parliament  in 
England,  nor  any  legislature  in  America,  ever 
enacted  a  law  to  allow  a  judge  to  grant  a  new 
trial  against  a  party  who  has  been  acquitted  of 
crime,  by  a  verdict  of  jury. 

On  the  other  hand,  in  civil  causes  between  par 
ties,  there  has  always  been,  by  common  law,  and 
with  us  by  express  statute,  a  discretion  given  to  the 
court  to  set  aside  a  verdict  and  grant  a  new  trial  to 
either  party,  either  for  law  or  for  fact.  And  this 
makes  a  manifest  distinction.  It  takes  from  the 
jury  both  the  power  and  the  right  to  determine 
the  law  in  civil  causes,  and  gives  it  to  the  court, 
who  may  control  the  jury  by  setting  aside  their 
verdict,  whenever  the  judge  does  not  agree  to  it, 
and  granting  a  new  trial.  Consequently,  by  re 
fusing  to  give  any  such  power  to  the  court,  in  all 
cases  of  a  verdict  of  not  guilty,  in  criminal  trials, 
the  law  decides  and  declares  that  it  is  the  jury, 
and  not  the  court,  who  are  to  pass  upon  and  de 
termine,  by  their  verdict,  the  whole  matter  of 
law  and  fact  in  the  case,  and  the  court  has  no 
power  or  right  to  interfere  with  the  power  and 
the  right  of  the  jury  to  acquit. 

Now,  Sir,  we  have  got  involved  in  subtle  defi 
nitions  and  technical  contradictions  by  this  new 
judicial  theory  of  power  without  right,  and  I  de 
sire,  as  it  seems  to  me  all  should  desire,  to  have 
this  matter  authoritatively  settled  by  the  people, 
in  their  new  Constitution,  so  that  we  may  no 
longer  have  these  contentions  between  judges, 
lawyers,  and  juries,  but  may  return  to  the  old 
safe  practice  of  leaving  the  whole  case,  law  and 
fact,  to  the  "judgment"  of  the  "peers,"  the  jurors. 

Manifestly  a  necessity  has  arisen  for  this  de 
claration.  Junius  well  said  of  Lord  Mansfield, 
who  began  this  work  of  destroying  the  trial  by 
jury  :  "  Let  the  case  be  what  it  may,  your  under 
standing  is  always  on  the  rack  to  contract  the 
power  of  the  jury,  or  to  mislead  their  judgment." 
And  as  Lord  Mansfield  did  in  his  day,  so  some 
modern  judges  have  done  and  are  now  doing  in 
their  day ;  and  this  is  a  reason  why  the  judiciary 
has  fallen  somewhat  in  its  old  repute;  not  be 
cause  it  has  not  enforced  law,  but  because  it  has 
too  much  attempted  to  enforce  juries  and  contract 
their  rights.  And  this  has  caused  criticisms  and 
comments  of  the  profession  and  the  press,  in 
which  the  judiciary  has  had  the  arbitrary  side  of 
the  argument.  While  I  concede  all  that  may  be 
asked  to  the  learning  and  ability  of  Massachusetts 
judges,  I  feel  bound  to  say,  nevertheless,  that  this 
tendency~of  the  bench  to  contract  the  power  of 
juries  and  control  their  verdicts,  has  been  carried 
farther  in  this  Commonwealth  than  in  any  other 
State  in  the  Union.  In  Maine,  in  Yermont,  and 


other  States,  this  great  right  of  juries  has  been 
again  and  again  judicially  affirmed,  and  it  is 
made  a  part  of  the  Constitutions  of  several  of  the 
States,  and  the  criminal  law  is  as  wisely  admin 
istered  there  as  here,  for  the  public  security.  So 
in  all  that  time,  in  which  the  right  was  never 
denied  in  Massachusetts,  until  Judge  Story  began 
it,  sixteen  years  ago,  who  will  deny  that  law  was 
as  safely  enforced  in  this  Commonwealth  as  it 
has  been  since  ? 

Now,  let  us  put  this  question  directly  to  the 
people,  for  them  to  settle.  If  it  is  their  will  that 
the  judges  shall  control  the  verdicts  of  juries  in 
criminal  trials,  precisely  as  the  law  authorizes 
them  to  do  in  civil  cases,  so  that  the  jury  are  to 
find  the  fact,  separate  from  the  crime,  and  the 
court  apply  the  law  to  it,  as  in  a  special  verdict, 
then  let  it  be  so  proclaimed ;  and  that  will  strike 
out  of  the  Bill  of  Rights  the  "trial  by  jury"  and 
the  "judgment  of  the  peers."  But  if  they  mean 
to  preserve  the  ancient  right  of  juries  as  the  pal 
ladium  of  personal  liberty,  they  will  put  this 
provision  into  the  Constitution,  and  it  will  there 
remain,  an  undisputed  and  perpetual  right. 

Mr.  DANA,  for  Manchester.  I  will  take  a 
moment  out  of  my  very  short  time,  to  ask  the 
gentleman  for  Wilbraham  whether  he  means  that 
juries  shall  be  exclusive  judges  of  the  law  of  evi 
dence,  and  of  the  reception  or  rejection  of  the 
testimony  of  a  witness  ? 

Mr.  HALLETT.  No  such  theory  is  embraced 
in  or  can  be  construed  out  of  tbat  provision.  It 
is  only  in  regard  to  receiving  instructions. 

Mr.  DANA.  Suppose  that  certain  evidence  is 
given  in,  and  the  court  tells  the  jury  that  that 
evidence  is  not  admissible ;  are  the  jury  then  to 
receive  it  or  to  throw  it  out,  each  man  as  he 
chooses  ? 

Mr.  HALLETT.  The  answer  to  that  is  simply 
this :  The  jury  is  sworn  to  determine  between 
the  prisoner  at  the  bar  and  the  Commonwealth, 
according  to  the  evidence.  That  evidence  is  what 
goes  to  them  under  the  supervision  of  the  court. 
That  evidence  that  is  not  given  to  them,  or  that  is 
withdrawn,  they  have  nothing  to  do  with. 

Mr.  DANA.  Then  the  gentleman  admits  that 
the  jury  are  bound  by  the  decision  of  the  court 
upon  the  law  of  evidence.  But  this  is  not  clear 
from  the  resolve.  The  resolve  says :  "In  all 
trials  for  criminal  offences,  the  jury,  after  having 
received  the  instructions  of  the  court,  shall  have 
the  right,  in  their  verdict  of  guilty  or  not  guilty, 
to  determine  the  law  and  the  facts  of  the  case." 
So  that  it  is  no  matter  what  the  instructions  of 
the  court  may  be,  the  jury  are  not  bound  to  fol 
low  them.  If  the  court  say  to  the  jury  that  a 
certain  piece  of  evidence  is  not  to  be  received,  still 


452 


BILL   OF   RIGHTS. 


[68th  day. 


Wednesday,] 


DANA  —  HALLETT. 


[July  27th. 


the  jury  have,  by  this  provision,  a  right  to  receive 
it  or  not,  as  they  may  see  fit,  and  each  juror  as  he 
sees  fit.  But  I  understand  the  gentleman  for 
Wilbraham  to  say  that  this  is  not  so.  He  should 
provide,  in  his  resolution,  that  it  should  not  apply 
to  the  case  of  evidence. 

Then,  Sir,  there  is  another  consideration,  and 
that  is,  whether  the  rights  of  parties  in  criminal 
cases  do  not  depend  nearly  as  much  upon  the  law 
of  evidence  as  upon  any  other  law ;  and  if  he 
provides  that  they  shall  not  be  judges  of  the  law 
of  evidence,  but  shall  take  the  law,  in  that  case, 
from  the  court,  then  he  has  surrendered  one-half 
of  his  case,  and  all  the  principle  of  his  case.  The 
law  fixes  the  rules  of  evidence  that  shall  acquit  or 
convict  a  man.  I  offer  a  piece  of  evidence  tend 
ing  to  acquit  a  man  charged  with  crime.  The 
judge  says  that  such  evidence  is  not  admissible. 
If  the  jury  think  that,  if  received,  it  would  clear 
the  prisoner,  and  that  it  ought  to  be  received,  and 
yet  reject  it,  does  not  the  jury  convict  the  man 
against  its  view  of  the  true  legal  case  ? 

Mr.  HALLETT.  We  merely  propose  to  re 
store  the  original  rights  of  the  jury.  If  the  gen 
tleman  for  Manchester  desires  to  embrace  the  ques 
tion  of  evidence  he  can  do  so. 

Mr.  DANA.  Then  I  understand  the  gentle 
man  to  say  that  he  does  not  include  the  law  in 
regard  to  evidence.  Let  me  carry  out  the  illus 
tration  I  had  commenced.  Here  is  a  piece  of  evi 
dence  tending  to  acquit  a  prisoner.  The  court 
says  that  it  cannot  be  received.  The  jury  say 
that  it  can  ;  yet  the  jury  is  not  to  judge,  but 
are  tied,  hand  and  foot,  by  the  court.  Now,  am 
I  not  right  in  saying  that  the  gentleman  has  sur 
rendered  his  principle  on  a  very  material  point  ? 
And  the  fact  that  he  has  surrendered  it  there, 
shows  me — and  I  hope  it  will  show  every  gentle 
man  in  the  Convention,  who  will  consider  this 
matter  candidly  and  without  passion — that  this 
principle  cannot  be  carried  out. 

It  is  now  the  rule  that  juries  pass  upon  the  law 
in  rendering  general  verdicts,  as  well  as  upon  the 
facts.  It  always  has  been  so  ;  and  when  judges 
take  from  juries  this  right,  they  have  usurped 
a  power  which  does  not  belong  to  them.  It 
has  not  been  done  in  this  Commonwealth. 
Lord  Mansfield  attempted  to  encroach  upon  the 
right  of  the  juries,  by  telling  them  whether  a  cer 
tain  publication  was  a  libel  or  not.  But  an  act 
of  parliament — drawn  in  the  first  place  by  Burke, 
and  afterwards  altered  and  carried  through  by 
Fox — provided  that  the  question,  whether  the 
particular  publication  was  a  libel  or  not,  including 
the  intent,  should  be  decided  by  the  jury  and  not 
by  the  court.  This  is  now  the  law  here,  and  it 
is  the  law  everywhere.  But  this  does  not  make 


the  jury  judges  of  the  law.  It  only  transfers  one 
subject  from  the  department  of  law  to  the  depart 
ment  of  fact — from  the  court  to  the  jury,  still 
leaving  each  its  department. 

This  proposition  introduced  by  the  gentleman 
for  Wilbraham,  (Mr.  Hallett,)  is  one  of  two 
things.  It  either  has  no  significance  at  all,  and 
leaves  the  law  as  it  now  is  ;  or  else  it  introduces 
a  new  and  dangerous  principle.  It  is  one  or  the 
other.  It  does  seem  to  me  that  the  gentleman  for 
Wilbraham  is  a  little  disposed — unintentionally, 
of  course — to  make  this  Convention  a  court  of 
errors,  to  rectify  the  decisions  of  courts  given  in 
cases  which  he  has  lost.  [Laughter.]  First  is 
the  case  of  Abner  Kneeland.  That  must  be  set 
right  by  amending  the  third  article  of  the  Bill 
of  Eights.  Then  the  Porter  case.  That  requires 
an  amendment  of  another  article.  To  soothe 
his  mind  on  the  Rhode  Island  cases,  we  must 
have  a  new  declaration  of  the  right  of  self- 
government,  and  an  abrogation  of  the  right  of  the 
legislature  to  proclaim  martial  law.  He  takes 
these  cases  too  much  to  heart.  He  would  make 
this  Convention  hinge  on  the  Dorr  controversy, 
and  Abner  Kneeland  and  Zachary  Porter. 

Mr.  HALLETT,  (interrupting).  The  gentle 
man  has  probably  in  his  mind  his  habeas  corpus 
in  the  Sims  case. 

Mr.  DANA.  I  think  these  cases  have  made  a 
lodgement  in  the  mind  of  that  gentleman,  and  he 
cannot  be  easy  until  he  makes  the  action  of  this 
Convention  turn  upon  them.  On  the  subject  of 
amendments  to  the  Constitution,  it  must  turn  on 
the  Rhode  Island  case.  On  the  subject  of  law 
martial,  it  must  turn  on  the  Rhode  Island  case. 
On  the  subject  of  the  jury's  judging  of  the  law, 
it  must  turn  on  the  Kneeland  and  Porter  cases. 

Consider,  for  one  moment,  if  this  proposition 
is  adopted,  and  the  jury  are  to  judge  of  the  law, 
what  the  consequences  will  be.  I  must  throw 
myself  upon  the  candor  of  the  Convention,  at 
this  time,  as  I  know  they  are  not  disposed  to  hear 
speeches  at  this  late  day,  and  the  popular  feeling 
is  in  favor  of  juries. 

There  is  one  great  fact  taught  by  all  history  : 
that  is,  that  liberty  is  best  secured  by  a  division 
of  power.  We  have  divided  our  government 
into  three  great  departments  :  the  executive,  the 
legislative,  and  the  judicial.  Why  ?  Because 
liberty  is  best  secured  by  a  division  of  power. 
Why  do  we  have  judges  and  juries  ?  Because 
liberty  is  best  secured  by  a  division  of  power. 
Whatever  gentlemen  may  think  of  a  particular 
case  or  law,  of  the  fugitive  slave  law,  of  the 
liquor  law,  or  of  the  libel  law,  when  you  take 
all  together,  the  whole  history  of  the  past,  liberty 
is  best  preserved  by  a  division  of  power.  Give 


68th  day.] 


BILL   OF   RIGHTS. 


453 


Wednesday,] 


DANA  —  HALLETT. 


[July  27th. 


your  judges  the  responsibility  for  the  law,  and 
give  to  your  juries  the  responsibility  for  the  facts, 
with  the  right  of  applying  them  and  declaring 
the  result.  But,  if  you  make  your  judges  judges 
of  law  and  fact  both,  however  good  your  judges 
may  be,  your  liberties  cannot  long  be  safe.  You 
may  give  me  a  court  of  seven  of  the  best  men  in 
Christendom,  and  I  would  not  allow  them  to 
judge  of  the  law  and  fact  in  criminal  cases. 
Give  me  twelve  of  the  best  men  in  Christendom 
for  a  jury,  and,  in  the  long  run,  I  would  not 
allow  them  to  be  judges  of  both  law  and  fact,  in 
the  sense  of  the  gentleman  for  Wilbraham,  that 
is,  that  they  should  be  the  final  and  conclusive 
judges. 

Let  gentlemen  look  at  the  result.  We  wish  to 
have  laws  uniform  and  well  settled,  if  we  have 
laws  at  all.  The  interpretation  of  laws  must  be 
as  much  settled,  as  the  writing  of  the  law.  We 
pass  a  statute,  and  the  interpretation  of  it  is  a 
great  point.  How  can  we  ever  have  a  settled 
interpretation,  if  the  jury  are  to  be  the  judges  ? 
The  juries  never  give  a  reason  for  their  ver 
dicts.  They  go  out  and  consider  their  verdict, 
and  come  in  and  say  "  not  guilty  ;"  but  whether 
they  come  to  their  conclusion  for  want  of  evi 
dence,  or  because  they  thought  the  law  applica 
ble  to  the  case  unconstitutional,  or  because  they 
understood  the  law  in  a  peculiar  way,  or  rejected 
or  accepted  certain  evidence,  never  can  be  known. 
Two  men  may  be  engaged  in  the  commission  of 
the  same  offence.  They  may  separate  in  their 
trials,  and  one  goes  to  the  first  jury,  and  he  is 
acquitted,  and  the  other  goes  before  the  second 
jury,  and  he  is  convicted.  They  are  tried  on  the 
same  evidence,  and  by  the  same  judge.  You  can 
never  know  why  one  was  taken  and  the  other 
left.  It  may  be  that  the  jury  thought  certain 
evidence  admissible  in  the  one  case,  which  was 
not  received  in  the  other.  One  jury  may  have 
thought  the  law  constitutional,  and  the  other  not. 
There  is  no  record  to  show  their  reasons,  and  it 
can  never  be  known,  until  the  sea  gives  up  its 
dead,  why  the  one  was  acquitted  and  the  other 
hanged.  Now,  if  the  jury  is  to  judge  of  the 
law,  I  insist  that  the  jury  shall  give  their  rea 
sons,  and  that  those  reasons  shall  be  reported.  I 
should  like  to  see  the  gentleman  for  Wilbraham, 
(Mr.  Hallett,)  made  the  reporter  of  all  the  deci 
sions  of  the  juries  in  the  whole  Commonwealth 
of  Massachusetts.  Then,  perhaps,  we  should 
know  what  the  laws  are,  under  Avhich  we  are  to 
live. 

But  if  this  resolve  passes,  and  a  person  comes 
to  me  and  wants  to  know  what  the  law  in  a  civil 
case  is,  I  can  tell  him.  Here  is  a  statute  that  has 
been  interpreted  by  the  supreme  court,  upon  full 


deliberation,  and  they  have  decided  that  it  is  so 
and  so,  and  every  jury  impanelled  must  follow 
that  decision.  If  the  law  is  not  popular,  the  peo 
ple,  through  their  legislature,  can  alter  it.  But 
if  he  comes  to  me  with  a  criminal  case — which  is 
vastly  more  important  to  him  than  a  civil  case,  as 
it  involves  his  life,  his  property,  his  liberty — I 
would  have  to  say  to  him  that  the  Convention  of 
1853  passed  a  resolve,  at  the  suggestion  of  the 
gentleman  for  Wilbraham 

Mr.  HALLETT,  (interrupting).  Not  upon 
my  suggestion. 

Mr.  DANA.  Well,  I  pass  that  by,  since  he 
disowns  it,  as  it  will  consume  my  time. 

Mr.  HALLETT.  The  gentleman  says  the  Con 
vention  passed  it  at  my  suggestion.  It  is  not  so. 
Six  gentlemen  have  reported  it  to  the  Convention. 

Mr.  DANA.  Well,  the  Convention  passed  a 
resolve  at  somebody's  suggestion,  that  the  jury  is 
to  settle  these  matters.  Now,  my  dear  Sir,  I 
cannot  tell  you  the  law  for  the  life  of  me.  It 
depends  entirely  upon  the  twelve  men  you  may 
happen  to  get  to  try  you.  One  jury  of  twelve 
men  may  think  the  law  applicable  to  your  case 
constitutional,  and  another  may  think  it  uncon 
stitutional,  and  you  may  be  acquitted  or  convict 
ed  accordingly,  and,  what  is  more,  you  never  can 
find  out  the  reason  why  you  were  acquitted  or 
convicted. 

The  consequence  of  this  would  be,  that  in  Bos 
ton  the  fugitive  slave  law  will  be  constitutional, 
and  in  Worcester  it  will  be  unconstitutional,  and 
the  Maine  law  vice  versa.  The  result  is,  we  shall 
have  no  settled  or  certain  law.  A  law  will  be 
constitutional  for  you  and  not  for  me,  and  consti 
tutional  for  me  in  one  place,  and  on  one  day,  and 
not  constitutional  for  me  in  another  place,  or  at 
another  time. 

Now,  what  is  the  result  under  the  present  sys 
tem  ?  The  judges  instruct  the  jury,  and  the  jury 
take  the  law  from  the  court,  and  the  facts  from 
the  witnesses.  They  go  out,  and  find  a  general 
verdict  upon  both  law  and  fact.  If  we  think  the 
rulings  of  the  court  were  wrong  upon  the  law,  we 
take  exceptions,  and  go  to  the  supreme  court,  and 
they  determine  the  law  and  reverse  the  judgment, 
if  the  charge  of  the  judge  below  was  wrong.  If 
the  supreme  court  does  not  decide  it  satisfactorily 
to  the  people,  the  people,  through  the  legislature, 
can  repeal  the  law  and  overrule  the  decision. 
The  decision  of  the  court  is  not  final,  for  the  leg 
islature  control  the  court.  I  beg  gentlemen  to 
understand  that  they  are  not  under  the  control  of 
the  court.  If  a  man  is  convicted  under  a  wrong 
ful  decision,  he  may  be  pardoned  by  the  execu 
tive,  and  reinstated  or  reimbursed  by  the  legisla 
ture.  But  if  he  is  wrongfully  convicted  by  the 


454 


BILL   OF   RIGHTS. 


[68th  day. 


Wednesday,] 


ALLEN. 


[July  27th. 


jury,  the  cause  can  never  be  legally  known,  and 
he  cannot,  therefore,  be  so  certainly  or  properly 
redressed. 

[Here  the  President's  hammer  fell,  fifteen  min 
utes,  allowed  by  the  rule  for  debate  to  each  indi 
vidual,  having  expired.] 

Mr.  ALLEN",  of  Worcester.  It  may  be  some 
what  rash  in  me  to  think  of  supporting  the  re 
solve.  I  find  myself  unable  to  act  in  conformity 
•with  the  experience  of  my  conservative  friend 
who  has  just  spoken,  (Mr.  Dana,)  and  also  with 
the  conservative  gentleman  from  Cambridge,  (Mr. 
Ladd,)  and  I  find  myself  upon  the  side  of  that 
rash  and  progressive  innovator,  the  delegate  from 
Cambridge,  the  former  chief  justice  of  New 
Hampshire,  (Mr.  Parker,)  for  upon  this  very 
question,  as  already  intimated,  that  distinguished 
gentleman  and  his  associates  have  determined  that 
the  law  in  this  country,  and  in  the  country  from 
which  most  of  our  ancestors  came,  was  always  in 
conformity  with  the  principle  presented  through 
the  resolve  now  before  us. 

Sir,  it  seems  to  me,  that  the  pangs  and  fears 
which  haunt  my  friends,  at  the  very  idea  that  a 
jury  should  be  allowed  to  pass  upon  the  law  in 
criminal  cases,  after  all  the  opportunity  they  have 
had,  derived  from  the  instruction  of  a  learned 
court,  results  from  an  unreasonable  distrust  of 
that  institution.  And  that  is  the  radical  differ 
ence  which  separates,  I  apprehend,  some  of  us 
from  the  others.  The  fear  is,  that  that  which  our 
fathers  regarded  as  the  palladium  of  our  liberties, 
should  prove  to  be  their  destruction,  and  that 
there  is  no  safety  for  freedom  to  be  found  but 
upon  the  bench.  Now,  Sir,  I  have  no  such  fear. 
Neither  the  experience  of  the  past,  nor  my  own 
reflection,  have  filled  me  with  any  such  apprehen 
sions.  In  the  course  of  a  somewhat  long  profes 
sional  career,  from  year  to  year,  I  have  learned  to 
respect  more  and  more  the  decisions  of  juries.  I 
have  learned  to  re.st  there  as  the  last  resort  and 
defence  of  my  liberties,  my  rights,  and  my  privi 
leges.  The  legislature  may  pass  unreasonable  and 
unconstitutional  laws,  and  conservative  courts 
may  sustain  them,  but  I  will  trust  to  the  jury, 
with  the  Constitution  and  the  Bill  of  Ilights  in 
their  hands,  to  protect  me  against  any  unconsti 
tutional  or  unreasonable  dangers.  Sir,  in  ordi 
nary  cases,  the  juries  will  always  take  the  law 
from  the  court,  which  relieves  them  from  great 
responsibility — a  responsibility  from  winch  they 
seek  to  be  relieved.  Inasmuch  as  they  take  an 
oath  to  act  upon  the  law  and  the  evidence,  and  to 
decide  rightly,  they  may  consistently  with  the 
obligations  of  that  oath,  leave  the  law  to  the  opin 
ion  of  the  court. 

But  there  are  great  cases  which  sometimes  arise 


in  the  history  of  a  nation,  in  which  fundamental 
principles  are  assailed,  when  you  cannot  rely  en 
tirely  upon  the  legislature  or  upon  the  courts ; 
when  your  defence  must  come  from  the  people 
themselves,  from  the  juries  who  are  of  the  people. 
Sir,  the  Bill  of  nights  declares  certain  great  prin 
ciples,  and  secures  certain  privileges,  among 
which  are  that  all  men  are  born  free  and  equal, 
and  that  they  have  the  right  to  defend  their  lives 
and  liberties.  Now  if  a  law  is  passed  which 
contravenes  these  rights,  I  do  not  believe  it  should 
be  left  entirely  to  the  court  to  determine  what  the 
law  is.  I  believe  the  people  themselves  have  the 
right  to  this  security,  not  only  against  the  legisla 
ture  but  against  the  court  too.  I  believe  the  jury 
have  the  right  to  say  whether,  in  their  opinion,  a 
law  violates  a  fundamental  principle  laid  down  in 
this  Bill  of  Ilights.  They  will  spurn  the  opinion 
of  the  legislature,  and  of  the  courts,  and  all  hu 
man  authority  that  can  be  combined,  and  standing 
upon  the  charter  of  all  men  of  Massachusetts,  will 
declare  the  law  to  be  unconstitutional. 

Such  cases  have  arisen,  and  I  wish  I  had  time 
to  speak  of  them  more  at  length.  But  I  will  con 
fine  myself  to  one,  and  that  is  the  law  passed  by 
the  congress  of  the  United  States.  I  would  not 
at  this  time  introduce  the  subject  myself,  but  it 
has  been  introduced,  and  now  I  say  that,  in  my 
opinion,  a  law  more  unconstitutional,  more  deadly 
and  vital  in  its  action  upon  human  liberty,  could 
never  have  been  framed.  And  how  was  it  done  ? 
It  stands  upon  the  records  of  congress,  and  let  it 
stand  upon  the  records  of  Massachusetts.  Why, 
Sir,  men  more  desirous  of  protecting  the  power 
of  the  slave-holder  over  the  slave  than  of  securing 
the  rights  of  the  millions  of  the  free,  demanded 
further  legislative  enactments.  A  piece  of  white 
paper — for  I  will  not  use  French  when  I  can  get 
good  economical  English — was  given  to  a  nulli- 
ficr,  a  member  of  the  Senate,  from  one  of  the 
southern  States,  and  upon  that  he  wrote  what  he 
pleased,  and  upon  it  he  inscribed  one  of  the  most 
arbitrary  enactments,  and  in  one  instance  holding 
forth  a  bribe  to  the  commissioner  to  send  a  man, 
may  be  a  citizen  of  Massachusetts,  into  slavery. 
I  trust,  however,  there  are  some  men  in  Massa 
chusetts,  and  in  this  Convention,  above  the  in 
fluence  of  bribes.  Yet  the  law  does  hold  forth 
that  bribe  to  induce  the  commissioner  to  send  back 
into  chains,  it  may  be  a  citizen  of  Massachusetts, 
who  may  be  claimed  by  a  southern  slave-holder. 
By  another  provision  a  citizen  of  Massachusetts 
is  to  be  deprived  of  the  right  of  trial  by  jury,  here 
at  home,  where  his  witnesses  and  counsel  can  be 
obtained ;  and  not  only  here,  but  everywhere,  for 
it  is  in  vain  to  say  that  he  could  obtain  the  bene 
fits  of  that  trial  in  South  Carolina,  where  his 


68th  day.] 


BILL  OF   RIGHTS. 


455 


"Wednesday,] 


ALLEN. 


[July  27th. 


counsel  could  not  go,  and  where  his  witnesses, 
those  of  his  own  color,  could  be  enslaved. 

But  I  will  not  go  into  this  matter,  but  will 
only  say  farther,  that  it  would  have  rejoiced  my 
heart,  when  that  question  came  before  the  su 
preme  court  of  Massachusetts,  in  advance  of  any 
decision  made  upon  it  by  the  supreme  court  of 
the  United  States,  and  unrestrained  as  the  court 
was,  by  any  decision  given  by  the  court  of  the 
United  States,  if  they  had  declared  it  against  the 
fundamental  rights  of  the  people,  and  unconsti 
tutional  and  void.  That  day  would  have  done 
honor  to  the  judiciary  of  Massachusetts,  and  the 
page  which  contained  the  record  of  such  a  de 
cision  would  have  been  the  brightest  in  the  his 
tory  of  Massachusetts. 

Sir,  I  declare  these  views,  and  I  wish  to  put 
them  upon  the  record ;  and  if  I  am  not  sustained 
by  the  opinion  of  men  around  me,  I  ask  the 
decision  of  posterity  upon  the  words  I  now  utter, 
if  ever  they — in  looking  over  the  proceedings  of 
this  Convention — shall  take  notice  of  the  opinion 
of  one  so  humble  as  myself. 

But  the  court  did  not  do  that.  I  do  not  intend 
to  reproach  that  court.  I  have  a  high  respect  for 
it,  and  in  regard  for  the  venerable  chief  justice 
who  has  presided  over  it  for  nearly  a  quarter 
of  a  century,  I  yield  to  no  man.  Yet  certain 
influences  did  bind  and  control  the  court,  and, 
in  that  instance,  their  decision,  instead  of  re 
flecting  honor,  will  reflect  disgrace  upon  the 
history  of  Massachusetts.  It  will  be  in  the 
history  of  that  court,  a  blot  upon  its  fair  pages. 
Not  in  that  case  alone,  but  whenever  the  prin 
ciples  which  we  declare  to  be  at  the  foundation  of 
our  frame  of  government  are  infringed  upon — 
whenever  the  rights  which  we  reserve  to  the  peo 
ple  are  invaded  by  any  law,  I  ask,  that  in  that 
case,  a  jury  coming  from  the  people  may  be  al 
lowed  to  come  in  and  give  their  judgment,  and 
rescue  the  people,  in  the  name  of  their  declared 
rights,  from  an  unconstitutional  law,  or  from  an 
unconstitutional  interpretation  of  that  law. 

The  fears  which  have  been  suggested  of  diffi 
culty,  from  the  fact  that  jurors  may  differ  as  to 
the  construction  of  a  law,  I  apprehend,  is  but  a 
technical  difficulty,  and  would  not  be  found  to 
exist  in  fact. 

But  it  is  said  that  juries  would  not  decide  alike 
upon  the  same  law.  "Well,  Sir,  have  judges  al 
ways  decided  alike  ?  Does  not  my  friend  for 
Manchester,  (Mr.  Dana,)  know  that  there  are 
volumes  of  decisions  given  by  the  judges  re 
versing  former  decisions  ?  Why  should  not  juries 
decide  unlike  ?  Because  one  decision  is  wrong, 
should  both  be  wrong  ? 

Mr.  DANA.     I  can  answer  the  gentleman. 


Mr.  ALLEN".  I  have  not  time  to  yield  to  the 
gentleman.  I  have  no  doubt  of  his  ingenuity  to 
answer  any  difficulty  that  could  be  raised.  We 
have  seen  enough  of  that  gentleman's  ingenuity. 
I  suppose  he  would  answer  that  it  is  impossible 
for  a  jury  to  decide  every  little  quibbling  doubt 
that  may  be  raised  by  an  attorney — that  they  could 
not  retire  to  decide  such  questions.  I  suppose 
the  gentleman  would  answer  by  such  arguments 
as  that,  but  I  hope  he  would  not  puzzle  this 
great  jury.  I  hope  he  would  not  lead  them  to 
abandon  this  great  and  important  principle,  be 
cause  of  the  ingenious  difficulties  which  he  might 
raise  in  every  possible  case  against  carrying  that 
principle  out.  That  gentleman  knows  very  well, 
that  when  we  have  a  great  and  sound  principle 
before  us,  it  is  our  duty  to  carry  it  out  as  far  as 
we  can ;  and  when  it  becomes  impracticable,  or 
inconsistent  to  adhere  to  it,  we  are  not  to  be  cen 
sured  for  failing  to  do  what  we  cannot  do. 

Fears  and  difficulties  have  been  introduced 
here  to  affect  the  minds  of  temperance  men — 
and  I  am  happy  to  know  that  a  large  majority  of 
the  members  of  the  Convention  are  of  that  class 
— that  the  jury  will  not  be  true  to  them.  Now 
I  ask  the  friends  of  temperance  from  what  quar 
ter  they  have  met  with  the  greatest  hinderances  ? 
Has  it  been  the  jury  in  Rhode  Island,  who  have 
found  flaws  with  every  complaint  which  has  been 
brought  up  :  Is  it  the  jury  who  throw  obstacles 
in  the  way,  when  such  cases  are  brought  up  ? 
When  facts,  evidence,  and  experience,  prove  that 
a  law  is  a  wise,  wholesome,  and  equitable  law, 
has  it  been  the  jury  who  were  found  to  set 
aside  that  law  r  Has  it  not  rather  been  the  courts 
who  have  met  at  the  threshold  every  attempt  to 
carry  out  the  law  ?  Have  not  these  difficulties 
arisen  with  the  bench,  and  not  with  the  jury  ? 
But,  Sir,  I  see  my  time  has  expired,  and  I  will 
not  proceed  farther. 

The  PRESIDENT.  The  gentleman  has  two 
minutes  remaining. 

Mr.  ALLEN".  Two  minutes— well,  Sir,  that 
is  enough  to  answer  the  argument  of  the  gentle 
man  from  Boston,  (Mr.  Hillard,)  that  it  is  not 
democratic  to  allow  one  man  to  stand  out  against 
eleven  in  deciding  a  question  of  law.  Yet  it  is 
very  democratic  for  one  man  to  stand  out  against 
eleven  bringing  in  a  verdict  of  guilty,  when  he 
believes,  from  the  bottom  of  his  heart,  that  the 
man  is  not  guilty.  Is  it  democratic  for  the  ma- 
jorit)7  to  govern  in  the  jury-box  ?  The  gentleman 
says,  he  has  never  been  in  a  town  meeting.  Sure 
ly  he  has  been  in  a  court-house.  Yet  it  is  a 
wholesome,  humane  law,  that  a  majority  of  a 
jury  shall  not  convict  a  man,  and  incarcerate  a 
man  in  prison.  It  is  a  just  and  proper  rule,  that 


456 


BILL   OF   RIGHTS. 


[68th  day. 


Wednesday,] 


PARKER  —  HALLETT. 


[July  27th. 


a  man  shall  not  be  deprived  of  his  property,  his 
reputation,  or  of  his  life,  until  twelve  men  have 
agreed  that  he  is  guilty  of  a  violation  of  that 
law. 

[Here  the  hammer  fell.] 

Mr.  PARKER,  of  Cambridge.  The  honorable 
gentleman  from  Worcester,  (Mr.  Allen,)  is  under 
a  misapprehension  respecting  the  decision  in  New 
Hampshire ;  and  however  much  I  may  desire  to 
stand  by  the  side  of  that  gentleman,  I  cannot 
have  that  pleasure  upon  the  present  occasion. 
The  decision  to  which  he  refers — which  the 
gentleman  representing  Northborough  charac 
terizes  as  "respectable,"  and  which,  according  to 
the  remarks  of  the  gentleman  representing  Wil- 
braham,  (Mr.  Hallett,)  was  an  outrage  upon  the 
rights  of  the  jury — was  the  other  way. 

Sir,  I  have  perhaps  as  little  interest  in  the  de 
cision  of  the  question  now  before  the  Convention, 
as  any  member  of  the  community.  I  have  no 
particular  anticipation  that  I  shall  be  placed  at 
the  bar  of  a  court  in  such  a  position  that  I  shall 
have  occasion  to  appeal  from  the  law  of  the  bench 
which  leaves  my  case  hopeless,  to  the  law  of  the 
jury,  with  the  hope  that  they  will  overrule  it.  I 
have  no  supposition  that  I  shall  find  myself  again 
at  the  other  bar,  defending  a  party  accused  of 
crime  under  such  circumstances,  that  I  shall 
desire  to  shake  my  finger  at  the  judge  upon  the 
bench  and  say  :  "  Sir,  you  may  believe  after  all 
your  studies,  that  such  is  the  law,  but  here  is  a 
tribunal  that  will  overrule  your  decision,  and 
they  have  the  right  under  the  Constitution  to  do 
it."  Still  less  have  I  any  expectation  that  I  shall 
ever  again  be  placed  in  a  situation  where  the 
counsel  may  beard  me  in  that  manner. 

But,  Sir,  as  my  attention  has  been  called  to  this 
subject  in  former  years,  and  I  am  a  member  of 
the  Committee  on  the  Bill  of  Rights,  from  which 
this  Minority  Report  comes,  it  may  be  expect 
ed  that  I  should  take  a  part  in  this  debate, 
more  especially  as  the  chairman,  by  signing  this 
Report,  appears  to  have  gone  over  to  the  ene 
my.  The  case  in  New  Hampshire  occurred  in 
1812.  It  was  a  prosecution  under  the  law  of 
that  State  passed  in  1838,  prohibiting  the  sale  of 
liquors  in  any  quantity,  without  a  license  from 
the  proper  authority.  It  was  my  fortune  to  pre 
side  at  the  trial  in  the  common  pleas.  Two 
individuals  composing  a  mercantile  firm,  were 
:i.n.<!ieted  for  selling  a  barrel  of  gin  without  a 
I  License,  They  were  defended  by  the  gentleman 
vwho  rjepref.eiits  "SVilbraham,  (Mr.  Hallett,)  and 
sano.that  ^Mtinguished  gentleman  who  has  since 
1>een  a  eaa&i&&e  for  the  highest  office  in  the  gift 
of  the  people,  (/ohn  P.  Hale,)  and  of  course  we 
.know  that  they  -s^re  defended  with  all  the  zeal 


and  all  the  ability  which  could  be  brought  into 
requisition  in  such  a  case. 

Several  questions  were  raised  in  that  case,  and 
among  them  a  preliminary  question  in  relation  to 
the  organization  of  the  jury.  Questions  were  put 
to  the  jurors,  and  as  that  course  has  been  censured 
here  I  will  state  them,  that  gentlemen  may  see 
how  far  courts  go  upon  that  subject.  The  ques 
tions  were : — 

"1.  Have  you  formed  an  opinion  that  the  law 
regulating  licensed  houses  is  unconstitutional,  so 
that  you  cannot  convict  a  person  indicted  under 
it,  if  the  facts  alleged  in  the  indictment  are  proved, 
and  the  court  hold  the  statute  to  be  constitu 
tional  ? 

"  2.  Do  you  hold  any  opinion  upon  the  subject 
of  the  license  laws,  so  called,  which  will  induce 
you  to  refuse  to  convict  a  person  indicted  under 
them,  if  the  facts  set  forth  in  the  indictment,  and 
constituting  the  offence,  are  proved  against  him, 
and  the  court  direct  you  that  the  law  is  constitu 
tional  ? 

"  3.  Do  you  hold  any  opinions  upon  the  sub 
ject  of  the  license  laws  which  will  induce  you  to 
convict  a  person  if  the  court  shall  direct  you  that 
the  statute  under  which  he  is  indicted  is  uncon 
stitutional  ? " 

The  object  was  to  obtain  a  jury  which  could 
come  to  the  performance  of  the  duty,  with  such 
opinions  as  would  permit  them  to  try  the  case 
according  to  the  evidence  before  them. 

Other  questions  were  raised  on  the  trial.  One 
was,  whether  the  jury  were  judges  of  the  law  as 
well  as  of  the  fact.  Another,  whether  the  law 
itself  was  constitutional.  It  appeared  that  the 
barrel  of  gin  was  purchased  in  Massachusetts, 
brought  to  New  Hampshire,  and  sold  in  the  same 
condition  in  which  it  was  purchased  ;  and  it  was 
contended  that  the  law  was  unconstitutional  in  its 
application  to  that  case,  by  reason  of  the  provision 
of  the  Constitution  of  the  United  States,  giving  to 
congress  the  power  to  regulate  commerce. 

Mr.  HALLETT.  I  ask  the  gentleman  to  allow 
me  to  correct  him.  I  did  not  raise  the  question 
that  the  jury  were  the  judges  of  the  law  and  fact. 

Mr.  PARKER.  Then  I  have  been  laboring 
under  a  misapprehension  for  more  than  ten  years. 
It  was  so  put  upon  that  occasion. 

Mr.  HALLETT.  Not  by  me.  I  did  not  say 
the  jury  were  the  judges.  That  position  was  not 
taken  by  me,  but  that  they  passed  upon  and  de 
termined  all  questions  of  law  and  fact  in  the  case. 

Mr.  PARKER.  If  such  was  not  the  exact 
phraseology,  it  was  substantially  the  position 
taken.  It  was  said  that  the  jury  had  the  power 
to  judge  of  the  law,  and  that  this  proved  con 
clusively  that  they  had  the  right  to  judge  of 
the  law— that  the  power  carried  with  it  the  right, 


68th  day.] 


BILL   OF   RIGHTS. 


457 


Wednesday,] 


PARKER  —  BUTLER. 


[July  27th. 


as  a  matter  of  course.  And  I  do  not  know  what 
that  means  unless  it  is  that  the  jury  are  the  judges 
of  the  law.  That  position  was  distinctly  stated 
by  the  gentleman  again  and  again.  These  ques 
tions  were  argued  before  the  jury  with  all  the 
learning  and  power  of  that  gentleman,  and  with 
out  any  objection  upon  the  part  of  the  court. 
But  the  court  in  charging  the  jury,  instructed 
them  that  juries  were  not  judges  of  the  law,  and 
that  the  statute  of  New  Hampshire  was  a  consti 
tutional  act. 

The  jury  were  of  opinion  against  the  defence 
upon  one  or  the  other  of  these  points,  and  re 
turned  a  verdict  of  guilty.  The  case  was  carried 
before  the  superior  court  of  New  Hampshire,  and 
both  these  rulings  sustained.  It  was  then  carried 
to  the  supreme  court  of  the  United  States,  upon 
the  last  point — that  of  the  constitutionality  of  the 
law — and  the  decision  was  affirmed  there. 

Now,  here  is  another  case  which  the  gentle 
man  for  Wilbraham  will  never  forget.  He  lost 
it;  and  I  attained  the  bad  eminence  of  being 
chronicled  in  some  of  the  newspapers  as  an  arbi 
trary  judge ;  as  second  only  to  Chief  Justice 
Jeffreys.  The  gentleman  may  perhaps  recollect 
something  of  that.  Chief  Justice  D  urfee,  of  Rhode 
Island,  was  afterwards  added,  I  think,  to  make 
up  a  trio. 

Sir,  I  have  no  time  to  go  into  an  argument 
upon  this  question  whether  the  jury  are  judges 
of  the  law,  as  well  as  fact.  I  had  occasion  to 
express  my  opinion  in  that  case,  and  it  is  upon 
the  record.  I  have  no  doubt  that  in  England,  at 
the  earliest  stage  of  their  legal  proceedings,  of 
which  we  have  knowledge  of  juries,  they  were 
judges  of  the  law  as  well  as  of  the  fact,  not  only 
in  criminal  cases,  but  in  civil  cases.  For  a  long 
period,  they  were  punishable  if  they  gave  a  false 
verdict.  They  were  anciently  the  principal  wit 
nesses,  also.  They  were  summoned  from  the 
vicinage — from  among  those  who  were  supposed 
to  have  the  best  knowledge  of  the  facts  of  the 
case,  and  were  expected  to  decide  from  their  own 
knowledge,  more  than  from  the  evidence  which 
was  presented.  Cases  were  sometimes  decided 
by  battle,  and  by  ordeal,  also,  in  those  days.  But, 
Sir,  the  law  is  in  the  ranks  of  the  progressives.  It 
has  made  progress  since  that  time,  in  divers  par 
ticulars,  and  among  others,  in  the  mode  of  trial  by 
jury.  The  jury  are  no  longer  to  judge  from 
their  personal  knowledge  of  the  facts  of  the  case, 
and  courts  set  aside  verdicts,  and  arrest  judg 
ment  after  verdicts.  It  is  fully  established  and 
understood  that  juries  are  not  judges  of  the  law 
in  civil  cases ;  but  they  pass  upon  the  law  and 
the  fact  in  a  general  verdict ;  and  the  question  has 
arisen,  whether  the  same  change  and  adaptation 


of  rules  does  not  apply  in  criminal  cases  as  in 
civil  cases.  That  is  a  question  upon  which  there 
has  been  a  great  difference  of  opinion  upon  the 
bench  and  elsewhere. 

The  case  referred  to  by  the  gentleman  for  Wil 
braham,  where  the  jury,  as  he  said,  took  the  mat 
ter  into  their  own  hands,  I  do  not  understand  to 
be  a  case  in  which  they  undertook  to  settle  the 
law.  It  seems  they  settled  the  fact  that  there  was 
no  witchcraft. 

The  case  which  he  refers  to,  before  Chief  Jus 
tice  Jay,  of  the  supreme  court  of  the  United  States, 
was  not,  as  he  supposes,  a  decision  that  the  jury 
were  the  judges  of  the  law  in  criminal  cases. 
As  reported,  the  chief  justice  declared  that  they 
were  the  judges  of  the  law  generally,  and  the  case 
was  a  civil  case.  Now,  I  maintain  that  the  right 
of  the  court  to  set  aside  the  verdict  and  to  arrest 
the  judgment,  is  altogether  inconsistent  with  a 
right  on  the  part  of  the  jury  to  decide  questions 
of  law  either  in  civil  or  criminal  cases.  When 
juries  exercise  a  right  of  that  kind,  while  at  the 
same  time  the  court  overrules  their  decisions,  the 
judicial  system  is  incongruous.  The  right  may 
be  conferred  even  by  statute.  But,  if  you  incor 
porate  this  provision  into  the  Constitution,  and 
a  jury  convict  a  man  upon  charges,  which  in  the 
opinion  of  the  court  are  not  sufficient,  or  not 
sustained  according  to  law,  I  doubt  whether  the 
court,  iipon  principle,  can  have  the  power  to  set 
aside  the  verdict  or  arrest  the  judgment.  It  is 
not  quite  clear  to  my  mind,  that  if  this  provision 
is  adopted,  your  courts  can  consistently  exercise 
such  powers  in  any  criminal  case. 

I  have  but  a  moment  left  to  speak  of  the  prac 
tical  operation  of  this  provision,  if  adopted,  and, 
instead  of  enlarging  upon  this  topic,  as  I  should 
otherwise  desire  to  do,  I  ask  leave  of  the  Con 
vention  to  read  a  paragraph  from  the  charge  given 
to  the  jury  in  the  case  in  New  Hampshire,  as 
published  in  a  pamphlet  at  the  time  : — 

"  It  is  contended  that  the  defendants  are  not 
liable,  because  the  act  of  1838  was  unconstitu 
tional.  Whether  it  is  unconstitutional  or  not,  is 
a  question  that  should  be  settled  in  some  way. 
How  is  it  to  be  settled  ?  If  the  doctrine  so 
earnestly  contended  for,  be  correct,  it  never  can 
be  settled,  so  far  at  least  as  criminal  cases  are  con 
cerned." 

[Here  the  hammer  fell.] 

Mr.  BUTLER,  of  Lowell.  Sir,  I  can  promise 
the  Convention  that  I  will  not  occupy  much  time 
upon  this  matter. 

Mr.  PARKER.  I  dislike  to  trespass  upon  the 
courtesy  of  the  Convention,  but  I  wish  to  read 
the  remainder  of  the  paragraph  which  I  had  com 
menced. 


458 


BILL   OF   RIGHTS. 


[68th  day. 


Wednesday,] 


PARKER  —  BUTLER. 


[July  27th. 


Mr.  BUTLER.     I  will  give  way. 
Mr.  PARKER  read  as  follows  :— 

"  If  the  constitutionality  of  this  statute  may  be 
drawn  in  question  in  a  civil  case,  it  may  be  set 
tled  so  far  as  civil  cases  are  concerned.  But  if 
the  defendant's  counsel  are  right,  that  would  not 
settle  it  as  to  criminal  cases.  And  no  verdict 
would  settle  it  in  such  cases ;  for,  if  one  jury  is 
to  judge  of  the  matter,  every  jury  is  to  judge ; 
and  what  each  will  judge  cannot  be  known,  until 
the  matter  is  tried.  Well,  gentlemen,  one  man 
assumes  that  the  statute  is  unconstitutional — he 
purchases  in  Massachusetts,  sells  the  article  here, 
and  is  indicted.  The  jury  so  find,  and  as  to  him 
the  statute  is  unconstitutional.  Another  person 
seeing  this,  and  thinking  the  laws  operate  equally 
on  all,  does  the  same.  He  purchases  the  same 
kind  of  article,  from  the  same  dealer  in  Massa 
chusetts,  brings  it  here,  and  sells  it  in  the  same 
condition,  to  the  same  individual  to  whom  the 
first  sold.  He  is  indicted,  and  another  jury  find 
the  other  way.  As  to  him,  then,  the  law  is  con 
stitutional.  Take  the  case  of  the  same  jury,  sit 
ting  in  a  civil,  and  then  in  a  criminal  case.  A 
civil  case  arises  which  involves  the  constitution 
ality  of  the  law.  The  court  rule  that  it  is  con 
stitutional.  The  juror  is  bound  to  regard  that  as 
the  true  construction,  and  his  conscience  returns 
a  verdict  accordingly.  The  law  is  constitutional. 
A  criminal  case  follows,  which  involves  the  same 
question.  The  juror  is  sworn  to  the  same  effect — 
that  is,  to  give  a  true  verdict.  But  he  disliked 
the  instruction  in  the  civil  case ;  his  conscience 
turns  round,  and  he  holds  the  law  to  be  uncon 
stitutional.  And  so  his  conscience  must  keep 
turning,  as  it  encounters  a  civil  or  a  criminal 
case.  If  it  is  a  civil  case,  he  has  a  civil  con 
science.  If  a  criminal  case,  his  conscience  is  of  a 
different  character." 

Mr.  BUTLER.  Well,  Mr.  President,  I  wish 
to  say,  before  I  go  on  with  my  remarks,  that  that 
is  the  longest  paragraph  that  I  ever  listened  to. 
[Laughter.]  I  cannot  forbear  entering  my  pro 
test  against  what  I  deem  to  be  an  innovation  upon 
the  old  rule  of  common  law.  So  far  as  I  have 
learned  anything  with  regard  to  this  question, 
from  my  earlier  teachings,  from  the  early  books 
that  I  read,  and  from  the  old  lights  upon  English 
common  law,  it  was  laid  down,  not  as  a  principle, 
not  as  an  axiom,  not  as  a  rule,  but  as  a  boast — 
for  it  was  a  boast  of  the  common  law — that  juries 
were  judges  of  the  law  as  well  as  of  the  fact,  in 
criminal  cases.  And  my  heart  kindled,  Sir,  as  I 
read  of  the  struggle  between  the  people  and 
crown,  the  court  and  the  jury,  for  this  right,  as  I 
gradually  saw  that  great  right  rising  on  the  dark 
horizon  of  law,  like  the  morning  sun,  until  it 
illuminated  the  whole  system ;  and,  Sir,  I  thought 
that  nothing  was  better  settled  in  this  Common 
wealth  ;  aye,  Sir,  as  nothing  had  been  better  set 
tled  in  England,  nothing  was  better  settled  in 


this  country,  than  this  doctrine.  And,  Sir,  the 
first  shock  that  my  mind  received,  the  first  time 
anything  came  across  me  to  unsettle  it,  was  when 
I  read  the  charge,  the  last  paragraph  of  which  we 
have  just  listened  to,  made  to  a  jury  by  the  gen 
tleman  from  Cambridge.  And  again  the  blood 
stirred  within  me  on  reading  that  charge,  but 
with  a  different  feeling ;  and  notwithstanding  my 
great  respect  for  the  gentleman  who  delivered 
that  charge,  every  drop  of  my  blood  boiled  in  my 
veins  under  the  idea  that  a  judge  should  tell  a 
jury  that  they  had  not  the  right  to  determine 
the  law  and  the  fact  in  criminal  cases.  Sir,  the 
Knapps  wrere  hung  on  that  instruction  of  the  law. 
The  court  sitting  on  that  case  said  to  the  jury, 
"  You  have  a  right  to  judge  the  law  and  the  fact, 
and  no  man  can  step  between  it  and  you."  But 
when  it  becomes  popular  in  a  community  to  carry 
a  favorite  measure  through  the  courts,  or  to  con 
vict  an  unfortunate  criminal,  then  it  is  very  con 
venient  for  a  judge — to  do  what  ?  First,  when  a 
man  is  to  be  tried  by  his  peers,  and  when  they 
get  into  the  jury-box,  to  weed  them  out,  so  as  to 
try  him  by  a  set  of  men  who  are  not  his  peers, 
who  have  no  fellow  feeling,  but  men  who,  by 
their  position,  feelings,  and  sentiments,  are  dis 
similar.  The  judge,  taking  care  to  weed  the 
jury-box  of  every  man  who  has  the  same  set  of 
feelings,  then  proceeds  to  try  him,  not  by  his 
peers,  but  by  some  picked  and  packed  set  of  men. 
Sir,  I  detest,  I  hate  and  despise,  this  abominable 
business  of  weeding  the  jury-box  and  attempting 
to  try  men  not  by  their  peers.  In  some  short 
practice  which  I  have  had,  I  have  seen  something 
of  a  number  of  jury  trials ;  and  I  take  it  upon 
me  to  bear  my  testimony,  most  solemnly  here,  as 
I  would  before  my  God,  that  I  have  seen  quite 
as  many  errors  on  the  bench  as  in  the  jury-box  ; 
and  I  speak  it  with  great  respect  to  the  learned 
courts  which  have  administered  the  law. 

The  jurors  have  no  occasion  to  be  afraid  of  the 
people,  for  they  are  the  people,  in  their  primary 
capacity.  Who  is  the  judge ?  A  learned  man,  an 
honest  man,  a  high-minded  man ;  but  still  a  man. 
What  is  to  be  tried  ?  The  intention,  the  thoughts, 
and  as  they  bear  upon  the  actions  of  another  man. 
Which  is  the  best  tribunal  to  try  that  case  ?  This 
man  who  sits  upon  the  bench,  and  who  has  no 
sympathy,  no  fellow  feeling,  nothing  in  common 
with  the  people  ;  who  has  hardly  seen  a  common 
man  in  twenty  years ;  and  lest  he  should  see  one, 
always  has  had  a  sheriff,  with  a  long  pole,  to 
attend  him  and  keep  them  off.  [Laughter.]  Is 
he  the  better  man  to  try  the  case  than  they  who 
have  the  same  stake  in  community,  with  their 
wives,  and  children,  and  their  fortunes,  depending 
on  the  integrity  of  the  verdicts  they  shall  render  ? 


68th  day.] 


BILL   OF  RIGHTS, 


459 


Wednesday,] 


BUTLER  —  PARKER. 


[July  27th. 


"Who,  I  ask,  is  the  best  fitted  to  constitute  a  tri 
bunal  to  try  him  ?  And  why  can  they  not  judge 
of  the  law  ?  What  is  the  law  in  criminal  cases  ? 
There  is  a  distinction  which  does  not  seem  to  have 
been  adverted  to  here.  What  is  the  law  in  criminal 
cases  ?  It  is  not  complicated.  In  a  civil  suit,  the 
law  which  applies  to  it,  may  be  complicated  ;  but 
in  criminal  cases,  it  is  always  a  plain  proposition 
upon  which  the  jury  have  to  pass,  with  or  without 
the  instruction  of  the  j  udge,  a  very  plain  proposition . 
Let  us  see  how  it  is.  In  the  first  place,  every 
man  is  bound  to  know  the  law  ;  and  ignorance  of 
the  law  will  not  excuse  him  if  he  commits  a  crime 
against  the  law.  He  is  by  the  law  bound  to  know 
the  law,  and  to  be  punished  if  he  commits  a 
crime,  even  if  he  does  not  know  it.  Very  good. 
Yet  you  say,  this  criminal  being  bound  to  know 
the  law,  and  act  upon  his  peril,  twelve  men  who 
are  supposed  to  be  as  learned,  or  more  learned 
than  he,  do  not  know  enough  to  try  him  for 
breaking  that  very  law  which  he  was  bound  to 
know.  Will  that  do  for  a  moment  r  That  is  all 
there  is  about  it.  The  crime  consists  in  what  ? 
In  doing  some  act  against  conscience  and  against 
law  with  an  intent  to  break  it,  or  else  the  man  is 
not  guilty.  Yet  you  say,  that  twelve  other  men, 
who  are  also  bound  to  know  the  law,  are  not  the 
proper  persons  to  try  him.  You  say  this  crimi 
nal  must  be  punished,  and  even  hanged,  because 
he  ought  to  know  the  law,  and  yet  these  other 
men  are  not  fit  to  try  him  because  they  do  not 
know  the  law.  Will  gentlemen  tell  me  that  the 
judges,  reported  in  tenth  Metcalf,  did  not  know 
that  this  was  so.  It  is  true  they  stultified  them 
selves  when  they  undertook  to  say  this,  to  wit : 
that  jurors  had  the  power  to  judge  of  the  law, 
but  had  not  the  right ;  or  speaking  as  lawyers, 
they  had  the  power  to  do  wrong.  I  deny  it. 
There  is  no  power  to  do  wrong.  The  gentleman 
from  Cambridge  put  it  exactly  when  he  said,  that 
the  power  always  drew  after  it  the  right.  I  thank 
him  for  that.  The  gentleman  from  Cambridge 
said  that. 

Mr.  PAIIKEH,  of  Cambridge.  If  the  gentle 
man  will  allow  me,  I  wish  to  state,  that  I  said 
that  was  the  argument,  that  the  power  showed  the 
right.  It  was  the  gentleman  for  Wilbraham  who 
used  that  argument. 

Mr.  BUTLER.  Well,  I  will  put  it  to  the  gen 
tleman  from  Cambridge  himself,  if  a  man — speak 
ing  as  a  lawyer  to  a  lawyer — lias  the  power  to  do 
a  thing,  has  he  not  the  right  to  do  it  ? 

Mr.  PARKER.  If  the  gentleman  from  Lowell 
will  look  at  the  thirteenth  New  Hampshire  Re 
ports,  he  will  see  that  I  have  denied  such  a  con 
clusion  distinctly,  and  the  reason  for  the  posi 
tion. 


Mr.  BUTLER.  I  have  had  an  opportunity  to 
look  at  it.  I  say,  that  a  man  has  no  power  to  do 
wrong.  It  is  a  misconstruction  of  language  to 
say  he  has.  He  has  no  legal  power  to  do  wrong  : 
he  has  the  power  to  murder  ;  but  that  is  not  a 
legal  power ;  it  is  a  usurpation,  it  is  an  interfer 
ence.  The  judges  of  the  courts  have  said  that 
jurors  have  the  power  to  render  a  verdict  upon 
the  law,  but  not  the  right.  They  have  said,  the 
jury  shall  hear  the  arguments  of  counsel  on  both 
sides,  upon  the  law,  but  not  deliberate  upon  or 
judge  of  that  argument.  And  that  was  to  get  out 
of  a  dilemma. 

It  seems  to  me,  that  the  law  is  well  settled.  I 
remember  that  when  a  very  old  doctrine  was 
preached,  a  doctrine  found  in  the  New  Testa 
ment,  that  a  certain  man  went  into  a  great  city 
where  there  was  a  temple,  and  when  he  preached 
that  doctrine,  he  drew  after  him  a  number  of 
others,  who  cried  out  pretty  loudly:  "Great  is 
Diana  of  the  Ephesians."  Well,  why  did  they 
do  that  ?  Because  a  man  who  was  a  coppersmith, 
and  made  shrines  for  Diana,  feared  for  his  craft, 
that  was  in  danger.  Sir,  I  think  we  have  a  kind 
of  craft  here,  and  I  think  I  have  heard  the  cry  of 
Alexander  the  coppersmith  here.  [Laughter.] 

No,  Sir,  I  would  have  no  such  fear  of  danger  ; 
I  think  we  are  not  to  make  a  Constitution  here, 
because  somebody  has  given  a  decision  in  one  State 
or  another.  I  wish  to  commend — as  I  shall  not 
ask  anybody  else  to  stop  while  I  read  an  argument 
— to  the  gentleman  from  Cambridge,  the  last 
volume  of  the  Reports  of  the  court  of  Vermont, 
where  he  will  find  the  thirteenth  New  Hampshire, 
and  tenth  Metcalf  handled  withoiit  gloves.  That 
learned  court  decide,  that  jurors  have  the  right 
to  determine  both  the  law  and  the  fact. 

One  thing  farther.  The  gentleman  from  Cam 
bridge  says,  that  courts  have  the  power  to  set 
aside  a  verdict.  That  is  the  "  usurpation."  I 
ask  if  that  doctrine  has  not  come  down  from 
Jeffreys  r  It  has  grown  up  to  be  a  practice  in 
tenderness  to  human  life  and  liberty,  that  while 
a  verdict  may  be  set  aside,  which  is  against  a 
criminal,  it  never  can  be  set  aside,  when  in  his 
favor.  If  the  jury  once  find  a  verdict  of  not 
guilty,  there  is  no  power  that  can  interfere  be 
tween  him  and  his  crime,  if  he  has  committed  a 
crime.  No  court  can  set  it  aside.  The  next 
usurpation  was  for  the  court  to  lay  its  hand  upon 
the  law — for  they  are  a  body  sitting  in  perma 
nence,  reaching  and  grasping  a  little  more — God 
made  them  so  to  do,  for  he  made  them  men 

[Here  the  time  expired.] 

Mr.  LORD,  of  Salem.     Mr.  President 

Mr.  PARKER.  If  the  gentleman  from  Salem 
will  permit  me,  I  wish  to  say  one  word  only.  I 


460 


BILL   OF   RIGHTS. 


[68th  day. 


Wednesday,; 


LORD. 


[July  27th. 


wish  to  say  that  if  the  gentleman  from  Lowell 
has  read  the  dissenting  opinion  in  the  Vermont 
case,  he  has  doubtless  seen  an  opinion  surpassing 
in  ability  altogether,  that  given  by  the  majority 
of  the  court. 

Mr.  BUTLER.  That  depends  upon  the  spec 
tacles  one  reads  through.  [Laughter.] 

Mr.  LORD.  I  hoped  that  when  the  gentle 
man  from  Cambridge  alluded  to  a  particular 
branch  of  this  subject,  he  was  about  to  develop 
his  views  upon  it  more  fully,  than  even  if  he  had 
devoted  all  the  rest  of  his  time,  he  would  have 
had  an  opportunity  to  do.  It  was  upon  this 
point,  whether,  if  this  resolution  is  passed,  there 
is  the  power  in  any  tribunal,  to  revise  the  de 
cisions  of  a  jury  upon  a  matter  of  law,  however 
unjust  that  decision  may  be.  Take  the  case  put 
the  other  day,  by  the  gentleman  who  represents 
Wilbraham.  He  says  the  judges  of  the  court 
gave  an  extraordinary  construction  to  that  law, 
which  required  two  witnesses  in  case  of  treason ; 
and  I  ask  if  jurors  should  come  to  such  a 
conclusion  as  that,  is  there  any  power  to  revise 
such  a  decision  on  the  part  of  any  one  ?  I  asked 
the  gentleman  for  Wilbraham,  also,  to  consider 
his  own  position  in  reference  to  another  proposi 
tion,  that  the  jurors  shall  have  nothing  to  do  with 
the  matter  of  evidence.  Suppose  a  party  is  in 
dicted  for  libel,  and  the  party  indicted  undertakes 
to  offer  evidence  of  the  truth  of  that  libel,  and 
the  court  rejects  that  evidence,  will  he  have  the 
party  convicted,  or  must  not  his  principle  lead 
him  farther,  to  say  that  a  jury  in  a  case  of  libel 
shall  have  the  right  to  demand  evidence  of  the 
truth,  if  the  party  proposes  to  offer  evidence  of 
the  truth  ? 

The  gentleman  from  Worcester  made  an  appeal 
to  the  friends  of  temperance,  to  know  who  it  was 
that  was  interfering  with  the  due  execution  of  the 
law,  the  jurors  or  the  judges;  who  was  it  that 
was  picking  flaws  in  complaints  and  indict 
ments.  Would  he  have  jurors  pick  flaws  in 
complaints  and  indictments  ?  The  Constitution 
of  this  Commonwealth  used  to  say,  and  I  believe 
it  says  now,  that  no  man  shall  be  held  to  answer 
to  a  charge  of  offence,  unless  the  same  shall  be 
fully  and  fairly,  plainly  and  substantially,  set  out. 
Who  shall  decide  on  that  great  constitutional 
question  ?  Shall  the  court  decide  it,  or  shall  the 
jury  decide  it?  Gentlemen  on  the  jury  know 
just  as  well  whether  a  party  is  properly  charged 
with  an  offence,  as  whether  that  party  is  guilty  of 
the  offence. 

My  mind  has  been  somewhat  exercised  upon 
this  subject,  and  what  I  desire  is  that  some  gen 
tleman  will  explain  to  me  the  exact  rcoint  where 
the  jury  shall  have  control  over  the  rights  of  men 


— where  it  shall  begin  and  where  it  shall  end  ; 
but  no  man  can  do  it  in  fifteen  minutes.  Every 
body  knows  that  the  whole  of  a  criminal  charge 
depends  upon  the  evidence ;  the  evidence  may  be 
excluded  by  the  court,  and  yet,  if  the  evidence 
exists,  it  may  have  an  effect  upon  the  minds  of 
the  jury.  Perhaps  the  evidence  might  have 
been  more  satisfactory  ;  but  whose  minds  are 
to  be  convinced  as  to  whether  the  matter  proved 
is  in  violation  of  law  ?  The  jury's.  Under  this 
proposition,  whose  minds  are  to  be  convinced 
as  to  what  the  law  is  ?  The  jury's.  Now,  Sir, 
here  is  an  enactment  of  the  legislature.  Men 
may  possibly  differ  as  to  the  exact  meaning  of 
the  statute — not  whether  it  is  constitutional  or 
not — but  as  to  the  meaning  of  the  statute  ;  and 
who  is  to  interpret  that  statute,  the  jurors  or  the 
court  ?  These  are  questions  which  no  gentleman 
has  undertaken  to  answer.  There  are  difficulties 
in  this  very  plausible  and  beautiful  theory ;  and, 
Sir,  I  am  not  prepared  to  embrace  it,  for  I  cannot 
do  so  without  risking  the  liberty  of  the  subject  to 
a  degree  to  which  I  am  not  willing  to  risk  it. 

I  was  somewhat  struck  by  the  extraordinary 
statement  of  the  gentleman  from  Worcester,  (Mr. 
Allen,)  in  regard  to  a  particular  law  which  has 
been  passed  by  congress  ;  and  that  gentleman  de 
sired  to  leave  his  statement  upon  record,  that  it 
was  as  gross  as  violation  of  the  Constitution,  and 
of  the  rights  of  man,  as  could  be  conceived  of. 
I  should  be  most  happy  to  have  him  tell  the  rea 
son  for  his  opinion,  for  I  am  not  aware  that  there 
is  any  principle  in  that  law  which  is  not  upon  our 
own  statute  book — not  one.  The  party,  of  which 
that  gentleman  is  a  member,  has  been  in  power 
for  two  successive  years  here,  and  yet  I  have 
never  heard  of  their  endeavoring  to  repeal  any  of 
the  provisions  of  these  laws.  Take,  for  example, 
what  he  calls  bribery.  If  a  magistrate  under  that 
law  adjudges  a  party  to  be  guilty,  he  gets  more 
fees  than  he  does  if  he  discharges  him.  Tery 
well ;  and  so  does  any  justice  of  the  peace,  if  he 
convicts  a  man  of  an  offence  in  this  Common 
wealth  ;  but  I  never  heard  that  called  bribery. 
There  is  not  a  justice  of  the  peace  in  this  Com 
monwealth  who  does  not  get  more  money  if  he 
convicts  a  man,  than  if  he  acquits  him.  Is  that 
bribery  ?  Why  should  men  use  such  language 
as  that,  to  excite  prejudice  against  a  law,  and 
render  it  unpopular  ? 

There  is  another  provision,  and  it  seems  to  me 
the  most  objectionable  provision  of  the  fugitive 
slave  law  which  is  this  :  Any  man  may  go  before  a 
commissioner  of  the  court,  and  get  the  custody  of 
another  man,  and  carry  him  off— there  is  no  jury 
trial.  But  is  there  not  just  such  a  law  upon  our 
own  statute  book  ?  If  an  apprentice  runs  away 


68th   day.] 


BILL    OF    RIGHTS. 


461 


Wednesday,] 


LORD  —  GRAY. 


[July  26th. 


from  his  master,  the  master  can  go  before  a  jus 
tice  of  the  peace  and  make  his  complaint,  and  that 
justice  of  the  peace  may  order  the  apprentice  into 
the  custody  of  his  master  ;  he  may  even  authorize 
the  master  to  carry  that  apprentice  beyond  the 
county  where  the  justice  of  the  peace  has  juris 
diction.  Why  did  not  the  gentleman's  friends 
repeal  those  laws  which  interfere  with  individual 
liberty  ?  And  we  have  another  law,  providing 
that  paupers  may  be  sent  out  of  the  country — 
there  is  no  jury  trial  about  it ;  but  yet  I  never 
heard  anybody  get  up  and  say  that  these  were 
most  monstrous  infractions  of  personal  liberty ! 
No,  Sir ;  there  was  nothing  to  be  made  out  of  it 
in  these  cases ;  when  yovi  send  a  poor  pauper 
back  to  Ireland,  there  is  no  chance  to  make  polit 
ical  capital  out  of  that  infraction  of  personal 
liberty.  Sir,  I  do  not  rise  to  defend  the  pro 
visions  of  that  law  at  all ;  but  my  difficulty  is  to 
know  how  men  can  sit  here  quietly  and  say  that 
that  law  is  not  only  a  violation  of  humanity  and 
human  rights,  but  of  the  Constitution  of  this 
Commonwealth,  and  the  Constitution  of  the 
United  States,  when  we  have  just  such  provisions 
on  our  own  statute  book,  and  nobody  is  ready  to 
raise  a  finger  to  wipe  them  off. 

The  gentleman  from  Lowell  suggested  that  this 
matter  would  be  likely  to  excite  a  prejudice 
against  the  legal  profession.  I  never  make  that 
objection,  because  in  such  a  case  we  make  more 
out  of  it  than  anybody  else.  The  more  prejudice 
there  is — the  more  noise  is  made  about  it,  the 
more  grist  it  brings  to  that  mill.  Now,  every 
lawyer  may  make  a  constitutional  argument  to 
every  jury  upon  any  liquor  case  that  comes  along, 
— and  some  of  them  have  a  legion  of  them — in 
the  hope  that  he  might  convince  some  one  jury 
that  the  law  was  unconstitutional,  and  thus,  per 
haps,  get  his  case.  I  think  that  is  a  question  which 
we  are  not  to  consider  at  all  in  the  discussion  of  a 
constitutional  provision ;  but  when  it  is  put  to 
our  side  of  the  House  that  the  arguments  which 
are  made  by  gentlemen  here,  whose  characters  are 
altogether  above  suspicion,  are  influenced  by  any 
such  considerations  as  that,  I  say  it  is  only  proper 
to  turn  round  and  say  that  it  opens  the  door  to  a 
new  field,  in  which  the  gentleman  for  Wilbra- 
ham  has  already  appeared  so  conspicuously,  and 
where  the  gentleman  from  Lowell  is  no  very  dis 
tant  follower.  The  very  question  that  it  is  pro 
posed  to  introduce  here — the  argument  of  the  law 
to  the  jury — is  a  field  in  which  I  believe,  nobody 
has  reaped  except  the  gentleman  for  Wilbraham 
and  the  gentleman  from  Lowell ;  and  having 
found  it  a  little  difficult,  heretofore,  to  cultivate 
that  field,  they  now  propose  to  make  it  easier. 
Now,  Sir,  if  we  can  adopt  the  principle  in  some 


such  mode  as  to  relieve  me  from  the  difficulties 
which  I  find  in  the  way,  and  which  I  have  sug 
gested,  and  which  nobody  has  ansAvered,  I  am 
ready  to  go  for  it ;  but  until  these  difficulties  can 
be  answered  or  obviated,  I  am  not  ready  for 
it. 

Mr.  GRAY,  of  Boston.  Having  been  on  the 
Committee,  I  hope  the  Convention  will  indulge 
me  in  a  few  remarks,  and  I  shall  do  my  best  to 
fall  much  within  the  time  allowed.  I  admit, 
with  the  gentleman  from  Salem,  that  the  boun 
dary  between  the  respective  rights  of  courts  and 
of  juries,  is  a  somewhat  undefined  and  shadowy 
one.  It  is  so,  both  in  criminal  and  in  civil  cases. 
I  will  put  an  instance.  Suppose  the  question 
arises,  whether  a  man  clevises  a  lot  of  land  to  me 
or  not — that  is  a  question  of  fact  for  the  jxiry  to 
decide.  I  understand  the  statute  to  read,  that 
every  will  should  have  three  •witnesses,  and  every 
judge  would  tell  the  jury  so ;  but  now  the  ques 
tion  arises,  is  the  jury  to  decide  on  that  point  in 
rendering  their  verdict  ?  How  can  you  define 
their  province  in  such  a  case  ?  Or,  take  the  crim 
inal  law  ;  how  can  you  define  their  province 
there  ?  The  gentleman  for  Wilbraham  has  read 
several  extracts,  to  show  that  the  court  has  agreed 
in  his  position  ;  but  I  think  there  is  a  slight  mis 
take  there,  and  it  grows  out  of  this  fact.  When 
ever  the  jury  give  a  general  verdict  of  guilty  or 
not  guilty,  there  is  no  power  or  right  to  revise 
that  verdict.  No  man  disputes  that — the  verdict 
cannot  be  revised.  Where,  then,  is  the  power  to 
be  derived  ?  Who  is  to  draw  the  line  between 
the  province  of  the  judge  and  the  province  of 
the  jury,  in  general  cases  ?  The  jury ;  because 
they  have  power  to  give  a  general  verdict.  What 
is  to  decide  where  the  line  ought  to  be  drawn  ? 
The  jury  again,  on  their  conscience.  They  are 
bound,  on  their  conscience,  as  I  understand  it,  to 
take  the  law  from  the  instruction  of  the  court, 
and  to  take  its  exposition  of  law  as  law.  Sup 
pose  they  refuse  to  do  so.  Suppose  they  consider 
that  a  case  has  arisen,  one  of  those  extraordinary 
cases  laid  down  by  all  writers  on  law,  in  which  a 
subject  may  judge  for  himself,  not  from  law,  but 
from  the  principles  of  moral  right  and  wrong ; 
who  shall  say  whether  they  judge  right  or  not  ? 
There  is  110  power  to  revise  their  decision,  for 
their  tribunal  is  a  sacred  one — their  judge  sits  at 
their  own  heart.  Now,  Sir,  I  admit  what  my 
friend  from  Salem  seems  to  intimate,  that  this  is 
not  a  desirable  state  of  things.  It  might  be  bet 
ter  that  we  should  lay  down  some  tangible  and 
visible  boundaries,  which  will  render  it  plain 
what  the  province  of  the  judge  is,  and  what  the 
province  of  the  jury  is  ?  But,  Sir,  can  we  do  it  ? 
Admitting  this  to  be  an  evil,  and  no  one,  I  pre- 


462 


BILL   OF   EIGHTS. 


[68th  day. 


Wednesday, 


GRAY. 


[July  27th. 


surae,  will  deny  that,  does  this  proposition  remedy 
it  ?  There  is  one  objection  that  weighs  on  my 
mind,  to  which  I  believe  no  gentleman  has  ad 
verted  ;  and  that  is,  that  I  do  not  wish  to  dimin 
ish  the  responsibility  of  the  judges.  Now,  Sir, 
the  judges  in  important  criminal  cases,  are  bound 
to  lay  down  the  criminal  law.  If  a  man  loses  his 
life  or  his  liberty,  if  even  a  stigma  falls  upon  him, 
the  judge  must  bear  the  responsibility  to  the 
community.  He  cannot  say  :  "  I  told  the  jury 
what  I  thought  the  law  was,  and  it  assumed  the 
responsibility  ;  if  an  outrage  has  been  committed 
on  the  community,  lay  the  blame  011  the  jury,  but 
do  not  charge  me  with  it."  It  is,  as  the  gentle 
man  from  Lowell  very  truly  said :  the  judges  are 
but  men  ;  and  the  moment  you  lessen  their  respon 
sibility,  you  take  away  from  them  a  motive  to 
exercise  their  power  thoroughly  and  faithfully, 
which  is,  in  many  cases,  a  delicate  and  difficult 
thing,  and  sometimes  renders  him  obnoxious 
even.  Let  gentlemen  read  the  trial  and  convic 
tion  which  resulted  in  what  may  be  the  last  exe 
cution  to  take  place  in  Massachusetts.  Let  them 
look  at  the  position  which  the  court  held,  and  let 
them  say  whether  there  are  many  judges  who 
would  have  laid  down  the  law  so  fully  and  clearly 
as  that  chief  justice  did.  I  believe  he  would  do 
the  same  again ;  but  can  you  rely  upon  every 
judge  to  take  such  a  painful  and  obnoxious  posi 
tion,  and  one  which,  in  the  eyes  of  a  public  sen 
timent  and  of  the  public  press,  as  well  as  of  a 
great  many  people,  was  a  most  odious  position  ? 
The  position  taken  by  the  court  then,  was  most 
odious  ;  for  the  time  being,  I  mean.  I  cannot 
vote  to  diminish  that  responsibility  ;  and,  farther, 
I  cannot  vote  to  enjoin  on  the  jury  to  decide  as 
to  the  law,  and  to  take  the  responsibility  for  so 
doing.  I  cannot  agree  to  put  it  in  the  power  of 
juries  to  say :  "  Here  are  our  learned  judges — they 
have  told  us  what  the  law  is — we  would  be 
thankful  to  rest,  in  some  measure,  upon  their 
suggestions,  but  we  are  not  allowed  to  do  so,  and 
the  people  hold  us  responsible."  All  this  might 
be  very  well,  and  might  operate  in  a  proper  man 
ner,  if  we  were  sure  that  juries  would  always 
want  to  acquit,  and  that  they  would  never  be 
tempted  and  biassed  to  convict  wrongfully. 

Gentlemen  talk  about  trusting  the  people. 
Now,  Sir,  the  people  of  California  are  a  brave 
and  a  free  people  ;  but,  Sir,  have  we  not  reason 
to  think  that  juries  in  that  community  would  be 
tempted  to  bring  a  man  in  guilty  in  certain  cases, 
where  the  strict  interpretation  of  law  would 
acquit  him  ?  Is  there  no  such  thing  as  popular 
violence?  The  juries  and  judges  in  the  witch 
cases,  were  referred  to  by  my  friend  for  Wilbra- 
ham  ;  but  it  was  not  the  court  that  was  to  blame, 


it  was  a  vitiated  public  sentiment ;  it  was  the 
power  of  the  clergy,  then  too  great ;  but  I  think 
that  has  been  remedied  and  more  than  remedied 
since.  It  was  this  current  of  public  feeling  that 
murdered  those  poor  creatures.  Why,  Sir,  when 
the  first  jury  brought  in  the  first  verdict  of  not 
guilty,  a  cry  went  through  the  court-house  ;  the 
whole  community,  with  one  voice,  were  most 
earnest  for  blood,  and  blood  they  had.  The  very 
first  impulse  of  popular  feeling  that  then  existed, 
for  the  acquittal  of  these  persons,  was  followed 
by  the  verdict  of  this  jury  in  their  favor.  But 
these  Constitutions  and  laws  are  to  protect  a  per 
son  from  popular  fury ;  these  guards  are  thrown 
around  him,  so  that,  when  he  is  accused,  he  may 
be  tried  before  twelve  men  good  and  true  ;  and,  if 
they  unlock  his  prison  door,  the  voice  of  thou 
sands  of  people  can  do  nothing  to  gainsay  it.  Is 
there  nothing  for  the  court  to  do,  in  criminal 
cases  ?  Gentlemen  speak  of  the  common  law  as 
though  it  was  perfectly  easy  for  any  man  of  com 
mon  sense  to  understand  all  about  it,  without 
any  study  ;  but,  does  not  every  gentleman  who 
has  studied  the  common  law  as  much  as  I  have — 
and  I  have  studied  it  considerable — know  that 
the  common  law  is  not  always  common  sense  ? 
There  is  a  great  deal  that  a  man  would  not  know, 
unless  he  studies  the  statute.  In  the  case  of  crim 
inal  law,  who  knows  exactly  what  murder  is  ?  I 
do  not — nobody  knows.  It  seems  a  very  simple 
question.  If  a  person  lies  in  wait  for  a  man  and 
assassinates  him,  you  and  I  know,  and  every  man 
knows,  that  is  murder  ;  but  who  can  tell,  unless 
he  has  examined  the  statute,  whether  the  firing 
of  a  gun  carelessly,  by  a  drunken  man,  in  a  crowd, 
is  murder,  or  something  else  ? 

Sir,  there  are  nice  distinctions  in  the  criminal 
law — not  so  much  as  in  the  civil  law — and  the 
jury  may  decide  them.  Now  where  is  the  evil  ? 
Where  are  the  men  unjustly  convicted  ?  I  do 
not  say  that  there  are  no  evils,  but  I  ask  how 
has  the  administration  of  criminal  justice  been  ? 
Why,  Sir,  it  is  most  merciful.  If  the  jury  judge 
of  the  law,  and  judge  of  it  in  a  way  that  makes 
against  the  prisoner,  the  court  has  now  a  power 
which  I  fear  this  resolve  would  take  away.  If  a 
jury  are  in  favor  of  a  prisoner,  their  verdict  can 
not  be  revised ;  and  why  ?  Not  on  any  general 
principle  involved  here,  or  that  the  jurors  are  sole 
judges  of  the  law.  No,  Sir ;  I  think  you  give 
the  scales  a  cast  on  a  general  principle  in  favor  of 
life  and  liberty— that  every  chance  short  of  en 
dangering  the  welfare  of  the  community,  shall 
operate  in  favor  of  the  prisoner.  Therefore, 
while  I  admit  that  the  boundary  is  not  so  well 
defined  as  it  might  be;  while  I  admit  that  it 
seems,  and  perhaps  is  rather  a  perplexing  doctrine 


68th   day.] 


BILL   OF   RIGHTS. 


463 


Wednesday,] 


"WALKER  —  HUNTINGTON  —  GARDNER  —  WILSON  —  YEAS. 


[July  27th. 


to  say  that  a  jury  may  bring  in  a  verdict  of  guilty 
or  not  guilty,  and  nobody  impeach  them,  on  the 
whole  matter,  and  yet  that  they  are  bound  to 
take  the  law  from  the  court ;  in  other  words,  to 
say  that  they  must  take  the  law  from  the  court 
and  then  decide  against  that  law,  seems  to  create 
a  confusion  of  boundaries  between  the  province  of 
the  courts  and  the  province  of  juries,  not  only,  I 
think,  in  criminal,  but  also  in  civil  cases.  But  I 
fear  that  if  we  debate  this  resolve  much  longer, 
we  shall  make  the  remedy  worse  than  the  dis 
ease. 

Mr.  WALKER,  of  North  BrookEeld.  I  rise 
to  move  the  previous  question. 

Mr.  HUNTINGTON,  of  Northampton.  I 
wish  the  gentleman  from  North  Brookfield  would 
withdraw  his  motion.  I  have  an  amendment  to 
offer,  which  the  friends  of  this  proposition  do  not 
object  to.  I  think  my  amendment  will  obviate 
many  objections  that  have  been  made  to  this 
proposition. 

Mr.  WALKER.  Will  the  gentleman  renew 
the  motion  for  the  previous  question  when  he 
offers  his  amendment  ? 

Mr.  HUNTINGTON.  It  is  a  thing  that  I 
never  did,  and  I  am  not  disposed  to  do  it  now. 

Mr.  WALKER.  Then  I  am  sorry  to  say  that 
I  cannot  withdraw  the  motion. 

The  question  was  then  taken  on  the  motion  for 
the  previous  question,  arid  a  division  being  de 
manded,  there  were — ayes,  159  ;  noes,  75. 

So  the  main  question  was  ordered. 

Mr.  GARDNER,  of  Seekonk,  moved  that  when 
the  main  question  be  taken,  it  be  taken  by  yeas 
and  nays. 

The  yeas  and  nays  were  ordered,  the  question 
being  on  the  second  reading  of  the  resolve. 

Mr.  WILSON,  of  Natick,  moved  a  reconsider 
ation  of  the  vote  by  which  the  yeas  and  nays  were 
ordered. 

The  motion  to  reconsider  was  agreed  to,  and 
the  question  then  recurring  on  the  order  for  the 
yeas  and  nays  on  the  main  question,  the  yeas  and 
nays  were  ordered. 

The  question  on  ordering  the  resolve  to  a  sec 
ond  reading,  was  then  taken,  with  the  following 
result — yeas,  192  ;  nays,  145  : — 


Abbott,  Josiah  G. 
Adams,  Shubael  P. 
Allen,  Charles 
Allen,  James  B. 
Alley,  John  B. 
Allis,  Josiah 
Alvord,  D.  W. 
Austin,  George 
Baker,  Hillel 
Bancroft,  Alpheus 


Barrett,  Marcus 
Bates,  Eliakim  A. 
Bates,  Moses,  Jr. 
Beal,  John 
Bennett,  Zephaniah 
Bigelow,  Edward  B. 
Bird,  Francis  W. 
Boutwell,  Geo.  S. 
Boutwell,  Sewell 
Breed,  Hiram  N. 


Bronson,  Asa  Howard,  Martin 

Brown,  Adolphus  F.  Hoyt,  Henry  K. 

Brown,  Alpheus  R.  Hunt,  Charles  E. 

Brown,  Hammond  Hurlbut,  Moses  C. 

Brown,  Hiram  C.  Hyde,  Benjamin  D. 

Browiiell,  Joseph  Ide,  Abijah  M.,  Jr. 

Bryant,  Patrick  Jacobs,  John 

Burlingame,  Anson  Keyes,  Edward  L. 

Caruthers,  William  Kimball,  Joseph 

Case,  Isaac  Kingman,  Joseph 

Chapin,  Chester  W.  Knight,  Hiram 

Chap  in,  Daniel  E.  Knight,  Jefferson 

Chapin,  Henry  Knowlton,  J.  S.  C. 

Churchill,  J.  McKeaii  Knowlton,  William  H. 

("lark,  Henry  Knox,  Albert 

Clark,  Ransom  x  Ladd,  Gardner  P. 

Clark,  Salah  Langdon,  Wilber  C. 

Cleverly,  William  Lawrence,  Luther 

Cole,  Sunnier  Leland,  Alden 

Crane,  George  B.  Loomis,  E.  Justin 

Cross,  Joseph  W.  Marble,  William  P. 

Cushman,  Thomas  Marcy,  Laban 

Cutler,  Simeon  N.  Marvin,  Abijah  P. 

Davis,  Charles  G.  Mason,  Charles 

Davis,  Isaac  Merritt,  Simeon 

Day,  Gilman  Monroe,  James  L. 

Dean,  Silas  Moore,  James  M. 

Denton,  Augustus  Morss,  Joseph  B. 

Duncan,  Samuel  Morton,  Elbridge  G. 

Dunham,  Bradish  Morton,  Marcus,  Jr. 

Durgin,  John  M.  Morton,  William  S. 

Eaiie,  John  M.  Nash,  Hiram 

Easland,  Peter  Newman,  Charles 

Edwards,  Elisha  Nichols,  William 

Ely,  Joseph  M.  Nute,  Andrew  T. 

Fellows,  James  K.  Ober,  Joseph  E. 

Fisk,  Lyman  Orne,  Benjamin  S. 

Fiske,  Emery  Osgood,  Charles 

Foster,  Abram  Packer,  E.  Wing 

Freeman,  James  M.  Paine,-  Benjamin 

French,  Charles  A.  Paine,  Henry 

French,  Rodney  Parris,  Jonathan 

French,  Samuel  Partridge,  John 
Frothingham,  Rich'd,  Jr.Peabody,  Nathaniel 

Gardner,  Johnson  Pease,  Jeremiah,  Jr. 

Gates,  Elbridge  Penniman,  John 

Gilbert,  Washington  Perkins,  Daniel  A. 

Giles,  Charles  G.  Perkins,  Jesse 

Gooch,  Daniel  W.  Perkins,  Noah  C. 

Gooding,  Leonard  Phelps,  Charles 

Graves,  John  W.  Phimiey,  Silvanus  B. 

Griswold,  Josiah  W.  Pierce,  Henry 

Griswold,  Whiting  Pool,  James  M. 

Hadley,  Samuel  P.  Rantoul,  Robert 

Hallett,  B.  F.  Rawson,  Silas 

Hapgood,  Lyman  W.  Richards,  Luther 

Hapgood,  Seth  Richardson,  Darnel 

Haskins,  William  Richardson,  Nathan 

Hawkes,  Stephen  E.  Richardson,  Samuel  H. 

Hayden,  Isaac  Ring,  Elkanah,  Jr. 

Hazewell,  Charles  C.  Rogers,  John 

Heath,  Ezra,  2d,  Ross,  David  S. 

Hewes,  James  Sanderson,  Chester 

Hewes,  William  H.  Sherril,  John 

Hobart,  Henry  Simmons,  Perez 

Holder,  Nathaniel  Simonds,  John  W. 

Hood,  George  Sprague,  Melzar 

Hooper,  Foster  Spooner,  Samuel  W. 


464 

BILL   OF   RIGHTS. 

[68th    day. 

Wednesday,] 

NAYS  —  ABSENT. 

[July  27th. 

Stacy,  Eben  H. 

Wales,  Bradford  L. 

Knight,  Joseph 

Sargent,  John 

Stevens,  Joseph  L.,  Jr. 

Wallis,  Freeland 

Kuhn,  George,  H. 

Schouler,  William 

Stevens,  William 

Walker,  Amasa 

Ladd,  John  S. 

Sikes,  Chester 

Stiles,  Gideon 

Ward,  Andrew  H. 

Lawton,  Job  G.,  Jr. 

Sleeper,  John  S. 

Strong,  Alfred  L. 

Warner,  Samuel,  Jr. 

Lincoln,  Abishai 

Smith,  Matthew 

Sumner,  Charles 

Y/aters,  Asa  H. 

Lincoln,  Frederic  W.,  Jr.  Souther,  John 

Swain,  Alanson 

Weston,  Gershom  B. 

Livermore,  Isaac 

Stetson,  Caleb 

Taber,  Isaac  C. 

Whitney,  Daniel  S. 

Lord,  Otis  P. 

Stevens,  Charles  G. 

Taft,  Arnold 

Whitney,  James  S. 

Lothrop,  Samuel  K. 

Stevens,  Graiiville 

Thayer,  Joseph 

Wilbur,  Daniel 

Loud,  Samuel  P. 

Sumner,  Increase 

Thayer,  Willard,  2d 

Williams,  Henry 

Miller,  Seth,  Jr. 

Tileston,  Edmund  P. 

Thomas,  John  W. 

Wilson,  Henry 

Mixter,  Samuel 

Train,  Charles  R, 

Thompson,  Charles 

Wilson,  Willard 

Morey,  George 

Turner,  David 

Tilton,  Abraham 

Winslovr,  Levi  M. 

Nayson,  Jonathan 

Upton,  George  B. 

Tiltoii,  Horatio  W. 

Wood,  Charles  C. 

Noyes,  Daniel 

Walcott,  Samuel  B. 

Underwood,  Orison 

Wood,  Otis 

Oliver,  Henry  K. 

Walker,  Samuel 

Viles,  Joel 

Wood,  William  H. 

Orcutt,  Nathan 

Weeks,  Cyrus 

Yinton,  George  A. 

Wright,  Ezekiel 

Park,  John  G. 

Wheeler,  William  F. 

Parker,  Adolphus  G. 

White,  Benjamin 

NAYS. 

Parker,  Joel 

Wilder,  Joel 

Abbott,  Alfred  A. 
Adams,  Benjamin  P. 
Aldrich,  P.  Emory 
Allen,  Joel  C. 
Andrews,  Robert 
Aspinwall,  William 

Doane,  James  C. 
Dorman,  Moses 
Eames,  Philip 
Eaton,  Lilley 
Edwards,  Samuel 
Ely,  Homer 

Perkins,  Jonathan  C. 
Plunkett,  William  C. 
Pomroy,  Jeremiah 
Read,  James 
Reed,  Sampson 
Sampson,  George  R. 

Wilkins,  John  H. 
Williams,  J.  B. 
Wilson,  Milo 
Whin,  Jonathan  B. 
Woods,  Josiah  B. 

Atwood,  David  C. 

Farwell,  A.  G. 

Ayres,  Samuel 

Fay,  Sullivan 

ABSENT* 

Barrows,  Joseph 

Foster,  Aaron 

Allen,  Parsons 

Knowlton,  Charles  L. 

Bartlett,  Russel 

Fowle,  Samuel 

Appleton,  William 

Little,  Otis 

Bartlett,  Sidney 

Fowler,  Samuel  P. 

Ballard,  Alvah 

Littlcfield,  Tristram 

Bennett,  William,  Jr. 

French,  Charles  H. 

Ball,  George  S. 

Lowell,  John  A. 

Bigelow,  Jacob 

Gale,  Luther 

Banks,  Nathaniel  P.,  Jr. 

Marvin,  Theophilus  R. 

Bell,  Luther  Y. 

Gardner,  Henry  J. 

Beach,  Erasmus  D. 

Meader,  Reuben 

Bliss,  Gad  O. 

Giles,  Joel 

Beebe,  James  M. 

Morton,  Marcus 

Booth,  William  S. 

Goxild,  Robert 

Bishop,  Henry  W. 

Norton,  Alfred 

Bradbury,  Ebenezer 

Goulding,  Dalton 

Blagclen,  George  W. 

Paige,  James  W. 

Bradford,  William  J.  A 

Goulding,  Jason 

Bliss,  Willam  C. 

Parker,  Samuel  D. 

Braman,  Milton  P. 

Gray,  John  C. 

Browiiell,  Frederick 

Parsons,  Samuel  C. 

Brewster,  Osmyn 

Green,  Jabez 

Bullen,  Amos  H. 

Parsons,  Thomas  A. 

Briiiley,  Francis 

Hale,  Artemas 

Bumpus,  Cephas  C. 

Payson,  Thomas  E. 

Briggs,  George  N. 

Hale,  Nathan 

Butler,  Benjamin  F. 

Peabody,  George 

Brown,  Artemas 

Hammond,  A.  B. 

Cady,  Henry 

Powers,  Peter 

Buck,  Asahel 

Harmon,  Phineas 

Choate,  Rufus 

Preston,  Jonathan 

Bullock,  Rufus 

Haskell,  George 

Clarke,  Alpheus  B. 

Prince,  F.  O. 

Carter,  Timothy  W. 

Heard,  Charles 

Cressy,  Oliver  S. 

Putnam,  George 

Chandler,  Amariah 

Henry,  Samuel 

Cummings,  Joseph 

Putnam,  John  A. 

Childs,  Josiah 

Horsey,  Henry 

Cushman,  Henry  W. 

Rice,  David 

Clarke,  Stillman 

Hillard,  George  S. 

Davis,  Ebenezer 

Rockwell,  Julius 

Coggin,  Jacob 

Hinsdale,  William 

Davis,  John 

Rock  wood,  Joseph  M. 

Cogswell,  Nathaniel 

Hobart,  Aaron 

Davis,  Robert  T. 

Royce,  James  C. 

Cole,  Lansing  J. 

Houghton,  Samuel 

Dehon,  William 

Sanderson,  Amasa 

Conkey,  Ithamar 

Howland,  Abraham  H. 

DeWitt,  Alexander 

Sheldon,  Luther 

Cook,  Charles  E. 

Hubbard,  William  J. 

Easton,  James,  2d 

Sherman,  Charles 

Cooledge,  Henry  F. 

Hunt,  William 

Eaton,  Calvin  D. 

Stevenson,  J.  Thomas 

Copeland,  Benjamin  F. 

Huntington,  Asahel 

Eustis,  William  T. 

Storrow,  Charles  S. 

Crittenden,  Simeon 

Huntington,  Charles  P. 

Fitch,  Ezekiel  W. 

Stutson,  William 

Crockett,  George  W. 

Huntington,  George  H. 

Gilbert,  Wanton  C. 

Talbot,  Thomas 

Crosby,  Leander 

Hurlburt,  Samuel  A. 

Greene,  William  B. 

Taylor,  Ralph 

Crowell,  Seth 

Jackson,  Samuel 

Greenleaf,  Simon 

Tower,  Ephraim 

Crowninshield,  F.B. 

James,  William 

Hall,  Charles  B. 

Turner,  David  P. 

Curtis,  Wilber 

Jenkins,  John 

Hathaway,  Elnathan  P. 

Tyler,  John  S. 

Dana,  Richard  H.,  Jr. 

Jenks,  Samuel  H. 

Hayward,  George 

Tyler,  William 

Davis,  Solomon 

Johnson,  John 

Heywood,  Levi 

Upham,  Charles  W. 

Dawes,  Henry  L. 

Kellogg,  Giles  C. 

Hobbs,  Edwin 

Wallace,  Frederick  T. 

Deming,  Elijah  S. 

Kendall,  Isaac 

Hopkinson,  Thomas 

Warner,  Marshal 

Denison,  Hiram  S. 

Kinsman,  Henry  W. 

Kellogg,  Martin  R. 

Wetmore,  Thomas 

68th  day.] 


RAILROAD   ACCIDENTS,  &c. 


465 


Wednesday,] 


EARLE  —  MORTON  —  PARKER  —  HILLARD  —  HALLETT. 


[July  27th. 


White,  George 
Wilbur,  Joseph 


Wilkinson,  Ezra 
Wood,  Nathaniel 


Absent  and  not  voting,  82. 

Mr.  EARLE,  of  Worcester,  moved  that  the 
name  of  Marcus  Morton  be  erased  from  the  roll, 
that  gentleman  not  being  present  when  his  name 
was  called.  He  was  in  one  of  the  committee 
rooms. 

Mr.  ASPINWALL,  of  Brookline.  When  the 
name  of  Mr.  Morton  was  called,  I  heard  a  certain 
response.  It  was  not  exactly  a  negative,  but 
seemed  exceedingly  like  it. 

Mr.  FREEMAN,  of  Franklin.  I  believe  I  was 
the  first  who  called  attention  to  the  fact  of  the 
gentleman's  absence  from  the  Convention  when 
his  name  was  called.  He  was  in  the  room  of  the 
Judiciary  Committee  when  his  name  was  called. 

Mr.  MORTON.  If  there  is  any  question  as  to 
my  vote,  I  desire  to  say  that  I  was  not  present 
when  my  name  was  called.  I  was  in  the  Jiidi- 
ciary  Committee  room.  If  it  is  not  too  late,  I 
will  vote. 

Mr.  EARLE,  of  Worcester.  I  move  that  the 
response  be  erased. 

The  PRESIDENT.  The  response  will  be 
erased,  so  as  to  correspond  to  the  fact.  The  re 
solve  is  ordered  to  its  second  reading,  and  will 
take  its  second  reading  to-morrow. 

Sectarian  Schools. 

Mr.  PARKER,  of  Cambridge.  There  is  lying 
on  the  table  a  resolve  on  the  subject  of  schools. 
This  is  a  very  important  subject — one  in  which  I 
have  taken  some  interest,  and  I  desire  that  it  may 
be  taken  up  at  this  time,  so  that  it  may  be  dis 
posed  of. 

The  PRESIDENT.  The  motion  of  the  gentle 
man  from  Cambridge  is  not  in  order,  the  Orders 
of  the  Day  being  under  consideration. 

Mr.  PARKER.  Then  I  move  that  the  Orders 
of  the  Day  be  laid  upon  the  table  for  the  purpose 
of  taking  up  this  subject. 

The  motion  was  not  agreed  to. 

Railroad  Accidents, 

The  Convention  next  proceeded  to  the  consid 
eration  of  the  resolve  on  the  subject  of  legal  rem 
edies  to  the  representatives  of  persons  killed  by 
the  negligence  or  misconduct  of  railroad  corpora 
tions,  as  follows : — 

Resolved,  That  where  death  is  caused  through 
negligence  or  misconduct,  by  means  of  railroads, 
steam- boats,  or  public  conveyances  for  hire,  the 
same  remedies  shall  be  open  in  a  suit  at  law,  as 
for  like  injuries  to  the  person  resulting  in  disabil 
ity  and  not  in  death. 

32s 


The  question  being  on  its  second  reading, 

Mr.  HILLARD,  of  Boston.  I  rise  to  ask  the 
gentleman  who  is  chairman  of  the  Committee  which 
reported  this  resolve,  to  state  some  of  the  reasons 
why  a  provision  of  this  kind  should  be  placed  in 
the  Constitution  at  all,  any  more  than  a  provision 
as  to  drawbridges,  or  the  guages  of  roads  ?  I 
should  like  to  know  on  what  principle  this  is 
to  be  taken  from  the  statute  law  and  placed  in  the 
Constitution  ? 

Mr.  HALLETT.  In  reply  to  the  question  of 
the  gentleman  from  Boston,  I  will  state,  that 
this  subject  was  referred  by  the  Convention  to  a 
Special  Committee,  who  instructed  me  to  report 
this  provision.  The  gentleman  desires  me  to  give 
some  reasons  why  it  should  be  put  into  the  Con 
stitution.  Sir,  I  shall  not  go  into  any  elaborate 
reasons ;  but  when  that  gentleman  compares  a 
subject  of  this  magnitude  with  the  gviages  of  rail 
roads  and  drawbridges,  and  matters  of  that  sort, 
he  could  not  have  had  his  mind  upon  the  appall 
ing  fact,  that  since  this  Convention  met,  in  the 
month  of  May,  the  deaths  caused  by  railroad  and 
steam-boat  accidents,  as  reported  to  us  in  the 
newspapers,  amount  to  two  hundred  and  twenty- 
two  !  Now,  if  there  is  any  principle  that  should 
have  prominence  in  a  fundamental  law,  it  is  that 
the  government  should  protect  the  lives  as  well 
as  the  property  of  citizens ;  and  they  should 
protect  those  lives  by  throwing  around  them  all 
possible  security.  Your  Bill  of  Rights  says,  that 
every  person  shall  have  a  remedy  in  your  courts 
of  law  for  all  injuries  sustained  by  the  hands  of 
others.  Now,  while  this  wholesale  slaughter  is 
going  on,  and  every  man's  life  is  in  danger  every 
time  he  passes  to  and  fro  upon  these  lines  of  travel, 
is  it  worth  while  to  put  a  declaration  into  the 
Constitution  that  shall  seem  to  say,  "  This  work 
of  death  must  stop ' '  ?  Every  evening,  when  I  see 
my  friends  go  out  of  this  hall,  to  pass  along  the 
varioxis  railroads  to  their  homes,  I  look  upon 
them  as  if  I  were  beholding  them  for  the  last  time, 
unless  I  should  see  them  as  mangled  corpses ;  and 
when  I  see  them  next  morning,  safe  and  sound,  I 
feel  as  if  I  could  congratulate  them  as  much  as  if 
they  had  escaped  unharmed  from  a  field  of  battle. 

Sir,  in  the  insurance  of  men's  lives,  it  has  now 
become  an  important  question,  as  to  whether  their 
business  requires  them  to  travel  much  on  railroads 
or  steam-boats. 

And  why  should  this  be  put  into  the  Con 
stitution  ?  I  suppose,  Sir,  for  this  reason :  that 
the  courts  of  law  in  Massachusetts  have  decided 
that,  by  the  common  law,  if  a  man  is  injured  on 
a  railroad  by  having  an  arm  or  leg  broken,  he  is 
entitled  to  a  remedy  ;  but,  that  if  he  is  killed,  no  « 
damage  is  done  whatever.  That  is  the  rule  of 


46G 


RAILROAD   ACCIDENTS. 


[68th  day. 


Wednesday,] 


HALLETT  —  CADY. 


[July  27th. 


law.  The  supreme  court  are  called  upon  to  con 
strue  all  your  laws.  I  am  aware  that  there  is  a 
law  providing  a  penalty  of  four  or  five  thousand 
dollars  for  each  passenger  killed,  and  which  is 
recoverable  by  indictment.  That  is  a  penalty  in 
the  nature  of  a  punishment  for  an  offence ;  but 
when  you  come  to  your  civil  suits,  and  produce 
your  Bill  of  Itights,  which  says  that  every  person 
is  entitled  to  a  remedy  for  injuries  received,  what 
is  the  principle?  If  a  man  is  maimed,  and  he 
goes  before  a  jury,  that  jury  determines  what  the 
injury  is,  and  award  him  damages  accordingly. 
But  if  a  man,  on  whose  labor  a  wife  and  children 
depend  for  support,  is  killed  at  a  blow,  and  his 
heir  or  administrator  apply  for  damages,  he  is 
told  by  your  courts  that  there  was  no  injury,  be 
cause  he  was  killed  outright,  and  all  the  damages 
that  can  be  recovered  would  be  for  the  suffering 
he  endured,  if  you  can  prove  it,  for  the  few  min 
utes  which  intervened  between  the  time  he  re 
ceived  the  blow  and  the  time  he  ceased  to  breathe. 

Gentlemen  tell  us  that  we  may  go  to  the  legis 
lature  for  the  proper  remedies.  So  you  might,  if 
your  legislature  was  not,  in  great  part,  composed 
of  men  who  are  either  directors  or  stockholders  in 
most  of  these  companies ;  but,  if  I  judge  rightly, 
this  is  a  matter  which  is  worthy  of  being  put  into 
your  Constitution,  that  this  great  moloch  may  be 
properly  restrained.  Sir,  it  is  shown  by  statistical 
returns,  that  more  persons  have  been  killed  in  the 
State  of  New  York  on  railroads,  in  one  year,  than 
were  killed  on  all  the  railroads  in  England  in  the 
same  time ;  and,  after  having  created  these  corpo 
rations,  and  invested  them  with  this  power,  is  it 
not  worth  while  to  put  into  the  Constitution  a 
principle  that  will  protect  the  community  against 
them  ?  Your  penalty  for  an  offence  is  one  thing, 
but  your  remedy  for  an  injury  received  is  another. 
That  is  what  I  wish  to  provide  for.  I  have  no 
feeling  in  regard  to  the  matter,  except  a  feeling  of 
humanity  and  right. 

I  am  in  favor  of  this  proposition,  considering 
that  when  your  Bill  of  Rights  declares  that  there 
shall  be  a  remedy  for  all  injuries,  that  remedy 
should  provide  for  the  injuries  s\istained  by  women 
and  children  who  may  lose  their  husbands  and 
fathers,  and,  in  that  loss,  their  means  of  livelihood. 
In  recent  cases  tried  by  the  supreme  court,  the 
question  was,  whether  a  party  who  was  killed 
lived  long  enough  to  maintain  a  suit.  If  he  did 
not,  no  remedy  could  be  had,  and  especially  where 
death  was  instantaneous.  The  court  would  not 
allow  such  cases  to  go  to  the  jury.  They  took  it 
away  from  the  jury,  on  the  ground  that  there  was 
no  surviving  injury  on  which  an  administrator 
could  take  action. 

Sir,  I  think  that  great  danger  may  arise  from 


this  new  element  we  have  introduced  into  the 
business  of  life,  unless  it  is  guarded  by  proper  re 
strictions.  I  think  that  when  you  incorporate  a 
provision  like  this  into  your  Constitution,  you 
hold  up,  as  it  were,  a  beacon  light  to  guard  and 
protect  human  life ;  the  attention  of  all  parties 
will  be  called  to  it ;  and  the  result  will  be  in  re 
newed  vigilance,  and  care,  and  caution,  and  the 
saving  of  human  lives,  and  the  preventing  of  that 
desolation  of  hearths  and  hearts  which,  in  our  re 
cent  experience,  has  been  so  fearfully  extended. 
By  this  you  will  do  as  much  real  good,  as  by  any 
other  provision  in  your  Constitution. 

Mr.  CADY,  of  Monson.  It  is  quite  immaterial 
with  me,  in  what  way,  and  by  what  means,  this 
protection  shall  be  afforded — whether  by  the  or 
ganic  law,  the  statute  law,  or  by  the  common  law. 
But  that  no  protection  in  cases  now  before  the 
Convention,  is  afforded,  is  true ;  but  that  is  not  all 
in  relation  to  it.  I  hold  that  the  eleventh  article 
of  the  Bill  of  Rights,  in  the  present  Constitution, 
which  contains  this  same  principle,  has  not  af 
forded  any  protection,  either  in  this  or  other  cases. 
I  see  no  reason  why,  except  that  this  article  has 
never  been  heeded  by  the  legislature,  and  they 
have  never  given  that  attention  to  it  which  is  ne 
cessary  to  make  it  valid  and  effectual.  And  I  see 
110  reason  why  this  resolution  should  be  put  in 
here,  if  110  more  attention  is  to  be  paid  to  it  here 
after  by  the  legislature,  than  has  been  paid  to  it 
heretofore ;  and  if  they  should  not,  I  would  as 
lief  see  this  provision  struck  out  of  the  Constitu 
tion  entirely.  I  can  see  no  value  in  retaining  an 
article  in  the  Constitution,  which  has  no  effect, 
and  is  practically  invalid.  The  present  article 
says :  "  Every  subject  of  the  Commonwealth  ought 
to  find  a  certain  remedy,  by  having  a  recourse  to 
the  laws  for  all  injuries  or  wrongs  which  he  may 
receive  in  his  person,  property,  or  character."  I 
claim  that  110  person  has  ever  had  a  remedy  for  an 
injury  which  has  caused  death,  as  he  had  for 
wrongs  to  character  or  property.  The  article 
farther  says :  "  He  ought  to  obtain  right  and  jus 
tice  freely,  and  without  being  obliged  to  purchase 
it ;  completely  and  without  any  denial ;  promptly 
and  without  delay ;  conformably  to  the  laws." 

Well,  Sir,  there  are  no  laws  except  this  very 
one,  and  this,  so  far  as  it  may  be  construed  as  a 
law,  might  be  considered  as  applying  to  all  cases. 
But  I  suppose  it  is  not  to  be  considered  as  a  law, 
but  only  as  a  principle  upon  which  a  law  can  be 
founded.  Now,  Sir,  I  contend  that  no  person 
has  ever  had  the  benefit  of  the  provision  here 
made,  or  intended  to  be  made,  by  this  article  of 
the  Bill  of  Rights.  A  man  can  injure  and  wrong 
his  fellow- citizen,  and  there  is  no  remedy  against 
him  which  can  be  applied.  I  can  bring  an  action 


68th  day.] 


RAILROAD    ACCIDENTS. 


467 


Wednesday,] 


CADY  —  DAVIS. 


[July  27th. 


against  any  man,  or  a  rich  man  may  bring  an  ac 
tion  against  a  poor  man  unable  to  defend  his  case, 
and  there  is  nothing  in  the  statute  which  prevents 
it.  He  makes  him  just  as  much  expense,  and  as 
great  a  loss  of  time  as  he  chooses  and  may  cause 
delays — for  these  actions  are  not  without  delay — 
and  just  as  much  delay  as  the  individual  who  is 
the  oppressor,  sees  fit  to  make.  In  these  cases  of 
unjust  prosecutions,  where  an  innocent  man  has 
been  seized  by  the  arm  of  the  law,  and  has  been 
obliged  to  spend  his  time  and  money  for  his  coun 
sel  and  other  things,  although  he  may  at  length 
become  released  and  establish  his  innocence,  where 
is  he  ?  Being  a  poor  man,  he  has  expended  all 
the  means  he  has  in  his  power  to  obtain,  to  pay 
his  attorney  and  lawyer  for  his  defence,  and  has 
spent  his  time,  and  what  is  the  result  ?  He  has 
beggared  his  family,  his  children  are  naked,  and 
his  wife  is  in  distressed  circumstances. 

Now,  Sir,  as  I  said  before,  I  care  not  where  the 
law  comes  from  which  affords  this  protection.  If 
a  provision  of  our  Constitution  cannot  be  made 
valid  to  afford  this  protection,  I  say  I  am  in  favor 
of  striking  it  out.  This  provision  is  here  in  the 
Constitution  for  something,  and  the  legislature 
heretofore  have  neglected  to  pay  that  attention  to 
it  which  it  really  deserves.  Now,  I  think  that  it  is 
of  vital  importance  to  have  such  an  article  in  the 
Constitution,  but  I  thirk  it  is  of  much  more  im 
portance  that  the  article  should  be  heeded.  This 
neglect  was  not  because  it  was  an  oversight.  The 
legislature  looked  upon  this  article,  and  knew  that 
it  was  there.  They  knew  practically  what  had 
been  done  by  previous  legislatures.  Still,  from 
year  to  year,  and  year  after  year,  a  perfect  neg 
lect  has  been  indulged  in  by  legislative  bodies, 
and  they  have  neglected  to  afford  that  protection 
which  this  article  in  the  Bill  of  Rights  was  in 
tended  to  afford.  There  may  be  such  a  thing  as 
an  oversight,  but  this  has  not  been  one.  When 
the  mother  of  Achilles  plunged  her  son  into  the 
river  Styx,  to  render  him  invulnerable,  there  was 
an  oversight  on  her  part,  because  she  forgot  that 
the  heel  failed  to  be  laved  by  the  prophylactic 
waters.  But  not  so  in  this  case.  The  legislature 
have  had  their  attention  directed  to  this  matter, 
but  they  have  gone  on,  year  after  year,  neglecting 
it,  and  we  have  no  more  protection  than  when  it 
was  first  put  into  the  Constitution  in  1789. 

Now,  Sir,  I  am  in  favor  of  a  resolution  like  the 
one  offered  by  the  gentleman  for  Wilbraham, 
(Mr.  Hallett,)  if  it  can  be  made  effectual  in  any 
way.  I  am  in  favor  of  incorporating  something 
like  this  into  the  Constitution. 

Mr.  DAVIS,  of  Plymouth.  Owing  to  the  la 
mentable  circumstances  to  which  the  gentleman 
has  alluded,  I  have  hesitated  to  propose  the  motion 


I  which  I  shall  offer  before  I  sit  down,  until  I  could 
hear  the  gentleman  for  Wilbraham,  (Mr.  Hallett,) 

j  explain  the  reasons  for  his  amendment.     It  seems 

I  to  me  that  no  good  reason  can  be  assigned  why  a 

j  provision  providing  only  a  simple  remedy  for  an 

I  evil,  for  injuries,  for  trespasses,  &c.,  should  be  put 

j  into  the  Constitution ;  and,  especially,  no  good 

i  reason  can  be  given  why  it  should  be  put  into  the 

!  Bill  of  Rights.     If  it  were  proposed  to  put  into 

i  the  Constitution  a  provision,  that  for  all  injuries 


by  tort,  an  action  at  law  should  lie,  and  that  when 


such  tortious  injury  resulted  in  death  the  action 
should  survive,  I  could  see  some  reason  for  the 
principle,  but  certainly  none  for  such  a  provision 
as  this.  I  understand  that  the  liability,  to  some 
extent,  is  now  perfect  by  the  act  of  the  legislature. 
|  And  I  also  understand  him  to  admit  that  the 
legislature  have  now  full  power  to  enact  sufficient 
laws  with  regard  to  all  remedies  affecting  the  per 
son,  whether  they  result  in  death  or  not.  If  that 
be  so,  I  see  no  reason  why  the  provision  should 
be  placed  in  the  Constitution  or  in  the  Bill  of 
Rights.  If  gentlemen  will  look  at  this  resolve  as 
reported,  it  seems  to  me  they  will  find  that  it  is 
J  too  vague  and  indefinite.  In  point  of  fact,  noth- 
i  ing  can  be  made  of  it  whatever,  and  I  ask  gen- 
!  tlemen  of  the  Convention,  before  they  make  up 
j  their  minds  upon  this  question,  to  read  the  pro- 
I  vision.  It  is  this  :  "  Where  death  is  caused 
through  negligence  or  misconduct  by  means  of 
j  railroads,  steam-boats,  or  public  conveyances  for 
hire,  the  same  remedies  shall  be  open  in  a  suit 
at  law  as  for  like  injuries  to  the  person  resulting 
in,  disability  and  not  in  death."  That  is,  "  where 
death  is  caused,"  "the  same  remedies  shall  be 
open  as  for  a  like  injury,"  namely,  death  "  result 
ing  in  disability  arid  not  in  death."  Will  gentle 
men  also  a«k  themselves  what  that  same  remedy  is 
which  shall  be  open  at  suits  at  law  for  injuries 
resulting  in  disability  and  not  in  death.  Does 
the  Committee  mean  that  the  like  rule  of  damages 
shall  apply  to  injuries  resulting  in  death,  that  ap 
ply  now  to  injuries  which  do  not  result  in  death  ? 
Or  does  the  Committee  mean  to  say  a  jury  shall 
be  called  upon,  without  any  limit,  to  estimate,  in 
broad  terms,  the  value  of  life  ?  What  is  the  limit  ? 
It  seems  to  me,  that,  if  called  upon  as  a  juror,  as 
perhaps  I  may  be,  to  consider  that  question,  I 
might  say  that  the  value  of  a  man's  life  was  a 
million  of  dollars,  and  this  constitutional  provision 
might  require  that  of  me  ;  or  else — for  so  I  read 
this  resolve — or  else  I  should  be  called  upon 
merely  to  decide  that  the  party  entitled  to  some 
remedy  is  entitled  to  the  same  remedy  which  he 
would  be  entitled  to  for  an  injury  resulting  in 
disability  and  not  in  death,  no  matter  how  small 
the  damage  may  be.  It  seems  to  me  there  is  this 


468 


BILL   OF   RIGHTS. 


[68th  day. 


Wednesday,] 


DANA  —  HALLETT. 


[July  27th. 


inconsistency  and  this  vagueness.  I  therefore 
move  that  this  resolution  be  laid  upon  the  table. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

So  the  resolve  was  laid  upon  the  table. 

Law  Martial. 

The  PRESIDENT.  The  next  matter  in  the 
Orders  of  the  Day  is  the  resolve  upon  the  subject 
of  the  law  martial.  The  question  is  to  strike  out 
of  the  twenty-eighth  article  of  the  Bill  of  Rights 
the  words,  "  by  authority  of  the  legislature,"  so 
hat  it  shall  read : — 

No  person  can  in  any  case  be  subjected  to 
laic  martial,  or  to  any  penalties  or  pains  by  virtue 
of  that  law,  except  those  employed  in  the  army 
or  navy,  and  except  the  militia  in  actual  service. 

The  question  is  upon  the  final  passage. 

Mr.  DANA,  for  Manchester.  I  wish  to  know 
whether  I  can  throw  myself  upon  the  indulgence 
of  this  Convention,  for  a  few  minutes,  upon  this 
subject.  I  will  occupy  but  a  few  minutes,  and 
will  state  but  two  propositions.  Last  night,  when 
there  was  but  just  a  quorum  present,  the  resolve 
introduced  by  the  gentleman  for  Wilbraham, 
(Mr.  Hallett,)  to  deprive  the  legislature  of  the 
power  of  enacting  the  law  martial,  was  passed. 
I  think  it  was  passed  under  a  misapprehension. 
I  have  conversed  with  a  number  of  gentlemen 
since  last  evening,  and  I  have  seen  but  one 
person  to  whom  the  subject  has  been  present 
ed,  who  has  not  changed  his  mind.  If  the  Con 
vention  will  give  me  attention  for  a  moment,  I 
will  endeavor  to  satisfy  them  that  the  Constitu 
tion,  since  1780,  has  been  right  in  this  respect, 
and  that  we  had  better  let  it  alone. 

The  first  question  is,  What  is  the  law  martial  ? 
and  the  second  is,  Who  shall  control  it  ?  First, 
what  is  the  law  martial  ?  It  is  supposed  by  many 
that  the  law  martial  is  just  what  a  military  man 
chooses  to  do.  That  is  not  so.  It  is  a  code  of 
laws  enacted  by  the  legislature,  and  not  what  a 
military  man  chooses  to  do.  First,  we  have  the 
civil  law,  and,  second,  the  law  martial.  They 
are  both  enacted  by  the  legislature,  and  they  are 
both  controlled  by  the  legislature. 

Mr.  HALLETT.  Does  the  gentleman  say 
there  is  a  martial  law  in  Massachusetts  ? 

Mr.  DANA.     Certainly  there  is. 

Mr.  HALLETT.  No,  Sir  ;  there  is  a  military 
law. 

Mr.  DANA.  The  martial  law  of  Massachu 
setts  is  in  the  Revised  Statutes,  and  under  that 
the  courts  martial  are  held.  The  law  martial  of 
the  United  States  is  in  the  laws  of  the  United 
States,  and  under  that  the  courts  martial  of  the 


United  States  are  held ;  and  I  think  the  gentle 
man  for  Wilbraham,  (Mr.  Hallett,)  himself,  has 
been  a  judge  advocate  of  an  United  States  court 
martial.  The  legislature  of  the  State  can  control 
the  law  martial  of  the  State;  can  alter  it,  and 
make  it  just  as  humane  as  they  please.  It  is  a 
system  of  laws  executed  by  a  military  tribunal 
instead  of  by  a  civil  tribunal.  Those  tribunals 
act  according  to  law,  by  records,  by  proceeding 
in  writing,  and  can  punish  no  man  except  accord 
ing  to  law.  They  cannot  do  as  they  please. 

We  have  the  civil  law  to  apply  to  ordinary 
cases,  but  to  whom  does  the  martial  law  apply  ? 
It  applies  to  military  men,  under  arms.  We  try 
a  militia  man  now,  under  martial  law.  At  what 
other  time  does  the  military  law  apply  ?  It  ap 
plies  when  the  civil  law  cannot  apply  ;  when,  in 
times  of  insurrection  and  disturbance,  you  can 
not  control  your  jails,  when  you  cannot  control 
your  court-houses,  when  the  sheriffs  cannot  sum 
mon  their  juries,  and  courts  cannot  meet.  When 
the  civil  law  cannot  go  on,  then  the  martial  law 
is  proclaimed.  When  the  enemy  is  in  possession 
of  your  strong-holds,  when  the  milder  processes 
of  the  civil  law  cannot  go  forward,  then  it  is 
martial  law  or  nothing.  Well,  then,  the  martial 
law  is  a  law  of  the  legislature,  and  which  the 
legislature  controls.  When  that  state  of  things 
arises  where  the  civil  law  cannot  be  put  in  force, 
then  the  legislature  puts  in  force  the  martial  law. 

Then  there  remains  but  one  question — who 
shall  put  in  force  the  martial  law  ?  Shall  it  be 
proclaimed  by  the  legislature,  or  shall  it  be  pro 
claimed  by  any  military  man  who  chooses  to  do 
it  ?  Our  ancestors,  in  1780,  abundantly  cautious 
of  liberty,  provided  that  only  the  legislature  should 
proclaim  the  martial  law.  The  gentleman  for 
Wilbraham  means  to  leave  it  so  that  any  military 
commander  that  comes  here,  may  proclaim  the 
military  law.  He  eulogizes  General  Jackson  for 
putting  New  Orleans  under  military  law.  I 
think  General  Jackson  was  right  in  doing  that. 
But  I  wish  to  know  why,  if  it  was  right  for  Gen 
eral  Jackson  to  do  that,  it  is  not  right  in  the  leg 
islature  to  do  it ;  why  it  is  not  better  and  safer  in 
the  hands  of  the  legislature. 

If  the  legislature  of  Louisiana  had  put  New 
Orleans  under  martial  law,  it  would  have  been 
far  better  than  to  have  General  Jackson  do 
it.  General  Jackson  had  to  assume  the  pow 
er  to  do  it,  and  I  think  he  did  right ;  but  if 
the  legislature  had  declared  the  city  to  be  un 
der  martial  law,  it  would  have  saved  him  an  as 
sumption  of  power,  and  General  Jackson,  as  a 
good  citizen,  would  have  rejoiced  at  it. 

Now  let  us  take  a  case  nearer  home.  Suppose 
you  pass  this  provision,  and  Massachusetts  is 


68th  day.] 


BILL  OF   RIGHTS. 


469 


Wednesday,] 


DANA  —  HALLETT. 


[July  27th. 


threatened  to  be  invaded  by  an  armed  force. 
Your  civil  law  cannot  be  enforced.  A  military 
commander  comes  and  says,  here  are  five  thou 
sand  troops  firing  upon  us.  The  people  are  in 
arms  ;  there  is  no  civil  law  that  can  be  enforced  ; 
your  wives  and  children  cry  to  us  for  protection. 
Your  sheriff  is  not  strong  enough  to  protect  them ; 
juries  cannot  be  impanelled ;  courts  cannot 
sit ;  and  we  must  have  a  law.  Well,  Sir,  what 
do  we  do  ?  We  say  Massachusetts  has  provided 
for  this  great  emergency.  We  have  a  martial  law. 
Let  military  courts  proceed  where  civil  courts  can 
not.  We  therefore  go  to  the  legislature,  and  ask 
them  to  proclaim  martial  law  for  that  part  of  the 
Commonwealth  where  civil  law  will  not  apply. 
And  what  does  the  legislature  say  ?  They  say  : 
"  We  had  the  power  to  do  what  you  ask  us  to  do 
up  to  1853,  when  a  Convention  was  held  to  re 
vise  the  Constitution.  It  was  composed  of  very 
good,  very  wise  and  excellent  men,  but  they 
were  under  the  impression  that  there  ought  not 
to  be  martial  law,  and  they  have  taken  away  the 
power  of  proclaiming  it."  And  then  the  legisla 
ture  of  Massachusetts  will  go  down  upon  its 
knees  to  this  military  commander,  and  beg  him 
to  enforce  that  martial  law  which  they  have  not 
the  power  to  proclaim.  They  will  surrender  up 
to  this  one  man,  despot  though  he  may  be,  all  the 
power  they  possess,  and  allow  him  to  exercise  it 
without  the  power  of  controlling  him,  because 
this  Convention  has  said  that  in  no  case  shall  the 
legislature  proclaim  martial  law. 

Now  the  question  is  riot  whether  we  shall  have 
martial  law  cr  not,  for  that  we  shall  have,  if  the 
case  should  ever  arise  when  it  should  be  needed ; 
but  the  question  is,  whether  we  shall  allow  a 
military  chieftain,  who  may  come  here,  to  as 
sume  that  power  for  himself,  without  the  power 
of  the  legislature,  or  of  any  civil  tribunal  to  con 
trol  him,  or  whether  it  shall  be  left  in  the  power 
of  the  legislature  to  proclaim  it  when  it  shall  ap 
pear  that  the  civil  law  cannot  be  exercised  ?  Shall 
we  leave  it  to  them,  or  shall  we  place  ourselves 
in  the  mortifying  condition  of  forcing  a  military 
hero  to  assume  the  power,  in  an  emergency, 
because  we  have  unwisely  tied  our  hands  in  a 
period  of  peace  ? 

Mr.  HALLETT,  for  Wilbraham.  :  As  the  gen 
tleman  for  Manchester  had  leave  to  state  his  view 
of  this  question,  and  as  I  think  he  has  stated  it 
not  in  accordance  with  the  law  or  the  facts  of 
the  case,  I  ask  the  indulgence  of  the  Convention 
to  say  a  few  words  in  reply,  and  promise  that  I 
will  detain  them  but  a  moment. 

If  I  understand  the  point  made  by  the  gentle 
man,  he  assumes  that  "  military  law  "  is  "  mar 
tial  law."  Now,  Sir,  martial  law  is  not  military 


law,  and  I  am  sure  that  the  gentleman  cannot 
undertake  to  assert  it,  from  any  authority  he  can 
produce.  I  can  only  attribute  his  error  to  his 
not  having  looked  into  the  matter.  I  presume 
that  Blackstone  was  not  before  him,  or  the  opinion 
of  Judge  Woodbury,  when  he  made  that  asser 
tion.  Sir,  I  repeat,  martial  law  is  not  military 
law.  You  cannot  find  any  martial  law  upon  the 
statute  books.  Martial  law  is  the  absence  of  all 
law.  It  can  only  be  proclaimed  when  the  laws 
which  the  legislature  has  established  cannot  be 
enforced.  I  read  from  Judge  Woodbury's  opinion, 
as  given  in  the  7th  volume  of  Howard's  Reports, 
in  the  Rhode  Island  causes.  The  question  there 
was,  whether  martial  law  could  be  proclaimed  by 
a  legislature.  The  learned  judge  says : — 

"  The  present  laws  for  the  government  of  the 
military  in  England,  do  not  exist  in  the  vague 
and  general  form  of  martial  law,  but  are  ex 
plicitly  restricted  to  the  military,  and  are  allowed 
as  to  them  only  to  prevent  desertion  and  mutiny, 
and  to  preserve  good  discipline.  So  in  this  coun 
try,  legislation  as  to  the  military  is  usually  confined 
to  the  general  government,  where  the  great  powers 
of  war  and  peace  reside  ;  and  hence,  under  these 
powers,  congress,  by  the  Act  of  1806,  has  created 
the  Articles  of  War  « by  which  the  armies  of  the 
United  States  shall  be  governed,'  and  the  militia, 
when  in  actual  service,  and  only  they.  To  show 
that  this  is  not  the  law  by  which  other  than  those 
armies  shall  be  governed,  it  has  been  found  neces 
sary,  in  order  to  include  merely  the  drivers  or 
artificers  « in  the  service,'  and  the  militia,  after 
mustered  into  it,  to  have  special  statutory  sections. 
Till  mustered  together,  even  the  militia  are  not 
subject  to  martial  law.  And  whenever  an  at 
tempt  is  made  to  embrace  others  in  its  operation, 
not  belonging  to  the  military  or  the  militia,  nor 
having  ever  agreed  to  the  rules  of  the  service, 
well  may  they  say,  we  have  not  entered  into  such 
bonds — in  hccc  vincula  non  veni.  Well  may  they 
exclaim,  as  in  Magna  Charta,  that  '  no  freeman 
shall  be  taken  or  imprisoned  but  by  the  lawful 
judgment  of  his  equals,  or  by  the  law  of  the 
land.'  " 

Again  he  says  : — 

"  So  it  is  a  settled  principle  even  in  England, 
that  «  under  the  British  Constitution,  the  military 
law  does  in  no  respect  either  supersede  or  inter 
fere  with  the  civil  law  of  the  realm  ;'  and  that « the 
former  is  in  general  subordinate  to  the  latter.'  " 

Now  there  is  the  rule  of  law,  and  the  clear  dis 
tinction  between  military  law  and  law  martial. 
I  do  not  suppose  that  the  gentleman  for  Manches 
ter  intentionally  misstated  the  point ;  but  I  must 
say  that,  as  a  lawyer,  he  stated  it  very  disingen 
uously.  Now  I  ask,  will  the  gentleman  contend 
that  military  law  should  supersede  the  civil  law  ? 

Mr.  DANA.     I  said  nothing  of  that  sort. 


470 


BILL   OF   RIGHTS. 


[68 th  day. 


Wednesday,] 


HAI.LETT  —  DANA  —  BIRD. 


[July  27th. 


Mr.  HALLETT.  The  gentleman  said  that 
martial  law  existed  in  our  statute  books,  and  that 
when  the  civil  law  could  not  be  carried  out  it 
should  be  superseded  by  martial  law.  If  he  it? 
correct,  it  follows  that  military  law  may  supersede 
civil  law  whenever  the  legislature  choose  to  say  so. 
Now,  Sir,  I  repeat  that  military  law  and  martial 
law  are  not  the  same  thing,  and  that  there  is  no 
martial  law  in  the  statute  book.  The  gentleman 
alluded  to  a  court-martial,  and  to  a  judge  advo 
cate.  Why,  Sir,  there  are  no  judge  advocates 
under  martial  law.  No,  Sir;  if  the  gentleman 
had  ever  looked  into  any  book  upon  martial  law 
or  upon  military  law  concerning  a  court-martial, 
he  would  have  known  the  distinction.  There  is 
no  trial  under  martial  law.  There  is  no  judge 
advocate.  It  is  the  drum-head  and  the  platoon. 

Mr.  DANA.  Does  the  gentleman  mean  to 
say  that  the  legislature  has  no  right  to*  control 
martial  law  or  to  enact  it  ? 

Mr.  HALLETT.  Yes,  Sir.  The  legislature 
can  only  declare  martial  law,  or  enact  that  certain 
persons,  or  the  whole  people,  shall  be  piit  under 
martial  law.  They  cannot  alter  martial  law,  nor 
decree  what  it  is.  The  case  for  declaring  that 
martial  martial  law  exists,  can  arise  only  when 
the  legislature,  as  it  did  in  Rhode  Island,  shall 
declare  the  whole  State  to  be  under  martial  law. 
In  other  words,  an  abrogation  of  all  law.  The 
legislature  of  Massachusetts  could  not  declare  one 
portion  of  the  Commonwealth  under  martial  law 
and  the  other  under  civil  law,  during  a  campaign. 
They  could  not  declare  one  town  under  martial 
law  and  another  under  civil  law. 

Mr.  DANA.  The  gentleman  has  not  answered 
my  question.  I  ask  him  whether  he  means  to 
deny  that  the  martial  law  is  under  the  control  of 
the  legislature,  atid  whether  they  have  not  the 
right  to  make  laws  regulating  it  r 

Mr.  HALLETT.  That  is  the  point  I  was 
explaining.  No,  Sir ;  the  legislature  cannot 
make  martial  law  or  control  it,  because  they  have 
no  power  to  enact  in  detail  a  code  of  law  which 
abrogates  civil  law.  They  have  no  authority 
whatever,  except  that  contained  in  this  provision 
in  the  Bill  of  Rights,  which  is  just  this,  as  it 
stands  in  the  present  Constitution : — 

"  No  person  can  in  any  case  be  subjected  to 
law  martial,  or  to  any  penalties  or  pains  by  virtue 
of  that  law,  except  those  employed  in  the  army 
or  navy,  and  except  the  militia  in  actual  service, 
but  by  the  authority  of  the  legislature." 

There  is  the  authority  which  is  to  declare  mar 
tial  law,  or  to  subject  persons  to  martial  law ; 
not  to  make  or  modify  martial  law.  Now  the 
gentleman  says  the  legislature  ought  to  have  au 


thority  to  put  any  man,  or  the  whole  State,  under 
martial  law.  Do  you  mean  to  give  the  legislature 
that  power  ?  Do  you  mean,  when  you  come  here 
to  propose  to  the  people  a  Constitution  which  pre 
scribes  and  limits  the  legislature,  to  say  that  the 
legislature  shall  have  power  to  abrogate  even  the 
Constitution  itself,  whenever  they  shall  think 
proper  ?  Do  you  mean  to  give  them  the  authori 
ty  to  point  to  this  man,  or  that  man,  and  say  he 
shall  be  put  under  martial  law,  without  any  pro 
tection  of  his  rights  by  civil  law  ?  What  is  the 
use  of  your  Bill  of  Rights  r  What  is  the  use  of 
anything  in  your  Constitution  with  that  provision 
which  makes  the  legislature  as  lawless  as  a  Ro 
man  Dictator } 

Now  instead  of  that,  it  is  proposed  to  take  this 
power  away  from  the  legislature  and  provide  that 
no  person  shall  be  subjected  to  law  martial  except 
those  engaged  in  the  army  and  navy,  and  except 
the  militia  in  actual  service.  That  is  the  law  mar 
tial  of  the  camp,  which  follows  the  army  wherever 
it  goes,  and  that  is  all  the  law  martial  which  any 
republican  Constitution,  made  since  the  Revo 
lution,  ought  to  provide  for,  and  it  is  all  the  mar 
tial  law  I  hope  this  Convention  will  consent  to. 

To  settle  this  matter  of  definition,  I  will  read  a 
short  extract  from  4  Blackstone's  Commentaries, 
concerning  martial  law.  He  says  : — 

"Martial  law,  which  is  built  upon  no  settled 
principles,  but  is  entirely  arbitrary  in  its  decisions, 
is,  as  Sir  Matthew  Hale  observes,  in  truth  and 
reality  no  laic,  but  something  indulged  in  rather 
than  allowed  as  a  law.  The  necessity  of  order 
and  discipline  in  an  army,  is  the  only  thing  which 
can  give  it  countenance." 

Mr.  BIRD,  of  Walpole.  I  have  but  a  single 
word  to  say,  and  that  is  this :  I  hold  that  those 
who  are  opposed  to  the  passage  of  this  resolve, 
must  show  that  there  is  a  necessity  for  conferring 
upon  the  State  authorities  this  power  to  declare 
martial  law. 

Mr.  DANA.     We  have  always  had  it. 

Mr.  BIRD.  There  may  have  been  a  necessity 
for  it  when  this  Constitution  was  formed,  for  we 
had  not  then  tried  the  experiment  of  self-govern 
ment.  It  was  then  a  very  doubtful  experiment, 
and  it  is  easy  to  believe  that  it  may  have  been 
wise  then  to  put  such  a  provision  into  the  Consti 
tution.  But  before  gentlemen  can  with  good 
reason  call  upon  me  to  vote  for  continuing  this 
power,  they  must  show  that  the  power  is  neces 
sary  in  this  year  of  grace,  1853.  Sir,  I  do  not 
believe  it.  It  may  have  been  considered  neces 
sary,  or  because  it  may  have  been  really  neces 
sary  in  1780,  it  does  not  follow  that  it  should 
be  continued  now  when  that  necessity  has  passed 
awav. 


68th  day.] 


BILL   OF   RIGHTS. 


471 


Wednesday,] 


SCHOULER  —  BIRD  —  CHURCHILL  —  FRENCH  —  BROWN. 


[July  27th. 


Mr.  SCHOULER.  Suppose  it  should  be 
necessary  fifty  years  hence  ? 

Mr.  BIRD.  It  has  not  been  necessary  for 
fifty  years  past,  and  I  believe  the  world  is  grow 
ing  better  instead  of  growing  worse,  and  therefore 
it  will  be  no  more  necessary  fifty  years  hence 
than  it  is  now. 

Now,  I  must  first  be  satisfied  that  any  con 
ceivable  case  can  ever  arise  in  Massachusetts 
where  it  will  be  necessary  for  the  State  authori 
ties  to  proclaim  martial  law,  before  I  will  ever 
vote  to  confer  such  a  monstrous  power  upon  the 
legislature. 

But  there  is  another  question  which  may  very 
well  be  asked — whether  the  State  of  Massachu 
setts  has,  or  has  ever  had  since  the  adoption  of  the 
Federal  Constitution,  the  power  under  any  cir 
cumstances,  to  proclaim  martial  law  ?  I  think  it 
would  not  be  very  difficult  to  show  that  Massa 
chusetts  has  given  to  the  federal  government  the 
entire  control  of  this  matter.  By  the  Constitution 
of  the  United  States,  any  individual  State  has  no 
right  to  declare  war,  and  martial  law  can  only  be 
declared  in  a  state  of  war.  We  might  find  our 
selves  in  a  state  of  insurrection  under  circum 
stances  when  it  would  be  justifiable  to  declare 
martial  law  ;  but  even  then  it  could  be  done  by 
State  authorities  only,  against  law. 

But,  waiving  this  question,  I  do  not  believe 
any  emergency  will  ever  arise  within  the  borders 
of  the  State  of  Massachusetts,  where  it  would  be 
advisable  to  confer  upon  the  legislature  the  power 
to  declare  martial  law.  I  do  not  believe  such  a 
state  of  circumstances  is  possible  in  the  nature  of 
things,  in  the  next  fifty  years.  I  do  not  believe 
any  person  upon  this  floor  will  rise  here  and  say 
he  seriously  believes  that  any  emergency  will  ever 
arise  in  Massachusetts  which  may  not  be  safely 
controlled  by  the  civil  authorities.  Then  where 
is  the  necessity  or  propriety  of  conferring  such  a 
power  upon  the  legislature  when  we  can  hardly 
conceive  of  an  instance  in  which  it  would  be 
proper  to  use  it  ?  I  hope  the  proposition  before 
the  Convention  will  be  adopted. 

Mr.  CHURCHILL,  of  Milton.  It  seems  to 
me  that  if  we  are  to  adjourn  on  Saturday,  the 
debate  upon  this  particular  topic  has  been  pro 
longed  as  far  as  is  necessary.  It  seems  to  me  that 
a  power  that  has  existed  so  in  the  Constitution 
without  any  harm  coming  from  it,  may  very 
safely  be  trusted  there  in  future.  At  the  same 
time,  I  believe  some  great  emergency  may  arise 
in  the  future,  when  such  a  power  would  be 
necessary.  I  therefore  move  to  lay  the  whole 
subject  on  the  table. 

Mr.  BIRD.  Upon  that  motion,  I  ask  for  the 
yeas  and  nays. 


The  yeas  and  nays  were  not  ordered,  25  voting 
in  the  affirmative,  and  104  in  the  negative. 

The  question  upon  Mr.  Churchill's  motion  was 
then  taken,  and  agreed  to — ayes,  70 ;  noes,  67. 

So  the  whole  subject  was  laid  upon  the  table. 

Mr.  FRENCH,  of  New  Bedford.  I  move  a 
reconsideration  of  the  last  vote,  that  the  subject 
may  go  among  the  Orders  of  the  Day  for  to 
morrow. 

The  PRESIDENT.  At  the  present  time,  the 
Orders  of  the  Day  are  under  consideration.  The 
next  order  is  the  document  on  the  Bill  of  Rights. 
The  question  is  on  its  final  passage. 

Mr.  MOREY,  of  Boston.  I  move  that  the 
Convention  do  now  adjourn. 

The  question  was  taken,  and  on  a  division  there 
were — ayes,  65  ;  noes,  93. 

So  the  Convention  refused  to  adjourn. 

Mr.  BRIGGS,  of  Pittsfield.  I  wish  to  inquire 
whether  the  yeas  and  nays  have  been  ordered  oil 
the  amendments  to  the  Bill  of  Rights  ?  It  seems 
to  me,  that  if  they  have  not,  we  ought  not  to  take 
the  question  now,  on  such  a  subject. 

Mr.  SUMNER,  for  Marshfield.  There  has 
been  no  vote  to  take  the  yeas  and  nays  on  this 
proposition. 

Mr.  BRIGGS.  Then  I  think  we  ought  not  to 
act  upon  it  now,  with  a  house  consisting  of 
scarcely  a  quorum. 

The  PRESIDENT.  The  question  is  on  the 
final  passage  of  the  resolves. 

Mr.  SCHOULER,  of  Boston.  As  I  wish  to 
move  an  amendment  to  that  Report,  of  which  I 
gave  notice  last  night,  I  hope  the  Orders  of  the 
Day  may  be  laid  on  the  table  ;  and  I  make  that 
motion,  that  they  lie  on  the  table. 

The  motion  was  agreed  to. 

Mr.  SCHOULER.  I  move  that  the  Conven 
tion  adjourn. 

The  question  being  taken,  on  a  division  there 
were — ayes,  83  ;  noes,  44. 

So  the  Convention  adjourned  until  three  o'clock, 
P.M. 

AFTERNOON  SESSION. 

The  Convention  reassembled  at  three  o'clock. 

Mr.  BROWN,  of  Medway.  I  voted  this  fore 
noon,  under  a  misapprehension,  on  the  subject  of 
the  rights  of  the  jury.  That  vote  does  not  ex 
press  my  real  views,  and  I  wish  to  have  it  changed, 
so  that  it  may  be  recorded  yes,  instead  of  110,  on 
that  question,  if  it  is  consistent  with  the  rules  to 
do  so. 

The  PRESIDENT.  The  subject  having 
passed  in  Convention,  it  is  not  competent  for  the 
gentleman  to  change  his  vote  at  this  time. 

Mr.   WILSON,   of  Natick.     I   move  to  take 


472 


HOUSE   OF   REPRESENTATIVES,  &c. 


[68th  day. 


Wednesday,] 


WILSON  —  PARKER  —  MORTON  —  HUNTINGTON. 


[July  27th. 


from  the  table  the  resolutions  in  relation  to  future 
amendments  of  the  Constitution.  I  wish  to  have 
the  subject  placed  in  the  Orders  of  the  Day. 

The  motion  was  agreed  to. 

Mr.  WILSON.  For  the  purpose  of  saving 
time,  I  move  to  suspend  the  rules  for  the  pur 
pose  of  having  this  subject  placed  in  the  Orders  of 
the  Day,  for  to-day. 

The  motion  to  suspend  the  rules  was  agreed  to, 
and  the  resolutions  were  placed  in  the  Orders  of 
the  Day. 

Sectarian  Schools. 

Mr.  PARKER,,  of  Cambridge.  I  move  now 
to  take  from  the  table  the  subjects  contained  in 
Documents  Nos.  11  and  16  of  the  calendar,  rela 
ting  to  schools  and  school  moneys.  I  do  not  wish 
to  consume  the  time  of  the  Convention  by  any 
remarks ;  but  I  must  regard  a  refusal  to  take 
them  up,  as  a  refusal  to  act  upon  them  at  all. 

The  motion  to  take  them  up,  and  proceed  to 
their  consideration,  was  agreed  to. 

The  question  was  on  the  second  reading  of  the 
following  resolve : — 

Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution,  as  to  provide  that  no  public  money 
in  this  Commonwealth,  whether  accruing  from 
funds,  or  raised  by  taxation,  shall  ever  be  appro 
priated  for  the  support  of  sectarian  or  denomina 
tional  schools. 

Mr.  PARKER.  I  move  to  amend  the  resolu 
tion  of  the  Committee,  by  striking  out  all  after  the 
word  "  Resolved,"  and  inserting  the  resolve  con 
tained  in  Document  No.  123,  which  is  as  fol 
lows  : — 

That  all  moneys  raised  by  taxation  in  the  towns 
and  cities,  for  the  support  of  public  schools,  and 
all  moneys  which  may  be  appropriated  by  the 
State  for  the  support  of  common  schools,  shall  be 
applied  to,  and  expended,  in  no  other  schools 
than  those  which  are  conducted  according  to  law, 
under  the  order  and  superintendence  of  the 
authorities  of  the  town  or  city  in  which  the 
money  is  to  be  expended ;  and  such  moneys  shall 
never  be  appropriated  to  any  religious  sect  for  the 
maintenance,  exclusively,  of  its  own  schools. 

I  do  not  wish  to  detain  the  Convention  a  mo 
ment  with,  this  subject.  This  amendment  has 
been  prepared  on  consultation  with  divers  gentle 
men  ;  and  it  is  one  which,  I  suppose,  will  meet  the 
approbation  of  the  Convention,  and  may  be  adopt 
ed  without  debate  ;  and  unless  some  gentleman 
objects  to  it,  I  shall  take  no  time  in  explaining  it 
now. 

The  question  was  then  taken  on  the  adoption  of 
the  amendment,  and  it  was  decided  in  the  affirm 
ative. 


The  question  recurred  on  the  final  passage  of 
the  resolution  as  amended,  and  it  was  passed. 

Special  Assignment. 

Mr.  MORTON,  of  Taunton.  There  is  a  sub 
ject  before  the  Convention  of  some  consider 
able  interest,  upon  an  amendment  which  I  had 
the  honor  to  offer  to  the  resolution  in  relation  to 
representatives.  At  the  request  of  certain  indi 
viduals  who  were  not  satisfied  with  my  amend 
ment,  I  withdrew  it  a  fortnight  ago,  and  submit 
ted  it  as  an  independent  proposition.  For  the 
accommodation  of  gentlemen  who  wished  to  press 
forward  other  business,  I  omitted  to  call  it  up 
until  now.  I  find  that  gentlemen  are  anxious  to 
close  their  labors  here,  and  that  there  are  other 
propositions  which  they  wish  to  have  acted  upon 
at  present ;  and  I  have  agreed  to  move  that  the 
Committee  be  discharged  from  its  considera 
tion,  so  that  there  may  be  a  special  assignment 
for  it  to-morrow,  at  an  early  hour.  It  will  be 
necessary,  in  order  to  accomplish  it,  that  there 
should  be  a  motion  to  suspend  the  rules  for  the 
purpose  of  discharging  the  Committee. 

The  motion  to  discharge  the  Committee  from 
the  consideration  of  the  resolution,  was  agreed 
to. 

Mr.  MORTON.  I  move  that  the  rules  be  sus 
pended,  so  that  the  subject  may  be  considered  in 
Convention. 

The  motion  was  agreed  to. 

Mr.  MORTON.  I  now  move  that  it  be  specially 
assigned  as  the  subject  for  consideration  at  ten 
o'clock,  to-morrow. 

Mr.  HUNTINGTON,  of  Northampton.  It 
seems  to  me  this  question  is  closely  connected 
with  another  question  which  remains  to  be  settled 
yet ;  and  that  is,  as  to  the  mode  in  which  these 
amendments  are  to  be  submitted  to  the  people. 
If  these  amendments  are  to  go  before  the  people 
as  a  whole,  under  the  form  of  a  revised  Constitu 
tion,  I  do  not  see  how  this  can  be  adopted ;  and  I 
think  that  until  that  question  is  settled,  it  should 
not  be  discussed.  I  object  to  having  it  made  a 
special  assignment  for  to-morrow  morning  at  ten 
o'clock,  until  the  other  question  is  settled.  It 
seems  to  me  we  shall  only  get  ourselves  into 
embarrassment,  and  consume  time  to  no  purpose, 
by  taking  up  this  subject,  until  we  have  settled 
the  other  question. 

Mr.  MORTON.  I  make  this  motion  under 
somewhat  peculiar  circumstances ;  and  if  it  is 
debatable,  I  should  like  to  give  the  reasons  why 
I  claim  to  have  it  assigned  for  consideration  to 
morrow  at  ten  o'clock. 

The  PRESIDENT.  It  is  debatable  to  that 
extent. 


68th.  day.] 


HOUSE   OF  REPRESENTATIVES. 


473 


Wednesday.] 


MORTON  —  WILSON  —  HUNTINGTON  —  EARLE  —  SCHOULER. 


[July  27th. 


Mr.  MORTON.  It  will  be  recollected  that  this 
proposition  was  submitted  more  than  two  weeks 
ago,  as  an  amendment  to  the  resolves  in  relation 
to  representation.  At  the  request  of  certain 
individuals  who  were  in  favor  of  this  proposition, 
and  upon  the  assurance  that  it  should  have  an 
early  consideration,  I  withdrew  it  as  an  amend 
ment.  I  did  not  wish  to  press  it  upon  the  Con 
vention,  nor  to  surprise  them  with  it  at  any  time, 
and  concluded  to  offer  it  as  an  independent  propo 
sition.  Various  subjects  have  come  up,  and  it 
has  been  postponed  from  time  to  time,  at  the 
request  of  gentlemen  who  had  some  object  which 
they  wished  to  have  acted  upon,  until  the  present 
time.  I  think  that,  under  the  circumstances,  I 
have  a  strong  claim  to  have  it  considered  by  the 
Convention  at  an  hour  when  they  can  have  an 
opportunity  to  consider  it.  I  therefore  desire  that 
an  early  hour  may  be  fixed  for  its  consideration 
to-morrow. 

So  far  as  the  objection  goes,  I  think  it  should 
not  prevail,  because  the  gentleman  may  have  as 
much  of  an  opportunity  to  discuss  it  under  this, 
as  under  the  independent  proposition  ;  and  there 
fore,  I  hope  that,  under  the  peculiar  circumstances, 
the  Convention  will  do  me  the  favor,  I  may  say 
the  justice,  to  make  the  special  assignment.  It  is 
obvious,  and  we  all  rejoice  at  it,  that  this  Con 
vention  is  about  to  draw  to  a  close ;  and  unless  this 
proposition,  which  is  a  pretty  important  one,  is 
considered  early  to-morrow  forenoon,  there  will 
no  proper  opportunity  to  consider  it  at  the  pres 
ent  session  of  the  Convention. 

Mr.  WILSON,  of  Natick.  I  wish  to  say  but  a 
single  word  in  relation  to  this  matter.  I  hope  it 
will  be  specially  assigned  for  to-morrow,  and  if  at 
that  time  it  is  not  best  to  consider  it  then,  if  other 
things  come  up,  it  can  be  deferred  for  a  short  time. 
We  have  several  subjects  which  it  is  necessary  to 
dispose  of  this  afternoon,  and  I  hope  the  gentle 
man  from  Northampton  will  not  object  to  it. 

Mr.  HUNTINGTON,  of  Northampton.  I 
have  no  objection  to  that  time,  if  wre  can  save 
time  by  it ;  but  the  other  question  in  relation  to 
the  mode  of  submitting  the  amendments  to  the 
people,  has  got  to  be  discussed  when  it  is  brought 
before  the  Convention  by  the  Committee  who  are 
to  report  upon  that  subject.  If  you  assign  this 
subject  for  to-morrow  morning  at  ten  o'clock,  it 
will  be  discussed  then,  and  you  will  inevitably 
have  another  discussion  on  it  when  the  Committee 
report;  and  thus  you  will  consume  double  the 
time  that  is  necessary.  It  appears  to  me,  that  in 
discussing  the  main  question,  this  will  also  be 
brought  in  and  discussed  incidentally.  The  gen 
tleman  from  Natick  seems  to  suppose,  that  unless 
this  is  specially  assigned  for  some  future  time,  it 


necessarily  comes  up  now ;  but  that  is  not  so.  If 
it  is  not  assigned  for  to-morrow  morning,  it  may 
go  over,  and  if  the  gentleman  from  Taunton  will 
assign  it  for  the  same  time  that  the  other  question 
is  to  be  discussed,  I  think  we  shall  save  time  by 
so  doing ;  as  the  two  subjects  are  connected,  let 
them  be  discussed  together.  I  do  not  see  why 
the  gentleman  cannot  modify  his  motion,  so  as  to 
have  this  assigned  for  the  same  time  that  the 
other  subject  is  taken  up.  If  he  will  make 
that  motion,  I  will  vote  for  it. 

Mr.  EARLE.  I  think  if  this  subject  is  first 
discussed,  it  will  do  very  much  towards  enabling 
us  to  come  to  a  proper  result  in  relation  to  the 
other  question.  I  think  that  that  question  can 
not  be  settled  before,  so  well  as  it  can  be  after  this 
is  determined.  When  this  comes  to  be  discussed, 
it  will  probably  lead  to  other  propositions,  and  I 
think  it  should  be  disposed  of  before  the  other 
subject  is  taken  up.  For  these  reasons,  I  am  in 
favor  of  the  motion  of  the  gentleman  from  Taun 
ton,  and  hope  this  subject  will  be  assigned  for 
to-morrow  morning. 

Mr.  SCHOULER,  of  Boston.  I  have  been 
trying  for  the  last  fortnight  to  discover  some 
insuperable  objection  to  having  this  alternative 
proposition  taken  up.  Gentlemen  who  have 
spoken  to  me  about  it,  have  told  me  that  it  was 
not  possible  to  dispose  of  that  subject  now,  and  I 
understand  the  gentleman  from  Northampton,  to 
consider  it  impossible.  If  wre  decide  that  the 
Constitution  shall  go  out  as  a  whole,  with  the 
exception  of  this  representative  question,  I  under 
stand  him  to  argue  that  it  will  be  impossible  to 
send  out  an  alternative  proposition  with  regard 
to  the  basis  of  representation.  There  must  be 
some  objection  that  I  have  not  thought  of  nor 
heard  of;  for  really,  I  cannot  conceive  of  any. 
Supposing  we  do  decide  that  the  Constitution 
shall  go  out  to  the  people  as  a  whole,  still  I  can 
conceive  of  no  objection  to  having  this  part  con 
sidered  separately.  We  may,  for  instance,  place 
in  the  Constitution,  the  system  of  town  represen 
tation  that  has  been  adopted  by  the  Committee 
and  the  Convention  ;  and  at  the  same  time  we  can 
send  out  to  the  people  the  other  proposition  for 
them  to  vote  on,  and  provide,  that  if  the  district 
system  receives  the  largest  number  of  votes,  that 
shall  be  inserted  into  the  Constitution  in  place  of 
the  other.  I  can  think  of  no  difficulty  about 
arranging  that  matter.  I  think  I  can  frame  a  pro 
position  in  five  minutes,  that  will  put  the  matter 
just  right,  unless  there  is  some  objection  which  has 
not  yet  been  advanced.  I  am  in  favor  of  the  gen 
tleman's  proposition,  that  we  shall  take  up  the 
subject  to-morrow  morning  at  ten  o'clock,  and 
decide  whether  we  are  to  submit  anything  to  the 


474 


BILL   OF   RIGHTS,  &c. 


[68th  day. 


Wednesday,] 


EAMES  —  WHITE  —  WILSON  —  HALLETT  —  DANA. 


[July  27th. 


people  besides  the  system  of  town  representation 
which  has  been  adopted.  It  has  been  intimated 
that  there  is  a  compromise  proposition  to  be  offer 
ed,  that  will,  perhaps,  reconcile  all  differences.  I 
think  if  this  matter  is  taken  up  to-morrow  morn 
ing,  there  will  be  an  advantage  in  having  an  early 
decision  of  the  question,  in  order  that  the  Com 
mittee  who  are  to  prepare  and  write  out  the 
amendments  to  the  Constitution,  may  be  enabled 
to  govern  themselves  accordingly.  For  these 
reasons,  I  am  in  favor  of  the  special  assignment 
proposed  by  the  gentleman  from  Tauiiton. 

Mr.  EAMES,  of  Washington.  I  am  in  favor 
of  the  assignment  for  to-morrow  morning,  for  I 
am  willing  to  give  the  gentleman  from  Taunton 
time  to  have  the  matter  discussed ;  but,  for  the 
purpose  of  putting  an  end  to  this  preliminary  de 
bate,  which  accomplishes  nothing,  and  in  order  to 
enable  us  to  get  home  to  our  constituents  some 
time  or  other,  I  now  move  the  previous  ques 
tion. 

The  previous  question  was  ordered. 

The  question  being  then  taken  on  the  motion 
of  Mr.  Morton,  it  was  agreed  to. 

Leave  of  Absence. 

The  PRESIDENT.  The  Chair  has  received  a 
communication  from  Mr.  Huntington,  member  of 
the  Convention  for  Becket,  stating  that  in  conse 
quence  of  a  death  in  his  family,  he  is  obliged  to 
ask  leave  of  absence  until  the  close  of  the  session 
of  the  Convention. 

On  motion  by  Mr.  EAMES,  leave  of  absence 
•was  granted. 

Sectarian  Schools. 

Mr.  WHITE,  of  Quincy,  moved  to  reconsider 
the  vote  by  which  the  resolve  on  the  subject  of 
appropriations  for  sectarian  schools  was  passed ; 
and  upon  that  motion  he  asked  the  yeas  and 
nays. 

The  motion  was  placed  in  the  Orders  of  the  Day 
for  to-morrow. 

Sill  of  Rights. 

Mr.  WILSON,  of  Natick,  moved  that  the  Con 
vention  proceed  to  the  consideration  of  the  re 
solves  from  the  Committee  on  the  Bill  of  Rights. 

The  motion  was  agreed  to ;  and  the  resolves 
having  been  read  a  second  time,  the  question  was 
stated  on  their  final  passage. 

Mr.  HALLETT,  for  Wilbraham,  moved  to 
strike  out  the  following  words,  being  the  same 
that  had  been  inserted  on  the  motion  of  Mr. 
Dana : — 

"  Said  writ  shall  be  granted,  as  of  right,  in  all 
cases  where  the  legislature  shall  not  specially  con 


fer  discretion  therein  upon  the  court;  but  the 
legislature  may  prescribe  preliminary  proceedings 
to  the  obtaining  of  said  writ." 

Mr.  HALLETT.  Mr.  President :  This  is  a 
wholly  new  question,  and  I  wish  gentlemen  to 
be  apprised  of  its  importance.  The  insertion  of 
this  provision  in  our  Constitution,  may  bring 
the  United  States  and  the  State  into  direct 
conflict.  This  provision  may  authorize  any  per 
son  to  take  out  of  the  custody  of  any  United 
States  officer,  any  one  whom  he  has  in  trust 
upon  a  criminal  or  civil  process.  The  result 
of  it  is,  you  compel  your  State  courts  to  issue 
a  writ  of  habeas  corpus,  and  one  of  your  con 
stables  or  sheriffs  goes  to  the  marshal  to  ex 
ecute  it,  who  must  either  resist  it,  or  be  liable  to 
a  penalty  if  he  allows  it  to  be  carried  into  effect. 
If  the  marshal  resists,  the  United  States  forces 
will  be  called  out,  and  he  will  be  sustained  by  the 
United  States  law.  He  would  call  on  his  posse 
comitatus,  and  if  the  governor  happens  to  be  on 
his  side,  he  would  have  the  military  ordered  out 
to  assist  him,  and  you  would  have  war  imme 
diately.  If  this  Convention  desire  to  have  a  war, 
they  must  find  means  to  carry  it  on.  Now,  Sir, 
I  object  to  throwing  any  such  firebrand  as  this 
into  the  Constitution.  I  hope  we  shall  leave  this 
matter  where  we  found  it ;  for  if  we  are  going  to 
have  wrar,  I  want  to  know  what  your  martial 
law  is  going  to  be. 

Mr.  DANA,  for  Manchester.  Will  the  gentle 
man  allow  me  to  ask  him  wherein  my  provisions 
differ  from  a  law  in  the  Revised  Statutes,  which 
has  been  in  force  ever  since  1822  ? 

Mr.  HALLETT.  I  will  tell  the  gentleman 
that  there  is  a  difference  in  one  important  point. 
The  gentleman  wants  to  carry  his  particular  cases. 
He  accused  me  of  bringing  some  matters  into  the 
Constitution,  for  which  he  said  I  desired  to  make 
constitutional  provisions  because  I  had  lost  cases; 
but  the  gentleman  also  lost  a  case,  and  he  has  got 
his  hobby  here  that  he  proposes  to  ride  through 
the  Convention.  I  hope  the  Convention  will  not 
allow  him  to  ride  it  in  peace. 

Mr.  DANA.     That  is  not  my  question. 

Mr.  HALLETT.  I  was  going  to  answer  the 
gentleman's  question,  if  he  will  let  me  take  my 
time  for  it.  The  gentleman  asks  in  what  respect 
this  provision  that  he  proposes  to  introduce  into 
the  Constitution,  is  different  from  a  law  now  in. 
force.  I  will  tell  him.  By  the  present  existing 
law,  the  judge  determines,  upon  the  presentation 
of  a  petition  and  the  evidence,  whether  he  will 
issue  the  writ  of  habeas  corpus  or  not.  In  the 
case  where  a  person  is  held  by  a  criminal  pro 
cess,  if  he  determines  that  that  legal  process  is  a 
valid  process,  he  does  not  issue  a  writ  of  habeas 


68th  day.] 


BILL   OF   RIGHTS. 


475 


Wednesday,] 


KEYES. 


[July  27th. 


corpus.  Now  the  gentleman  insists  that  if  you  go 
before  the  judge  and  apply  for  the  writ  of  habeas 
corpus,  on  the  very  civil  process  under  which  the 
marshal  holds  the  individual,  although  the  judge 
thinks  that  is  valid,  nevertheless  he  must  issue 
the  writ  of  habeas  corpus.  Then  you  have  the 
whole  State  011  the  one  hand  to  put  down,  and 
the  whole  United  States  on  the  other  hand  to  be 
put  down  ;  and  the  question  is,  who  can  fend  off 
the  hardest  ? 

Mr.  KEYES,  for  Abington.  I  have  been  quite 
concerned  the  last  three  or  four  weeks,  in  conse 
quence  of  not  having  heard  anything  said  about 
saving  the  Union.  I  think  it  has  not  been  saved 
for  at  least  three  weeks.  [Laughter.]  Since  we 
have  heard  these  patriotic  speeches  on  the  subject, 
however,  I  feel  somewhat  inspired  with  a  hope 
that  we  shall  not  go  to  pieces  before  to-morrow 
morning,  now  that  the  subject  has  been  taken  up. 
Now,  Sir,  I  take  it  that  the  meaning,  if  there  is 
any  meaning  at  all  in  this  matter,  is  to  extend 
and  to  render  more  secure  the  right  of  habeas 
corpus  in  Massachusetts,  to  individuals.  If  this 
is  the  tendency  of  it,  I  suppose  it  will  be  adopted. 
There  is  a  small  class  of  people  here  in  Massachu 
setts,  who  have  undertaken  to  save  the  Union  by 
making  us  all  negro -catchers — nothing  else;  and, 
I  trust,  whatever  this  Convention  may  do,  that  it 
will  not  degrade  itself  by  following  any  such 
lead  as  that.  Yes,  Sir ;  there  are  a  set  of  men 
here  in  Massachusetts,  who,  for  the  last  two  or 
three  years  have  taken  it  upon  themselves  to  save 
the  Union  by  making  the  people  negro- catchers — 
the  miserable  serfs  of  negro -drivers  ;  and  Henry 
Clay  says  that  even  throughout  the  South,  they 
are  a  tabooed  and  contemptible  set — tabooed  from 
all  civilized  people,  and  from  the  society  of  gen 
tlemen.  If  that  class  of  men  are  satisfied  to  be 
come  negro- catchers  ;  if  they  choose  to  become 
these  abandoned  wretches  that  are  despised  by 
all  gentlemen,  then  I  am  content  that  they  should 
do  so,  and  will  not  undertake  to  interfere  with 
them  at  all ;  but  when  they  undertake  to  make 
me  a  negro-catcher,  I  am  not  content,  for  I 
regard  it  as  a  personal  insult,  which  I  shall  take 
every  occasion,  and  every  justifiable  means  to 
resent.  I  say  that  this  class  of  men  are  despised 
by  the  human  race,  as  they  ought  to  be.  But  if 
this  matter  is  to  be  argued  seriously — and  I  do 
not  believe  that  there  is  any  need  for  it — take  the 
case  that  the  gentleman  for  Wilbraham,  (Mr.  Hal- 
lett,)  has  said  may  occur  in  Massachusetts.  A 
case  of  the  kind  has  just  occurred  in  Pennsylva 
nia  ;  and,  Sir,  the  State  of  Pennsylvania  does  not 
rank  itself  anywhere  beside  Massachusetts  ,on 
these  questions  of  liberty.  But  a  case  of  that 
sort  has  arisen  in  Pennsylvania,  and  the  marshal 


of  the  United  States,  armed  with  those  infamous 
powers  which  are  conferred  by  the  federal  gov 
ernment,  but  which  conflict  with  the  laws  of 
the  State  of  Pennsylvania,  has  been  arrested  and 
imprisoned  in  that  State.  Sir,  look  round  on 
these  walls ;  look  up  into  the  sky ;  look  at  Wash 
ington,  and  everywhere  else;  and  all  that  you 
ever  knew  about  the  Union  is  just  as  perfect  as 
before  that  event  happened.  Yes,  Sir,  this  fu 
gitive  slave  was  taken  out  of  the  hands  and  the 
custody  of  the  marshal  of  the  United  States,  by 
the  State  of  Pennsylvania,  and  when  the  marshal 
refused  to  give  him  up,  he  himself  was  imprison 
ed.  How  different,  Sir,  are  our  proceedings  in 
our  courts  in  Massachusetts  !  When  an  applica 
tion  was  made  on  behalf  of  the  State  of  Mas 
sachusetts,  to  the  United  States  marshal  of  this 
district,  in  a  similar  case,  he  set  your  application 
and  your  laws  alike  at  defiance.  The  officers  of 
the  United  States  spit  in  the  face  of  Massachu 
setts  ;  and  instead  of  that  opposition  which  should 
have  come  from  brave  men,  there  was  a  whining 
sycophancy,  a  cowardly  cringing  to  the  South, 
which  has  had  no  example  since  the  days  of  the 
Revolution ;  and  the  men  who  indorse  this  foul 
cowardice,  are  the  only  men  who  are  called  na 
tional  Democrats  or  national  Whigs.  [Laughter.] 
Sir,  according  to  the  definition  the  national  Demo 
crats  have  given  themselves,  they  are  unlineal  and 
bastard  Democrats.  [Renewed  laughter.]  What 
idea  have  they  of  the  doctrines  of  their  great 
founder,  whose  name  they  take  upon  their  lips, 
but  whose  doctrines  they  every  hour  trample  in 
the  dust  ?  I  take  it,  Sir,  that  Pennsylvania  has 
set  an  example  which  Massachusetts  may  follow ; 
that  of  this  idea  of  danger  to  the  Union,  and  this 
conflict  with  the  government  of  the  United  States, 
with  which  men,  for  their  own  base  purposes, 
have  endeavored  to  frighten  the  people  of  Massa 
chusetts,  we  have  now  had  an  example,  and  we 
now  see  to  what  it  amounts.  When  Pennsylva 
nia,  or  any  other  State  demands,  and  insists  upon 
its  just  rights,  those  rights  will  be  granted ;  and 
that  too,  without  danger  to  the  Union ;  but  if  we 
lay  down  on  our  faces,  dust-licking,  they  trample 
upon  us,  as  they  ought  to  do,  and  as  we  deserve 
to  be  trampled  upon.  We  ask  for  nothing  but 
our  just  rights  and  liberties ;  and  if  we  ask  for 
them  like  bold,  brave,  and  just  men,  we  shall  get 
them  without  much  trouble.  It  is  because  we 
have  a  pack  of  men  in  this  Commonwealth,  and 
scattered  all  over  the  country  for  political  pur 
poses,  to  show  that  they  are  national  men,  and  who 
are  forever  with  their  mouths  in  the  dust,  that 
has  brought  all  this  evil  upon  us.  Let  us  assert 
the  dignity  of  Massachusetts,  and  submit  to  this 
thing  no  longer.  Let  us  show,  that  while  we  re- 


476 


BILL   OF   EIGHTS. 


[68th  day. 


Wednesday,] 


KEYES  —  DANA. 


[July  27th. 


gard  the  government  of  the  United  States,  we  are 
not  to  neglect  the  interests  and  rights  of  the  State 
and  the  people  of  Massachusetts.  Let  the  people 
of  the  New  England  and  the  Free  States  but  say 
the  word  once,  and  all  difficulties  and  collisions 
between  the  South  and  the  North  will  end  at  once. 
Southern  men  are  gentlemen ;  Southern  men  are 
brave,  and  therefore  I  am  willing  to  trust  them. 
It  is  not  the  slave-holder,  born  on  the  Savan 
nah 

The  PRESIDENT.  The  Chair  must  remind 
the  gentleman  for  Abington,  that  he  is  passing 
beyond  the  subject  before  the  Convention. 

Mr.  KEYES.  I  was  not  aware  of  it.  I  thought 
I  was  talking  about  the  amendment.  The  amend 
ment,  if  I  understand  it,  is  for  securing  the  writ 
of  habeas  corpus,  or  rather  for  extending  the  power 
of  that  writ  in  the  State  ;  and,  Sir,  I  maintain  that 
it  is  good  for  nothing,  unless  it  applies  to  this 
matter  of  the  fugitive  slave  law.  It  is  scarcely 
ever  needed  under  any  other  circumstances,  and 
those  difficulties  between  the  North  and  the  South 
are  what  make  this  amendment  necessary. 

But,  Sir,  I  do  not  seriously  intend  to  argue  this 
amendment ;  because,  if  the  Convention  regard  the 
amendment  on  grounds  like  that,  if  the  people  of 
Massachusetts  did  not  hiss  at  the  whole  of  it  at 
once,  we  are  not  worthy  of  having  a  Constitution 
at  all.  [Laughter.]  They  will  do  it ;  and  I  hold 
it  to  be  a  duty  which  I  owe  to  my  constituents, 
and  to  myself,  as  well  as  to  the  people  of  Massa 
chusetts,  to  do  everything  in  my  power  to  prevent 
the  execution  of  this  abominable  law ;  and  any 
man  who  extends  the  powers  of  that  law,  I  hold 
does  me  a  personal  injury,  and  offers  me  a  per 
sonal  affront,  and  I  hold  him  responsible  to  me ; 
and  I  shall  never  neglect  an  opportunity  of  resist 
ing  such  an  affront  whenever  it  is  offered. 

Mr.  DANA,  for  Manchester.  The  member  for 
Wilbraham,  in  his  very  natural  excitement,  fear 
ing  the  Union  to  be  in  danger,  is  not  in  so  per 
fectly  calm  a  state  of  mind  as  is  desirable  for  the 
investigation  of  a  question  of  law.  This  is  a  pure 
question  of  law ;  and  were  it  not  that  he  is  im 
pressed  by  this  feeling  of  great  alarm,  he  would 
see  at  once,  that  what  I  propose  has  no  harm  in 
it.  The  Revised  Statutes  have  provided,  since 
1836,  and  the  old  law  provided  since  1822,  that 
every  person  restrained  of  his  liberty,  by  any 
other  person  or  persons,  may  prosecute  a  writ  of 
habeas  corpus,  according  to  the  provisions  of  the 
statute.  Now,  if  that  does  take  a  slave  out  of 
the  custody  of  his  master,  we  cannot  help  it ;  it  is 
the  law,  and  it  must  be  enforced  when  necessity 
arises. 

"Every  person  imprisoned  in  any  common  jail, 
or  otherwise  restrained  of  his  liberty,  by  any  offi 


cer  or  other  person,  except  in  the  cases  mentioned 
in  the  following  section,  may  prosecute  a  writ  of 
habeas  corpus,  according  to  the  provisions  of  this 
chapter,  to  obtain  relief  from  such  imprisonment 
or  restraint,  if  it  shall  prove  to  be  unlawful." 

He  shall  "prosecute  the  writ"  and  "obtain 
relief,"  if  the  restraint  shall  prove  to  be  "unlaw 
ful."  Now,  that  is  perfectly  plain.  He  is  enti 
tled  to  his  writ,  and  then,  upon  that  writ,  is  to  be 
determined  the  question  of  the  lawfulness  or  un 
lawfulness  of  the  detention  or  restraint.  If  the 
detention  proves  to  be  lawful,  he  is  not  relieved ; 
if  unlawful,  then  he  is  relieved.  I  cannot  see 
how  any  person  can  be  afraid  of  such  a  law  as 
that. 

The  second  section  describes  persons  who  shall 
not,  as  a  matter  of  right,  be  entitled  to  this  writ ; 
meaning,  thereby,  that  all  others,  with  these  ex 
ceptions,  shall  be  entitled  to  it  as  a  matter  of  right. 
"  Every  person,"  with  certain  exceptions,  "  may 
prosecute  a  writ  of  habeas  corpus.'"  And  what 
are  the  exceptions  ?  Persons  convicted  for  trea 
son  or  felony ;  persons  convicted  or  in  execution 
upon  legal  process;  and  persons  committed  on 
mesne  process.  These  shall  not  have  the  writ  as 
a  matter  of  right,  but  the  issuing  of  it  shall  be 
left  to  the  discretion  of  the  court.  In  these  three 
classes  of  cases  it  is  not  proper  that  persons 
should  be  taken  out  of  the  custody  of  an  officer 
upon  the  petition  of  every-body  who  asks  for  it, 
because  they  are  in  a  public  jail,  in  the  custody 
of  a  public  officer,  and  ordinarily  in  no  peril.  The 
court  will  hear  the  question  upon  petition  before 
they  will  decide  as  to  granting  the  writ.  But  all 
other  persons,  except  these,  shall  have  the  writ  as 
a  matter  of  right.  Why  ?  Because  they  may  not 
be  in  legal  custody ;  and  in  such  case  they  ought 
to  be  brought  into  court,  and  not  held  at  the 
mercy  of  persons  who  may  choose  to  detain  them. 
That  has  always  been  the  statute  law  of  Massa 
chusetts — that  these  three  classes  who  are  here 
enumerated,  shall  not  have  this  writ  as  a  matter 
of  right,  but  that  all  others  shall. 

Then,  the  statute  says  that  application  shall  be 
made  to  the  court  in  writing,  setting  forth  the 
name  of  the  party  for  whose  relief  the  writ  is  in 
tended,  the  place  where  the  party  is  imprisoned, 
the  pretence  for  the  imprisonment  or  restraint, 
and  if  there  is  any  warrant  or  other  process,  a 
copy  is  to  be  annexed,  or  evidence  given  that  it 
has  been  demanded  and  refused ;  and  finally,  the 
facts  set  forth  in  the  complaint  shall  be  verified 
by  the  oath  of  the  person  making  the  application. 

Then,  the  fourth  section  provides  that  the  court 
or  magistrate,  "shall,  without  delay,  award  this 
writ  of  habeas  corpus."  It  does  not  say  that  they 
may  or  may  not  issue  this  writ,  as  they  please, 


68th  day.] 


BILL   OF   EIGHTS. 


477 


Wednesday,] 


DANA  —  HALLETT. 


[July  27th. 


but  that  they  "shall,  without  delay,  award  and 
issue  a  writ  of  habeas  corpus"  My  amendment, 
therefore,  does  not  differ  from  the  Revised  Statutes 
and  the  law,  as  it  has  been  in  operation  since 
1822.  It  simply  proposes  to  put  this  matter  into 
the  Constitution,  where  it  cannot  be  changed  by 
the  legislature,  or  evaded  by  the  court.  The  writ 
is  to  be  granted  in  all  cases  where  there  is  not  a 
discretion  specifically  vested.  At  present,  the  dis 
cretion  is  limited  to  three  classes  of  cases.  The 
legislature  may,  if  it  chooses,  add  to  these  classes 
all  persons  held  under  charge  of  being  fugitive 
slaves,  and  relieve  the  mind  of  the  gentleman  for 
Wilbraham.  There  is  nothing  to  prevent  the 
legislature,  if  they  please,  from  adding  that  class. 
I  saw  a  report  of  a  case  this  morning,  in  a  Penn 
sylvania  paper,  in  which  application  was  made  for 
this  writ,  in  behalf  of  a  fugitive  slave.  The  United 
States  marshal,  in  whose  custody  the  fugitive 
slave  was,  refused  to  deliver  him  up  to  the  sheriff, 
and  the  consequence  was,  that  the  marshal  was 
arrested.  A  return  was  then  duly  made  to  the 
writ ;  and,  upon  a  hearing  of  the  case,  the  fugitive 
was  remanded  into  the  custody  of  the  marshal. 
The  only  question  was,  whether  the  hearing 
should  be  upon  the  writ,  or  without  the  writ. 
The  great  security  has  always  been,  that  it  should 
be  upon  the  writ;  and  the  object,  is  that  the  court 
may  see  the  parties  before  them,  that  they  may 
see  the  original  process,  and  not  be  obliged  to  de 
pend  upon  copies,  or  upon  any  man's  word ;  and 
above  all,  that  there  may  be  no  danger  of  the 
party  being  spirited  away  before  a  decision.  As 
Judge  Kane,  in  the  Pennsylvania  case  said,  he 
eould  not  trust  to  the  word  of  the  marshal,  that 
he  would  not  carry  the  fugitive  off  beyond  the 
jurisdiction  of  Pennsylvania.  Now,  if  the  court 
is  first  to  give  a  hearing  on  petition,  before  the 
writ  is  granted,  the  respondent  might,  in  the 
mean  time,  carry  the  man  away,  which  he  could 
not  do,  the  writ  being  granted,  and  the  parties  all 
in  court.  The  great  purpose  of  the  writ  of  habeas 
corpus  is  not  to  have  a  decision  of  a  court  as  to 
whether  a  man  may  be  carried  off,  but  to  prevent 
his  being  carried  off  until  it  is  first  determined 
whether  he  is  in  lawful  custody.  For  a  mere 
decision,  any  other  action  may  do  as  well.  The 
party  is  to  be  brought  into  court,  so  that  he  can 
not  be  carried  away.  You  may  issue  an  injunc 
tion,  to  say  that  a  man  shall  not  carry  another 
away ;  but  what  is  the  use  of  your  injunction  ? 
He  may  get  beyond  your  jurisdiction.  The  writ 
of  habeas  corpus  seizes  all  the  parties,  so  that  from 
that  moment  no  damage  can  be  done  until  the 
question  on  the  writ  is  decided. 

In  these  remarks,  I  have  alluded  to  the  case  of  a 
fugitive  slave  ;  for  it  is  in  respect  to  them  only,  I 


believe,  that  any  objection  is  offered  to  my  amend 
ment.  If  011  the  return  of  the  writ,  it  is  decided 
that  the  master  has  a  right  to  the  slave,  he  will 
get  him  ;  or  if  it  is  decided  that  the  marshal 
should  detain  him,  he  will,  of  course,  have  the 
right  to  do  so.  This  was  the  course  pursued 
by  Judge  Woodbury,  in  the  case  of  Sims.  He 
issued  the  writ,  and  heard  the  case  on  the  return, 
with  all  parties  before  him.  I  cannot  conceive 
any  objection  that  there  can  be  to  the  issuing  of 
the  writ,  unless  it  be  that  it  prevents  the  chance 
the  claimant  has  of  getting  his  man  out  of  the 
State  before  a  legal  decision  can  be  had. 

I  believe,  Sir,  that  I  am  one  of  the  last  persons 
who  will  be  accused  of  bringing  forward  radical 
measures  in  matters  of  law.  On  the  contrary,  I 
have  maintained  conservative  measures  in  this 
Convention  to  the  extent  my  influence  would 
reach,  and  perhaps  beyond  it.  On  this  point,  I 
merely  wish  to  place  in  the  Constitution  what  is 
now,  and  always  has  been,  the  statute  law.  I  de 
sire  to  do  this,  because  there  is  now  a  disposition 
on  the  part  of  the  courts  to  assume  the  right  of  dis 
cretion  in  all  cases.  In  the  case  of  Thomas  Sims, 
the  supreme  court  said  that  they  had  discretion  in 
all  cases  on  the  petition.  The  hearing  might 
occupy  a  day  or  two,  or  three,  or  even  a  week, 
without  ever  getting  the  parties  before  them  ;  and 
hence,  by  the  time  that  a  decision  was  obtained,  a 
man  might  be  a  week's  journey  out  of  the  State. 
I  do  not  believe  that  the  courts  have  a  right  to 
exercise  such  a  discretion,  and  I  want  the  Consti 
tution  to  say  that  they  shall  not  exercise  it,  ex 
cept  in  such  cases  as  the  legislature  may  specially 
authorize.  The  gentleman  for  Wilbraham,  (Mr. 
Hallett,)  in  his  zeal  to  prevent  collision  with  the 
United  States,  ought  to  recollect  that  the  same 
privilege  he  is  so  zealous  to  give  to  the  master  in 
favor  of  his  slave,  may  do  great  wrong  to  many 
innocent  persons,  who  ought  to  have  the  benefit 
of  that  writ.  There  are  other  persons  besides 
slaves  who  want  the  benefit  of  the  writ  of  habeas 
corpus.  And  I  beg  gentlemen  in  their  zeal  for  the 
recovery  of  slaves,  not  to  put  into  the  hands  of  the 
master  a  power  which  others  may  exercise  to  the 
oppression  of  the  weak. 

Mr.  HALLETT,  for  Wibraham.  The  gentle 
man  for  Manchester  sometimes  reminds  me  of 
the  one  idea  concentrated  so  touchingly  in  the 
sentimental  writings  of  Sterne,  which  describes 
an  enthusiast  looking  through  the  door  of  a  prison 
grate,  and  seeing  nothing  but  a  slave  with  the 
iron  entering  his  soul.  That  gentleman,  upon 
some  subjects  which  he  discusses,  does  the  same, 
and  can  see  nothing  but  the  slave  and  the  slave 
holder.  I  trust  my  mind  is  a  little  broader  than 
that.  I  have  not  thought  of  that  in  connec- 


478 


BILL   OF   RIGHTS. 


[68th  day 


Wednesday,] 


DANA  —  HALLETT. 


[July  27th. 


tion  with  so  great  a  personal  right  as  the  habeas 
corpus. 

Mr.  DANA.  I  ask  the  gentleman  whether  I 
ever  brought  up  the  subject  of  the  fugitive  slave 
law  in  debate,  except  in  answer  to  him  ? 

Mr.  HALLETT.  The  gentleman  has  brought 
it  up  here  in  this  proposition  ;  he  brought  it  be 
fore  the  Committee  on  the  Bill  of  Rights,  where 
it  was  voted  down ;  then  he  comes  here  and 
renews  the  issue.  Now,  Sir,  it  is  not  solely  on  the 
ground  that  this  amendment  may  be  designed  to 
obstruct  the  execution  of  the  fugitive  law  that  I 
oppose  it,  but  because  the  gentleman  in  his  zeal 
to  cover  that  case,  is  endangering  the  benefit  of  the 
writ  of  habeas  corpus.  It  relates  to  all  our  laws, 
and  to  the  personal  rights  of  all  citizens.  Just 
examine  it.  The  present  provision  in  the  Con 
stitution  in  regard  to  the  writ  of  habeas  corpus, 
is  this  : — 

"  The  privilege  and  benefit  of  the  writ  of  habeas 
corpus  shall  be  enjoyed  in  this  Commonwealth 
•in  the  most  free,  easy,  cheap,  expeditious  and  ample 
manner." 

Can  you  add  anything  more  to  that  ?  It  "  shall 
be  enjoyed  in  the  most  free,  most  easy,  most  ex 
peditious,  and  most  ample  manner  !  "  The  gen 
tleman  says  that  is  not  enough.  He  wants  some 
thing  more.  But  to  get  that  more  he  puts  this 
great  right  at  the  mercy  of  a  legislature.  If  he 
wants  anything  more  than  the  Constitution  now 
gives,  of  the  freest  and  cheapest  claim  to  this 
writ  in  all  cases,  it  seems  to  me  that  he  can  only 
want  some  provision  by  which,  under  color  of  its 
being  an  amendment  to  the  common  law  right  of 
habeas  corpus,  some  law  may  be  violated,  or  the 
State  and  the  United  States  be  brought  in  conflict. 

Sir,  instead  of  securing  liberty,  it  may  authorize 
any  man,  under  color  of  this  new  habeas  corpus, 
to  take  any  man  or  woman  out  of  their  house  or 
bed,  and  drag  them  before  a  magistrate ;  or  kid 
nap  them  while  on  the  way  ;  or,  by  bribing  the 
officer  who  executes  this  writ,  to  be  granted  to 
anybody  who  asks  for  it.  That  is  the  practical 
effect  of  requiring  such  a  writ  in  all  cases.  What 
does  the  gentleman  intend  by  it  ?  He  is  perfectly 
frank  upon  that  point.  He  intends  by  it  to  com 
pel  any  judge  to  deliver  a  writ  of  habeas  corpus 
to  any  person  who  asks  for  it.  Suppose  a  case  in 
which  a  person  is  held  by  the  United  States  mar 
shal  under  civil  process.  What  would  the  gen 
tleman  do  ?  He  goes  to  a  judge  of  the  State 
court  and  applies  for  a  writ  of  habeas  corpus. 
Why,  says  the  judge,  the  marshal  has  got  the  man 
for  debt,  under  legal  process,  and  what  is  the  use 
of  issuing  a  habeas  corpus '?  Nevertheless,  he 
replies,  I  want  the  man  here,  I  want  to  do  some 
thing  for  him,  and  must  have  a  writ.  The  law,  if 


this  provision  prevails,  can  give  the  judge  no 
discretion,  and  he  must  issue  the  writ.  Then 
comes  the  conflict  of  State  and  United  States  offi 
cers.  The  party  must  be  brought  before  the  j  udge, 
if  the  marshal  will  allow  it ;  arid  if  the  prisoner 
can  be  rescued  on  the  way,  very  well.  That  may 
be  one  object.  Just  so  if  the  marshal  has  a  pirate 
in  custody,  and  his  comrades,  or  any  class  of 
philanthropists,  opposed  to  hanging,  desire  to 
have  him  rescued ;  they  go  to  a  judge,  and  the 
judge  must  issue  a  writ  of  habeas  corpus ;  and,  in 
the  meantime,  the  crew,  or  the  sympathizers,  are 
ready  to  rush  to  his  rescue  as  soon  as  the  marshal 
undertakes  to  bring  him  before  the  judge.  The 
legal  process  goes  for  nothing,  which  holds  any 
person  in  custody,  for  this  provision  in  the  Con 
stitution  will  supersede  all  existing  statute  law. 
I  ask  the  gentleman  one  thing  ;  the  moment  this 
is  adopted  into  the  Constitution,  what  becomes  of 
your  statute  law  ?  It  is  repealed.  Which  is  the 
higher  law  ?  The  Constitution.  If  anything  in 
the  Constitution  is  in  conflict  with  the  State  law, 
the  Constitution  repeals  that.  This  amendment, 
therefore,  will  repeal  that  provision  in  the  existing 
law.  To  whom  does  that  provision  in  the  ex 
isting  law  deny  the  right  of  the  writ  of  habeas 
corpus?  To  persons  in  prison  for  felony,  and 
persons  in  execution  on  civil  process.  The  present 
proposition  is,  that  the  writ  shall  no  longer  be 
denied  to  them.  And  worse  than  that,  the  leg 
islature  are  to  have  control  over  this  great  writ  of 
personal  right  to  make  it  anything  they  choose  to 
have  it.  Why  does  the  gentleman  want  to  go 
farther  than  the  Constitution  and  laws  now  go  ? 
The  Constitution  says  this  writ  shall  be  enjoyed 
in  the  freest  manner  possible  ;  and  the  legislature 
says,  it  shall  be  granted  as  a  matter  of  right  in  all 
cases,  except  in  case  of  persons  in  prison  for 
felony,  or  held  in  execution  upon  civil  process. 
The  gentleman  wants  something  else ;  but  what 
else  ought  he  to  have  ?  I  have  not  opened  this 
question  here.  I  wanted  to  avoid  raising  it.  I 
did  not  want  a  question  upon  a  sectional  matter 
like  this,  to  mingle  in  the  discussions  upon  the 
adoption  of  the  new  Constitution.  I  know  those 
who  want  to  defeat  this  Constitution,  are  very 
anxious  to  have  some  sectional  or  disunion  matter 
incorporated  into  the  Constitution,  for  they  know 
that  they  can  then  rally  every  friend  of  the  Union 
against  it.  For  that  reason,  I  want  to  throw  every 
thing  aside  of  that  character.  I  say,  therefore, 
if  you  adopt  this  provision,  you  furnish  the  oppo 
nents  of  the  Constitution  with  an  argument  which 
I  do  not  wish  to  put  into  their  hands.  I  trust 
that  we  shall  not,  by  our  action,  bring  about  this 
conflict;  or,  at  least,  keep  this  matter  by  itself 
for  a  distinct,  separate  vote. 


68th  day.] 


BILL   OF   RIGHTS. 


479 


Wednesday,] 


HALLETT —  WILSOX. 


[July  27th. 


Although  gentlemen  who  have  stood  with  me 
upon  a  good  many  platforms,  upon  this  subject, 
are  silent  now,  and  probably  will  be  by  their 
votes,  yet  I  hold  it  to  be  quite  as  important  now, 
as  it  was  just  before  the  presidential  election,  to 
preserve  this  Union.  [Laughter.]  Most  of  all  is 
it  important  to  prevent  a  conflict  between  the 
civil  and  criminal  jurisdiction  of  the  United 
States  and  of  the  State.  That  is  a  grave  subject, 
upon  which  no  citizen,  who  has  taken  an  oath  to 
support  the  Constitution  of  the  United  States, 
should  suffer  a  smile  to  come  over  his  coun 
tenance  ;  and  if  gentlemen  will  laugh  at  that,  they 
will  laugh  at  their  own  condemnation  in  the  day 
of  judgment. 

I  say  upon  this  point,  that  the  bare  possibility 
of  any  provision  creating  a  conflict  between  the 
United  States  and  a  State,  is  a  matter  of  the 
highest  delicacy.  I  trust,  Mr.  President,  without 
reflecting  upon  the  actions  or  motives  of  any  one, 
that  we  shall  leave  this  subject  where  we  find  it ; 
and  not,  under  the  mistaken  idea  of  enlarging  the 
right  of  the  writ  of  habeas  corpus,  in  fact,  restrict 
it,  by  putting  it  in  the  hands  of  a  party  legisla 
ture,  or  allow  it  to  be  made  an  instrument  of 
tyranny  and  gross  abuse,  in  the  hands  of  any 
man  who  may  wish  to  seize  the  person  of  another 
against  his  will,  for  a  malicious,  corrupt,  or 
wicked  design. 

Mr.  WILSON,  of  Natick.  Mr.  President: 
I  am  amazed  at  the  extraordinary  assertion  of 
the  member  for  Wilbraham,  (Mr.  Hallett).  That 
assertion  is  this  :  that  if  the  declaration  is  made 
in  the  Constitution  of  Massachusetts  that  the  writ 
of  habeas  corpus  is  a  writ  of  right,  it  is  a  declara 
tion  of  war  upon  the  United  States.  Sir,  this  is 
certainly  an  extraordinary  doctrine  to  avow  in 
a  Constitutional  Convention  in  America.  Magna 
Charta  recognizes  the  habeas  corpus  as  a  writ  of 
right.  This  is  the  American  doctrine,  incor 
porated  into  the  Constitutions  of  the  American 
States.  The  Constitution  of  this  State  declares 
that  "  the  writ  of  habeas  corpus  shall  be  enjoyed 
in  this  Commonwealth  in  the  most  free,  easy, 
cheap,  expeditious,  and  ample  manner."  Now, 
the  member  for  Wilbraham  sees,  in  the  annun 
ciation  of  the  doctrine — that  the  writ  of  habeas 
corpus  is  a  writ  of  right,  to  "be  enjoyed  in  the 
most  free,  easy,  cheap,  expeditious,  and  ample 
manner,"  not  at  the  discretion  of  a  judge  of  the 
supreme  court,  but  as  a  right — a  declaration  of 
war  upon  the  national  government.  He  sees 
war,  strife,  bloodshed,  and  disunion,  loom.ng  up 
on  the  horizon  of  the  future.  Sir,  t  e  judges 
of  the  supreme  court  may  now  exe  dse  all  the 
powers  this  proposed  constitution  .A  amendment 
imposes;  they  may,  they  can,  do  all  that  the 


amendment  of  my  friend  for  Manchester  (Mr. 
Dana)  imposes  upon  them,  and  yet  the  member 
for  Wilbraham  is  alarmed  because  the  Constitu 
tion,  if  amended,  will  require  the  judges  to  do 
just  what  they  all  can  lawfully  do  now. 

I  yield  to  no  man,  Mr.  President,  in  love  and 
devotion  to  that  Union  which  binds  together  the 
sovereign  States  of  this  ever- extending,  ever- ad 
vancing  republic.  I  love  that  Union  for  the 
glories  of  the  past,  the  renown  and  power  of  the 
present,  and  the  brilliant  hopes  of  the  future.  I 
hope  that  every  foot  of  the  North  American  con 
tinent  will  be  incorporated  into  this  Union — into 
this  cluster  of  bright  constellations.  I  wish  to 
see  freedom  and  free  institutions  for  all,  and 
chains  and  fetters  for  none,  follow  the  advancing 
flag  of  the  Union.  But  this  morbid  anxiety  about 
the  Union,  which  is  sustained  by  the  stout  hearts 
and  strong  arms  of  more  than  twenty  millions 
of  American  freemen,  is  supremely  ridiculous 
and  absurd.  Sir,  this  Union  does  not  depend 
for  its  perpetuity  upon  the  self-appointed  Union- 
savers,  who,  during  the  past  three  years  have 
blurted  into  the  ears  of  the  country,  their  devotion 
to  it.  It  lives  in  the  hearts  of  twenty  millions  of 
men,  ever  ready  to  defend  it  and  preserve  it. 

All  of  us  here,  Mr.  President,  appreciate  the 
devotion  to  the  Union,  of  the  member  for  Wil 
braham,  (Mr.  Hallett,)  but  none  of  us,  I  am  sure, 
believe  that  even  that  gentleman  has  any  fear  for 
the  safety  of  that  Union.  Should  the  amendment 
of  my  friend  for  Manchester,  (Mr.  Dana,)  be 
adopted,  I  think  the  perilled  Union  will  survive 
the  shock,  and  that  even  the  member  for  Wilbra 
ham  will  sleep  well  of  nights.  His  slumbers  will 
be  undisturbed  by  war,  bloodshed,  and  strife, 
growing  out  of  the  exercise  of  the  right  of  the 
writ  of  habeas  corpus.  If  I  saw  in  the  amend 
ment  moved  by  the  member  for  Manchester, 
any  danger — if  I  could  see  in  it  any  tendency 
to  bring  on  a  conflict  with  the  general  govern 
ment,  I  would  vote  against  it.  I  am  not  one  who 
would  advocate  anything  that  should  lead  to 
bloodshed  and  conflict.  But  it  seems  to  me  that 
the  right  of  the  writ  of  habeas  corpus,  is  one 
which  should  not  be  held  at  the  discretion  of  the 
judges  of  the  supreme  court  of  Massachusetts,  or 
any  other  class  of  men.  It  should  be  the  consti 
tutional  right  which  we  can  appeal  to  at  all  times 
— which  we  may  enjoy  in  the  "  most  free,  cheap, 
expeditious,  and  ample  manner." 

Reference  has  been  made  to  the  recent  case  in 
Pennsylvania.  Last  Saturday,  Marshal  Wyn- 
koop  was  called  upon  on  a  writ  of  habeas  corpus, 
issued  by  a  judicial  tribunal  of  that  State,  to 
produce  the  body  of  a  person  in  his  custody  as  a 
fugitive  slave — placed  in  his  custody  by  the  de- 


480 


BILL    OF   RIGHTS. 


[68th  day. 


Wednesday,] 


WILSON  —  BARTLETT  —  DANA. 


[July   27th. 


cisioii  of  Commissioner  Ingraham,  whose  "  alac 
rity  "  in  the  business  of  consigning  persons 
claimed  as  fugitive  slaves  to  their  claimants,  has 
won  for  him  an  immortality  of  infamy.  Marshal 
Wynkoop,  whose  conduct  in  this  case  meets  the 
unqualified  condemnation  even  of  the  conserva 
tive  presses  of  Philadelphia,  refused  to  obey  the 
summons.  He  was  arrested,  and  held  in  im 
prisonment  until  Monday,  when  he  came  into 
court  and  produced  his  prisoner ;  the  individual 
produced  was  delivered  up  to  the  marshal,  who 
held  him  on  the  certificate  of  the  commissioner, 
under  the  fugitive  slave  act.  There  was  no 
danger,  difficulty,  or  conflict.  No  one  felt  any 
shock.  The  sensitive  nerves  of  the  members  of 
the  Union- Safety  Committees  were  not  affected. 
The  Union  moved  on  in  harmony  in  its  course. 

This  extra  anxiety  about  the  Union,  is  the 
merest  political  cant.  The  country  is  sick  of  it. 
The  sad  fate  of  the  chiefs  in  this  Union  cry,  of  the 
past  three  years,  must  convince  even  the  member 
for  Wilbraham,  that  this  sitting  up  with  the 
Union  does  not  pay  expenses.  It  is  to  be  hoped 
that  this  Union  delusion  will  soon  pass  away ; 
and  that  the  especial  guardians  of  the  Union  will 
soon  discover  that  the  American  people  can  pre 
serve  and  protect  that  Union  which  makes  them 
one  people,  without  the  special  aid  of  their  offi 
cious  interference. 

Mr.  B  ARTLETT,  of  Boston.  I  have  no  desire 
to  treat  this  as  a  matter  of  political  interest, 
arising  out  of  any  past  occurrence  in  this  Com 
monwealth,  but  purely  as  a  question  of  law.  As 
I  listened  to  my  friend  for  Manchester,  (Mr. 
Dana,)  I  at  first  thought  he  was  right,  and  he 
would  have  commanded  my  vote  but  for  a  little 
farther  scrutiny.  I  think  there  is  error  in  the 
first  place,  in  the  suggestion  that  the  courts  of  the 
Commonwealth  have  assumed  a  discretion  not 
warranted  by  the  statute.  If  I  could  find  a  trace 
of  that,  either  in  the  authorities  or  in  the  oral 
history  of  proceedings  under  this  great  writ  of 
liberty,  I  would  aid  in  amending  the  law.  But 
the  gentleman  is  wrong.  No  court  of  this  Com 
monwealth,  in  regulating  the  granting  of  the  writ 
of  habeas  corpus,  has  ever,  so  far  as  I  can  learn, 
departed  from  the  statute.  The  solution  of  the 
supposed  disregard  of  the  law  is,  I  think,  to  be 
found  in  this.  The  statute  regulating  the  right 
to  the  writ  of  habeas  corpus  provides  for  classes  of 
cases.  It  has  enumerated  three  classes  in  which 
it  is  discretionary  with  the  court  to  grant  the 
writ  or  not.  It  has  left,  by  just  implication,  all 
else  without  discretion.  But,  Sir,  the  law  has 
wisely  provided  beyond  that,  that  in  cases  where 
there  is  no  discretion,  some  preliminary  case  is  to 
be  made,  before  the  exercise  of  the  judicial  power 


can  be  called  into  action.  The  provision  is  set 
forth  with  clearness  and  distinctness  in  the  third 
section  of  the  chapter.  By  that  section,  before 
any  writ  can  issue,  the  applicant  must  make  out 
a  case  under  oath,  complying  with  certain  requi 
sitions,  and  among  them,  not  simply  that  the 
party  is  restrained  of  his  liberty,  but  he  must  set 
forth,  according  to  his  best  knowledge  and  belief, 
the  cause  or  pretence  for  that  restraint,  and  if  it  be 
under  legal  process,  must  annex  a  copy  if  he 
can. 

Now,  as  happened  in  the  Sims  case,  and 
as  will  happen  again,  the  alleged  cause  of  the 
restraint  was  shown  on  the  face  of  the  application 
to  be  perfectly  legal  and  justifiable.  The  party, 
in  compliance  with  the  prerequisites  of  the  stat 
ute,  exhibited  a  case  which,  if  it  were  correctly 
stated,  was  beyond  the  power  of  the  court  to 
relieve ;  and  those  statute  prerequisites  were 
framed  with  the  intent  that  the  true  condition  of 
the  facts,  if  known,  should  be  early  developed — 
to  the  end  that  the  authority  and  process  of  the 
Commonwealth  should  not  be  idly  and  frivo 
lously  invoked.  It  will  be  difficult  otherwise  to 
account  for  their  insertion. 

Such,  I  think,  is  the  legal  attitude  of  the  case, 
and  such  the  intent  of  the  statute.  As  I  said 
before,  I  have  no  desire  to  discuss  the  principles 
on  which  the  Sims  case  was  disposed  of,  but 
simply  to  vindicate  what  I  think  was  a  just  con 
struction  of  the  statute  regulating  the  writ  of 
habeas  corpus.  If  the  Convention  shall  deem  it 
proper  that  the  writ  should  issue  without  scru 
tiny,  at  the  will  of  the  applicant,  I  should  prefer 
a  plain,  distinct  resolution  to  that  effect,  rather 
than  the  proposed  amendments. 

But  so  long  as  it  is  deemed  wise  that  a  party 
applying  for  the  writ  shall  make  some  case,  so 
that  the  court  shall  not  be  compelled  to  deal  with 
frivolous  applications,  I  think  it  would  be  better 
to  let  the  law  stand  as  it  is. 

Mr.  FRENCH,  of  New  Bedford,  here  obtained 
the  floor. 

Mr.  DANA,  for  Manchester.  If  the  gentle 
man  from  New  Bedford  will  allow  me  a  moment 
of  his  time,  I  should  like  to  say  a  word  in  answer 
to  the  gentleman  who  has  just  taken  his  seat. 

Mr.  FRENCH.  Certainly,  I  will  yield  a  mo 
ment. 

Mr.  DANA.  The  legislature  has  said,  that 
the  application  shall  set  forth  four  things.  Now 
in  the  Sims  case,  those  four  things  were  set  forth  ; 
first,  the  person  by  whom  the  party  was  impris 
oned  ;  second,  the  cause  or  pretence  of  the  impris 
onment  ;  third,  it  was  said  to  be  by  process,  and 
we  annexed  what  we  supposed  to  be  a  copy  of  the 
process,  a  copy  which  was  handed  to  us — whether 


68th  day.] 


BILL   OF   RIGHTS. 


481 


Wednesday,] 


DANA  —  BATES  —  FRENCH. 


[July  27th. 


it  was  a  precise  copy  we  could  not  know — and 
then  we  verified  it  by  oath.  Now,  here  arises  the 
question.  We  said,  and  I  say  now,  that  having 
complied  with  those  four  requisitions,  we  were 
entitled  to  our  writ.  The  gentleman  says,  that 
though  we  complied  with  them,  we  were  not 
entitled  to  it,  unless  the  court  considered  that 
upon  them  we  had  made  out  a  prima  facie  case 
of  illegal  restraint. 

That  is  not  so.  And  there  our  courts  differ 
from  the  law  and  decision  of  other  courts.  The 
process,  a  copy  of  which  we  annexed,  showed 
that  our  case  did  not  come  within  the  three  classes 
of  cases  set  forth  as  exceptions  in  the  second 
section  of  the  statute.  The  object  of  requiring 
the  copy  of  the  process  to  be  annexed  to  the 
petition  is,  that  the  court  may  see  whether  the 
case  comes  within  either  of  these  classes  of  excep 
tions.  If  it  does,  they  have  a  discretion.  If  not, 
they  have  not  a  discretion,  but  must  issue  the 
writ,  and  determine  the  lawfulness  of  the  restraint 
upon  the  return  to  the  writ.  In  the  case  of  Sims, 
the  process  was  clearly  not  within  either  of  the 
exceptions. 

Mr.  BATES,  of  Plymouth.  I  rise  to  a  ques 
tion  of  order.  I  believe  the  gentleman  has 
occupied  his  fifteen  minutes. 

The  PRESIDENT.  The  gentleman  is  talk 
ing  upon  the  time  of  the  gentleman  from  New 
Bedford,  (Mr.  French). 

Mr.  DANA.  As  the  gentleman  rises  to  a 
question  of  order,  I  will  not  pursue  the  subject 
farther. 

Mr.  FRENCH,  of  New  Bedford.  Mr.  Presi 
dent  :  I  am  in  favor  of  the  amendment  which  has 
been  proposed  by  the  gentleman  for  Manchester, 
and  for  the  reason  that  it  asserts  that  this  writ  of 
habeas  corpus  shall  be  issued  as  of  right ;  and  had 
it  been  thus  issued  on  former  and  proper  occa 
sions,  when  there  was  a  necessity  for  it — when  it 
was  applied  for  in  a  legal  manner — this  amend 
ment  would  probably  not  have  been  offered  on 
the  present  occasion.  But,  Sir,  in  one  of  the 
most  important  cases  that  was  ever  tried  in  Mas 
sachusetts,  or  that  can  ever  arise  here — a  case 
where  the  personal  liberty,  during  life,  of  a  human 
being  was  concerned — that  writ  was  denied.  And 
notwithstanding  the  high  eulogies  the  gentleman 
for  Manchester,  (Mr.  Dana,)  and  others,  have 
passed  upon  the  judges  of  the  supreme  court  of 
this  Commonwealth,  I  should  like  to  ask  the  gen 
tleman  for  Manchester,  for  my  own  information 
as  well  as  for  the  information  of  the  Convention, 
how  those  judges  treated  him  on  an  occasion 
when  he  applied  for  a  writ  of  habeas  corpus  in  a 
case  of  personal  liberty,  or  slavery  for  life  ? 

Mr.  DANA,  for  Manchester.     I  would  rather 

33 3 


not  answer  that  question — but  I  will  say  one 
thing.  I  have  never  said  that  the  supreme  court 
of  this  State,  in  the  trial  of  the  Sims  case,  was 
as  impartial  as  the  lot  of  humanity  will  allow.  I 
was  understood  very  generally,  I  am  informed, 
as  having  used  that  expression  ;  but  what  I  said 
is  this  :  that  the  law  had  done  all  it  could  do  to 
make  them  as  impartial  as  the  lot  of  humanity 
will  permit.  As  to  the  manner  in  which  I  was 
treated  on  that  memorable  occasion,  I  will  not  at 
present  allude. 

Mr.  FRENCH.  It  is  not  at  all  strange  to  me 
that  the  gentleman  declines  to  answer  my  inquiry. 
I  will  state  another  case,  however.  A  very  re 
spectable  attorney  of  this  city  (S.  E.  Sewall,  Esq.) 
applied  to  one  of  the  judges  of  the  supreme  court 
for  a  writ  of  habeas  corpus,  in  the  same  case  ;  but, 
Sir,  without  even  deigning  to  reply  to  the  appli 
cant,  that  learned  judge  turned  his  back  upon 
him  and  marched  off — and  that,  too,  in  a  case  of 
personal  liberty,  or  slavery  during  the  poor  man's 
natural  life — the  latter  of  which  was  assigned 
him  in  this  land  of  the  free.  Under  these  circum 
stances,  I  ask,  ought  we  not  to  have  in  our  Con 
stitution  a  provision  like  that  proposed  in  this 
amendment — that  this  writ  shall  be  issued  as  a 
right  ?  These  are  some  of  the  reasons  why  I  am 
in  favor  of  it. 

Talk  about  danger  of  a  dissolution  of  the 
Union  !  Why,  we  were  told  upon  the  floor  of 
the  Senate  of  the  United  States,  a  long  time  ago, 
that  the  women  and  children  down  South  will 
take  care  of  that ;  and  I  am  surprised  that  large, 
robust,  healthy  looking  gentlemen  should  attempt 
to  make  speeches  here  in  favor  of  saving  the 
Union,  when  it  can  be  so  well  taken  care  of  by 
others.  There  is  no  danger  about  this  matter  at 
all ;  and  let  me  say  that  this  amendment  would 
never  have  been  offered  or  required,  had  it  not 
not  been  for  these  miserable  tinker ers  of  the 
Union. 

Sir,  if  the  delegations  from  Massachusetts, 
which  she  sent  to  look  after  her  interests  at  the 
capitol  of  our  country  from  time  to  time,  had 
stood  up  like  men  for  the  liberty  our  forefathers 
fought  and  bled  for,  we  should  not  have  had  any 
talk  about  the  danger  of  dissolution  and  secession. 
We  were  told  here  the  other  day,  by  the  gentle 
man  from  Pittsfield,  about  the  door  of  the  capitol 
being  slammed  in  the  face  of  little  Michigan, 
by  the  slave-holding  power,  when  she  applied  for 
admission  into  the  Union  as  a  free  State ;  and  about 
the  eloquent  gentleman  from  Quincy,  who  stood 
up  there  and  defended  her  rights ;  but  where  were 
the  balance  of  the  delegation  from  Massachusetts, 
who  should  have  supported  that  old  man  elo 
quent  ?  As  we  were  told  this  morning  in  regard 


482 


BILL   OF   RIGHTS. 


[68th  day. 


Wednesday,] 


FRENCH  —  LOUD. 


[July  27th. 


to  another  gentleman,  upon  another  occasion,  they 
had  gone  over  to  the  enemy,  and  were  assisting 
him  in  slamming  the  door,  and  holding  it  there, 
too. 

Sir,  what  has  caused  all  the  difficulty  and 
trouble  which  we  have  experienced,  and  which 
makes  it  necessary  that  we  should  adopt  some 
provision  of  this  character  for  our  own  protection  ? 
It  has  been  caused  by  the  do  ugh- faces  of  the  Free 
States,  who  have  gone  to  Washington  and  crawled 
upon  their  bellies  in  the  dust  to  conciliate  the 
slave-holders,  and  who  assisted  in  the  passage  of 
the  fugitive  slave  law,  that  their  darling  (Webster) 
might  be  made  president  of  the  United  States. 
And,  Sir,  if  the  representatives  from  the  Free 
States  had  stood  up  in  congress  for  their  rights 
and  the  rights  of  humanity,  like  the  old  man  elo 
quent,  we  should  have  had  no  fugitive  slave  law, 
and  no  talk  about  it.  Massachusetts  alone  was 
its  godfather,  and  Massachusetts  should  be  respon 
sible  for  it.  And  since  it  exists,  let  us  fix  our 
Bill  of  Hights  and  our  Constitution  in  a  way  that 
will  hereafter  guard  our  rights  and  secure  liberty 
for  all  our  citizens. 

There  is  another  amendment  which  ought  to  be 
submitted  and  adopted,  touching  trial  by  jury,  and 
which  would  probably  assist  us  on  future  occa 
sions,  upon  this  subject ;  but  I  am  willing,  if  the 
present  proposition  is  adopted,  to  let  that  pass  for 
the  present — that  seems  to  be  so  well  provided  for 
now.  Let  us  take  care  of  the  future  as  well  as 
the  present ;  and,  while  here,  let  us  put  into  the 
Bill  of  Rights  and  the  Constitution  that  which 
will  hereafter  secure  liberty  to  every  man  not 
guilty  of  crime  who  treads  upon  Massachusetts 
soil  and  breathes  the  free  air  of  the  Old  Bay  State. 

Before  I  take  my  seat,  I  desire  to  allude  to  one 
other  matter,  intimately  connected  with  this  sub 
ject.  I  wish  to  bring  to  the  notice  of  the  Con 
vention  a  humiliating  fact.  It  has  been  the 
custom,  from  time  immemorial,  when  a  member 
of  the  Boston  bar  has  been  called  to  his  long 
home,  to  notice  the  event,  and  appropriate  resolu 
tions  have  been  passed — no  matter  what  had  been 
his  standing — by  the  bench  as  well  as  the  bar  ; 
but  when  that  lamented  son  of  Massachusetts, 
(Robert  Rantoul,  Jr.)— the  philanthropist,  states 
man  and  patriot,  who  did  what  he  could,  in  the 
trial  of  Sims,  for  his  personal  liberty  and  his 
natural  rights— departed  to  his  long  home,  the 
Boston  bench  and  bar— of  the  latter  of  which  he 
was  a  member — were  as  silent  as  the  grave  in 
which  he  now  rests.  But,  Sir,  the  time  will  come 
when  justice  will  be  done  to  him  in  that  matter, 
as  well  as  to  those  who  procured  the  passage  of 
the  fugitive  slave  law ;  nor  will  those  who  applied 
it  in  Massachusetts,  and  those  who  have  been  the 


immediate  cause  of  the  trouble  and  excitement 
which  has  been  experienced  in  this  regard  from 
one  end  of  the  Free  States  to  the  other,  be  forgot 
ten — Union-savers  and  Southern  dirt- eaters,  in 
particular,  not  excepted. 

Mr.  LORD,  of  Salem.  The  only  objection  I 
have  to  the  amendment  which  has  been  submit 
ted  to  this  resolve,  is  this  :  that  in  my  judgment,  it 
is  a  very  serious  restriction  and  limitation  of  the 
habeas  counts.  The  Constitution,  as  I  understand 
it,  provides  that  "  The  privilege  and  benefit  of  the 
writ  of  habeas  corpus  shall  be  enjoyed  in  this 
Commonwealth  in  the  most  free,  easy,  cheap, 
expeditious  and  ample  manner,  and  shall  not  be 
suspended  by  the  legislature  except  upon  the 
most  urgent  and  pressing  occasions,  and  for  a 
limited  time,  not  exceeding  twelve  months." 
Now,  Sir,  neither  the  legislature  nor  the  courts 
have  any  authority  to  touch  the  habeas  corpus  in 
such  a  way  as  shall  not  make  it  the  most  free, 
easy,  cheap,  and  to  be  enjoyed  in  the  most  ample 
manner.  And  when  you  say  that  the  legislature 
shall  have  discretion  in  this  matter,  or  when  you 
say  that  that  body  may  prescribe  the  preliminaries 
in  regard  to  it,  you  throw  away  all  that  is  pro 
vided  in  the  Constitution,  and  place  the  power  in 
the  hands  of  the  legislature,  from  whose  decision 
there  is  no  appeal.  Suppose  that  the  gentleman 
who  represents  Wilbraham,  (Mr.  Hallett,)  and 
those  who  agree  with  him  in  opinion,  should  pre 
vail  in  the  councils  of  the  State,  and  the  legisla 
ture  should  pass  an  act  that  no  writ  of  habeas 
corpus  should  issue  until  the  preliminaries  were 
settled,  and  that  the  party  in  whose  favor  it  was 
sued  out  should  not  be  a  fugitive  slave.  Does 
the  gentleman  want  the  legislature  to  say  that  a 
mere  transient  person  shall  not  have  the  right  to 
a  habeas  corpus  ?  And  yet,  this  amendment  pro 
poses  to  let  the  legislature  fix  all  the  prelimina 
ries.  No,  Sir ;  I  prize  that  habeas  corpus  altogether 
too  highly.  I  am  no  liberty  trading  politician  ;  I 
deal  in  no  such  capital,  but  I  prize  the  habeas 
corpus  as  a  matter  of  personal  right.  I  do  not 
want  the  legislature  to  have  the  power  of  fixing 
any  preliminaries  in  regard  to  the  habeas  corpus, 
but  I  want  it  just  as  the  Constitution  gives  it  to 
us,  as  free,  easy,  cheap  and  expeditious  as  it  can 
possibly  be.  The  people,  I  am  sure,  have  the 
greatest  confidence  in  it,  as  it  at  present  stands, 
and  are  ready  to  rely  upon  the  judgment  and 
discretion  of  the  courts  for  its  proper  use.  The 
supreme  court  has  never  refused  to  issue  a  writ 
of  habeas  corpus,  unless  it  was  manifest  from  the 
circumstances  of  the  case  that  they  would  be 
obliged,  upon  the  appearance  of  the  party  before 
them,  to  return  him  instantly  to  the  same  party 
in  whose  custody  he  was.  Under  such  circum- 


68th  day.] 


BILL  OF   RIGHTS. 


483 


Wednesday, 


ADAMS  —  SCHOULER  —  DAVIS  —  HALLETT  —  STETSON. 


[July  27th. 


stances,  of  course,  they  would  not  issue  the  writ. 
I  desire,  therefore,  to  retain  the  habeas  corpus  of 
the  Constitution  just  as  it  has  ever  existed,  unin- 
curabered  and  unrestricted  by  the  preliminaries 
which  the  legislature  may  see  fit  to  make.  I  shall 
vote  against  the  amendment. 

Mr.  ADAMS,  of  Lowell,  demanded  the  previ 
ous  question. 

Mr.  SCHOULER,  of  Boston.  I  hope  that  the 
demand  for  the  previous  question  will  not  be  sus 
tained,  at  least,  if  it  is  intended  to  apply  to  the 
resolutions  as  a  whole.  I  gave  up  my  right  to 
the  floor  yesterday,  and  am  willing  to  sit  all  day 
now,  if  I  can  be  allowed  to  reach  the  resolution 
to  which  I  desire  to  submit  an  amendment.  I 
have  no  objection  to  the  previous  question  so  far 
as  it  applies  to  each  particular  resolution,  but  I 
hope  it  will  not  operate  against  the  whole. 

Mr.  ADAMS.  If  my  motion  can  be  so  modi 
fied  that  the  question  can  be  taken  on  the  adop 
tion  of  the  resolutions  separately,  I  am  willing 
that  that  course  should  be  taken. 

The  PRESIDENT.  The  motion  of  the  gen 
tleman  can  be  so  modified. 

Mr.  WALES,  of  Randolph,  moved  that  when 
the  question  is  taken,  it  be  taken  by  yeas  and 
nays. 

A  division  being  called  for — ayes,  45 ;  noes, 
214 — one-fifth  not  voting  in  the  affirmative,  the 
motion  was  not  agreed  to. 

So  the  yeas  and  nays  were  not  ordered. 

The  question  was  then  taken  on  the  amend 
ment  submitted  by  the  gentleman  for  Wilbra- 
ham,  (Mr.  Hallett,)  to  the  second  resolve,  and 
upon  a  division — ayes,  37  ;  noes,  176 — it  was 
decided  in  the  negative. 

The  question  recurred  upon  the  final  passage 
of  the  first,  second,  and  third  resolves,  and  being 
taken,  they  were,  without  a  division,  agreed  to. 

The  question  then  being  upon  the  final  passage 
of  the  fourth  resolve, 

Mr.  DAVIS,  of  Worcester,  moved  to  strike  out 
the  words  "  and  no  powers  shall  ever  be  assumed 
by  the  legislature  that  are  not  granted  in  this 
Constitution."  So  that  if  amended,  the  resolve 
will  read,  "  This  enumeration  of  rights  shall  not 
impair  others  retained  by  the  people." 

Mr.  DAVIS.  I  make  this  motion  because  I 
see  no  reason  why  we  should  prohibit  the  legis 
lature,  and  not  the  executive  and  judicial  depart 
ments  of  government.  I  hope  that  the  amend 
ment  will  be  adopted. 

Mr.  HALLETT.  If  that  clause  is  stricken  out, 
it  is  evident  that  the  legislature  may  assume 
powers  not  granted  in  the  Constitution. 

Mr.  SCHOULER,  of  Boston.  This  is  the  long- 
sought  for  resolution  to  which  I  have  desired  to 


offer  an  amendment.  And  if  it  is  in  order,  I  now 
move  to  strike  out  the  whole  resolve.  It  seems 
to  me  that  some  gentlemen,  and  particularly  the 
member  for  Wilbraham,  (Mr.  Hallett,)  during  a 
considerable  part  of  this  session,  have  been  en 
deavoring  to  legislate  for  the  next  twenty  years 
to  come,  and  to  restrict  the  people,  in  their  legis 
lative  capacity,  from  making  laws.  This  very 
forenoon  we  had  an  attempt,  which  I  believe  was 
unsuccessful,  to  pass  a  resolution  that  the  legis 
lature  should  never  have  the  power  to  proclaim 
martial  law.  We  have  provided  that  the  legisla 
ture,  to  a  certain  extent,  can  never  loan  the  State 
credit ;  and  numerous  other  attempts  have  been 
made  to  limit  the  power  of  the  legislature,  in  its 
future  action.  Now,  Sir,  I  am  opposed  to  this 
whole  system ;  I  believe  that  the  people  of  the 
year  1853  are  wise,  and  intelligent,  and  that  a 
great  deal  of  wisdom  is  assembled  within  this 
hall ;  I  am  in  favor  of  progression,  but  I  do  not 
think  we  have  reached  the  height  of  improve 
ment.  We  shall  go  on  improving,  day  by  day, 
and  year  by  year ;  and  I  do  not  wish  to  have  any 
clause  put  into  the  Bill  of  Rights  that  will  be,  in 
all  future  time,  held  up  to  our  vision,  by  men 
opposed  to  progress  and  reform. 

Now  I  cannot  conceive  what  is  the  object  or 
intention  of  this  resolution,  except  it  be  to  en 
deavor  to  obtain,  in  a  roundabout  manner,  that 
provision  which  we  voted  down  the  other  day — 
that  the  State  credit  shall  not  be  loaned  except 
for  internal  improvement.  The  gentleman  for 
Wilbraham  attempted  to  make  a  provision  that 
the  legislature  should  not  have  the  power  to  act 
in  anything  not  expressly  provided  for  in  the 
Constitution  ;  but  I  desire  to  have  a  discretionary 
power  left  in  the  hands  of  that  body,  for  I  feel 
confident  they  will  never  violate  it.  I  hope  we 
shall  not  set  ourselves  up  as  the  masters  of  all 
future  legislatures,  to  say  what  they  shall,  and 
shall  not  do.  "  Sufficient  unto  the  day  is  the 
evil  thereof." 

The  legislatures  which  are  to  come  after  us 
will  exercise  the  discretion  granted  to  them  in  a 
proper  manner ;  and  I  am  therefore  opposed,  alto 
gether,  to  having  this  resolution  adopted.  I  think 
that,  if  adopted,  it  will  result  in  evil,  and  be  the 
cause  of  many  unpleasant  discussions  and  con 
flicting  opinions  as  to  the  right  of  the  legislature, 
which  if  possible,  ought  to  be  avoided.  I  will  not 
farther  occupy  the  time  of  the  Convention,  but 
simply  make  the  motion  to  strike  out  the  whole 
of  the  fourth  resolve. 

The  PRESIDENT.  The  Chair  would  inform 
the  gentleman  that  his  amendment  is  not  in  order 
at  this  time. 

Mr.  STETSON,  of  Braintree.     I  do  not  intend 


484 


IMPRISONMENT   FOR   DEBT. 


[68th  day. 


Wednesday,; 


ALLEN  —  HUNTINGTON  —  DAVIS  —  KEYES  — HALLETT. 


[July  27th. 


to  occupy  the  time  of  the  Convention.  I  rose 
merely  to  say  that  if  there  is  any  one  of  these 
resolves  to  which  this  body  ought  to  give  their 
sanction,  it  is  to  the  fourth  resolve.  I  do  not 
think  it  is  the  object  of  this  Convention  to  confer 
power  upon  the  legislature,  but  to  reserve  those 
powers  which  have  been  delegated  by  the  Consti 
tution,  to  be  acted  upon  by  the  people.  And, 
therefore,  any  restriction  which  will  give  them 
the  right  to  control  matters  which  may  arise  in 
the  course  of  legislation,  and  which  properly  be 
long  to  them  as  sovereigns,  ought  to  be  adopted, 
and  no  more  should  be  delegated  to  the  legisla 
ture  than  is  absolutely  necessary  to  carry  on  the 
government. 

Mr.  MORTON,  of  Quincy,  demanded  the  pre 
vious  question. 

The  demand  for  the  previous  question  was  sus 
tained,  and  the  main  question  ordered  to  be  now 
put. 

The  question  being  on  the  adoption  of  the 
amendment  of  the  gentleman  from  Worcester, 
(Mr.  Davis), 

Mr.  BRIGGS,  of  Pittsfield,  asked  for  the  yeas 
and  nays. 

The  yeas  and  nays  were  not  ordered. 

The  question  was  then  taken  on  the  adoption  of 
the  amendment,  and  it  was,  upon  a  division — 
ayes,  135  ;  noes,  60 — decided  in  the  affirmative. 

The  question  then  recurred  on  the  final  pas 
sage  of  the  fourth  resolve,  as  amended,  and  a 
division  being  asked  for,  it  was — by  a  vote  of  110 
ayes,  and  118  noes — decided  in  the  negative. 

So  the  resolution  was  rejected. 

Imprisonment  for  Debt. 
The  next  resolve  was  read,  as  follows  : — 

Resolved,  That  the  Bill  of  Rights  be  so  amend 
ed  that  no  person  be  imprisoned  for  debt,  in  this 
Commonwealth,  except  in  those  cases  where  fraud 
can  be  proved. 

The  question  being  upon  its  final  passage, 

Mr.  MILLER,  of  Wareham,  asked  for  the  yeas 
and  nays. 

The  yeas  and  nays  were  not  ordered. 

Mr.  HUNTINGTON,  of  Northampton.  I 
move  farther  to  amend  this  resolution,  by  insert 
ing  after  the  word  "  debt,"  the  words  "  hereafter 
contracted." 

Mr.  ALLEN,  of  Worcester.  I  would  suggest 
to  the  gentleman  from  Northampton,  that  it  would 
be  better  to  change  the  phraseology,  so  that  it 
will  read  that  no  debt  contracted  after  the  amend 
ment  shall  go  into  operation,  &c. 

Mr.  HUNTINGTON.  That  was  my  inten 
tion,  and  I  am  willing,  therefore,  to  accept  the 
modification. 


Mr.  DAVIS,  of  Plymouth,  moved  that  the  re 
solve  be  laid  upon  the  table. 

Mr.  SCHOULER,  of  Boston,  asked  for  the 
yeas  and  nays  upon  that  motion. 

The  question  being  taken,  upon  a  division — 
ayes,  54 ;  noes,  196,  one-fifth  voting  in  the  af 
firmative—the  yeas  and  nays  were  ordered. 

Mr.  HALLETT.  I  understand  the  motion  of 
the  gentleman  from  Northampton  to  be  pending. 

The  PRESIDENT.  The  yeas  and  nays  are 
upon  the  motion  to  lay  the  resolve  upon  the  table. 

Mr.  KEYES,  for  Abington.  I  move  a  recon 
sideration  of  the  vote  by  which  the  yeas  and  nays 
were  ordered. 

The  motion  was  agreed  to. 

Tiie  question  then  being  taken  on  ordering  the 
yeas  and  nays,  it  was  decided  in  the  negative. 

The  question  recurred  on  the  motion  to  lay  the 
resolves  upon  the  table,  and  being  taken,  the 
motion  did  not  prevail. 

Mr.  HALLETT.  I  wish  merely  to  say  in  re 
gard  to  that  amendment,  that  it  seems  to  me 
to  be  only  half  doing  what  we  propose  to  do. 
We  have  a  perfect  right  to  make  provision  con 
cerning  the  process  for  collecting  debts  already 
contracted,  as  well  as  for  those  to  be  hereafter 
contracted,  and  there  is  no  vested  right  with  which 
an  exemption  from  a  process  of  arrest  and  im 
prisonment  can  interfere.  The  courts  have  de 
cided  this  matter. 

Now,  the  question  which  we  have  before  us,  is 
whether  we  shall,  or  shall  not,  put  into  the  Con 
stitution,  a  clause  which  abolishes  all  imprison 
ment  for  debt,  except  in  cases  of  fraud — that  is, 
of  an  honest,  unfortunate  debtor  ?  If  we  are  to 
do  anything  in  regard  to  it,  let  us  do  it  fairly  and 
clearly  ;  let  there  be  no  half-way  work  about  it, 
and  let  the  only  distinction  be  between  an  honest 
and  a  fraudulent  debtor. 

There  is  another  reason  why  the  exemption 
from  imprisonment  should  embrace  debts  already 
contracted.  There  are  many  persons  now  absent 
from  the  State  because  they  have  contracted  debts 
which  they  have  been  unable  to  meet ;  and  to 
avoid  the  disgrace  of  the  dungeon,  they  have  been 
compelled  to  go  to  other  parts  of  the  world,  in 
order  to  preserve  their  personal  freedom.  There 
is  no  limitation  which  will  allow  a  man  to  return, 
for  though  he  may  have  been  absent  twenty 
years,  yet,  unless  the  debtor  and  creditor  have 
been  six  years  after  the  debt,  in  the  same  State, 
the  moment  the  debtor  sets  his  foot  within  the 
boundaries  of  the  Commonwealth,  he  becomes 
liable  at  any  moment  to  be  seized  and  imprisoned 
for  his  former  debt.  Why  will  you  retain  such  a 
provision  as  this,  and  thus  hold  the  whip  over  the 
heads  of  the  absent,  who  can  never  return  to  their 


68th   day.] 


IMPRISONMENT   FOR   DEBT. 


485 


Wednesday,] 


GRISWOLD  —  JENKS  —  HUNTINGTON  —  LORD. 


[July  27th. 


old  homes  ?  Another  view  presents  itself.  The 
stranger  cannot  come  to  Boston  to  trade,  without 
being  subject  to  imprisonment,  if  he  owes  a  debt 
here,  or  anywhere  in  the  world,  which  he  cannot 
pay.  What  effect  does  this  have  upon  the  trade 
of  Boston,  Lowell,  Lynn,  &c.  ?  Why  not  make 
a  clean  thing  of  it,  and  say  that  hereafter  there 
shall  be  no  more  imprisonment  for  honest  debt, 
upon  the  soil  of  Massachusetts,  and  allow  every 
man  who  is  now  absent  from  his  family  and 
friends,  to  return  home,  and  live  in  peace,  or  to 
come  and  visit  the  old  homestead,  or  come  and 
trade  among  us,  without  feeling  that  he  is  in  dan 
ger  of  being  snapped  up  at  any  moment,  and  held 
upon  an  affidavit.  I  hope  that  the  amendment 
will  not  be  adopted. 

Mr.  GRISWOLD,  for  Erving.  I  regret,  Sir, 
that  the  mover  of  the  original  resolution  consent 
ed  to  that  amendment.  It  seems  to  me,  that  if 
we  intend  to  do  anything  in  regard  to  this  mat 
ter,  we  had  better  make  provision  for  all  past 
as  well  as  all  future  contracts.  I  should  much 
prefer  to  adopt  the  resolution  originally  proposed, 
for  I  believe  this  imprisonment  for  debt,  where 
there  has  been  no  intention  of  fraud,  to  be  a  relic 
of  a  barbarous  age,  of  which  the  sooner  we  rid 
ourselves  the  better.  I  am  willing  to  go  as  far  as 
any  one  in  this  matter,  for  I  believe  that  it  is  not 
only  an  act  of  duty,  but  an  act  of  justice  and 
humanity  which  we  owe  to  our  fellow  man.  I 
shall,  therefore,  vote  against  the  amendment. 

Mr.  JENKS,  of  Boston.  I  would  inquire  of 
the  Chair  if  it  is  in  order  to  offer  an  amendment  ? 

The  PRESIDENT.  It  is  not  in  order  at  this 
time,  but  the  gentleman  may  be  allowed  to  state 
it,  if  he  desires. 

Mr.  JENKS.  I  propose  to  substitute  the  fol 
lowing  amendment,  which,  I  think,  will  obviate 
the  entire  difficulty  under  which  we  labor : — 

No  person  shall  be  imprisoned  in  any  case, 
who  is  not  declared  by  law  to  be  a  criminal,  or 
dangerous  to  the  public  safety. 

Mr.  HUNTINGTON.  I  did  not  introduce 
this  amendment,  by  any  means,  from  any  hos 
tility  to  the  proposition  of  the  gentleman  from 
Easthampton,  (Mr.  Strong,)  for  I  have  been  in  fa 
vor  of  the  principle  which  he  desires  to  establish, 
for  twenty  years ;  and,  I  believe  the  first  petition 
ever  presented  to  the  legislature  of  Massachu 
setts,  praying  for  the  abolishment  of  imprison 
ment  for  debt,  was  drawn  up  by  myself.  Since 
that  time,  my  opinion  has  never  changed  ;  but  I 
have  on  all  occasions,  whenever  an  opportunity 
has  presented  itself,  advocated  the  principle  to  the 
extent  of  my  humble  ability,  though  never  with 
any  material  success.  I  desire  to  see  that  princi 


ple  adopted  in  the  State  of  Massachusetts,  and  it 
is  because  of  that  desire  that  I  introduced  the 
amendment  I  did.  It  is  my  opinion,  that  if  you 
do  not  introduce  some  qualification  like  that 
which  I  have  proposed,  you  will  array  against  the 
proposition  a  great  number  of  persons  who 
hold  debts  in  their  hands — and  expect  at  some 
time  to  be  able  to  collect  them — against  men 
who  have  absconded.  There  are  persons  to  be 
found  in  almost  every  village  in  the  Common 
wealth,  who  hold  debts  contracted  under  this 
law,  who  were  aware  that  this  remedy  existed, 
and  might  be  applied.  I  do  not  say  that  it  is  un 
constitutional  to  pass  the  resolution  without  such 
an  amendment  to  it,  but  I  think  that  it  would  do 
great  injustice  to  a  certain  class  of  citizens ;  and  I 
foresee,  that  unless  there  is  some  qualification  of 
this  character,  there  will  be  but  little  probability 
that  the  proposition  will  be  adopted  by  the  people. 
These  are  the  motives  which  induced  me  to  sub 
mit  the  amendment. 

Mr.  LOUD,  of  Salem.  I  supposed  from  the 
debate  which  took  place  yesterday  afternoon,  that 
those  who  had  influence  in  this  Convention  would 
mature  this  proposition,  and  it  was  because  of 
some  intimations  to  that  effect,  that  I  withdrew 
the  proposition  I  made  at  that  time.  Now,  no 
gentleman  in  this  Convention  is  more  opposed  to 
putting  a  man  in  jail  for  mere  indebtedness,  than 
I  am  ;  and  yet,  you  do  not  begin  to  remedy  the 
evil  which  exists,  by  adopting  this  resolution. 
The  real  evil  is  a  great  deal  deeper.  What  we 
want  to  say  is,  that  no  man  shall  imprison  another 
by  reason,  and  on  account  of  any  liability  due 
from  one  to  the  other.  To  use  the  mere  term 
"  debt  contracted"  is  to  take  but  a  very  small  class 
of  cases,  a  class  of  cases  in  which  there  is  no  more 
reason  for  exempting  a  man  from  imprisonment 
for  debt,  than  ordinary  cases  which  come  under  a 
different  head.  Suppose,  Sir,  a  poor  man  com 
mences  an  action  against  a  rich  man,  and  after 
having  been  worried  out,  not  being  able  to  get  a 
trial,  he  abandons  his  case.  There  is  a  bill  of 
costs  made  out,  and,  because  of  his  inability  to 
pay  that,  the  rich  man  takes  him,  puts  him  in 
jail,  and  keeps  him  there  until  the  debt  is  can 
celled. 

Yet  that  man  could  not  be  imprisoned,  if  it  had 
been  a  debt  contracted  in  a  bargain.  Take  a  hun 
dred  cases ;  one  was  suggested  to  me  yesterday  : 
an  express  man,  through  a  mere  accident,  loses  a 
bundle  of  money  ;  an  action  of  tort  is  brought, 
judgment  is  recovered  against  the  express  man 
for  the  amount,  and  unless  he  pays,  he  has  got  to 
go  to  jail.  And  why  ?  Simply  because  you  do 
not  provide  for  that  class  of  cases.  In  his  case, 
the  suit  is  not  upon  a  contract.  There  are,  like- 


486 


IMPRISONMENT  FOR   DEBT. 


[68th   day. 


Wednesday,] 


LORD  —  SCHOULEB  —  HOOD  —  BKIGGS. 


[July  27th. 


wise,  numerous  other  cases  to  be  cited,  but  these 
two  are  sufficient  to  show,  that  if  it  is  wrong  to 
put  a  man  in  jail  in  one  instance,  for  failing  to 
discharge  an  obligation,  it  is  wrong  in  another 
instance.  It  is  a  question  entirely,  however,  of 
judicial  remedy  ;  it  is  not  the  contract,  strictly 
speaking,  that  a  man  is  enforcing  when  he  sues 
upon  a  debt ;  but  it  is  in  reality  for  damages  for 
the  non-performance  of  the  contract ;  for  the  non 
payment  of  money.  I  am,  therefore,  entirely  op 
posed  to  placing  in  the  Constitution  a  provision 
which  only  half  covers  the  case. 

If,  after  a  matter  has  arrived  at  a  judgment,  and 
that  judgment  can  be  discharged  by  the  payment 
of  five  hundred  dollars,  what  difference  is  it, 
whether  that  five  hundred  dollars  is  judgment 
obtained  by  reason  of  a  contract  made  by  me,  or 
for  anything  else  which  is  to  be  paid  for  in  money  r 
After  a  party  has  obtained  a  judgment,  and  has 
thus  ascertained  the  amount  of  damages,  it  then 
becomes  a  debt,  and  is  precisely  of  the  nature  of 
a  debt  between  two  individuals,  which  it  becomes 
a  civil  obligation  to  discharge.  It  is  just  as  if  the 
party  had  promised  so  much  money  ;  there  can 
be  no  distinction,  and  the  party  is  morally  bound 
by  law  to  pay  that  debt,  just  as  much  in  one  case 
as  in  another.  And  if  it  is  a  principle  tbat  you 
can  put  a  man  in  jail  in  one  case,  and  cannot  in 
another,  that  distinction  is  founded  in  wrong  and 
injustice.  I  therefore  move  to  amend  the  amend 
ment,  by  inserting  after  the  words  "  hereafter 
contracted,"  the  phrase  "  upon  judgment  here 
after  recovered  in  any  civil  suit." 

Mr.  SCHOULER,  of  Boston.  I  have  no  doubt 
that  the  amendment  proposed  by  the  gentleman 
from  Salem,  abstractly  considered,  is  right,  and  if 
I  were  sure  that  the  people  of  the  Commonwealth 
would  understand  it,  I  would  go  for  it  with  all 
my  heart ;  but  I  think  that  we  have  secured  one 
great  object,  when  we  can  recognize  in  the  Con 
stitution  of  Massachusetts,  that  no  man  shall  be 
imprisoned  for  a  debt,  and  that  we  may  leave  the 
rest  of  the  matter  to  be  acted  upon  by  subsequent 
legislatures.  If  we  can  get  this  principle  recog 
nized  in  that  instrument,  we  shall  gain  a  great 
end  ;  but  I  believe  we  should  run  a  great  risk,  if 
we  should  adopt  the  amendment  of  the  gentleman 
from  Salem,  and  it  is  for  this  reason  that  I  shall 
vote  against  it. 

Mr.  HOOD,  of  Lynn.  I  do  not  find  anything 
in  the  programme  marked  out  for  this  Conven 
tion  in  relation  to  imprisonment  for  debt ;  nor  do 
I  believe  that  this  is  an  amendment  which  the 
people  expected  would  be  made  to  the  Constitu 
tion.  And,  I  submit  to  the  friends  of  reform,  if 
we  have  not  done  quite  as  much  as  is  expedient, 
in  considering  and  adopting  the  amendments 


which  have  been  before  this  body  since  the  ses 
sion  commenced  r  This  is  one  of  the  questions 
which  will  excite  a  great  deal  of  opposition  to  the 
Constitution  which  we  intend  to  submit  to  the 
people,  and  it  may  be  the  means  of  causing  it  to 
be  rejected  altogether.  The  subject  has  been  dis 
cussed  for  many  years  in  the  legislature,  and  never 
yet  have  they  been  able  to  pass  a  law  so  strong 
and  sweeping  as  the  one  proposed  here.  There  is 
a  strong  feeling  in  the  community  against  the 
passage  of  any  such  provision,  and  I  believe  that  it 
would  be  unwise  to  adopt  the  proposed  amend 
ment.  Under  these  circumstances,  therefore,  while 
I  am  in  favor  of  the  principle,  and  am  opposed  to 
imprisonment  for  debt,  I  believe  it  is  better  to 
leave  the  whole  matter  to  the  legislature,  to  be 
acted  upon  by  that  body ;  and  I  move  that  the 
whole  subject  be  indefinitely  postponed. 

The  PRESIDENT.  The  Chair  would  state 
that  such  a  motion  is  not  in  order  at  this  time. 

Mr.  BRIGGS,  of  Pittsfield.  I  am  opposed, 
entirely,  to  the  imprisonment  of  an  honest  man 
because  he  cannot  pay  his  debts,  and  it  is  for  this 
reason  that  I  shall  vote  for  the  amendment  which 
has  been  proposed  by  my  friend  from  East- 
hampton,  (Mr.  Strong).  I  shall  not  do  as  the 
gentleman  from  Lynn  has  just  told  us  he  would 
do  :  he  says  that  he  is  in  favor  of  the  principle, 
he  believes  it  to  be  right ;  but,  nevertheless,  will 
vote  against  it.  The  gentleman  says  that  it  is  not 
in  the  programme  of  this  Convention.  Sir,  it  is 
in  the  programme  of  the  minds  and  hearts  of  the 
people  of  Massachusetts  ;  and,  in  my  opinion,  the 
time  has  arrived  when  the  honest  poor  man  should 
not  be  incarcerated  four-and-twenty  hours  in  a 
prison,  surrounded  by  crime  and  criminals,  sim 
ply  because  he  cannot  pay  a  debt  he  may  have 
contracted. 

It  has  been  suggested  by  my  friend  from  Bos 
ton,  on  my  right,  that  we  are  going  too  far,  and 
that  the  last  clause,  that  he  should  not  be  impris 
oned  for  debt  except  in  cases  of  fraud,  might  not 
secure  the  rights  of  creditors  against  fraudulent 
debtors.  Now  it  is  my  opinion  that  the  legisla 
ture  will  take  this  matter  in  hand  ;  and  if  we 
adopt  this  amendment  it  will  give  them  ample 
power  to  deal  with  fraudulent  debtors,  who, 
having  the  means  of  paying,  will  not  comply  with 
their  contract.  If  I  did  not  believe  this  to  be  the 
case,  I  should  be  the  last  man  to  vote  for  the 
proposition.  If  I  am  not  mistaken,  it  declares 
that,  hereafter,  no  honest  debtor,  who  on  account 
of  misfortune  cannot  pay  his  debts,  shall  be  im 
prisoned. 

Let  me  put  it  to  the  good  sense  of  this  Conven 
tion  :  Would  it  be  a  light  matter  for  one  of  us  to 
have  a  deputy- sheriff  come  into  our  house,  where, 


68th  day.] 


IMPRISONMENT    FOR    DEBT. 


487 


Wednesday,] 


BATES  —  DAVIS  —  BRIGGS. 


[July  27th. 


surrounded  by  a  beloved  family,  we  were  enjoy 
ing  the  comfort  of  a  peaceful  home,  take  us  by 
the  collar,  and  thrust  us  into  a  cell,  and  say : 
«  Oh  !  its  only  four- and- twenty  hours  you  have 
got  to  stay  there ;  it  is  n't  much  r  " 

Mr.  President :  I  do  not  regard  it  so ;  I  believe 
that  it  is  a  matter  of  a  great  deal  of  consequence, 
and  I  shall  do  all  that  lays  in  my  power  to  pre 
vent  any  honest  man  from  staying  even  four-and- 
twenty  hours  within  the  walls  of  a  prison-house. 
I  thank  the  gentleman  from  Easthampton,  (Mr. 
Strong,)  for  introducing  this  proposition  ;  I  shall 
go  with  him  cordially  in  sustaining  it,  and  I  trust 
that  the  Convention  will  do  the  same. 

Mr.  BATES,  of  Plymouth.  I  have  only  a 
word  to  say  in  regard  to  a  matter  to  which  the 
gentleman  from  Pittstield  has  failed  to  allude,  and 
that  is,  that  a  debtor  is  not  only  incarcerated  in 
prison,  but  then,  unless  he  pays  the  expense — 
which  amounts  to  about  seven  dollars — of  swear 
ing  out  before  a  justice,  he  mu->t  remain  in  con 
finement.  I  submit  to  gentlemen  whether  that 
is  a  proper  mode  of  treating  the  poor  debtor. 

Now,  Sir,  I  am  opposed  to  the  amendment  in 
troduced  by  the  gentleman  from  Salem,  (Mr. 
Lord,)  because  I  prefer  to  leave  that  matter  to  be 
settled  by  the  legislature,  believing  them  to  be 
fully  able  to  provide  for  any  difficulty  that  may 
arise.  I  am,  however,  in  favor  of  the  amendment 
of  the  gentleman  from  Northampton,  (Mr.  Hunt- 
ington,)  and  I  hope  that  it  will  be  adopted  by  this 
Convention. 

Mr.  DAVIS,  of  Plymouth.  I  was  unfortu 
nately  absent  yesterday,  in  consequence  of  illness, 
when  this  subject  came  up  for  consideration.  It 
was  brought  before  us  without  notice,  and  upon 
the  amendment  offered,  in  the  form  of  an  addi 
tional  resolution.  And  from  what  I  have  learned 
from  others,  who  are  not  ignorant  of  the  true 
bearings  of  this  subject,  there  seems  to  have  been 
manifested  in  its  discussion  either  a  timidity  allied 
to  a  spirit  of  deraagogism,  or  what  I  would  much 
rather  think  was  the  case,  ignorance  on  the  part 
of  many  gentlemen  as  to  the  true  position  of  the 
law  upon  this  question. 

Now,  Sir,  I  deny,  in  the  first  place,  that  there 
is  any  imprisonment  for  debt  in  the  Common 
wealth  of  Massachusetts.  She  is  not  fairly  to  be 
charged  with  that  disgrace.  I  am  aware  that 
gentlemen  in  this  Convention,  as  well  as  out  of  it, 
have  indulged  themselves  and  others  with  the 
impression  that  a  man  may  be  imprisoned  for  any 
length  of  time,  because  he  happens  to  owe  a  debt 
which  he  cannot  pay.  Gentlemen  argue  as  if 
such  were  still  the  law.  I  deny  that  there  is  any 
imprisonment  for  debt,  as  such,  in  this  Common 
wealth.  It  was  abolished  years  ago,  through  the 


honored  and  humane  labors  of  the  gentleman  from 
Northampton,  (Mr.  Huntington,)  and  such  as  he. 

Mr.  BRIGGS.  If  the  gentleman  had  been 
here  yesterday,  he  would  have  learned  from  a 
public  document  which  was  read  here,  that  during 
the  last  year  there  were  thirteen  hundred  persons 
imprisoned  for  debt  in  this  Commonwealth. 

Mr.  DAVIS.  The  gentleman  will  be  kind 
enough  to  answer  my  argument  when  I  have 
stated  my  position.  I  contend  that  there  is  essen 
tially  no  imprisonment  for  debt,  no  imprisonment 
for  poverty  or  inability,  but  imprisonment  for  not 
paying  a  debt  when  a  man  has  the  means  to  dis 
charge  it.  The  law  is,  that  a  man  who  owes  his 
neighbor,  and  is  not  willing  to  pay,  though  he 
has  the  means,  is  iinprisoned,  not  so  much  be 
cause  he  owes  the  debt  which  he  cannot  pay,  as 
for  endeavoring  to  avoid  discharging  the  obliga 
tion  of  his  contract,  without  showing  his  inability 
to  perform  it.  I  believe,  Sir,  that  those  who 
know  me,  will  admit  that  I  am  in  favor  of  the 
largest  liberty ;  but  I  think  it  is  necessary  that 
some  means  should  be  allowed  by  the  Constitu 
tion,  and  provided  by  law,  which  will  give  the 
power  to  the  creditor  to  arrest  a  debtor,  who  may 
have  contracted  a  debt  with  an  honest  intention, 
but  who  may  have  twenty  thousand  dollars  in  his 
pocket,  which  he  has  concluded  not  to  pay.  If 
this  resolution  is  adopted  and  made  part  of  your 
Constitution,  a  man  may  be  going  through  your 
State  from  New  York  to  Maine,  his  person  loaded 
with  money,  and  the  Boston  creditor,  or  the  Berk 
shire  trader,  can  neither  detain  him,  or  in  any 
mode  attach  the  money  in  his  pocket.  It  is  for 
these  reasons  that  I  can  see  nothing  but  a  pure 
spirit  of  demagogism  which  would  justify  me 
in  advocating  a  resolution  of  this  character,  with 
out  some  such  limitation  as  I  have  alluded  to. 

I  maintain,  Sir,  that  no  honest  poor  man  was 
ever  imprisoned  during  the  last  ten  years,  even 
for  twenty-four  hours,  except  by  his  own  volun 
tary  act.  I  can  merely  say  that,  in  my  experience, 
I  have  never  known  a  case  where  he  could  not 
get  bail,  or  swear  out  within  that  time,  if  he  had 
no  property.  But  I  have  known  very  many 
cases  where,  by  arresting  the  debtor,  the  debt  was 
recovered,  which,  it  was  certain,  could  never  have 
been  obtained  in  any  other  way.  I  see  no  reason 
why  we  should  not  look  upon  this  subject  prac 
tically,  as  upon  other  subjects,  which  I  am  sure 
the  gentleman  from  Pittsfield  is  disposed  to  do. 

Do  you  mean  to  let  a  man  shake  a  bag  of  gold 
in  your  face,  and  say  he  does  not  intend  to  pay 
you,  because  you  have  no  remedy  against  him  ? 
Men  are  arrested  every  day  who  are  strangers 
here,  who  contract  debts  here,  and  are  about  to 
escape  to  other  States,  and  including  them,  and 


488 


IMPRISONMENT   FOR  DEBT. 


[68th  day. 


Wednesday,] 


DAVIS. 


[July  27th. 


all  our  population,  thirteen  hundred  are  said  to 
have  been  imprisoned  for  debt.  Not  more  than 
one  to  ten  thousand  of  our  own  population  !  And 
then  I  am  told  that  statistics  show  that  only  four 
per  cent,  of  the  amount  for  which  they  are  com 
mitted  is  paid  by  imprisoned  debtors.  Sir,  there 
are,  and  can  be  no  statistics,  which  show  the 
amount  paid  by  persons  arrested  on  mesne  pro- 
eess,  or  the  sums  paid  in  private  settlement  by 
debtors  011  execution.  Who  can  say  what  sums 
are  paid  for  fear  of  an  arrest. 

Gentlemen  are  liable  to  be  led  into  great  mis 
apprehension  in  this  matter.  What  is  the  law 
upon  this  subject  ?  No  man  can  be  arrested  upon 
mesne  process  for  debt,  except  upon  affidavit  that 
the  creditor  has  absolute  reasons  for  believing  the 
debtor  is  about  to  depart  ex  se ;  and  this  power 
should  be  in  some  form  retained.  But  if  arrested, 
bail  can  be  given  to  the  officer  without  going  to 
jail,  and  I  thank  God  there  are  few  honest  poor 
men  in  this  Commonwealth  who  cannot  obtain  it ! 
The  officers  of  the  Commonwealth,  when  they 
arrest  a  man,  give  him  the  amplest  opportunity  to 
confer  with  his  friends,  and  secure  whatever  bail 
may  be  demanded.  And  having  been  arrested, 
whether  he  gives  bail  or  not,  he  can  take  the  oath 
before  the  court  when  the  writ  is  returned,  or 
before  the  magistrates  at  any  time,  upon  twenty- 
four  hours  notice. 

But  if  not  arrested  on  the  original  writ,  the 
law  is  such  that  any  man  who  has  had  process 
served  upon  him,  can  submit  himself  for  exami 
nation  before  the  court,  and  satisfy  the  court  that 
he  has  no  property.  By  so  doing  he  exempts 
himself  from  arrest  upon  any  execution  which 
may  thereafter  issue.  That  is  all  that  is  neces 
sary. 

I  therefore  submit  to  the  Convention  that  there 
is  no  good  reason,  and  surely  no  popular  demand, 
for  the  adoption  of  so  sweeping  an  amendment ; 
and  I  hope  it  will  be  fairly  and  fully  considered 
before  we  take  so  important,  and  I  think,  un 
necessary  a  step.  We  were  not  sent  here  for  this 
purpose.  If  the  people  demand  it,  let  the  legisla 
ture  take  the  matter  in  hand,  and  make  such  a 
provision  as  they  may  desire,  and  circumstances 
may  warrant.  The  legislature  abolished  the  old 
imprisonment  for  debt,  and  can  be  trusted  to  make 
such  modifications  as  are  required  from  time  to 
time.  Adopt  this  resolution,  and  the  courts  will 
hold  that  you  must  prove  your  fraud  before  you 
can  make  a  constitutional  arrest;  or  else,  if  a 
creditor  be  permitted  to  arrest  a  repudiating 
debtor  on  a  charge  of  fraud,  no  man  would  dare 
to  do  it.  Why?  Because  he  would  subject  him 
self  to  an  action  for  false,  illegal,  unconstitu 
tional  imprisonment,  if  he  should  happen  to  fail 


in  proving  his  case.  "  Except  in  cases  of  fraud," 
are  the  words. 

For  these  reasons,  it  seems  to  me  it  would  be 
the  height  of  infirmity  for  this  Convention  to 
make  any  provision  of  the  kind.  Not  that  the 
present  law  may  not  require  amendment.  I 
could  suggest  several,  and  one  has  been  alluded 
to  by  my  colleague.  Let  the  creditor  bear  the 
expense,  if  the  debtor  obtains  his  discharge.  Let 
the  legislature  modify  the  law,  or  sweep  it  away 
altogether,  as  they  would  have  done,  had  the 
people  demanded  it,  or  had  the  gentleman  from 
Pittsfield,  from  Salem,  or  from  Boston,  recom 
mended  it  to  the  willing  ears  of  the  people  of  the 
Commonwealth. 

In  regard  to  the  amendment  submitted  by  the 
gentleman  from  Salem,  (Mr.  Lord,)  I  have  to  say, 
that  it  does  not  touch  the  real  defects  in  the  reso 
lution  ;  nor  does  the  amendment  nor  the  resolu 
tion  remedy  the  true  evils  of  false  imprisonment 
in  this  Commonwealth.  The  gentleman  from 
Salem  knows  very  well,  any  lawyer  who  has  had 
any  practice  knows,  that  the  cases  of  imprison 
ment — wicked,  malicious,  and  cruel  imprison 
ment — do  not  arise  from  debts  contracted,  but  are 
upon  writs  which  are  issued  for  petty  slanders, 
assaults,  and  the  like,  on  which  poor  men  are 
arrested,  ordered  to  be  held  to  bail  for  exorbi 
tant  sums,  in  default  of  which  they  are  committed 
to  jail,  and  often  lie  there  for  months.  Here, 
Sir,  is  an  evil  to  be  remedied.  Why  should  a 
man  be  imprisoned,  in  a  civil  action,  on  a  simple 
charge  of  slander  or  assault,  on  the  mere  state 
ment  of  an  enemy,  before  it  is  proved,  and  before 
a  judgment  has  created  an  actual  obligation  ? 

But,  again :  I  assert,  if  a  man  is  honest,  he  is 
not  and  cannot  be  imprisoned  for  debt,  if  he  de 
sires  to  avoid  it.  If  he  is  about  to  be  taken  on 
execution,  in  nine  cases  out  of  ten,  he  receives  a 
card  from  the  officer,  and  is  notified  to  appear, 
with  his  bail,  for  the  jail  limits,  at  an  appointed 
time ;  but  he  need  not  be  imprisoned  for  an  in 
stant.  He  can  then  "swear  out,"  in  twenty-four 
hours,  if  he  has  no  property ;  or  by  taking  the 
benefit  of  the  insolvent  act,  divest  himself  of  his 
property,  and  discharge  himself  within  the  same 
period.  So  that,  in  fact,  there  is  no  actual  im 
prisonment  of  an  honest  man,  unless  it  be  by  his 
own  voluntary  act,  or  from  an  obstinate  desire  to 
obstruct  and  hinder  the  creditor  from  the  recovery 
of  a  legal  claim,  at  the  expense  of  his  own  liberty. 
The  law  provides  that  the  bond  given  upon  exe 
cution  must  be  taken  at  the  jail ;  and  this  pro 
vision  is  a  source  of  great  annoyance  and  vexa 
tion,  but  may  be  easily  remedied  by  the  legisla 
ture,  by  providing  that  the  officer,  as  well  as  the 
jailer,  may  take  a  bond  for  the  prison  limits. 


68th  day.] 


CONSTITUTIONAL   CONVENTIONS,   &c. 


489 


Wednesday,] 


BIRD  —  SCHOULER  —  WILSON  —  KEYES. 


[July  27th. 


Adopt  this  resolution,  with  or  without  the  amend 
ment,  and  it  will  have  a  tendency  to  keep  down 
credits  on  the  larger  scale,  and  among  the  great 
dealers.  But  you  cannot  destroy  the  credit  sys 
tem  altogether.  It  must  exist  among  the  grocers, 
and  country  traders,  and  mechanics;  and  this 
resolution  will  affect  the  poor  man,  as  far  as  it 
has  the  tendency  to  destroy  small  credits,  and 
will  injure  the  small  trader,  who  is  obliged  to 
trust,  just  so  far  as  it  destroys  his  remedy  against 
the  debtor. 

I  hope,  therefore,  that  neither  the  amendment 
nor  the  resolution  will  be  entertained  by  the 
Convention. 

Mr.  BIRD,  of  Walpole,  moved  the  previous 
question. 

Mr.  SCHOULER,  of  Boston.  I  have  no  ob 
jection  to  the  previous  question  being  ordered.  I 
understood  the  gentleman  from  Plymouth  (Mr. 
Davis)  as  alluding  to  the  new  born  zeal  of  this 
Convention  in  proposing  this  matter  at  this  late 
period  of  the  session,  and  I  merely  rose  to  observe 
that  the  gentleman  would  not,  perhaps,  deem  it 
unfair,  if  I  were  to  say  that  his  new  born  zeal 
may  possibly  arise  from  the  fact,  that  if  this  pro 
vision  is  passed,  it  will  probably  take  away  a  part 
of  his  business.  [Laughter.] 

Mr.  BIRD.  I  rise  to  a  question  of  order.  I 
moved  the  previous  question,  and  I  believe  that 
no  debate  is  allowed  after  such  a  motion. 

Mr.  DAVIS,  of  Plymouth.  I  understand  the 
gentleman  from  Boston  to  state,  that  I  made  a 
charge  that  gentlemen  acted  upon  this  question 
from  a  spirit  of  demagogism. 

Mr.  SCHOULER.  Perhaps  the  gentleman  did 
not  correctly  understand  me. 

The  PRESIDENT.  Debate  is  not  in  or 
der. 

Mr.  WILSON,  of  Natick.  I  understand  that 
the  question  is  on  ordering  the  main  question, 
moved  by  the  gentleman  from  Walpole,  (Mr. 
Bird).  I  make  it  a  habit  to  vote  for  the  previ 
ous  question,  and  shall  do  so  on  this  occasion, 
although  I  should  like  an  opportunity  to  say  a 
few  words  in  reply  to  the  gentleman  from  Ply 
mouth,  who  designated  us  who  are  in  favor  of  the 
resolve  as  demagogues  or  fools. 

Mr.  KEYES,  for  Abington.  It  was  my  inten 
tion,  also,  to  have  replied  to  the  remarks  of  the 
gentleman  from  Plymouth.  I  informed  the  gen 
tleman  from  Walpole  of  that  fact,  but  he  said 
that  if  he  could  obtain  the  floor,  he  would  move 
the  previous  question.  He  did  obtain  the  floor, 
and,  without  affording  an  opportunity  to  reply  to 
what  has  been  said,  made  that  motion.  What  I 
desire  now  is,  to  have  the  previous  question  op 
posed,  so  that  it  may  not  appear  that  we  have 


indorsed  any  such  sentiments  as  those  we  have 
just  heard. 

The  question  then  being  on  the  demand  for 
the  previous  question,  the  demand  was  sustain 
ed,  and  the  main  question  ordered  to  be  now 
put. 

The  question  being  taken  upon  the  motion  of 
the  gentleman  from  Salem,  (Mr.  Lord,)  to  amend 
the  amendment  of  the  gentleman  from  Northamp 
ton,  it  was  decided  in  the  negative. 

The  question  was  then  taken  upon  the  amend 
ment  of  the  gentleman  from  Northampton,  (Mr. 
Huntington,)  to  insert  the  words  "  hereafter  con 
tracted,"  after  the  word  "  debt,"  in  the  resolution, 
and  the  amendment  was  adopted. 

The  question  recurred  on  the  final  passage  of 
the  resolution,  as  amended,  and  being  taken,  it 
was  decided  in  the  affirmative. 

So  the  resolution  was  adopted. 

Amendments  to  the  Constitution. 

The  next  matter  in  the  Orders  of  the  Day  was 
the  resolutions  reported  by  the  Committee,  con 
cerning  future  amendments  to  the  Constitution. 

The  resolves  were  read,  as  follows  : — 

1.  Resolved,  That  it  is  expedient  to  provide  in 
the  Constitution,  that — 

A  Convention  to  revise  or  amend  this  Consti 
tution,  may  be  called  and  held  in  the  following 
manner :  At  the  general  election  in  the  year  1873, 
and  in  each  twentieth  year  thereafter,  the  quali 
fied  voters  in  State  elections  shall  give  in  their 
votes  upon  the  question,  "  Shall  there  be  a  Con 
vention  to  revise  the  Constitution  r  "  which  votes 
shall  be  received,  counted,  recorded  and  declared, 
in  the  same  manner  as  in  the  election  of  Gover 
nor  ;  and  a  copy  of  the  record  thereof,  shall, 
within  one  month,  be  returned  to  the  office  of 
the  Secretary  of  State,  who  shall,  thereupon,  ex 
amine  the  same,  and  shall  publish,  in  the  news 
papers  in  which  the  laws  are  then  published,  the 
number  of  yeas  and  nays  given  upon  said  ques 
tion,  in  each  town  and  city  ;  and,  if  a  majority  of 
said  votes  shall  be  in  the  affirmative,  it  shall  be 
deemed  and  taken  to  be  the  will  of  the  people 
that  a  Convention  should  meet  accordingly  ;  and, 
thereafter,  on  the  first  Monday  of  March  ensuing, 
meetings  shall  be  held,  and  delegates  shall  be 
chosen,  in  all  the  towns,  cities,  and  districts  in 
the  Commonwealth,  in  the  manner  and  number 
then  provided  by  law  for  the  election  of  the 
largest  number  of  representatives,  which  the 
towns  and  cities  shall  then  be  entitled  to  elect. 
And  such  delegates  shall  meet  in  Convention  at 
the  State  House  on  the  first  Monday  of  May  next 
ensuing,  and,  when  organized,  shall  have  all  the 
powers  necessary  to  execute  the  purpose  for  which 
such  Convention  was  called ;  and  may  establish 
the  compensation  of  its  officers  and  members,  and 
the  expense  of  its  session,  for  which  the  Gover 
nor,  with  the  advice  and  consent  of  the  Council, 
shall  draw  his  warrant  on  the  treasury.  And,  if 


490 


CONSTITUTIONAL   CONVENTIONS. 


[68th  day. 


Wednesday,] 


SARGENT  —  SUMNER. 


[July  27th. 


such  alterations  and  amendments  as  shall  be  pro 
posed  by  the  Convention,  shall  be  adopted  by  the 
people  voting  thereon  in  such  manner  as  the  Con 
vention  shall  direct,  the  Constitution  shall  be 
deemed  and  taken  to  be  altered  or  amended  ac 
cordingly.  And  it  shall  be  the  duty  of  the  proper 
officers  and  persons  in  authority,  to  perform  all 
acts  necessary  to  carry  into  effect  the  foregoing 
provisions. 

2.  Resolved,   That  whenever  towns    or    cities 
containing  not  less  than  one-third  of  the  qualified 
voters  of  the  Commonwealth,  shall,  at  any  meet 
ing  for  the  election  of  State  officers,  request  that 
a  Convention  be  called  to  revise  the  Constitution, 
it  shall  be  the  duty  of  the  Legislature,  at  its  next 
session,  to  pass  an  Act  for  the  calling  of  the  same, 
and  submit  the  question  to  the  qualified  voters 
of  the   Commonwealth,    whether   a  Convention 
shall  be  called  accordingly  :  provided,  that  nothing 
herein  contained  shall  impair  the  power  of  the 
Legislature  to  take  action  for  calling  a  Conven 
tion,  without  such  request,  as  heretofore  practised 
in  this  Commonwealth. 

3.  Resolved,  The  foregoing  provisions  shall  in 
nowise  restrain  or  impair  the  reserved  right  of 
the   people,  in  their  sovereign  capacity,  and  by 
such  mode  of  proceeding  as  shall  fully  and  fairly 
collect  and  ascertain  the  will  of  the  majority,  at 
all  times,  to  reform,  alter,  or  totally  change  their 
Constitution  and  Frame  of  Government. 

The  question  being  on  ordering  the  resolutions 
to  a  second  reading, 

Mr.  SARGENT,  of  Cambridge.  I  hope,  Sir, 
that  these  resolves  will  not  be  adopted.  If  I 
understand  them'  correctly,  they  provide  that  the 
basis  of  representation  which  you  have  estab 
lished,  shall  be  taken  as  the  basis  for  your  future 
Conventions.  Now,  Sir,  in  order  to  ascertain 
precisely  what  we  are  asked  to  do,  it  will  be 
necessary  for  me  to  call  your  attention  again  to 
that  basis  of  representation.  In  doing  this,  I  do 
not  propose  to  go  over  the  ground  that  I  have 
already  gone  over,  or  to  institute  the  compari 
sons,  or  to  repeat  the  arguments  I  have  already 
advanced,  when  addressing  the  Convention  in 
reference  to  the  proposed  basis  of  representa 
tion. 

Mr.  SUMNER,  for  Marshneld.  Will  the  gen 
tleman  allow  me  to  set  him  right  ?  I  understand 
the  gentleman  to  say,  that  in  case  of  future  Con 
ventions  for  the  amendment  of  the  Constitution, 
the  basis  of  representation  is  to  be  in  accordance 
with  the  existing  representative  basis.  That  is 
not  my  understanding  of  this  proposition.  The 
existing  basis  of  representation  is  contemplated  in 
the  first  amendment,  but  the  second  provides  for 
Conventions  to  be  held  hereafter  in  any  way  that 
the  legislature  may  determine. 

Mr.  SARGENT.  I  am  aware,  Sir,  that  the 
second  resolution  places  the  power  in  the  legisla 
ture  to  call  Conventions  in  any  manner  they  may 


determine.  But,  Sir,  you  provide  that  for  the 
Convention  to  be  called  in  1873  you  shall  take 
the  basis  of  representation  that  has  been  estab 
lished  for  the  House  of  Representatives ;  and, 
Sir,  I  do  not  understand  the  second  resolution  as 
changing  the  principles,  or  as  abridging  the  power 
of  the  minority  in  the  least,  to  adopt  that  as  the 
basis  of  any  other  Convention. 

But,  Sir,  to  proceed.  I  was  saying  that  I  did 
not  propose  to  repeat  the  arguments  which  I  had 
the  honor  of  presenting  to  the  Convention  on  a 
former  occasion,  when  this  subject  was  under 
consideration.  Two  amendments  have  been  made 
in  the  system  since  that  time ;  one  reducing  the 
mean  increasing  ratio  from  5,000  to  4,000  for 
each  additional  representative  above  the  second, 
which  will  give  eight  additional  representatives ; 
and  the  other  striking  out  the  limitation ;  so  that 
the  number  of  representatives  will  be  increased 
at  every  decennial  period. 

These  amendments  affect  the  general  provis 
ions,  or  the  practical  operations  of  the  system  so 
little,  that  the  considerations  which  I  have  here 
tofore  presented,  apply  with  equal  force  to  the 
system  in  its  present  amended  form.  But,  Sir, 
let  us  examine  more  critically  this  basis  of  repre 
sentation  which  we  have  adopted,  in  order  that 
we  may  ascertain  whether  it  be  such  a  basis  as 
ought  to  be  adopted  as  the  basis  of  future  Con 
ventions  to  amend  the  Constitution. 

In  the  remarks  which  I  took  occasion  to  make 
when  this  subject  was  under  discussion  before,  I 
stated  that,  under  the  present  existing  Constitu 
tion,  a  change  of  sixteen  representatives  out  of 
three  hundred  and  seventy-two  from  four  coun 
ties  to  four  other  counties,  would  equalize  the 
present  representation  between  the  several  coun 
ties.  It  has  been  contended,  however,  by  the 
friends  of  this  amendment,  that  voters  would  be 
a  more  just  basis  than  population.  I  have  pre 
pared  the  following  table,  in  order  to  ascertain 
the  inequalities  of  the  present  system  under  the 
application  of  that  rule : — 


Suffolk,      . 

Essex, 

Middlesex, 

Worcester, 

Hampshire, 

Hampden, 

Franklin,    . 

Berkshire, 

Norfolk,     . 

Bristol, 

Plymouth, 

Barnstable, 


Apportionment. 

.  46  4-10 

.  44  7-10 

.  58  4-10 

.  55  6-10 

.  15  6-10 

.  19  3-10 

.  16  2-10 

.  21  9-10 

.  28 

.  26  5-10 

.  21  4-10 

13  3-10 


Equal  Pronortion 
on  voters. 

46  1-10 
49  6-10 
56  1-10 
52 

15  1-10 
19  4-10 
14  2-10 
19  8-10 
28  3-10 
26  9-10 
25  3-10 
14  9-10 


68th  day.]                   CONSTITUTIONAL   CONVENTIONS.                               491 

Wednesday,]                                                        SUMNEK.                                                           [July  27th. 

Equal  Proportion 
Apportionment.             on  voters. 

Dukes,        .         .       2  4-10                  1  9-10 
Nantucket,         .3                            2  7-10 

each  county  would  have,  if  placed  upon  an  equal 
footing  with  the  county  of  Franklin  :  — 

Equal  Proportion 
Apportionment.         with  Franklin. 

Franklin,    .         .     21  2-10                 21  2-10 
Hampshire,         .     20  8-10                 23  5-10 
Hampden,           .     23                           34  4-10 
Berkshire,            .     28  2-10                 33  5-10 
Worcester,           .     61  2-10                 86  9-10 
Middlesex,           .     62  8-10               106  9-10 
Essex,         .         .     46  8-10                 87  2-10 
Norfolk,      .         .     30  2-10                53  1-10 
Bristol,        .         .     29  6-10                 51  4-10 
Plymouth,          .     23  8-10                 37  4-10 
Barnstable,          .     14  6-10                 23  3-10 
Dukes,       .         .       2  6-10                  3 
Nantucket,         .       3                             6 
Suffolk,      .         .     37  6-10               100 

372  7-10              372  3-10 
Loss  by  fractions,  .         .         .4-10 

By  this  table  it  will  be  seen  that  the  four  coun 
ties  which  have  sixteen  more  than  their  propor 
tion,  on  population,  have  only  eight  and  a  frac 
tion  more  than  their  proportion  on  voters  ;  and  it 
shows  also  that  the  difference  between  population 
and  voters,  as  a  basis,  is  not  so  great  as  some  gen 
tlemen  have  imagined.     But,  Sir,  let  us  proceed 
to  an  examination  of  the  system  which  has  been 
adopted  by  the  Convention.     The  following  table 
will    show   the    number    of   representatives    to 
which  each  county  is  entitled  under  the  first  ap 
portionment,  as  also  the  number  to  which  each 
county  would  be  entitled  if  apportioned  equally 
upon  population  :  — 

Equality  on 
By  Butler's  Plan.            Population. 

Suffolk,      .         .     37  6-10                60  7-10 
Essex,         .         .     46  8-10                 52  9-10 
Middlesex,          .     62  8-10                 64  8-10 
Worcester,          .     61  2-10                52  7-10 
Hampshire,         .     20  8-10                 14  2-10 
Hampden,           .     23                          20  9-10 
Franklin,    .         .     21  2-10                 12  8-10 
Berkshire,            .     28  2-10                 20  3-10 
Norfolk,      .         .     30  2-10                 32  2-10 
Bristol,       .         .     29  6-10                 31  2-10 
Plymouth,           .     23  8-10                 22  7-10 
Barnstable,          .     14  6-10                 14  1-10 
Dukes,        .         .       2  6-10                   1  8-10 
Nantucket,          .3                            3  6-10 

405  4-10              667  8-10 

Thus  it  will  be  seen,  that  the  county  of  Frank 
lin  gets  in  a  House  of  405  4-10  members,  the 
full  proportion   she  would  be   entitled  to   in  a 
House  of  667. 
But  it  may  be  objected,  that  it  is  unfair  to  pre 
sent  one  extreme  of  the  case,  without  exibiting 
the  other  also.     To  meet  this  objection,  I  have 
prepared  the  following  table,  taking  the  county 
of  Suffolk  as  a  basis.     That  county  elects   one 
representative  for  every  3,876  inhabitants,  and  the 
following  table  shows  what  each  county  would  be 
entitled  to,  if  placed  upon  an  equal  footing  with 
that  county  :  — 

Equal  proportion 
Apportionment.            with  Suftblk. 

Suffolk,       .         .     37  6-10                37  6-10 
Essex,         .         .     46  8-10                32  8-10 
Middlesex,          .     62  8-10                40  1-10 
Worcester,          .     61  2-10                32  6-10 
Hampshire,          .     20  8-10                   8  8-10 
Hampden,  .         .23                           12  9-10 
Franklin,    .         .     21  2-10                   7  9-10 
Berkshire,  .         .     28  2-10                 12  6-10 
Norfolk,      .         .     30  2-10                 19  9-10 
Bristol,        .         .     29  6-10                 19  3-10 
Plymouth,.         .     23  8-10                 14 
Barnstable,          .     14  6-10                  8  7-10 
Dukes,        .         .       2  6-10                  1  1-10 
Nantucket,          .3                            2  2-10 

405  4-10              404  9-10 
Loss  by  fractions,  .         .         .5-10 

By  the  foregoing  table  it  will  be  seen  that  the 
same   four   counties   of  Worcester,    Hampshire, 
Franklin  and    Berkshire,  are   permitted  to  elect 
131  4-10  members,  while  they  would  be  entitled 
to  100  4-10  as  their  equal  proportion  of  popula 
tion  ;  and  I  also  find  that  they  would  be  entitled 
to  only  107  4-10  on  voters,  thus  giving  them  on 
population  31,  and  on  voters  23  5-10  more  than 
their  equal  proportion.     But,  Sir,  this  does  not 
exhibit  clearly  the  inequalities  of  the  proposed 
amendment.     I  have  prepared  another  table,  tak 
ing  the  county  of  Franklin  as  the  basis,  which 
will  show  more  distinctly  the  inequalities  of  this 
system.     That  county  is  entitled  to  elect  21  2-10 
representatives,  or  one  for  every  1,457  inhabitants. 
The  following  table  exhibits  the  number  which 

405  4-10               250  5-10 

Thus,  the  county  of  Suffolk  is  allowed  in  a 
House  of  405  4-10,  no  more  members  than  would 
be  her  equal  proportion  of  a  House  of  only  250 
5-10  members.     But,  Sir,  let  us  leave  this  cor 
rupt  and  corrupting  county    of    Suffolk,  —  this 

492 


CONSTITUTIONAL   CONVENTIONS. 


[68th  day. 


Wednesday,] 


SUMNER. 


[July  27th. 


immense  and  dangerous  power  of  centralization, 
which  has  been  wielded  with  such  crushing  force 
over  this  Convention, — this  congregated  mass  of 
foreign  population,  which  gentlemen  seem  so  to 
dread  that  they  are  unwilling  they  shall  exercise 
any  right,  or  any  privilege,  but  the  right  to 
breathe,  and  the  privilege  to  toil.  Let  us  leave 
all  these  out  of  the  question,  and  proceed  to  insti 
tute  a  comparison  between  different  agricultural 
portions  of  the  State.  If  you  combine  the  popu 
lation  of  the  five  western  counties,  (  to  wit,  Wor 
cester,  Hampden,  Hampshire,  Franklin  and 
Berkshire,)  they  are  entitled  to  elect  154  4-10 
representatives,  or  one  for  every  1,883  inhabitants. 
Now,  if  you  were  to  give  to  the  counties  of  Mid 
dlesex  and  Essex,  a  representative  for  the  same 
number  of  inhabitants,  they  would  be  entitled  to 
elect  150  2-10,  while  they  now  get  but  109  6-10. 
They  would  be  entitled  to  40  6-10  more  than 
they  get  under  the  proposed  amendment. 

The  same  proportion  would  give  the  six  south 
ern  counties,  instead  of  103  8-10,  which  they 
now  get,  134  8-10,  or  an  increase  of  thirty-one 
members.  But  where  have  we  actually  placed 
the  power  ? 

I  find  there  are  eighty-four  cities  and  towns, 
with  a  population  of  651,245,  which  will,  under 
this  system,  elect  one  hundred  and  ninety-four 
members,  or  one  for  every  3,356  inhabitants, 
while  the  remaining  two  hundred  and  thirty- 
seven  towns,  with  a  population  of  322,470,  being 
2,101  less  than  one- third  the  population  of  the 
State,  will  elect  205  members  annually,  or  one  for 
every  1,577  inhabitants,  being  a  clear  majority  of 
eleven,  and  in  the  valuation  year,  they  will  have 
thirty-two  additional,  making  their  majority  on 
that  year  forty- three,  equal  to  an  average  annual 
representation  of  211  4-10,  or  174-10  majority. 

The  estimate  does  not  include  the  seven  towns 
which  have  been  incorporated  since  1850,  and 
which  will  increase  that  majority. 

Now,  Sir,  there  is  where  you  have  placed  the 
power  in  the  House  of  Representatives,  and  we 
are  asked  to  adopt  a  measure  to  perpetuate  that 
power  in  the  hands  of  this  minority,  for  all  com 
ing  time.  Sir,  if  this  was  a  mere  temporary 
measure,  as  some  gentlemen  have  professed  to 
believe  it  to  be— one  which  the  people  could  alter 
or  annul,  at  pleasure— it  would  be  a  matter  of 
much  less  consequence.  But  when  you  propose 
to  place  in  this  minority  a  self-perpetuating  pow 
er, — when  you  propose  to  place  in  their  hands  an 
uncontrolled  and  uncontrollable  power  to  dictate 
all  future  amendments  to  the  Constitution,  a 
power  far  above  and  beyond  the  reach  of  the 
people,  save  by  revolution, — it  becomes  a  ques 
tion  of  the  greatest  magnitude.  Sir,  do  men 


willingly  yield  up  power,  when  once  placed 
within  their  grasp  ?  The  history  of  the  world 
proves  they  do  not.  But  I  need  not  go  beyond 
the  history  of  this  Convention,  to  prove  that  doc 
trine. 

Sir,  this  Convention  is  controlled  by  a  majority 
of  delegates  that  represent  only  a  minority  of  the 
people ;  and  what  is  the  consequence  ?  Why, 
when  the  question  was  taken  on  the  introduction 
of  an  equal  system  of  representation,  as  presented 
by  the  gentleman  from  Taunton,  (Mr.  Morton,) 
that  measure  was  defeated  by  a  majority  of  81 
votes,  the  vote  being — ayes,  117  ;  noes,  198.  And 
yet  the  117  ayes  represented  a  constituency  more 
than  thirty-five  thousand  greater  than  was  repre 
sented  by  the  198  noes.  Now,  Sir,  if  we  find  on 
the  part  of  the  majority  of  this  Convention,  rep 
resenting,  as  they  do,  only  a  minority  of  the  peo 
ple,  no  disposition  to  yield  up  any  portion  of  the 
power  they  now  possess,  for  the  purpose  of  estab 
lishing  an  equal  system  of  representation,  a  sys 
tem  which  many  of  them  acknowledge  to  be  not 
only  just,  but  strictly  in  accordance  with  the 
fundamental  principles  of  a  republican  govern 
ment,  can  we  expect  that  those  who  come  after 
them  will  more  willingly  yield  up  the  still  great 
er  power  with  which  you  are  about  to  invest 
them  ? 

Sir,  to  whom  are  you  to  look  to  restore  this 
power  into  the  hands  of  the  majority  of  the 
people  ?  You  are  to  look  to  this  very  minority 
in  whose  hands  you  now  place  it.  For  you  can 
have  no  special  Convention  that  the  minority  do 
not  see  fit  to  grant  you ;  and  you  can  have  no 
amendments  to  your  Constitution,  that  that  mi 
nority  do  not  approve.  True,  the  people  will 
have  left  in  their  hands  the  power  to  reject  any 
amendments  that  such  Convention  may  see 
fit  to  propose.  But  I  submit,  that  they  will  have 
reserved  in  their  hands  no  constitutional  power 
to  make  any  amendments  to  their  Constitution, 
which  they  may  wish  to  make,  except  such  as 
that  minority  shall  graciously  condescend  to  per 
mit  them  to  make.  And  the  gentleman  for 
Marshficld  will  perceive  that  it  makes  no  kind  of 
difference,  that  the  power  will  be  given  to  the 
legislature  to  call  a  Convention  at  any  time,  and 
to  establish  the  basis  of  representation  for  that 
Convention ;  for  it  will  be  just  such  a  basis  as 
the  minority  pleases  to  adopt,  and  no  other. 

It  is  no  answer  to  say  "  there  is  no  danger  that 
the  power  will  ever  be  abused."  It  is  our  duty, 
in  framing  a  Constitution,  so  to  apportion  the 
power,  if  possible,  that  it  cannot  be  abused. 
There  is  danger,  there  is  always  great  danger, 
when  the  many  place  power  unconditionally  in 
the  hands  of  the  few.  I  trust  this  Convention 


68th   day.] 


CONSTITUTIONAL   CONVENTIONS. 


493 


Wednesday,] 


GRISWOLD  —  HALLETT  —  LORD. 


[July  27th. 


will  pause  and  consider  this  matter  well,  before 
they  adopt  a  measure  by  which  all  power  over 
their  Constitution  will  be  yielded  into  the  hands 
of  a  mere  fraction  of  a  minority.  If  this  act 
shall  be  consummated,  the  majority  of  the  people 
of  this  Commonwealth  will  have  no  more  power 
"to  alter  and  amend  their  Constitution  of  gov 
ernment,"  than  had  our  fathers,  as  subjects  of 
the  British  crown.  The  only  power — the  only 
right — they  will  have  reserved  to  themselves,  will 
be  the  power  of  supplication,  or  the  right  of  rev 
olution. 

Mr.  GRISWOLD,  for  Erving.  I  move  to 
amend  the  first  resolution,  by  striking  out  from 
the  twentieth  line  the  word  "and"  and  insert 
ing  after  the  word  "  cities "  the  words  "  and 
districts,"  so  that  it  will  read  "  towns,  cities  and 
districts;"  also  in  the  next  line,  to  insert  after 
the  word  "  elect,"  the  words  "  in  any  year  of  that 
decennial  period,"  so  that  it  will  read  "  and  there  • 
after,  on  the  first  Monday  of  March  ensuing, 
meetings  shall  be  held  and  delegates  shall  be 
chosen,  in  all  the  towns,  cities  and  districts  in  the 
Commonwealth,  in  the  manner  and  number  then 
provided  by  law  for  the  election  of  the  largest 
number  of  representatives,  which  the  towns,  cities 
and  districts  shall  then  be  entitled  to  elect  in  any 
year  of  that  decennial  period." 

The  question  being  taken,  the  amendments 
were  adopted. 

Mr.  GRISWOLD.  I  move,  also,  to  strike  out 
from  the  twenty-second  line  of  the  first  resolve, 
the  word  "  Monday  "  and  insert  the  word  "  Wed 
nesday,"  so  that  if  amended,  it  will  read  "  and 
such  delegates  shall  meet  in  Convention  at  the 
State  House,  on  the  first  Wednesday  of  May  next 
ensuing,"  &c. 

The  amendment  was  agreed  to. 

Mr.  HALLETT,  for  Wilbraham.  There  is  a 
verbal  amendment  which  I  desire  to  make.  I 
move  to  strike  out  from  the  tenth  line,  the  words 
"  in  the  newspapers  in  which  the  laws  are  offi 
cially  published,"  and  insert  after  the  word 
"  shall "  the  word  "  officially,"  so  that  if  amended, 
it  will  read  "  who  shall  thereupon  examine  the 
same,  and  shall  officially  publish  the  number  of 
yeas  and  nays,"  &c. 

The  question  being  taken,  the  amendment 
was  agreed  to. 

Mr.  LORD,  of  Salem.  I  move  to  amend  the 
first  resolution,  by  inserting  after  the  word  "  affir 
mative  "  in  the  thirteenth  line,  the  words  "  and 
such  majority  shall  be  at  least  equal  to  one-half  of 
the  whole  number  of  votes  cast  for  the  governor 
at  such  election."  If  gentlemen  have  observed 
the  phraseology  of  this  resolution,  they  will  have 
noticed,  that  without  any  action  upon  the  part  of 


the  government  of  the  Commonwealth,  the  voters 
of  the  several  towns  will  be  called  upon  by  the 
selectmen  to  vote  upon  the  question  whether 
there  shall  be  a  Convention  to  revise  the  Consti 
tution.  Now,  Sir,  without  making  any  preten 
sions  to  the  gift  of  prophesy,  I  venture  to  say,  that 
when  the  time  arrives  for  this  proposition  to  be 
voted  upon,  but  very  few  of  the  people  will  be 
aware  of  it,  and  consequently  will  not  vote  for 
it.  Indeed,  Sir,  I  believe  the  first  period  pro 
vided  in  the  Constitution  for  the  calling  of  a 
Convention,  was  allowed  to  pass  by  without  any 
attention  being  paid  to  it  whatever,  and  I  submit 
whether  in  the  present  instance  the  same  difficulty 
will  not  occur.  It  may  be,  however,  that  in  some 
few  of  the  towns,  the  people  will  be  aware  of  the 
existence  of  such  a  proposition,  and  v«ll  vote  for 
it.  But,  I  appeal  to  the  good  sense  of  this  body, 
if  a  Convention  ought  to  be  called  upon  such  a 
basis  as  that — the  votes  which  may  be  deposited 
in  half  a  dozen  towns.  I  know  that  it  is  said, 
that  those  who  do  not  vote  against  the  proposition, 
assent  to  it,  but  in  the  matter  of  calling  a  Con 
vention  to  revise  the  fundamental  law  of  the 
Commonwealth,  I  do  not  think  that  a  sound 
principle.  I  think  that  of  those  who  go  to  the 
polls  when  the  time  shall  arrive  and  vote,  at  least 
a  majority  should  vote  in  favor  of  calling  a  Con 
vention.  Under  this  provision,  as  expressed  in 
the  resolution  now  under  consideration,  it  may 
be  the  case  that  a  hundred  men  may  call  a  Con 
vention,  if  no  more  vote  for  it.  Such  a  state  of 
affairs  would  of  course  result  only  from  inatten 
tion,  but  that  very  inattention  and  negligence,  is 
brought  about  by  the  fact  that  a  Convention  is 
not  needed.  When  the  public  mind  is  quiet, 
when  public  affairs  are  undisturbed,  when  the 
people  of  the  Commonwealth  are  enjoying  pros 
perity  in  all  branches  of  industry,  when  nobody 
feels  the  hand  of  government  pressing  heavily 
upon  him,  then  there  comes  along  unannounced 
and  unheralded  this  day  on  which  the  votes  of 
the  people  are  to  determine  whether  or  not  there 
shall  be  a  Convention.  And  yet,  notwithstanding 
the  people  have  no  desire  for  it,  five  hundred 
persons  who  may  happen  to  be  aware  of  such  a 
proposition,  may,  by  depositing  their  votes,  cause 
a  Convention  to  be  called,  and  with  it  all  the 
necessary  or  unnecessary  attendant  expense.  I 
hope,  Sir,  that  we  shall  never  consent  to  adopt 
any  such  self-acting,  self- regulating  provision, 
founded  upon  a  distrust  of  every  officer  in  the 
Commonwealth,  except  the  Secretary  of  State, 
but  that  we  shall  amend  it  in  such  a  manner 
that  it  shall  receive  a  respectable  number  of  votes, 
if  any  at  all.  I  am  aware  that  this  amendment 
is  to  be  voted  down  immediately ;  it  has  more 


494 


CONSTITUTIONAL   CONVENTIONS. 


[68th  day. 


Wednesday,] 


LORD  —  HOPKINSON  —  BATES  —  GARDNER —  NAYSON. 


[July  27th. 


than  once  been  my  fortune  to  suggest  views  here, 
which  men  quietly  tell  me  ought  not  to  be  adopted, 
but  yet  they  do  not  see  exactly  on  what  grounds 
to  base  their  advice ;  and  such  is  the  case  on  the 
present  occasion ;  gentlemen  cannot  see  how 
they  can  answer  the  suggestions  I  have  made, 
with  any  show  of  reason  or  argument,  but  they 
have  a  way  to  get  rid  of  them  more  quietly,  and  it 
is  the  way  in  which  all  questions  are  to  be  settled. 
I  deemed  it  my  duty,  however,  to  present  these 
views,  and  to  make  the  proposition  I  did,  that 
when  the  day  arrives  for  the  question  of  the 
calling  of  a  Convention  to  be  decided,  unat 
tended,  as  it  will  be,  by  any  official  announce 
ment,  unaccompanied  by  any  call  upon  the  peo 
ple  to  assemble  and  vote  upon  that  question,  we 
should  provide  that  at  least  the  votes  of  a  majority 
of  those  who  go  to  the  polls,  shall  be  in  favor  of 
calling  such  a  Convention,  so  that  it  may  not  be 
sprung  upon  the  people  of  the  Commonwealth 
by  a  few,  more  diligent,  more  active  individuals 
than  others,  who  may  be  aware  of  the  existence 
of  such  a  provision  in  the  Constitution. 

Mr.  HOPKINSON,  of  Boston.  I  would  in 
quire  of  the  gentleman  from  Salem,  whether  some 
doubt  may  not  exist  whether  the  language  would 
not  imply  that  such  a  majority  shall  be  more  than 
half. 

Mr.  LORD.  I  suppose  it  does  net  make  much 
difference  what  the  words  are  ;  the  result  will  be 
the  same.  The  same  abiguity  occurred  to  me, 
but  I  supposed  that  the  Convention  understood  it. 

Mr.  BATES,  of  Plymouth,  demanded  the 
previous  question. 

Mr.  LORD.  Inasmuch  as  that  applies  to  all 
the  resolutions  embraced  in  this  Report,  and  as  I 
know  of  no  gentlemen  who  desire  to  make  any 
remarks,  or  introduce  any  amendment,  I  call 
for  the  yeas  and  nays  upon  the  previous  ques 
tion. 

The  question  then  being  taken  on  ordering  the 
yeas  and  nays,  upon  a  division— ayes,  41  ;  noes, 
136— one-fifth  voting  in  the  affirmative,  the  yeas 
and  nays  were  ordered. 

Mr.  GARDNER,  of  Boston,  moved  that  the 
Convention  do  now  adjourn. 

The  motion  was  not  agreed  to,  there  being  upon 
a  division— ayes,  66  ;  noes,  90. 

So  the  Convention  refused  to  adjourn. 

The  PRESIDENT.  The  question  is,  «  Shall 
the  main  question  be  now  put  ? "  Upon  this 
question  the  yeas  and  nays  have  been  ordered. 
The  Secretary  will  call  the  roll. 

The  Secretary  commenced  the  call. 

Mr.  BATES,  of  Plymouth.  I  will  withdraw 
the  motion  for  the  previous  question. 

Mr.  BIRD,  of  Walpole.     Can  the  demand  for 


the  previous  question  be  withdrawn  after  the  yeas 
and  nays  have  been  ordered  ? 

The  PRESIDENT.  It  may,  by  general  con 
sent,  be  withdrawn. 

Mr.  BIRD.     I  object. 

Mr.  LORD.  I  believe  it  has  been  the  uniform 
practice  of  this  Convention,  although  it  is  differ 
ent  in  congress,  to  allow  the  mover  to  withdraw 
a  motion,  unless  objection  be  made.  I  am  per 
fectly  willing,  however,  to  spend  an  hour  in  tak 
ing  the  yeas  and  nays,  if  the  Convention  desire 
it. 

The  PRESIDENT.  The  Chair  would  state, 
in  regard  to  the  withdrawal  of  the  motion  of  the 
gentleman  from  Plymouth,  (Mr.  Bates,)  that,  by 
an  express  rule  of  the  Convention,  the  gentleman 
has  a  right  to  withdraw  it.  The  rule  is  as  fol 
lows  : — 

"  After  a  motion  is  stated  or  read  by  the  Presi 
dent,  it  shall  be  deemed  to  be  in  the  possession 
of  the  Convention,  and  shall  be  disposed  of  by 
vote  of  the  Convention,  but  the  mover  may  with 
draw  it  at  any  time  before  a  decision  or  amend 
ment,  except  a  motion  to  reconsider,  which  shall 
not  be  withdrawn  after  the  time  has  elapsed  with 
in  which  it  could  originally  be  made." 

Mr.  BATES.  I  have  no  particular  wish  to 
withdraw  it. 

Mr.  DANA,  for  Manchester.  Is  it  in  order  to 
move  an  adjournment  ? 

The  PRESIDENT.  The  Chair  rules  that  it 
is  out  of  order  to  entertain  any  motion  whatever. 

Mr.  GARDNER,  of  Boston.  I  supposed  that 
a  motion  to  adjourn  was  always  in  order. 

The  PRESIDENT.  The  Secretary  has  com 
menced  calling  the  roll,  and  he  will  proceed  with 
the  call. 

Mr.  NAYSON,  of  Amesbury.  I  rise  to  ask 
information  of  the  Chair.  I  understand,  that 
after  the  President  has  given  the  order  to  the 
Secretary  to  call  the  roll,  110  debate  or  motion  can 
intervene ;  and  that,  therefore,  the  motion  of  the 
gentleman  for  Manchester  cannot  be  entertained 
at  this  time.  Is  that  the  decision  of  the  Chair  ? 

The  PRESIDENT.  The  Chair  will  state  the 
circumstances.  The  question  was  stated  as 
usual ;  the  Secretary  was  directed  to  call  the 
roll,  and  commenced  to  call  the  roll  before  the 
gentleman  for  Manchester  arose  and  addressed 
the  Chair. 

Mr.  SCHOULER,  of  Boston.  In  my  judg 
ment,  the  decision  of  the  Chair  is  correct. 

The  PRESIDENT.  The  Chair  will  state  the 
question  once  more.  The  motion  was  made  by  the 
gentleman  from  Plymouth,  (Mr.  Bates,)  for  the 
previous  question ;  pending  that  question,  the  gen 
tleman  from  Salem  (Mr.  Lord)  moved,  that  on  that 


68th  day.]                   CONSTITUTIONAL    CONVENTIONS.                               495 

Wednesday,]                                  LORD  —  YEAS  —  NAYS  —  ABSENT.                                     [July  27th. 

motion  the  yeas  and  nays  be  taken  ;  that  motion 

Rantoul,  Robert              Sumner,  Increase 

was  agreed  to,  and  a  motion  was  made  by  the  gen 
tleman  from  Boston,  (Mr.  Gardner,)  that  the  Con 
vention   adjourn,    which   did   not  prevail.     The 

Rawson,  Silas                   Swain,  Alanson 
Richardson,  Samuel  H.  Thompson,  Charles 
Ring,  Elkanah,  Jr.          Tilton,  Horatio  W. 
Ross,  David  S.                  Wallis,  Freeland 

Secretary  was  requested  to  call  the  roll,  and  com 

Royce,  James  C.               Walker,  Amasa 

menced  to  do  so,  when  the  delegate  for  Manches 

Sprague,  Melzar               Ward,  Andrew  H. 

ter,  (Mr.  Dana,)  rose  and  addressed  the  Chair  ; 

Spooner,  Samuel  W.       Weston,  Gershom  B. 

the  Chair  recognized  him,  and  ruled  that  it  was 
not  in  order  to  make  any  motion  whatever,  and 

Stevens,  Charles  G.         Whitney,  Daniel  S. 
Stevens,  Granville            Whitney,  James  S. 
Stiles,  Gideon                   Wood,  Charles  C. 

he  still  believes  that  decision  to  be  correct.     The 

Sumner,  Charles              Wood,  Otis 

Secretary  will  proceed  to  call  the  roll. 

Mr.  LORD.     As  we  have  no  printed  orders,  I 

NAYS. 

would  inquire  of  the  Chair  whether  the  main 
question  is  upon  ordering  the  resolutions  to  a 

Adams,  Benjamin  P.       Houghton,  Samuel 
Andrews,  Robert             Jenkins,  John 

final  passage,  or  to  a  second  reading  merely  ? 

Bartlett,  Sidney                Kellogg,  Giles  C. 

The  PRESIDENT.      The  main  question  is 

Bradbury,  Ebenezer        Kendall,  Isaac 

upon  ordering  them  to  a  second  reading. 
The   question  then  being  taken  by  yeas  and 
nays,  on  ordering  the  previous  question,  they  re 

Bradford,  William  J.  A.  Knight,  Joseph 
Brinley,  Francis               Lincoln,  Fred.  W.,  Jr. 
Briggs,  George  N.             Lord,  Otis  P. 
Buck,  Asahel                    Miller,  Seth,  Jr. 

sulted—yeas,  106  ;  nays,  33—  as  follows  :  — 

Bullock,  Rufus                 Mixter,  Samuel 

Carter,  Timothy  W.        Morey,  George 

YEAS. 

Cogswell,  Nathaniel        Plunkett,  William  C. 

Cook,  Charles  E.              Pomroy,  Jeremian 

Allen,  Parsons                 Gates,  Elbridge 

Doming,  Elijah  S.           Preston,  Jonathan 

Allis,  Josiah                     Gilbert,  Wanton  C. 

Ely,  Homer                       Sikes,  Chester 

Alvord,  D.  W.                Giles,  Charles  G. 

Giles,  Joel                         Simmons,  Perez 

Austin,  George                 Goulding,  Jason 
Baker,  Hillel                     Green,  Jabez 

Hale,  Nathan                    White,  Benjamin 
Heard,  Charles 

Bancroft,  Alpheus            Griswold,  Josiah  W. 

Bates,  Moses,  Jr.,             Griswold,  Whiting 

ABSEXT 

Beal,  John                         Hallett,  B.  F. 

Bennett,  William,  Jr.      Hapgood,  Lyman  W. 

Abbott,  Alfred  A.           Bronson,  Asa 

Bird,  Francis  W.              Hapgood,  Seth 

Abbott,  Josiah  G.            Brown,  Adolphus  F. 

Boutwell,  George  S.        Harmon,  Phineas 

Adams,  Shubael  P.         Brown,  Alpheus  R. 

Breed,  Hiram  N.              Hawkes,  Stephen  E. 

Aldrich,  P.  Emory          Brown,  Artemas 

Brown,  Hammond           Hayden,  Isaac 

Allen,  Charles                  Brownell,  Frederick 

Brown,  Hiram  C.             Heath,  Ezra,  2d 

Allen,  James  B.               Bullen,  Amos  H. 

Brownell,  Joseph            Hood,  George 

Allen,  Joel  C.                   Burlingame,  Anson 

Bryant,  Patrick                Howard,  Martin 

Alley,  John  B.                 Butler,  Benjamin  F. 

Bumpus,  Cephas  C.         Howland,  Abraham  II. 

Appleton,  William           Cady,  Henry 

Case,  Isaac                        Hoyt,  Henry  K. 

Aspinwall,  William         Caruthers,  William 

Churchill,  J.  McKean     Huntiiigton,  George  H. 

Atwood,  David  C.            Chandler,  Amariah 

Clark,  Ransom                 Hurlbut,  Moses  C. 

Ayres,  Samuel                  Chapin,  Chester  W. 

Clark,  Salah                      Hyde,  Benjamin  D. 

Ballard,  Alvah                  Chapin,  Daniel  E. 

Cole,  Sumner                   Jacobs,  John 

Ball,  George  S.                 Chapin,  Henry 

Davis,  Charles  G.            Knight,  Jefferson 

Banks,  Nathaniel  P.,  Jr.  Childs,  Josiah 

Davis,  Isaac                      Knox,  Albert 

Barrows,  Joseph               Choate,  Rufus 

Day,  Gilman                    Ladd,  Gardner  P. 

Bartlett,  Russel                Clark,  Henry 

Dean,  Silas                        Langdon,  Wilber  C. 

Barrett,  Marcus                Clarke,  Alpheus  B. 

Denton,  Augustus           Leland,  Alden 

Bates,  Eliakim  A.            Clarke,  Stillman 

Duncan,  Samuel              Loomis,  E.  Justin 

Beach,  Erasmus  D.          Cleverly,  William 

Eames,  Philip                   Merritt,  Simeon 

Beebe,  James  M.              Coggin,  Jacob 

Easland,  Peter                 Monroe,  James  L. 

Bell,  Luther  V.                Cole,  Lansing  J. 

Easton,  James,  2d            Morton,  Elbridge  G. 

Bennett,  Zephaniah         Conkey,  Ithamar 

Eaton,  Calvin  D.             Morton,  William  S. 

Bigelow,  Edward  B.        Cooledge,  Henry  F. 

Edwards,  Samuel             Nash,  Hiram 

Bigelow,  Jacob                 Copeland,  Benjamin  F. 

Ely,  Joseph  M.                 Newman,  Charles 

Bishop,  Henry  W.           Crane,  George  B. 

Fay,  Sullivan                    Osgood,  Charles 

Blagden,  George  W.        Cressy,  Oliver  S. 

Fitch,  Ezekiel  W.            Packer,  E.  Wing 

Bliss,  Gad  O.                    Crittenden,  Simeon 

French,  Charles  A.          Paine,  Benjamin 

Bliss,  William  C.             Crockett,  George  W. 

Frothirgham,  R'd,  Jr.     Partridge,  John 

Booth,  William  S.           Crosby,  Leander 

Gale,  Luther                     Penniman,  John 

Boutwell,  Sewell             Cross,  Joseph  W. 

Gardner,  Henry  J.           Phelps,  Charles 

Braman,  Milton  P.           Crowell,  Seth 

Gardner,  Johnson           Pierce,  Henry 

Brewster,  Osmyn            Crowninshield,  F.  B. 

496 

CONSTITUTIONAL    CONVENTIONS.                     [69th  day. 

Thursday,] 

ABSENT.                                                           [July  28th. 

Cummin  gs,  Joseph 

Huntington,  Asahel              Putnam,  George               Tilton,  Abraham 

Curtis,  Wilbur 

Huntington,  Charles  P. 

Putnam,  John  A.             Tower,  Ephraim 

Cushman,  Henry  W. 

Hurlburt,  Samuel  A. 

Read,  James                      Train,  Charles  R. 

Cushman,  Thomas 

Ide,  Abijah  M.,  Jr. 

Reed,  Sampson                 Turner,  David 

Cutler,  Simeon  N. 

Jackson,  Samuel 

Rice,  David                      Turner,  David  P. 

Dana,  lliehard  II.,  Jr. 

James,  William 

Richards,  Luther             Tyler,  John  S. 

Davis,  Ebenezer 

Jenks,  Samuel  II. 

Richardson,  Daniel          Tyler,  William 

Davis,  John 

Johnson,  John 

Richardson,  Nathan         Underwood,  Orison 

Davis,  Robert  T. 

Kellogg,  Martin  R. 

Rockwell,  Julius             Upham,  Charles  W. 

Davis,  Solomon 

Keyes,  Edward  L. 

llockwood,  Joseph  M.     Upton,  George  B. 

Dawes,  Henry  L. 

Kimball,  Joseph 

Rogers,  John                    Viles,  Joel 

Dehon,  William 

Kingman,  Joseph 

Sampson,  George  R.        Vinton,  George  A. 

Dennison,  Hiram  S. 

Kinsman,  Henry  W. 

Sanderson,  Amasa           Walcott,  Samuel  B. 

DeWitt,  Alexander 

Knight,  Hiram 

Sanderson,  Chester          Wales,  Bradford  L. 

Doane,  James  C. 

Knowlton,  Charles  L. 

Sargent,  John                   Wallace,  Frederick  T. 

Dorman,  Moses 

Knowlton,  J.  S.  C. 

Schouler,  William           Walker,  Samuel 

Dunham,  Bradish 

Knowlton,  William  II. 

Sheldon,  Luther               Warner,  Marshal 

Durgin,  John  M. 

Kuhn,  George  II. 

Sherman,  Charles             Warner,  Samuel,  Jr. 

Earle,  John  M. 

Ladd,  John  S. 

Sherril,  John                    Waters,  Asa  H. 

Eaton,  Lilley 

Lawrence,  Luther 

Simonds,  John  W.           Weeks,  Cyrus 

Edwards,  Elisha 

Lawton,  Job  G.,  Jr. 

Sleeper,  John  S.               Wetmore,  Thomas 

Eustis,  William  T. 

Lincoln,  Abishai 

Smith,  Matthew               Wheeler,  William  F. 

Farwell,  A.  G. 

Little,  Otis 

Souther,  John                   White,  George 

Fellows,  James  K. 

Littlefield,  Tristram 

Stacy,  Eben  II.                 Wilbur,  Daniel 

Fisk,  Lyman 

Livermore,  Isaac 

Stetson,  Caleb                   Wilbur,  Joseph 

Fiske,  Emery 

Lothrop,  Samuel  K. 

Stevens,  Joseph  L.,  Jr.    Wilder,  Joel 

Foster,  Aaron 

Loud,  Samuel  P. 

Stevens,  William             Wilkins,  John  H. 

Foster,  Abram 

Lowell,  John  A. 

Stevenson,  J.  Thomas     Wilkinson,  Ezra 

Fowle,  Samuel 

Marble,  William  P. 

Storrow,  Charles  S.          Williams,  Henry 

Fowler,  Samuel  P. 

Marcy,  Laban 

Strong,  Alfred  L.             Williams,  J.  B. 

Freeman,  James  M. 

Marvin,  Abijah  P. 

Stutson,  William             Wilson,  Henry 

French,  Charles  II. 

Marvin,  Thcophilus  R. 

Taber,  Isaac  C.                 Wilson,  Milo 

French,  Rodney 

Mason,  Charles 

Taft,  Arnold                     Wilson,  Willard 

French,  Samuel 

Meader,  Reuben 

Talbot,  Thomas                Winn,  Jonathan  B. 

Gilbert,  Washington 

Moore,  James  M. 

Taylor,  Ralph                   Winslow,  Levi  M. 

Gooch,  Daniel  W. 

Morss,  Joseph  B. 

Thayer,  Joseph                 Wood,  Nathaniel 

Gooding,  Leonard 

Morton,  Marcus 

Thayer,  Willard,  2d        Wood,  William  H. 

Gould,  Robert 

Morton,  Marcus,  Jr. 

Thomas,  John  W.            Woods,  Josiah  B. 

Goulding,  Dalton 

Nayson,  Jonathan 

Tileston,  Edmund  P.      Wright,  Ezekiel 

Graves,  John  W. 
Gray,  John  C. 

Nichols,  William 
Norton,  Alfred 

Absent  and  not  voting,  280. 

Greene,  William  B. 
Greenleaf,  Simon 

Noyes,  Daniel 
Nute,  Andrew  T. 

So  the  demand  for  the  previous  question  was 

Hadley,  Samuel  P. 

Ober,  Joseph  E. 

sustained,  and  the  main  question  ordered  to  be  put. 

Hale,  Artemas 

Oliver,  Henry  K. 

The  question  then  being  on  the  adoption  of  the 

Hall,  Charles  B. 

Orcutt,  Nathan 

amendment  of  the  gentleman  from  Salem,  (Mr. 

Hammond,  A.  B. 

Orne,  Benjamin  S. 

Lord,)  to  the  first  resolve,  it  was  taken,  and  de 

Haskell,  George 
Haskins,  William 
Hathaway,  Elnathan  P. 

Paige,  James  W. 
Paine,  Henry 
Park,  John  G. 

cided  in  the  negative. 
So  the  amendment  was  rejected. 

Hay  ward,  George 

Parker,  Adolphus  G. 

The  question  recurred  on  ordering  the  resolves, 

Hazewell,  Charles  C. 

Parker,  Joel 

as  amended,  to  a  second  reading,  and  being  taken, 

Henry,  Samuel 

Parker,  Samuel  D. 

it  was  decided  in  the  affirmative. 

Hersey,  Henry 
Hewes,  James 
Hewes,  William  H. 

Parris,  Jonathan 
Parsons,  Samuel  C. 
Parsons,  Thomas  A. 

On  motion  by  Mr.  EAMES,  of  Washington, 
the  Convention  then,  at  seven  o'clock,  adjourned. 

Heywood,  Levi 

Payson,  Thomas  E. 

Hillard,  George  S. 

Peabody,  George 

Hinsdale,  William 

Peabody,  Nathaniel 

Hobart,  Aaron 

Pease,  Jeremiah,  Jr. 

Hobart,  Henry 

Perkins,  Daniel  A. 

Hobbs,  Edwin 

Perkins,  Jesse 

THURSDAY,  July  28,  1853. 

Holder,  Nathaniel 
Hooper,  Foster 
Hopkinson,  Thomas 
Hubbard,  William  J. 

Perkins,  Jonathan  C. 
Perkins,  Noah  C. 
Phinney,  Sylvanus  B. 
Pool,  James  M. 

The   Convention    assembled  pursuant    to  ad 
journment,  and  was  called  to  order  by  the  Presi 
dent,  at  nine  o'clock. 

Hunt,  Charles  E. 

Powers,  Peter 

Prayer  by  the  Chaplain. 

Hunt,  William 

Prince,  F.  O. 

The  journal  of  yesterday  was  read. 

69th  day.] 

BILL   OF   RIGHTS,  &c. 

497 

Thursday,] 

WHEELER  —  WILSON  —  BRIGGS  —  GREENLEAF  —  MILLER. 

[July  28th. 

Reconsideration. 

Mr.  WHEELER,  of  Lincoln,  moved  a  recon 
sideration  of  the  vote  by  which  the  resolve  on  the 
subject  of  Imprisonment  for  Debt,  was  passed. 

The  PRESIDENT.  The  motion  will  be  placed 
upon  the  Orders  of  the  Day  for  to- morrow. 

Mr.  WHEELER.  I  should  be  glad  to  have 
the  rule  suspended,  so  that  the  motion  may  be 
placed  upon  the  Orders  of  the  Day  for  to-day. 

The  PRESIDENT.  The  rule  may  be  sus 
pended  so  that  the  motion  may  be  now  considered, 
but  the  Orders  of  the  Day  are  already  made  up. 

Mr.  WHEELER.  I  would  prefer  that  the 
matter  should  be  considered  in  a  full  house. 

Mr.  WILSON,  of  Natick.  I  move  that  the 
rule  be  suspended  so  that  the  motion  may  be  con 
sidered  at  this  time. 

The  motion  was,  upon  a  division — ayes,  80 ; 
noes,  22 — decided  affirmatively. 

The  question  recurred  upon  the  motion  of  the 
gentleman  from  Lincoln,  to  reconsider  the  vote  by 
which  the  resolve  on  the  subject  of  imprisonment 
for  debt  was  finally  passed. 

Mr.  BRIGGS,  of  Pittsfield.  I  suppose  the 
object  of  the  gentleman  who  moved  the  reconsid 
eration,  is,  that  it  shall  go  upon  the  Orders  of  the 
Day,  for  to-day,  somewhere,  so  that  it  may  be 
considered  when  the  house  is  full.  I  hope  it  will 
not  be  considered  now,  and  I  suggest  that  it  be 
placed  last  on  the  Orders  of  the  Day  for  to-day. 

The  PRESIDENT.  If  no  objection  be  made, 
it  will  be  so  disposed  of. 

No  objection  was  made. 

On  motion  of  Mr.  WILSON,  of  Natick,  the 
Convention  proceeded  to  the  consideration  of  the 
Orders  of  the  Day,  the  first  item  being  the  resolve 
on  the  subject  of  the 

Rights  of  the  Jury. 
The  question  being  on  its  final  passage, 

Mr.  GREENLEAF,  of  Cambridge.  I  would 
not  trouble  the  Convention,  if  I  did  not  think 
that  the  operation  of  this  resolve  is  probably  mis 
understood.  If  I  am  wrong,  I  can  be  easily  set 
right.  I  understand  it  in  terms  to  go  to  this  ex 
tent  :  The  jury  in  all  criminal  cases  are  to  be 
judges  of  the  law  as  well  as  the  fact.  In  all 
criminal  cases,  the  jury  will  only  have  the  power 
of  rendering  a  general  verdict.  The  verdict  is 
either  guilty  or  not  guilty,  and  in  saying  guilty 
or  not  guilty,  they  pass  virtually  upon  the  law  as 
well  as  the  fact.  But,  now  it  is  proposed  to  give 
to  the  jury  power,  by  the  organic  law,  to  be  the 
final  judges  of  all  questions  of  law  in  criminal 
cases.  When  they  go  in  favor  of  the  accused, 
whatever  right  they  have  to  ask  for  a  new  trial, 
they  never  exercise  it,  at  least  it  never  has  been 

34 3 


exercised.  It  may  be  considered  now  as  gone 
entirely ;  it  gives  no  new  trial  to  the  Common 
wealth  when  the  prisoner  is  acquitted.  If  he  is 
convicted  contrary  to  law,  if  convicted  against  the 
weight  of  evidence,  so  glaringly  so  that  it  would 
lead  the  mind  irresistibly  to  the  conclusion  that 
the  verdict  was  wrong,  a  new  trial  may  some 
times  be  obtained.  But,  suppose  the  prisoner 
happens  to  be  convicted  contrary  to  law,  and  sup 
pose  he  is  an  unpopular  man  ;  suppose  he  is  on 
the  unpopular  side  in  politics ;  if  you  make  the 
jury  by  constitutional  provision  judges  of  the  law 
and  the  fact,  the  verdict  can  never  be  set  aside. 
Never. 

Xow,  the  question  is,  whether  the  Conven 
tion  is  ready  to  do  this.  Every  man  has  some 
legal  right  or  other,  if  only  a  right  to  be  hanged 
according  to  law  ;  but  if  you  transfer  the  right  to 
judge  of  the  law  from  the  court  to  the  jury,  and 
the  jury  happens  to  be  hurried  away  by  the  cur 
rent  of  feeling  against  the  prisoner,  he  is  sure  to  be 
convicted,  and  that  conviction  is  final.  The  idea 
of  giving  the  jury,  in  express  terms,  the  power  of 
judging  of  the  law  as  well  as  the  fact,  probably 
originated  in  a  misunderstanding,  and  conse 
quently  an  abuse  of  the  law  of  libel ;  and  the  im 
pression  that  some  precaution  was  necessary,  has 
finally  acted  upon  the  the  mind  of  the  legisla 
tures  of  all  the  States  of  the  Union.  In  some  of 
the  States,  it  is  provided  by  statute,  as  is  the 
case  with  our  own  statute  in  regard  to  libel,  that 
evidence  may  be  given  of  the  truth  of  the  words 
declared  to  be  libellous ;  but  the  question  is, 
whether  you  will  retain  that  power  over  the  sub 
ject  by  making  it  subject  to  legislative  act,  or 
whether  you  will  put  it  farther  out  of  your  hands 
until  another  Convention  shall  make  it  part  of 
the  organic  law  r  Having  stated  what  I  think 
will  be  the  operation  of  this  provision,  I  have  no 
farther  argument  to  urge.  It  does  not  affect  me, 
personally,  any  more  than  it  does  every  other  man 
in  the  community. 

Mr.  MILLER,  of  Wareham.  I  do  not  rise  to 
discuss  this  question,  but  I  desire  to  express  one 
or  two  results  which  this  proposition,  if  adopted, 
will  have  upon  the  trial  of  criminals  in  your 
courts.  If  the  judge  charges  in  favor  of  the 
prisoner,  it  is  all  very  well  for  the  jury.  But,  if 
he  charges  the  jxiry,  or  in  the  course  of  the  tria! 
he  advises  the  district-attorney,  that  the  charges 
are  not  sufficient  to  convict  the  prisoner,  the  dis 
trict-attorney  can  turn  round  and  tell  the  judge 
that  he  is  not  the  judge  of  the  law  ;  that  the  jury 
must  decide  that  question.  Xow  suppose  a  case 
should  occur  upon  which  the  community  were 
much  excited,  and  the  jury,  under  the  influence  of 
that  excitement,  should  convict  the  prisoner 


498 


BILL   OF   RIGHTS. 


[69th  day. 


Thursday,] 


MILLER  —  BIIIGGS. 


[July  28th. 


against  what  would  be  considered  law  by  the 
best  judges  in  the  land  ;  the  judge  has  no  right  to 
83t  aside  that  judgment. 

Again,  suppose  the  judge  should  charge  against 
the  prisoner ;  and,  suppose,  in  the  opinion  of  all 
the  other  judges  in  the  country,  he  charged  the 
jury  wrong ;  but,  suppose  that  upon  that  charge 
the  jury  should  convict  the  prisoner,  there  is  no 
way  in  which  that  error  can  be  corrected,  and  the 
prisoner  must  therefore  suffer  the  penalty  of  the  law 
wrongly  administered.  I  hold  that  the  adop 
tion  of  this  principle  will  have  the  effect  to  take 
away  one  of  the  private  rights  of  the  individual 
citizen.  It  will  have  directly  the  opposite  effect 
from  that  intended  by  the  mover.  If  it  is  inserted 
into  the  Constitution,  its  practical  operation  will 
be  to  render  the  security  of  every  person  less 
safe  than  it  is^under  the  Constitution  as  it  now 
stands. 

I  have  a  word  to  say  in  relation  to  what  the  law 
is  now.  The  courts  say  in  their  decisions — and  it 
is  now  the  law  of  the  community — that  the  jury 
must  take  the  law  from  the  court,  but  they  are 
not  bound  by  it.  They  are  to  consider  it  as  de 
livered  by  the  court ;  but  still,  they  have  the  right 
to  decide  the  law,  as  well  as  the  fact.  But  if  the 
jury  convict  upon  a  wrong  construction  of  law, 
the  court  has  the  power  to  set  the  verdict  aside. 
It  seems  to  me,  therefore,  that  the  community 
have  greater  security  under  the  Constitution 
as  it  now  stands,  than  they  will  have  under  the 
provision  which  it  is  now  proposed  to  adopt.  I 
shall,  therefore,  for  this  reason,  vote  against  the 
passage  of  the  resolve. 

Mr.  BBIGGS,  of  Pittsfield.  I  understand  the 
ground  upon  which  this  provision  is  put,  is  to 
increase  the  security  and  safety  of  the  citizen.  It 
is  said  that  the  courts,  even  in  our  country,  and 
in  this  Commonwealth,  are  constantly  encroach 
ing  upon  the  rights  of  the  jury.  I  believe  one 
gentleman  said,  that  in  this  respect,  the  courts 
had  usurped  powers  which  did  not  belong  to 
them.  Now,  I  confess,  it  would  be  strange  to 
me  if  this  was  so.  In  the  name  of  common  sense, 
•what  motive  is  there  for  the  court  to  intrench 
upon  the  jurisdiction  or  vested  rights  of  the  jury  ? 
What  possible  interest  or  gratification  would  it  be 
fcr  the  court  to  take  from  the  jury  a  responsibility 
and  right,  which  belongs  to  them  ? 

Sir,  the  law  favors  the  prisoner,  and  the  courts 
favor  the  prisoner.  By  the  present  law,  every 
decision  of  the  judge,  from  the  beginning  to  the 
end  of  the  trial,  in  favor  of  the  prisoner,  is  final. 
The  prosecuting  officer  may  be  ever  so  much  dis 
satisfied  with  the  decision ;  he  may  feel  ever  so 
strongly  that  the  judge  is  mistaken,  the  decision 
is  final,  and  cannot  be  appealed  from.  Yet, 


if  the  judge,  during  the  progress  of  the  trial, 
makes  any  decision  against  the  prisoner,  the 
prisoner's  counsel  has  the  right  to  object  to  it,  and 
he  has  the  right  to  appeal  to  the  highest  judicial 
tribunal  in  the  Commonwealth,  to  test  its  correct 
ness.  If  in  charging  the  jury,  the  judge  charges 
in  favor  of  the  prisoner,  and  the  jury  acquit  him, 
that  is  the  end  of  the  matter  ;  but,  if  the  judge 
charges  them  against  the  prisoner,  and  expounds 
the  law  wrongly,  and  upon  it  they  convict  the 
defendant,  exceptions  may  be  taken,  the  matter 
tested  before  the  highest  judicial  tribunal,  the 
error  corrected,  and  the  prisoner  allowed  the 
benefit  of  another  trial.  So  that  gentlemen  must 
see  that  under  the  present  law,  everything  goes 
to  assert  and  carry  out  that  great  principle  of 
humanity,  as  well  as  law,  that  every  person  is 
deemed  to  be  innocent  until  proved  to  be  guilty. 
That  is  the  law  of  the  land. 

There  is  one  instance  upon  our  records,  within 
my  recollection,  where  this  scrupulosity  of  the 
court,  in  allowing  the  verdict  of  the  jury  to  be 
set  aside  upon  a  mere  technicality,  which  could 
not,  of  itself,  be  of  the  slightest  importance  ;  but, 
by  means  of  which,  the  prisoner  saved  his  life. 

Forty  years  ago,  in  the  county  of  Hampshire,  a 
man  was  arraigned  and  tried  for  his  life.  He  was 
convicted,  but  the  verdict  was  set  aside,  upon  the 
ground  that  he  was  not  properly  arraigned.  The 
law  required  that  a  criminal  indicted  for  a  capital 
offence,  should  be  arraigned  and  put  to  plead  be 
fore  a  full  court.  A  full  court  were  in  session  in 
Northampton ;  but,  on  the  morning  before  they 
had  assembled,  one  of  the  judges  went  into  court, 
the  prisoner  was  brought  to  the  bar,  and  plead  not 
guilty.  At  a  subsequent  term  he  was  tried  and 
convicted  ;  but,  after  the  conviction,  a  motion  was 
made  to  set  aside  the  verdict,  because  he  was 
not  arraigned  before  a  full  court.  That  great 
man,  and  distinguished  jurist,  Chief  Justice  Par 
sons,  in  giving  the  opinion  of  the  court,  said  every 
body  could  see  that  it  was  perfectly  immaterial 
to  the  prisoner,  in  a  matter  like  this,  whether  he 
was  placed  at  the  bar  and  said,  not  guilty,  before 
one  judge,  or  before  a  full  court.  The  objection 
made  was  a  mere  technical  one— a  mere  legal 
quibble  ;  "  but,"  said  he,  "  a  man  has  a  right  to 
quibble  for  his  life."  They  set  aside  the  verdict. 
A  new  jury  was  impanelled,  a  new  trial  was  had, 
and  he  was  acquitted. 

I  name  this  circumstance  to  show  how  careful 
the  courts  are  of  human  life,  and  human  liberty. 
So  it  was  then,  and  so  it  is  now. 

Now,  will  this  alteration— will  the  incorpora 
tion  into  the  Constitution,  of  the  principle  that 
the  jury  are  to  be  the  ultimate  judges  of  the  law 
as  well  as  the  fact,  increase  the  security  of  liberty 


69th  day.] 


BILL   OF   RIGHTS. 


499 


Thursday,] 


BRIGGS  —  HUNTINGTON. 


[July  28th. 


and  of  life  ?  As  it  is  now,  if  the  judge  gives  the 
wrong  law,  and  the  jury  convict  a  man  upon  it,  a 
new  trial  is  granted.  If  in  a  criminal  trial  the 
jury  are  wrongly  instructed  in  the  law  by  the 
court,  and  the  prisoner  is  convicted,  he  has  a 
remedy.  I  will  not  go  into  a  discussion  of  the 
question,  of  which — all  things  considered — is  the 
most  likely  to  judge  rightly,  the  judge  upon  the 
bench,  or  the  jury  summoned  to  the  jury-box  to 
sit  for  eight  or  ten  days,  to  decide  upon  the  facts 
of  the  case. 

It  must  be  admitted  by  every  one,  that  there 
are  in  every  community,  subjects  more  or  less  ex 
citing,  which  will  extend  even  to  the  jury-box. 
Now,  whatever  the  subject  may  be,  if  the  excite 
ment  in  relation  to  it  is  geneial,  if  it  pervades  the 
community,  it  will  mingle  itself  with  the  discus 
sion  of  the  jury-room,  and  will  have  more  or  less 
influence  upon  the  minds  of  the  jurors.  It  is  no 
implication  upon  the  fairness  or  honesty  of  jurors, 
to  say  that  they  are  subject  to  be  influenced 
in  their  opinions  like  other  men.  I  ask  the  ques 
tion,  which  is  the  safest  for  the  community  or  for 
the  individual,  to  have  the  judge  upon  the  bench, 
under  his  responsibility,  the  supervising  power,  to 
lay  down  the  law  to  the  jury,  and  for  them  to  take  it 
from  him,  and  then  to  decide  the  law  and  the  facts, 
or  for  the  jury  to  take  the  matter  into  their  own 
hands,  and  decide  for  themselves,  what  is  the  law 
of  the  Commonwealth  ?  Take,  for  instance,  the 
all- exciting  subject  of  the  license  law.  There 
has  been  great  difficulty  in  various  parts  of  the 
State,  under  the  existing  law,  in  getting  verdicts, 
because  the  juries  are  divided  in  opinion  as  to  the 
character  of  this  law.  Now,  suppose  you  make 
them  the  ultimate  tribunal  to  settle  the  law,  and 
indict  men  for  its  violation  ;  let  the  counsel  for 
defence  defend  the  prisoners,  as  they  will  defend 
them,  and  as  their  zeal  and  ardor  are  awakened, 
and  all  their  energies  put  in  requisition,  they  turn 
from  the  bench  to  the  jury — to  those  twelve  men 
as  the  judges  of  the  law — do  you  suppose  they 
would  be  very  likely  to  give  a  unanimous  opinion 
upon  that  subject  ?  I  apprehend,  if  this  amend 
ment  prevails,  you  will  have  very  great  difficulty 
in  obtaining  a  concurrence  of  twelve  minds  in 
favor  of  the  validity  of  your  Maine  law. 

But,  after  all,  my  great  objection  to  this  amend 
ment  is  this  :  you  may  calculate  to  an  absolute 
certainty,  that  in  a  large  number  of  cases,  whether 
one  in  fifty  or  one  in  a  hundred,  I  will  not  under 
take  to  say,  the  jury  will  mistake  the  law,  the 
prisoner  will  be  improperly  convicted,  and  he  will 
have  no  remedy ;  you  will  have  no  means  of 
carrying  out  that  wise  and  humane  maxim,  that  it 
is  better  to  allow  a  hundred  guilty  men  to  escape, 
than  for  one  innocent  man  to  be  punished.  Hav 


ing  reference  to  this  great  principle,  I  ask  if  there 
is  not  danger  of  losing  much,  and  doing  great 
wrong,  by  making  this  change. 

Then,  again,  what  do  you  do  to  the  judge  ? 
You  take  from  him  all  responsibility.  He  can 
only  say  :  "  Gentlemen  of  the  jury,  my  opinion 
I  of  the  law  is  this  ;  but  whether  it  is  law  or  not, 
you  are  to  settle."  He  cannot  instruct  them,  they 
are  to  settle  the  matter,  and  whether  they  settle  it 
right  or  wrong,  there  is  no  remedy.  It  seems  to 
me  that  it  is  not  the  part  of  wisdom  to  adopt  such 
a  provision. 

Mr.  HUNTINGTON,  of  Northampton.  I  now 
offer  the  amendment  which  I  should  have  offered 
yesterday,  if  I  had  not  been  cut  off  by  the  pre 
vious  question.  I  propose  to  add  at  the  close  of 
the  resolve,  these  words  : — 

But  it  shall  be  the  duty  of  the  court  to  super 
intend  the  course  of  the  trial,  and  decide  upon 
the  admission  or  rejection  of  evidence  ;  but  upon 
all  questions  of  law  arising  during  the  trial,  upon 
collateral  or  incidental  proceedings,  to  allow  bills 
of  exceptions. 

I  conceive  that  leaves  the  law  where  it  stood 
previous  to  the  decision  in  the  case  of  the 
Commonwealth  vs.  Porter.  I  concieve  that  the 
provision  reported  by  the  Committee  is  liable  to 
miscontruction.  I  have,  therefore,  proposed  this 
amendment  for  the  purpose  of  reducing  the  law  to 
where  it  stood  before  the  decision  was  made 
which  may  be  found  in  the  tenth  of  Metcalf,  as 
decided  by  Chief  Justice  Parsons,  and  other 
judges  of  the  supreme  court.  I  think,  in  a  case 
reported  in  the  tenth  of  Metcalf,  a  judge  changed 
the  law,  and  that  decision  has  never  been  set 
aside. 

I  believe  all  legal  gentlemen  will  agree  with 
me,  that  taking  this  resolution  as  it  now  stands, 
and  construing  it  in  the  bold  manner  in  which  it 
recites  its  provisions,  the  court  may  say  to  the 
counsel  for  the  defendant,  in  relation  to  any  mo 
tion  that  may  be  made  to  set  aside  the  verdict,  or 
the  ruling  of  the  court :  "  The  jury  have  passed 
upon  that,  and  their  decision  must  be  final."  For 
instance,  a  man  is  indicted  before  one  of  your 
courts,  the  court  gives  its  ruling  on  the  case,  and 
the  jury  decide  upon  his  guilt  or  innocence,  and, 
by  their  verdict  the  defendant  is  found  guilty. 
The  defendant  then  proposes  to  the  court  to  allow 
exceptions  to  his  ruling,  but  the  court — a  com 
mon  pleas  judge — will  reply :  "  No ;  look  at  the 
Constitution.  The  Constitution  declares  that  the 
jury  shall  determine  the  law  and  the  facts  of  the 
case,  you  are  not  entitled  to  your  bill  of  excep 
tions.  I  do  not  know  whether  the  jury  took  the 
rulings  of  the  court  or  not ;  they  are  the  power  to 


500 


BILL   OF   RIGHTS. 


[69th   day, 


Thursday,] 


HUNTIXGTON  —  TRAIN. 


[July  28th. 


decide.  It  is  of  no  consequence  what  were  my 
rulings.  The  jury  are  to  decide  upon  all  matters 
of  law  and  evidence.  I  do  not  know  whether 
they  followed  my  instructions  or  not.  You  are 
not  entitled  to  a  bill  of  exceptions."  That  will  be 
the  result,  and  the  defendant  cannot  help  himself. 
The  jury  may  have  erred  in  their  construction  of 
the  law ;  and  yet,  as  was  stated  yesterday,  upon 
that  construction,  they  may  have  sent  a  man  to 
State  Prison  for  life ;  for,  as  has  been  said, 
the  question  of  what  the  law  is,  must  depend 
upon  the  construction  of  twelve  men. 

Now,  Sir,  all  I  propose  to  accomplish  by  this 
amendment,  is  to  bring  the  law  back  to  where  it 
stood  previous  to  the  decision  in  the  case  of  the 
Commonwealth  vs.  Porter.  I  do  not  propose  to 
change  the  principle.  This  is  all  I  propose  to  ac 
complish,  and,  in  the  opinion  of  several  gentle 
men  who  are  friendly  to  the  resolution,  and  who 
have  seen  my  amendment,  it  is  what  it  is  desira 
ble  to  accomplish.  It  is  to  assert  the  rights  of 
the  judge  as  well  as  those  of  the  jury.  I  do 
not  understand  the  member  for  Wilbraham,  (Mr. 
Ilallctt,)  to  advocate  the  right  of  the  jury  to 
decide  upon  the  law  and  evidence  in  every  case. 
It  very  often  happens,  in  the  course  of  a  criminal 
trial,  that  evidence  is  introduced  for  a  certain 
purpose ;  the  court  tell  the  jury  they  may  re 
ceive  and  consider  this  evidence  for  one  purpose, 
and  reject  it  for  another  purpose.  Now,  as  this 
resolution  stands,  if  the  court  were  to  instruct 
the  jury  in  this  manner,  as  soon  as  they  retire  to 
their  room  they  may  say  :  "  We  are  the  judges  of 
the  law  and  evidence,  and  although  the  court 
chooses  to  rule  out  this  evidence,  yet  we  have  the 
right,  under  the  Constitution,  to  consider  whether 
we  will  admit  it."  They  may  admit  it,  and  thus 
a  man  may  be  convicted  upon  hearsay  evidence. 

Again,  there  is  a  disposition  upon  the  part 
of  the  court,  sometimes,  to  avoid  responsibility. 
Practitioners  before  your  courts  well  know  that 
it  is  very  often  not  with  willingness,  that  the 
judges  make  judicial  decisions.  And  if  you  in 
corporate  into  the  Constitution  this  resolve,  as  it 
now  stands,  you  will  provide  a  means  by  which 
a  judge  may  at  any  time  shirk  the  responsibility 
of  any  decision,  by  saying  that  the  Constitution 
has  given  the  law  to  the  jury. 

It  will  make  the  judges  careless  in  relation  to 
their  instructions  to  the  jury,  and  negligent  of 
the  whole  of  that  responsibility  which  rests  upon 
them,  by  virtue  of  their  office.  They  should  dis 
charge  all  the  duties  prescribed  in  the  resolution. 
Now,  they  rule  upon  evidence,  and  determine  as 
to  the  sufficiency  of  an  indictment.  Why,  Sir, 
suppose  a  man  is  arraigned  for  a  crime  which 
may  send  him  to  the  State  Prison,  and  the  de 


fendant  says  the  indictment  is  not  sufficient ;  the 
court  passes  upon  the  indictment,  and  rules  it  to 
be  sufficient,  and  the  trial  goes  on,  and  the  jury 
find  their  verdict  of  guilty.  Or  they  go  to  their 
room  and  examine  the  case,  and  they  say  :  well, 
the  court,  to  be  sure,  has  ruled  this  indictment  to 
be  sufficient,  but  we  have  a  right  to  determine 
the  law  of  the  case,  and  that  involves  the  suffi 
ciency  of  the  indictment,  and  questions  of  evi 
dence  ;  and  as  the  Constitution  provides  that  we 
shall  determine  all  the  law  in  this  case,  though, 
the  court  has  ruled  that  the  indictment  is  sufficient, 
we,  or  one  man  of  us,  may  determine  that  it  is 
not  sufficient.  Thus  the  prisoner  may  be  dis 
charged.  As  it  now  stands,  the  question  is  in 
the  power  of  one  single  man  upon  the  jury  of 
twelve  men.  I  think  that  is  going  too  far.  I 
know  that  the  gentleman  who  drew  this  resolu 
tion  did  not  intend  any  such  result  as  that,  and  I 
submit  whether  the  amendment  does  not  place 
the  law  as  it  always  has  been,  from  the  founda 
tion  of  our  government  down  to  the  time  of  the 
decision  of  the  case  of  the  Commonwealth  vs. 
Porter. 

Mr.  TRAIN,  of  Framingham.  I  desire  to  say 
a  few  words  upon  this  proposition — not  to  discuss 
it,  for  it  cannot  be  discussed  within  the  time 
allowed  to  a  single  speaker,  or  to  the  Convention, 
with  anything  like  the  degree  of  care  which  its 
importance  demands.  In  my  judgment,  it  is  a 
proposition  which  is  more  vital  to  the  interests  of 
the  people  of  Massachusetts,  than  any  which  has 
been  discussed  in  this  Convention,  and  I  desire 
to  speak  of  it  for  a  moment,  with  reference  to  no 
other  object  than  simply  to  ascertain  what  is 
right.  Suppose  that  we  were  now  for  the  first 
time  establishing  a  tribunal  for  the  trial  of  per 
sons  charged  with  the  violation  of  law, — for  the 
first  time  to  define  the  powers  and  duties  of  the 
court,  and  the  rights  and  powers  of  the  jury  ;  if 
we  wished  to  contrive  the  best  mode  by  which 
truth  should  be  ascertained,  and  the  right  and 
wrong  determined,  how  would  we  go  to  work  to 
do  it?  Trial  by  jury  is  a  human  invention, 
which  has  been  perfecting  itself  for  more  than  six 
hundred  years ;  but  assume  now,  that  down  to 
this  morning,  juries  have  had  the  right  to  find 
the  law  as  well  as  the  fact,  in  criminal  cases,  I  beg 
the  Convention  to  consider  a  moment  if  that  is 
the  best  way. 

Now,  Sir,  I  do  not  purpose  to  go  into  the  in 
quiry,  so  largely  discussed  here,  whether  juries 
have  heretofore  had  the  right,  or  not;  because 
upon  the  best  consideration  I  have  been  able  to 
give  the  subject,  I  believe  that  the  rights  of  pris 
oners  and  the  security  of  human  life  and  liberty, 
under  our  organization  of  society  and  government, 


69th  day.] 


BILL   OF   RIGHTS. 


501 


Thursday,] 


TRAIN. 


[July  28th. 


require  that  the  powers  to  ascertain  and  declare 
the  law  should  be  vested  in  a  different  portion  of 
the  tribunal  than  that  which  is  to  ascertain  the 
facts  ;  the  one  should  be  the  peculiar  province  of 
the  court — the  other,  the  peculiar  province  of  the 
jury.  I  do  not  agree  with  the  gentleman  from 
Northampton,  as  to  the  effect  of  his  amendment 
upon  the  decisions  of  the  courts  of  this  Common 
wealth. 

"  Can  it  for  a  moment  be  contended  that  twelve 
men  in  a  jury-box,  are  to  determine  that  not  to  be 
an  offence,  which  the  law  under  a  penalty  for 
bids  ?  May  they  pronounce  that  to  be  man 
slaughter,  or  justifiable  homicide,  which  the  law 
declares  to  be  murder  ?  If  so,  then  they  may  by 
their  verdict  abrogate,  by  rendering  ineffective, 
every  enactment  of  the  legislature,  and  they  be 
come  a  court  of  appeal."  The  legislature  enacts 
the  law  of  the  Commonwealth,  and  you  place  the 
power  in  the  hands  of  every  man  in  the  jury-box 
to  abrogate  every  enactment  of  the  legislature,  and 
the  power  which  you  have  vested  in  the  legisla 
ture.  All  that  power  may  be  thrown  away,  and 
the  most  sacred  rights  sacrificed,  at  the  will  of  any 
one  man,  whose  name  you  have  authorized  to  be 
placed  in  the  jury-box.  That  is  the  proposition. 

Now,  when  gentlemen  say  that  the  decision  in 
the  case  of  the  Commonwealth  vs.  Porter  was 
wrong,  I  do  not  agree  with  them,  because  I  un 
derstand  that  the  jury  have  the  power  now — and 
they  may  have  had  the  right — but  I  understand 
the  court  to  have  said,  that  juries  have  the  power 
but  not  the  right.  So  has  the  judge  the  power  to 
give  judgments  contrary  to  law,  if  he  chooses  to 
disregard  his  oath.  And  so  have  the  jury  the 
power  to  return  a  verdict  contrary  to  the  law,  if 
they  choose  to  disregard  their  oaths.  So  that 
while  I  hold  they  have  the  power,  they  have  not 
the  right,  and  if  they  have  the  right,  that  right 
should  be  taken  from  them  ;  because  I  say  that 
the  security  of  the  prisoner,  and  security  to  liberty 
and  life,  require  that  the  power  to  pass  upon  the 
law  should  be  vested  in  a  tribunal  where  a  re 
vision  may  be  had,  so  that  the  law  which  is  a 
science,  shall  be  administered  uniformly  through 
out  the  Commonwealth.  So  that  what  is  my 
right  in  Middlesex,  shall  be  the  right  of  my  neigh 
bor  in  Suffolk. 

No  useful  analogy  can  be  drawn  from  the  ad 
ministration  of  law  on  the  other  side  of  the  At 
lantic.  The  distinction  is  broad  and  deep.  There, 
the  sheriff  impanells  a  jury  of  his  choice,  and  he 
is,  or  may  be,  the  corrupt  servant  of  the  crown. 
Here,  the  jury  is  selected  by  lot,  in  a  manner 
enabling  us  to  secure  a  tribunal  "  as  impartial  as 
the  lot  of  humanity  will  admit."  There,  by  the 
constitution  of  the  tribunal,  the  whole  power  of 


the  crown  may  be  brought  to  bear  directly  upon 
the  prisoner,  as  the  crown  creates  the  tribunal  that 
is  to  try.  Here,  the  government  has  the  same 
control  over  the  tribunal  that  the  prisoner  has, 
and  no  other.  If  our  judges  were  the  corrupt 
tools  of  a  tyrant,  then  the  juries  should  be  judges 
of  the  law  as  well  as  the  fact.  When  judges  take 
a  stand  for  the  rights  of  the  crown,  against  the 
best  interests  and  liberties  of  the  people,  then 
juries  should  stand  between  the  crown  and  the 
people,  for  the  protection  of  the  latter.  Here,  the 
people  are  the  crown,  and  the  judge  stands  be 
tween  the  people  and  the  prisoner,  the  maxim 
being  "  that  the  judge  is  counsel  for  the  prisoner  "; 
and  the  safety  of  the  prisoner,  and  the  rights  of 
the  people,  are  alike  preserved.  No  power  is,  or 
can  be,  brought  to  bear  upon  the  prisoner,  save 
the  power  of  the  law,  symbolized,  and  acting  by 
the  court.  Our  tribunals  represent  simply  the 
people  as  a  Commonwealth,  seeking  to  preserve 
itself  by  preventing  the  commission  of  crime  on 
the  one  side,  and  the  prisoner  defending  himself, 
under  the  Constitution  and  laws,  as  one  of  the 
same  Commonwealth,  on  the  other;  while  the 
judge  is  alike  independent  of  either,  and  sits  be 
tween  the  people  on  the  one  side,  and  the  prisoner 
on  the  other,  that  the  rights  of  both  may  be  pre 
served. 

Now,  upon  the  proposition  which  is  offered 
here,  you  take  the  whole  power  of  the  Common 
wealth  and  place  it  in  the  hands  of  twelve  men  in 
the  jury-box,  who  are  to  pass  upon  the  rights  of 
the  prisoner — and  the  prisoner  has  no  protection 
against  the  popular  will — you  take  from  him  all 
the  protection  which  we  can  afford  him,  namely, 
the  right  that  the  jury  shall  take  the  law  from  the 
court.  So  far  from  enlarging  the  rights  of  the 
prisoner,  you  are  seeking  to  limit  and  control 
them. 

Now  it  seems  to  me,  and  I  speak  as  a  lawyer, 
that  if  we  were  now  about  to  establish  a  legal 
tribunal,  we  should  so  create  it  that  the  court  and 
jury  should  be  independent  of  each  other,  each  in 
its  own  department,  the  court  declaring  the  law, 
and  the  jury  declaring  the  facts.  Then  if  the 
court  is  mistaken  in  the  law,  the  supreme  court 
will  revise  and  correct  the  error — if  the  law  itself 
is  wrong,  the  legislature  will  set  it  right  by  a  new 
enactment.  If  you  place  this  power  in  the  hands 
of  the  jury,  they  make  the  law  in  every  given 
case ;  and  there  can  be  no  mode  devised,  notwith 
standing  I  defer  to  the  opinion  of  the  gentleman 
from  Northampton,  by  which  a  prisoner  can  be 
redressed  for  any  injury  he  may  suffer  from  a 
wrong  verdict.  I  can  conceive  of  no  mode.  The 
gentleman  in  the  case  which  he  has  stated, 
assumes  that  the  judge  has  instructed  the  jury 


502 


BILL    OF   RIGHTS. 


[69th  day. 


Thursday,] 


N  —  RANTOUL. 


[July  28th. 


improperly — then  the  prisoner  may  except ;  but 
suppose  that  the  judge  has  given  the  law  to  the 
jury  correctly,  and  the  jury,  taking  the  bits  in 
their  teeth,  have  run  away  with  the  case  and 
convicted  the  prisoner,  notwithstanding  the  in 
structions  of  the  court,  what  has  become  of  the 
prisoner  then  ?  God  help  him. 

As  a  prosecuting  officer  merely,  I  have  no  ob 
jection  to  the  adoption  of  this  proposition.  If 
prosecuting  officers,  in  the  language  of  the  dele 
gate  for  Abington,  are  mere  legal  butchers,  who 
wish  only  to  get  verdicts,  to  bag  game,  they  will 
not  object  to  it.  And  I  tell  gentlemen  tr.at  the 
prosecuting  officers  can  get  more  verdicts,  if  you 
will  remove  the  judge  from  between  the  prose 
cuting  officer  and  the  prisoner,  then  they  can  get 
now.  Many  a  prisoner  has  escaped  upon  tech 
nical  grounds,  when,  if  the  jury  could  have  had 
their  way  he  would  have  been  convicted  and  pun 
ished  for  the  commission  of  a  crime ;  and  yet  no 
one  would  desire  to  have  the  law  different  in  that 
respect. 

One  word  more.  I  do  not  think  appeals  should 
be  made  to  the  Convention  upon  this  proposition, 
as  though  it  were  a  political  matter,  or  that  an 
effort  should  be  made  to  array  one  portion  of  the 
people  against  another  portion.  This  proposition 
does  not  affect  "  the  craft"  to  which  I  belong. 

The  delegate  from  Lowell  (Mr.  Butler)  very 
craftily  called  the  attention  of  the  Convention  to 
the  fact  that  "the  craft  was  in  danger,"  as  he 
said.  Sir,  it  is  not  so ;  adopt  this  proposition  in 
your  Constitution,  allow  the  lawyers  to  argue  the 
law,  as  well  as  the  facts  of  every  case  to  the  jury, 
and  you  will  increase  their  income  thereby  five 
fold.  Every  case  will  then  be  argued,  however 
clear  it  may  be,  upon  the  hope  that  out  of  twelve 
men  one  fool  can  be  found  upon  the  panel.  So 
far  from  the  profits  of  the  craft  being  diminished 
by  the  adoption  of  this  proposition,  they  will  be 
increased  most  substantially ;  and  so  far,  with 
the  fellow- feeling  which  I  have  for  my  brethren, 
I  have  no  objection  to  it. 

But  when  the  gentleman  from  Lowell  was 
quoting  Scripture,  I  could  have  pointed  him  to  a 
record  where  the  jury  were  judges  of  the  law  and 
of  the  fact;  where,  when  the  judge  washed  his 
hands  before  the  multitude,  saying,  "  I  am  inno 
cent  of  the  blood  of  this  just  person,"  the  jury 
said,  "Away  with  him!  away  with  him!  Cru 
cify  him!  crucify  him!"  and  that  jury  passed 
upon  the  law  and  the  fact. 

Sir,  I  do  not  wish  to  see  in  Massachusetts  a 
tribunal  created  where  the  rights  of  my  fellow- 
citizens  will  be  affected  by  every  popular  breeze. 

The  courts  of  Massachusetts  are  the  only  tri 
bunals  which  stand  unaffected  by  the  popular 


will.  Let  your  juries  become  judges  of  the  law 
and  the  fact,  and  every  man  is  tried  by  the  popu 
lar  impulse,  and  no  man  is  secure  in  his  rights. 
If  offences  in  Massachusetts  were  merely  political, 
there  might  be  some  show  of  reason  in  this  propo 
sition  ;  but  then,  in  times  of  great  excitement, 
juries  would  exercise  the  power,  whether  they 
had  the  right  or  not. 

These  are,  very  briefly,  my  views  in  regard  to 
this  matter.  I  only  regret  that  the  subject  cannot 
receive  the  consideration  which  its  importance 
demands. 

Mr.  RANTOUL,  of  Beverly.  I  have  listened 
to  the  arguments  of  the  learned  gentlemen  who 
have  spoken  this  morning,  and  I  am  more  and 
more  convinced  of  the  necessity  of  having  this 
amendment  made  in  the  Constitution.  I  think 
that  gentlemen  uniformly  agree  that  the  ancient 
right  of  jurors  was  to  judge  of  the  law  as  well  as 
of  the  fact.  No  one  of  them  has  argued  that  this 
was  not  the  ancient  law  of  the  country,  from  time 
immemorial,  up  to  about  fifteen  or  twenty  years 
ago.  Within  that  time,  it  is  understood  that 
there  has  been  an  attempt,  on  the  part  of  the 
court,  to  usurp  what  was  the  ancient  right  of  the 
jury — that  is,  they  have  undertaken  to  say  that 
jurors  had  not  the  right  to  judge  of  the  law,  but 
merely  had  the  power  to  judge  of  the  law.  Up 
to  that  time,  I  believe,  the  question  was  not 
raised  but  what  the  jury  had  not  only  the  power 
but  the  right.  This  amendment  of  the  Constitu 
tion  which  we  propose,  merely  recognizes  the 
rights  of  jurors  as  they  existed  previous  to  this 
innovation.  I  therefore  hope  that  we  shall  ad 
here  to  the  vote  we  have  already  passed  upon  this 
subject. 

In  respect  to  corruption  and  mistakes  on  the 
part  of  juries,  those  who  are  conversant  with  the 
matter  could  state  some  things  with  regard  to  the 
judges.  Judges  sometimes  make  mistakes,  and 
are  sometimes  corrupt.  Lord  Jeffreys  was  cor 
rupt,  and  if  the  jury  had  the  independence  which 
belongs  to  them,  and  could  have  exercised  it, 
there  would  not  have  been  the  blood  shed  which 
there  was  shed  under  his  administration.  But 
the  juries  had  not  the  independence  to  carry  out 
their  legal  rights,  and  interpret  the  law  according 
to  their  own  view  of  it,  rather  than  according  to 
his  ruling. 

Lord  Mansfield  was  not  a  corrupt  judge.  He 
undertook  to  usurp  the  rights  of  the  jury  with  re 
gard  to  a  prosecution  for  a  libel.  He  undertook 
to  direct  the  jury  that  they  had  no  right  to  inquire 
whether  the  person  charged  with  the  libel  pub 
lished  the  libel.  That  was  considered  so  flagrant 
an  infringement  of  the  rights  of  the  jury,  that 
parliament  made  a  law  to  remedy  that  particular 


69th  day.] 


BILL   OF   RIGHTS. 


503 


Thursday,] 


RANTOUL  —  CHANDLER. 


[July   28th. 


branch  of  jurisprudence.  B ut  no  man  has  claimed 
that  the  judges  in  this  Commonwealth  ever  exer 
cised  such  a  power  until  within  the  past  fifteen  or 
twenty  years. 

I  recollect  a  trial  in  Essex  County,  in  1805, 
when  the  court  was  held  by  a  majority  of  the 
judges.  I  remember  very  well  that  the  facts  of 
that  case  were  proved  to  the  satisfaction  of  every 
body  ;  there  was  no  question  about  the  facts,  but 
the  issue  was  about  the  law.  The  judge  in 
structed  the  jury  with  regard  to  the  law  ;  the 
jury  retired  upon  that,  and  a  certain  portion  of 
the  jury  held  that  the  court  had  laid  down  the 
law  different  from  their  judgment  of  the  law. 
They  accordingly  opposed  a  verdict — the  jury  did 
not  agree — and  they  returned  to  court  and  re 
ported  that  disagreement.  The  jury  were  then 
discharged,  and  the  court  never  intimated  but 
that  the  jury  had  the  right,  as  well  as  the  power, 
to  consider  the  law.  That  case,  I  believe,  was 
tried  three  times  in  the  county  of  Essex,  and  no 
jury  could  be  found  to  agree  with  the  court  on 
points  of  law.  There  was  always  the  power  to 
decide  for  themselves,  and  these  juries  exercised 
it,  and  resisted  the  decisions  of  the  court,  until 
finally  the  prosecutor  concluded  to  give  up  the 
case.  I  mention  this  to  show,  that  in  1805,  with 
in  my  own  knowledge  and  observation,  the  court 
did  not  pretend  to  say  to  the  jury  that  they  had 
no  right  to  judge  with  regard  to  the  law.  The 
court  instructed  the  jury  that  they  had  a  right  to 
consider  the  law,  as  well  as  the  facts,  and  bring  in 
a  verdict  according  to  their  views  of  the  law  and 
the  facts.  I  mentioned  before,  the  case  of  Judge 
Chace,  who  was  tried  upon  impeachment.  He 
was  charged  with  interfering  with  the  rights  of 
the  jury  with  regard  to  the  law,  and  he  denied  the 
fact,  and  was  acquitted  of  the  charge.  He  not  only 
denied  the  fact,  but,  in  his  reply  to  the  impeach 
ment,  he  also  argued  that  it  was  the  ancient  right 
of  the  jury  to  judge  of  the  law  as  well  as  of  the 
fact,  and  he  considered  it  a  sacred  right  which 
ought  not  to  be  interfered  with  by  the  court.  So 
late  as  the  year  1805,  we  have  the  opinion  of  a 
majority  of  the  supreme  court  of  this  State  ;  and 
in  1802  or  1803,  we  have  the  opinion  of  a  learned 
judge  of  the  supreme  court  of  the  United  States, 
to  the  effect  that  the  jury  had  this  right ;  and 
there  was  no  question  upon  the  part  of  learned 
men,  that  they  had  not  only  the  power,  but  the 
right,  to  give  a  verdict  upon  their  own  views  of 
law  and  the  facts  of  the  case.  In  addition  to  this, 
I  may  say  that  a  very  considerable  number  of  the 
States  of  this  Union,  who  have  lately  revised  or 
adopted  Constitutions,  have  introduced  into-  them 
this  very  provision.  They  probably  had  the  same 
apprehensions  that  we  have  reason  to  entertain  ; 


and,  for  one,  I  certainly  have  greater  reason  to 
entertain  those  apprehensions  now,  than  I  had 
when  I  came  here.  There  is  reason  to  fear  lest 
the  ancient  rights  of  juries  might  be  usurped  by 
the  courts ;  and  therefore  we  ought  to  guard 
against  it.  In  a  great  many  of  the  States  they 
have  already  introduced  such  a  provision  into 
their  Constitutions,  and  I  hope  we  shall  introduce 
it  into  ours.  I  do  not  understand  any  of  the 
gentlemen  who  have  spoken,  to  deny  but  what 
this  was  always  the  law  until  very  lately. 

Mr.  CHANDLER,  of  Greenfield.  Every  vote 
which  I  give  in  this  Convention  I  want  to  give  in 
telligently,  but  I  am  not  prepared  to  vote  intelli 
gently  in  the  affirmative  on  this  proposition.  I 
rise  for  information.  I  am  not  discussing  the 
subject  as  a  lawyer ;  I  am  not  discussing  it  as  a 
politician  ;  I  look  at  it  simply  with  the  idea  of  a 
country  farmer ;  as  a  plain  man  who  makes 
pretensions  to  a  little  common  sense,  but  who 
claims,  by  no  means,  to  be  overburdened  even  with 
that.  If  I  understand  anything  of  the  duty  of  a 
juryman,  it  is  to  take  the  law  as  his  rule,  apply 
it  to  the  conduct  of  the  prisoner  at  the  bar  ;  and 
then,  by  a  careful  comparison,  to  judge  whether 
the  man  is  guilty  or  not  guilty.  This,  I  sup 
pose,  is  universally  admitted  ;  and  this  being  ad 
mitted,  I  ask  now,  where  am  I  to  obtain 
my  rule  ?  Where  am  I  to  obtain  that  knowledge 
of  law  upon  which  I  can  rely,  so  as  to  use  it 
without  hesitation  as  the  rule  by  which  to  judge 
of  that  man's  conduct  ?  This  is  the  information 
which  I  want,  and  I  have  waited  here  and  lis 
tened  with  great  anxiety,  to  have  the  learned 
gentlemen  who  have  spoken  upon  this  ques 
tion,  tell  me  where  I  shall  obtain  that  knowl 
edge  of  law  that  will  answer  to  rely  upon  in 
this  case.  I  go  into  the  jury-box  ignorant, 
both  of  the  law  and  the  facts — I  have  them  both 
to  learn  in  the  court-house.  The  facts  I  am  to 
learn  from  the  witnesses,  and  the  law  I  am  to 
learn  from  some  other  source.  Whence  am  I  to 
obtain  it  ?  Am  I  to  look  to  the  judge  for  it?  If 
I  take  his  positions,  and  apply  that  law  to  the 
conduct  of  the  man,  I  am  not  in  that  case  a  judge 
of  the  law,  but  a  doer  of  the  law  only,  as  I  have 
always  endeavored  to  be.  But,  if  I  am  not  to 
take  my  rules  of  law  from  the  judge,  am  I  to 
take  them  from  the  counsel  ?  They  are  of  oppo 
site  sides  and  different  intellects.  It  certainly 
would  be  no  more  safe,  as  a  general  rule,  to  look 
to  the  counsel,  than  it  wrould  to  look  to  the  judge. 
But,  suppose  I  do  take  my  view  of  law  from  the 
counsel  and  apply  it ;  that  is  not  judging  the  law, 
but  only  doing  what  I  suppose  the  law  requires. 
I  want  to  inquire  again,  what  kind  of  a  judgment 
it  is  that  I  am  to  have  upon  the  law  ?  Am  I  to 


504 


BILL   OF   RIGHTS. 


[69th  day. 


Thursday,] 


CHANDLER  —  HALLETT  —  HILLARD. 


[July   28th. 


judge  whether  the  law,  as  laid  down  by  the  judge 
or  the  counsel,  or  by  whoever  I  look  to  for  in 
formation,  is  the  law  applicable  to  the  case? 
How  am  I  to  obtain  this  information  ?  The  judge 
has  told  me  that  the  law  is  so  and  so ;  and  he, 
perhaps,  to  obtain  his  information,  has  gone 
through  a  hundred  volumes  of  statutes,  and  I 
know  not  how  many  volumes  of  precedents  and 
reports.  Can  I  be  expected  to  know  more  than 
the  judge  ?  Can  my  general  information  upon 
the  subject  of  law,  be  supposed  to  render  me  capa 
ble  of  sitting  in  judgment  on  his  opinions,  and 
forming  an  idea  superior  to  his  r  That  would  be 
becoming  a  judge  of  the  supreme  bench.  Or  am 
I  to  judge  of  the  question  whether  the  law  by 
which  this  man  is  tried,  is  a  wise  and  good  law  or 
not  ?  Am  I,  in  a  word,  to  take  it  upon  myself 
virtually  to  repeal  all  the  laws  that  have  been 
passed  by  the  legislature,  after  the  most  full  dis 
cussion  and  mature  deliberation,  which  I  do  not 
like  ?  Mr.  President,  I  want  information  upon 
these  subjects,  and  I  would  beg  learned  gentlemen 
to  enlighten  me  as  to  these  points  ;  and  then  I  shall 
be  able,  and  not  until  then,  to  give  a  vote  satis 
factorily  to  my  own  mind  ;  for  though  I  claim 
all  the  privileges  of  a  full  blooded  Yankee,  yet  I 
am  so  nearly  allied  to  the  aborigines  of  the  coun 
try,  that  in  a  matter  of  such  importance  as  this, 
I  do  not  love  to  guess. 

Mr.  HALLETT.  I  wish,  with  the  consent  of 
the  mover  of  this  amendment,  to  add  two  or 
three  words  to  it,  which  I  deem  important.  I 
have,  myself,  the  fullest  conviction  that  the 
original  proposition,  as  it  stands  reported,  is  ex 
plicit  and  sufficient ;  but  still,  as  there  has  been 
so  much  learned  ingenuity  displayed  here,  in 
technical  constructions  adverse  to  the  rights  of 
juries  and  parties,  I  am  afraid  that  there  might  be 
the  same  learned  ingenuity  displayed  elsewhere ; 
and  that  attempts  may  be  made  to  evade  the  bene 
ficial  intent  of  this  provision,  as  there  always  have 
been  attempts  by  those  in  authority  to  evade  or 
construe  away  laws  which  were  made  for  the  lib 
erties  of  the  people.  Hence,  to  remove  all  doubt, 
I  propose  to  add  a  clause  conferring  express  power 
on  the  courts  to  grant  new  trials ;  because,  I  do 
not  want  a  judge  to  have  any  ground  to  say  that 
the  jury  have  settled  the  law  in  the  trial  of  a 
cause,  and  therefore  he  will  not  undertake  to 
grant  a  new  trial  upon  any  law  or  evidence 
which  they  have  passed  upon  and  determined  in 
the  case.  In  order  to  exclude  such  a  possible 
conclusion,  I  move  to  add  at  the  end  of  the 
amendment  the  following  words :  « And  the 
court  may  grant  a  new  trial  in  cases  of  convic 
tion.'  '  This  affirms  precisely  the  right  which  now 
exists  at  common  law,  and  by  statute,  for  the 


court  to  grant  new  trials  in  criminal  causes  in 
favor  of  the  defendant,  and  by  so  affirming  it,  all 
the  technical  cavils  of  bar  or  bench,  at  the  effect 
of  a  jury  passing  upon  the  law  as  well  as  the 
facts  of  a  case,  will  be  done  away. 

Mr.  HILLARD.  We  have  in  our  youth  read 
of  a  shield  that  was  half  gold  and  half  sil 
ver,  and  of  the  two  knights  who  approached 
this  shield  from  different  sides,  and  fought  upon 
the  question  whether  it  was  all  gold  or  all  silver. 
Now,  this  question  of  the  rights  of  juries  in 
criminal  cases,  has  two  aspects,  like  the  shield  that 
was  half  gold  and  half  silver ;  and  I  think  that 
those  who  call  themselves  the  friends  of  the  rights 
of  juries,  have  looked  at  it  only  from  one  side. 
As  I  have  before  observed,  in  the  common  course 
of  jury  trials,  in  nine  cases  out  of  ten,  it  is  not 
of  the  least  practical  consequence  which  rule  or 
principle  you  adopt,  because  there  will  not  be  any 
bias  in  the  minds  of  the  jury  which  would  lead 
them  to  call  in  question  the  law  as  laid  down  by 
the  court.  But  now  and  then  there  is  a  case  in 
regard  to  which  there  is  a  powerful  current  of 
popular  sympathy.  That  current  of  popular 
sympathy  may  flow  either  in  favor  of  the  prisoner 
or  against  him.  The  gentlemen  on  the  other  side 
argue  the  case  on  the  supposition  that  this  sym 
pathy  will  be  always  in  favor  of  a  prisoner. 
They  fear  that  the  rule  as  now  laid  down  in  our 
Commonwealth,  will  operate  to  convict  a  pris 
oner  at  the  will  of  the  court,  against  the  inclina 
tion  of  the  jury.  Now,  whenever  a  criminal  is 
brought  to  the  bar,  and  this  public  sentiment  is 
strongly  in  his  favor,  there  is  an  infirmity  in  the 
constitution  of  jury  trials,  because,  through  this 
popular  favor,  the  law  is  virtually  annulled  and 
set  aside.  We  must  take  this  institution,  like  all 
others,  with  its  incumbrances. 

You  remember  that  a  year  or  two  ago,  in  Lon 
don,  an  assault  was  made  upon  Marshal  Haynau, 
by  the  operatives  in  Barclay's  brewery  ;  and  the 
cabinet  of  Austria  demanded  of  the  British  gov 
ernment  that  these  men  should  be  brought  to 
punishment.  The  answer  of  the  English  minis 
ter  was,  if  we  attempt  to  bring  these  men  to  trial, 
we  must  submit  their  case  to  a  jury  of  twelve 
men,  in  the  city  of  London  ;  and  with  such  a 
state  of  public  sentiment  as  now  exists,  it  would 
be  impossible  to  find  a  jury  in  the  city  of  Lon 
don  who  would  convict  them ;  therefore  we  must 
take  the  institutions  of  our  country  as  they  exist, 
and  act  upon  them.  That  was  a  sensible  way  of 
looking  at  the  question  ;  and  wherever  there  is 
this  powerful  and  overwhelming  current  of  pop 
ular  sentiment  in  favor  of  a  man,  he  never  will 
be  convicted,  let  your  laws  and  regulations  be 
what  they  may.  Take  the  other  case,  and  see 


69th  day.] 


BILL   OF   RIGHTS. 


505 


Thursday,] 


HILLARD  —  MORTON. 


[July  28th. 


how  it  would  be  with  an  unpopular  criminal ; 
take  a  man  who  has  been  tried  and  convicted  at 
the  bar  of  public  sentiment,  before  he  is  put 
upon  the  stand ;  take  a  man  against  whom  the 
press  has  been  directing  all  its  powerful  batteries ; 
and  I  submit  to  men  who  have  had  experience 
at  the  bar  that  cases  do  occur,  that  when  such  a 
man  stands  arraigned  the  jury  are  hungering  and 
thirsting  for  his  conviction,  and  they  stand  like 
greyhounds  on  the  slip,  ready  to  fall  upon  the 
prisoner  and  tear  him  to  pieces.     Now  what  are 
the  functions  of  a  judge — what  is  it  that  gives  that 
office  its  noble  and  exalted  character  ?     It  is  that 
the  judge,  not  sharing  in  the  passions  of  the  people, 
may  stand  as  a  breakwater  between  that  man  at 
the  bar,  and  the  popular  violence  which  is  with 
out  ;  but  if  you  take  the  responsibility  from  the 
judge,  and  throw  it  upon  the  jury — if  you  make 
your  enactments  so  that  the  judge,  if  he  be  a 
timid  man,  will  bow  before  the  current  of  popu 
lar  violence,  and  throw  this  man  wholly  into  the 
hands  of  the  jury — I  submit,  that  there  is  dan 
ger  that  the  interests  of  humanity  and  justice 
will  suffer  from  the  operation  of  this  principle. 
This  is  a  danger  which  gentlemen  seem  not  to 
have  apprehended.     It   seems  to  me   that  they 
have  looked  at  it  only  from  the  other  side  ;  and  I 
ask  you — as  lovers  of  humanity,  and  wishing  that 
men  should  not  be  tried  by  public  sentiment,  but 
that  they  should  be  tried  by  justice  and  'reason, 
and  should  have  an  impartial  tribunal — whether 
it  is  not  better  to  give  the  judge  power,  in  such 
cases,  to  stretch  forth  the  helping  hand  ?     There 
is  one  other  consideration  that  I  would  urge  in 
relation  to  this  matter.     If  you  make  the  jury 
judges  of  the  law  as  well  as  of  the  fact,  you  in 
crease  the  evil  which  now  exists ;  that  is,  you  give 
a  man  of  talents  at  the  bar  an  advantage  greater 
than  that  which  he  now  possesses.     I  hope  my 
distinguished  friend,  the  attorney- general,  now 
absent,  will  pardon  me  if  I  draw  an  argument 
from  his  case.     Suppose  the  prosecuting  attorney 
to  be  a  man  of  his  knowledge  and  abilities,  of  his 
splendid  oratorical  powers,  but  without  that  moral 
sense,  and  tenderness  of  heart  which  I  know  will 
ever  govern  him  ;  suppose  you  have  an  inferior 
man,  without  power  or  influence,  for  the  defence ; 
they  are  struggling   before  the  jury,  in  a  case 
where  the  life  of  the  prisoner  is  at  stake.     The 
court  is  perfectly  powerless  to  say  how  the  jury 
shall  understand  the  law,  and  it  is  laid  down  to 
them  by  these  two  men ;  on  the  one  side,  a  man 
of  eminent  learning  and  abilities,  not  controlled 
by  a  moral  sense  of  justice  and  humanity,  and 
on  the   other  side,  a  feeble,  young,   timid/  in 
experienced  advocate— I  submit  to  gentlemen  if 
there  is  not  here  an  element  of  mischief  which 


may  arise  from  the  introduction  of  this  princi 
ple,  which,  as  humane  men,  we  ought  to  look  at  ? 
I  am  entirely  in  favor  of  the  amendment  pro 
posed  by  my  friend  from  Northampton,  and  I 
think  it  should  be  adopted  ;  although  it  will  leave 
a  defective  principle  in  force,  practically,  it  will 
leave  the  operations  of  juries  very  much  as  they 
are  now. 

Mr.  MORTON,  of  Taunton.  I  have  desired 
to  gain  the  attention  of  the  Convention  on  this 
subject,  even  at  this  late  day  of  the  session,  for  a 
few  moments  only.  I  have  been  unsuccessful  in 
obtaining  the  floor.  This,  however,  is  my  own 
fault.  I  complain  of  nobody  ;  but  the  Conven 
tion  will  excuse  me,  if  I  relate  a  short  anecdote 
which  this  circumstance  brings  to  my  mind. 

I  heard  once,  of  a  young,  ardent,  and  eloquent 
man  in  the  legislature,  who  was  very  anxious  to 
speak,  and  so  also  were  many  others,  at  the  same 
time.  At  every  interval,  dozens  would  rise  on 
their  feet,  and  exclaim,  as  loudly  as  their  lungs 
would  permit,  "  Mr.  Speaker  !  "  and  getting  out 
of  all  patience  at  his  ill  success  in  one  of  these 
struggles,  this  young  man  shouted  out,  "Mr. 
Speaker !  I  must  have  the  floor  ;  I  have  a  little 
speech  which  I  want  to  get  off;  I  must  have  the 
floor,  for  my  speech  will  not  keep."  [Laugh 
ter.] 

Now,  I  have  no  such  reason  as  this  young 
man  had  for  desiring  the  floor.  "What  I  have  to 
say  is  old.  The  principles  I  wish  to  advance,  I 
have  entertained  for  more  than  a  quarter  of  a 
century  ;  and  on  looking  at  them,  I  think  they 
are  just  as  bright  as  when  they  were  new.  At 
any  rate,  it  will  do  no  hurt  to  give  them  an 
airing. 

Mr.  President :  I  rather  propose  to  testify  on 
this  matter,  than  to  argue,  because  I  take  it  that 
the  argument  has  been  exhausted,  and  because, 
also,  there  is  no  time  to  go  into  an  investigation 
of  the  subject.  I  felt  somewhat  anxious  to  ex 
press  my  views  upon  this  question,  because  I 
suppose  they  will  disappoint  a  good  many  indi 
viduals.  All  my  sympathies  are  with  the  mover 
of  this  proposition  ;  and  if  I  were  now  placed  in 
the  same  relation  to  that  gentleman  which  I  have 
borne  to  him  in  times  past,  I  think  I  should  con 
duct  the  business  very  much  to  his  satisfaction, 
and  according  to  the  views  which  he  has  expressed. 
But  I  cannot  but  think  that  some  of  my  friends 
who  are  so  anxious  to  protect  the  rights  of  indi 
viduals  and  juries  from  encroachment,  in  their 
zeal  for  liberty,  instead  of  strengthening  the 
guards  of  liberty  have  weakened  them ;  and  I 
was  sorry,  on  this  subject,  to  differ  from  my 
friend  for  Manchester,  (Mr.  Dana,)  yesterday; 
but  I  could  not  suppress  my  apprehension  that 


506 


BILL   OF   RIGHTS. 


[69th   day. 


Thursday,] 


MORTON. 


[July  28th. 


his  attempt  to  guard  and  strengthen  the  writ  of 
habeas  corpus,  weakened  the  force  with  which  it 
has  been  regarded  in  the  Commonwealth,  hereto 
fore.  But  I  must  not  refer  to  that  subject.  Time 
will  not  allow  me  to  do  so.  I  fear,  however,  that 
this  proposition  in  relation  to  the  rights  of  juries, 
instead  of  protecting  and  securing  the  rights  of 
the  people,  will  tend  to  weaken  them,  and  ex 
pose  those  rights  which  gentlemen  wish  to  protect, 
to  greater  danger  than  they  were  exposed  to  under 
the  law  as  it  existed  before. 

Mr.  President :  In  relation  to  what  was  ad 
vanced  by  some  gentleman,  yesterday — I  do  not 
now  exactly  remember  who — upon  the  organiza 
tion  of  juries,  I  must  say  that  the  provision  does 
not  reach  it  at  all.  If  there  is  any  imperfection 
in  the  law,  in  relation  to  the  selecting  or  impan 
elling  of  juries,  or  the  conduct  of  the  officers  in 
determining  who  shall  sit  on  a  jury,  the  pres 
ent  amendment  does  not  remedy  that  imperfec 
tion  ;  it  does  not  profess  to  reach  it.  Now  this 
amendment  relates  wholly  to  criminal  trials. 
And  what  is  the  course  and  progress  of  such 
trials,  as  was  very  properly  asked  by  my  friend 

opposite,   (Mr. ,)  a  few  moments  ago  ? 

First,  an  indictment  must  be  returned  by  the 
grand  jury.  The  party  is  then  brought  up  for 
trial,  and  the  business  of  trying  him  seems  to  be 
divided  between  two  classes  of  functionaries.  In 
the  first  place  individuals  are  selected  to  sit  upon 
the  bench  as  judges  of  your  court,  for  the  purpose 
of  determining  what  the  law  is,  whose  duty  it  is 
to  settle  rules  for  the  government  of  cases  that 
come  before  them,  and  to  decide  upon  their  ap 
plication  to  all  the  citizens  of  the  Commonwealth. 
They  are  supposed  to  be  selected  for  their  integ 
rity  and  character,  and  above  all,  for  their  knowl 
edge  of  the  law,  and  their  experience  in  its 
application.  It  is  supposed  that  they  are  to  be 
able  to  explain  the  law.  Then  you  have  selected 
another  class  of  functionaries,  designated  first, 
by  the  election  of  the  different  towns,  and  then 
selected  by  lot— who  are  supposed  to  be  some 
what  distinguished  above  their  fellows,  for  their 
integrity  and  practical  knowledge  of  the  affairs  of 
the  world.  It  is  their  peculiar  province  to  dis 
cern  the  facts  of  the  case ;  and  it  is  supposed,  from 
their  experience  and  knowledge  of  mankind,  that 
they  are  better  qualified  to  determine  what  credit 
is  due  to  witnesses,  and  what  inferences  may  be 
drawn  from  circumstances,  than  other  classes  of 
the  community — even  than  the  judges  themselves, 
who,  from  the  nature  of  their  occupation,  are 
somewhat  withdrawn  from  society.  The  matter 
thus  goes  on  between  these  two  classes,  both  hear 
ing  the  evidence,  and  the  judge  explaining  the 
law.  Now,  how  are  the  jury  to  determine  the 


guilt  or  innocence  of  the  defendant  ?  In  the  first 
place  they  have  the  facts  alleged  in  the  indict 
ment  before  them,  and  they  must  determine 
whether  the  evidence  proves  the  facts  alleged ; 
and,  if  so,  whether  the  facts,  as  proved,  constitute 
a  legal  offence.  On  that  subject  they  have  the 
opinion  and  advice  of  the  court  as  well  as  the  tes 
timony  of  the  witnesses  on  the  stand.  They  are 
to  view  all  the  circumstances,  and  to  decide  upon 
their  own  responsibility.  If  the  jury,  viewing 
the  disclosures  which  are  made  before  them,  de 
liberately  and  conscientiously  come  to  the  con 
clusion  that  the  evidence  does  not  establish  the 
fact,  or  that  the  law,  though  differently  laid  down 
by  the  court,  does  not  warrant  a  conviction,  they 
must  say  that  the  defendant  is  not  guilty,  and  he 
then  goes  forever  discharged.  They  must,  of 
necessity,  in  returning  a  general  verdict,  decide 
both  law  and  fact.  If  they  disregard  the  testimony 
of  respectable  witnesses,  they  assume  a  fearful 
responsibility.  If  they  disregard  the  instructions 
of  the  court,  they  also  assume  a  responsibility  not 
less  fearful.  Now  I  do  not  mean  to  say  that  the 
jury  have  not  the  power,  and  the  right,  or  that  it 
is  not  their  duty,  if  it  so  happens  that  in  their 
consciences  they  believe  that  they  understand  the 
law  better  than  the  court,  to  follow  the  convictions 
of  their  own  minds,  notwithstanding  the  instruc 
tions  of  the  court,  just  as  it  is  their  right,  upon 
receiving  the  testimony  of  the  witnesses,  to  say 
according  to  their  honest  convictions  that  they 
believe,  or  do  not  believe  it. 

Now,  in  this  state  of  the  case,  can  we  do  any 
thing  to  protect  the  rights  of  juries,  or,  more 
properly,  the  rights  of  individuals  who  may  be 
brought  before  juries  ?  I  have  no  disposition 
whatever  to  impair  or  weaken,  in  the  slightest 
degree,  the  rights  of  either  of  these  classes  of  peo 
ple.  I  would  rather  say,  let  them  be  preserved, 
to  the  fullest  extent.  But  I  would  ask,  whether 
this  attempt  to  go  into  this  matter  and  specifically 
enumerate  and  define  the  relative  rights  of  these 
officers,  does  not  endanger  if  not  impair  the  rights 
of  juries,  or  of  those  persons  brought  before 
them?  This  subject  has  been  so  fully  argued, 
that  I  do  not  propose  to  go  into  much  discussion 
of  it.  It  is  always  dangerous,  where  you  have 
general  principles  laid  down  and  well  established 
in  the  minds  of  the  community,  to  ree'nact  them, 
or  to  draw  them  out  into  detail ;  for  whenever 
you  undertake  to  do  anything  in  detail,  there  is 
great  danger  that  your  details  may  leave  some 
particulars  unenumerated,  and  the  omissions  may 
necessarily  lead  to  constructions  less  favorable 
than  the  principles  would  warrant.  Expressio 
unius  exclusio  alter ius. 

Now,  I  maintain,  that  the  principles  I  have 


69th  day.] 


BILL   OF   RIGHTS. 


507 


Thursday,] 


MORTON  —  DANA. 


[July  28th. 


announced  are  not  only  well  established,  but 
that  they  are  guarded,  and  protected,  and  fortified, 
by  the  well-established  law,  and  in  the  minds  of 
the  community,  more  strongly  than  they  can  be 
by  any  constitutional  provision.  If  any  one  en 
tertains  the  apprehension  or  the  supposition  that 
your  courts  are  desirous  of  exercising  arbitrary 
power,  this  is  one  of  those  cases  in  which  they 
never  can  do  it  successfully.  You  have  now  in 
telligent  and  independent  juries,  who  will  always 
take  care  to  protect  their  own  rights ;  and  a  court 
can  never  control  them.  If  a  jury  chooses  to  say 
that  a  man  is  not  guilty,  whether  upon  their  con 
struction  of  the  law  or  the  evidence,  no  court  has 
power  to  reverse  their  decision.  You  have,  there 
fore,  in  the  very  nature  of  the  principle,  a  guar 
antee  stronger  than  you  can  obtain,  either  in  a 
Constitution  or  anywhere  else ;  because,  from  the 
very  nature  of  things,  this  power  never  can  be 
usurped  by  a  court,  and  taken  from  a  jury.  It  is 
impracticable  to  do  so ;  and,  in  this  connection, 
let  me  say,  that  we  came  here,  in  the  first  place, 
to  remedy  existing  evils,  not  to  speculate  in  the 
ories,  or  to  mould  a  new  Constitution  upon  favor 
ite  schemes,  which  we  may  adopt,  and  which  may 
appear  well  upon  paper,  with  a  design  to  super 
sede  principles  which  have  always  operated  well. 
Such  would,  indeed,  be  a  dangerous  experiment. 
Let  me  now  inquire,  if  anybody  ever  knew  an 
instance  in  which  any  court,  having  common  law 
jurisdiction,  ever  attempted  to  prevent  a  jury  from 
deciding  a  criminal  case  by  a  general  verdict  of 
guilty  or  not  guilty  ?  It  is  said,  that  on  exam 
ining  the  principles  which  our  courts  have  laid 
down,  some  propositions  may  be  found  which  are 
not  sound;  but,  without  inquiry  into  this  matter, 
I  wish  to  ask,  whether,  practically,  there  ever 
was  an  attempt,  by  any  court,  to  interfere  with  a 
jury,  or  to  deny  to  them  the  right  of  rendering  a 
verdict  of  "guilty,"  or  "not  guilty,"  according  to 
their  discretion  ?  No  doubt  the  court  have  laid 
down  the  law,  and  given  instructions  to  them ; 
and,  according  to  the  provisions  of  this  amend 
ment,  they  are  required  to  do  so.  No  doubt  the 
court  have  laid  down  the  law,  and  the  jxiry  have 
passed  upon  that  law  as  they  have  thought  proper. 
No  doubt,  in  all  cases,  they  have  respect  for  it, 
just  as  they  have  respect  for  the  testimony  of  un 
impeachable  witnesses.  They  have  the  power  and 
the  right  to  act  according  to  their  own  conscien 
tious  convictions,  and  the  court  cannot  control 
them,  and  never  has  attempted  to  control  them. 
I  think  that  some  complaint  was  made  in  regard 
to  a  judge  in  one  court,  by  a  gentleman  who  has 
advocated  this  proposition  very  ably ;  and  ~it  is 
possible  that  he  might  have  been  treated  improp 
erly  ;  but  that  should  not  aifect  a  general  prin 


ciple.  I  believe  that  he  desired  to  address  the 
jury  in  regard  to  the  constitutionality  of  some 
law,  and  the  judge  demanded  that  he  should 
address  the  court,  and  not  the  jury. 

[The  fifteen  minutes  having  expired,  the  ham 
mer  fell.] 

Mr.  DANA,  for  Manchester.  I  wish  the 
attention  of  the  House  for  a  moment  or  two,  in 
relation  to  this  subject.  I  will  first  ask  that  the 
resolution  and  amendment  may  be  read,  so  that 
we  may  see  exactly  where  we  stand. 

The  resolution  and  amendment  were  accord 
ingly  read  by  the  Secretary. 

Mr.  DANA.  Perhaps  before  we  get  much 
farther  there  may  be  some  more  amendments 
accepted.  I  wish  to  put  this  to  the  Convention, 
as  an  argument  for  dropping  the  whole  matter. 
Several  days  ago,  the  gentleman  for  Wilbraham. 
came  forward  with  a  resolve  materially  affecting 
the  life,  liberty,  and  property  of  every  citizen  in 
the  Commonwealth.  It  is  presented,  and  laid 
upon  the  table  for  some  time.  Then  the  gentle 
man  makes  an  argument  in  its  favor,  and  is  per 
fectly  satisfied  that  it  is  all  right.  This  morning 
the  gentleman  from  Northampton  comes  in  and 
says  that  he  is  in  favor  of  the  principle,  but  that 
you  cannot  pass  the  resolves,  because  juries  will 
be  made  judges  of  the  sufficiency  of  the  indict 
ment,  of  the  admissibility  of  testimony,  and  of  col 
lateral  issues,  and  of  all  that  occurs  in  the  course  of 
a  trial.  He  moves  an  amendment  in  four  or  five 
particulars,  and  the  gentleman  for  Wilbraham  at 
once  accepts  them  all ;  and  then  the  resolve  is 
discussed ;  and  then  the  gentleman  for  Wilbra 
ham  comes  forward  with  another  amendment, 
and  says  we  ought  to  provide  for  a  new  trial ;  and 
then  the  gentleman  from  Northampton  accepts 
that  amendment ;  and  so  we  go  on. 

Now,  let  me  suggest  that  this  resolution  is  on 
its  final  passage,  and  when  it  is  passed,  somebody 
may  rise  and  say  that  there  is  occasion  for  another 
amendment.  But  it  is  then  too  late.  Sir,  the 
very  first  decision  of  any  court  will  show  that 
something  has  been  overlooked,  and  you  cannot 
then  help  yourselves.  And  what  excuse  can  you 
give  to  the  people  ?  We  may  say  that  it  came  up 
at  the  end  of  the  session,  and  that  we  had  not 
much  time  to  consider  it ;  that  we  had  the  fifteen 
minutes'  rule ;  that  amendments  were  proposed 
on  one  side  and  on  another  side,  and  that  we  had 
not  time  to  consider  them  properly.  Then  the 
people  will  say :  "  If  you  had  not  time  to  consider 
the  matter  properly,  why  did  you  not  leave  it 
to  stand  as  it  was  ? "  And  to  that  there  can  be 
no  answer.  Now,  I  submit  to  the  Convention, 
whether  it  is  worth  while  to  place  a  great  funda 
mental  principle  in  the  Constitution,  affecting  life 


508 


BILL   OF   RIGHTS. 


[69th  day. 


Thursday,] 


DANA. 


[July  28th. 


and  liberty,  where  it  is  unalterable,  with  amend 
ment  upon  amendment,  relating  to  the  sufficiency 
of  testimony,  to  collateral  issues,  and  many  other 
matters,  the  meaning  of  which  a  large  portion  of 
the  assembly  does  not  understand,  and  the  effect 
of  which  I  do  not  pretend  to  understand  at  this 
moment  ?  I  cannot  bring  my  mind  to  see  what 
effect  the  amendment  of  the  gentleman  from 
Northampton  will  have  on  the  amendment  of  the 
gentleman  for  Wilbraham,  or  the  amendment  of 
the  gentleman  for  Wilbraham.  upon  his  own 
resolve  or  upon  the  amendments  of  the  gentle 
man  from  Northampton. 

We  have  the  evidence  of  the  learned  gentleman 
from  Taunton  (Mr.  Morton)  against  this  resolve ; 
and  if  the  gentleman  from  Lenox  (Mr.  Bishop) 
was  in  the  House,  I  would  appeal  to  him  to  give 
his  testimony,  as  I  have  no  doubt  he  would, 
against  it.  I  submit  to  the  House  that  we 
had  better  drop  the  matter  altogether.  It  was 
said,  and  properly,  by  the  gentleman  from  Bos 
ton,  (Mr.  Hillard,)  that  if  the  government,  as  it 
always  is,  be  represented  by  a  man  of  superior 
talent  and  of  great  power  over  the  jury,  and  the 
criminal,  as  is  too  often  the  case,  is  represented 
by  any  young  man  who  is  willing,  or  is  appointed 
by  the  court,  to  take  it  in  hand,  what  chance  has 
the  criminal  ?  This  very  morning,  Mr.  President, 
I  met  a  young  lawyer,  who  told  me  that  he  had 
been  assigned  to  defend  a  man  on  trial  for  murder, 
against  Mr.  Choate  as  prosecutor, — the  man  not 
having  a  dollar  to  pay  for  counsel, — and  asked 
me  if  I  would  consent  to  act  as  senior  counsel. 
Now,  I  should  like  to  know  what  kind  of  a  chance 
the  criminal  .stands  of  his  life — hunting  up  charity 
counsel,  against  the  head  of  the  American  bar,  be 
fore  a  chance  tribunal.  The  jury  being  the  judges 
of  the  law,  if  the  man  is  found  guilty  he  never 
can  know — to  use  a  popular  phrase — "  what  hurt 
him,"  whether  it  was  the  law  or  the  facts.  The 
jury  cannot  give  their  reasons,  and  cannot  make 
known  whether  they  found  him  guilty  because  of 
the  law,  or  the  manner  in  which  they  interpreted 
the  law.  You  will  have  no  settled  law.  There 
will  be  one  law  for  one  man,  and  another  for 
another.  A  law  will  be  constitutional  for  one 
man  and  not  for  another  ;  and,  what  is  worse,  no 
man  will  ever  know  on  what  ground  he  was  con 
victed  or  acquitted. 

I  say,  as  I  had  the  honor  to  say  yesterday  to 
this  Convention,  that  the  division  of  power  is  the 
great  security  for  liberty.  I  would  not  give  the 
best  court  in  Christendom  power  over  the  law 
and  the  fact,  in  jury  cases.  I  do  not  wish  to  give 
to  any  twelve  men  who  may  be  drawn,  absolute 
power  over  the  law  and  the  facts.  My  security 
is  in  the  distribution  of  power.  Give  me  a  court 


which  shall  be  responsible  for  the  law,  and  give 
me  a  jury  responsible  for  the  facts,  and  for  the  ap 
plication  of  the  law  to  the  facts. 

There  is  another  consideration.  If  the  judge 
errs  in  the  law,  you  have  a  perfect  remedy.  You 
may  go  to  the  highest  tribunal  of  the  State,  and 
set  it  aside.  If  the  jury  err  in  the  law,  you  can 
never  disturb  the  verdict — because  you  cannot 
know  whether  they  err  in  the  law  or  not.  I 
put  this  question  to  the  gentleman  from  North 
ampton,  who  says  there  should  be  the  power  to 
grant  new  trials  :  suppose  the  judge  rules  all  the 
law  in  favor  of  the  criminal,  how  shall  he  get  a 
new  trial  ?  The  supposition  seems  to  be,  that  the 
judge  rules  against  the  prisoner  ;  but  suppose  he 
rules  in  his  favor,  and  the  jury  differ  from  the 
judge,  the  prisoner  cannot  get  a  new  trial,  because 
all  the  law  was  ruled  in  his  favor.  But,  says  the 
criminal,  the  jury  found  the  law  against  me.  The 
judge  says,  how  do  you  know  that?  He  cannot 
know  it ;  no  man  outside  of  the  jury-room  can 
know  it,  for  the  jury  do  not  tell  how  they  found 
the  law.  So  that  if  the  jury  differ  from  the  court, 
against  the  prisoner,  he  cannot  get  a  new  trial. 

Then,  by  this  principle,  you  put  the  whole 
criminal  law  of  the  Commonwealth  into  the  hands 
of  one  juror.  One  man  out  of  twelve  in  the  jury- 
box,  has  a  right  to  defy  the  whole  Commonwealth. 
You  may  pass  law  after  law,  but  if  an  ingenious 
advocate  can  persuade  one  man  on  the  jury  into  a 
misconstruction  of  the  law,  he  can  set  the  Com 
monwealth  at  defiance.  But,  if  the  judge  make  a 
mistake,  you  can  correct  it.  Let  me  call  attention 
to  one  protection  which  you  will  remove,  if  you 
adopt  this  resolve.  The  gentleman  from  Taunton, 
(Mr.  Morton,)  was  perfectly  right  in  saying  that 
you  are  breaking  down  the  safeguards  of  the  ac 
cused  person.  If  the  judge  err  in  the  law,  it  is  a 
matter  of  record,  and  you  go  to  the  higher  court 
and  get  it  reversed.  Suppose  they  refuse  to  re 
verse  it  ?  Then  you  come  before  the  legislature, 
and,  if  the  judgment  has  not  been  executed,  the 
legislature  may  repeal  the  law.  Or,  if  you  have 
been  sentenced,  the  legislature  may  reimburse  or 
reinstate  you.  Then,  again,  if  convicted  on  an 
improper  construction  of  the  law,  the  government 
can  protect  you  by  a  pardon.  I  was  counsel  in  a 
case  where  the  government  pardoned  a  man  upon 
that  ground,  and  I  beg  the  attention  of  the  Con 
vention  to  that  single  case.  I  defended  the  man, 
and  the  jury  put  a  question  to  the  court,  as  to  the 
burden  of  proof.  The  court  were  divided  upon 
the  subject,  but  a  majority  of  them  were  against 
the  prisoner,  and  he  was  convicted.  That  was  a 
matter  of  record.  The  case  was  presented  to  the 
governor,  and  he  said,  that  as  the  court  were 
divided  as  to  the  law,  the  man  ought  not  to  be 


69th  day.] 


BILL   OF   RIGHTS. 


509 


Thursday,] 


DANA  —  HALLETT  —  ABBOTT. 


[July  28th- 


hung,  in  so  doubtful  a  case.  The  court  also  re 
quested  the  governor  to  commute  the  sentence, 
because  the  law  was  so  doubtful.  Now,  had  that 
taken  place  in  the  jury-room,  it  never  could  have 
been  legally  known  on  what  ground  the  man  had 
been  convicted,  whether  on  the  law  or  the  facts. 
As  the  law  now  is,  the  grounds  of  acquittal  or 
conviction  appear  on  record,  so  that  if  unjustly 
convicted  you  appeal  to  the  higher  court,  or  to 
the  legislature,  or  the  executive,  and  the  court, 
or  the  legislature,  or  the  executive,  may  reverse,  or 
pardon,  or  reimburse  or  reinstate  the  man.  But 
what  comes  from  the  jury  never  can  be  known. 

Mr.  HALLETT.  I  desire  to  ask  the  gentleman 
if  he  means  to  say  that  the  court  cannot  grant  a 
new  trial,  when  the  verdict  is  guilty  ? 

Mr.  DANA.     I  said  nothing  of  the  kind. 

Mr.  HALLETT.  Does  the  gentleman  mean  to 
say  that  the  court  cannot  grant  a  new  trial,  when 
the  verdict  is  "  guilty,"  the  charge  of  the  judge 
being  in  favor  of  the  prisoner  ? 

Mr.  DANA.  If  the  court  rule  all  the  law  in 
favor  of  the  criminal,  and  the  facts  are  sufficient 
to  warrant  a  conviction,  and  the  jury  find  him 
guilty,  he  cannot,  under  that  resolve,  have  a  new 
trial,  because  the  court  cannot  know  how  the  jury 
found  the  law. 

Mr.  HALLETT.  Is  not  the  petty  jury  sworn 
to  decide  the  cause  according  to  the  evidence,  and 
is  not  the  law  a  part  of  the  evidence  as  well  as 
the  facts ;  and,  therefore,  cannot  the  judge  give  a 
new  trial,  on  the  ground  that  the  case  is  against 
evidence,  or  against  the  law,  without  specifying 
either  ? 

Mr.  DANA.  I  am  glad  that  the  gentleman 
has  put  the  question,  for  two  reasons  :  it  suggests 
another  infirmity  in  the  resolve,  and  that  is,  that 
it  makes  the  law  a  matter  of  fact,  which  has  to  be 
proved  as  a  fact.  Now  I  should  like  to  see  all  the 
law  of  the  Commonwealth  proved,  as  a  matter 
of  fact,  before  a  jury.  We  shall  continue  finding 
difficulties.  But  let  me  answer  the  gentleman's 
question  by  putting  another  ;  does  he  mean  that 
a  judge  shall  set  aside  a  verdict  in  a  criminal  case, 
because  the  jury,  in  his  opinion,  probably  erred 
in  the  law  ? 

[Here  the  President's  hammer  fell,  the  fifteen 
minutes  allowed  for  speaking,  having  elapsed.  ] 

Mr.  ABBOTT,  of  Lowell.  I  desire  to  say  a 
few  words  upon  this  matter.  I  mn»t  say  I  am 
somewhat  surprised  at  the  kind  of  argument  used 
by  the  gentleman  for  Manchester,  (Mr.  Dana,) 
the  gentleman  from  Boston,  (Mr.  Hillard,)  and 
others  who  oppose  the  passage  of  this  resolve  ;  and, 
Sir,  I  think  in  the  history  of  all  the  discussion 
upon  this  matter,  it  will  be  the  first  time  you  ever 
heard  arguments  against  the  adoption  of  this  great 


principle,  in  criminal  trials,  on  the  ground  that  it 
was  something  which  would  trench  upon  the 
rights  of  criminals.  From  the  beginning  to  the 
end  of  this  discussion,  it  has  been  claimed  by 
those  in  favor  of  the  right  of  criminals,  of  per 
sons  accused  of  the  commission  of  offences,  that 
it  was  the  great  shield  which  was  to  stand  between 
him  and  an  unjust  conviction.  But,  Sir,  I  do 
not  believe  it  will  ever  be  heard  here,  or  anywhere 
else,  in  practise,  that  any  man  when  brought  be 
fore  any  court,  will  complain  of  this  Convention, 
or  any  body  which  establishes  the  great  principle, 
that  the  jury,  by  the  common  law,  are  the  judges 
of  the  law  as  well  as  evidence.  But  it  is  claimed 
that  we  must  pause,  because  we  cannot  tell  what 
may  be  the  operation  of  this  resolve ;  that  a 
variety  of  objections  may  hereafter  be  raised  to  it. 
This  argument  of  my  friend  for  Manchester, 
(Mr.  Dana,)  might  just  as  well  be  brought  against 
almost  everything  which  we  have  attempted  to  do 
here.  Here  is  a  great  principle,  he  says,  which 
you  propose  to  establish  now,  and  do  you  know 
where  you  are  going,  what  will  be  the  results, 
and  what  objections  can  be  raised  ?  Sir,  may  not 
the  moon  be  proved  to  be  made  of  green  cheese  ? 
Cannot  my  friend  tell  us  what  those  objections 
are,  if  they  exist  ?  It  is  not  a  new  question.  It 
has  been  discussed  year  after  year,  and  my  friend 
has  had  his  opinions  upon  the  subject,  and  we 
have  all  had  our  opinions  upon  the  subject,  and  if 
there  is  any  objection  to  this  matter,  the  gentle 
man  for  Manchester  could  state  those  objections 
to  the  Convention,  if  they  are  real,  and  I  appre 
hend  that  a  good  many  that  are  not  quite  so  real 
could  be  made  to  appear  plausible.  Will  any  man 
be  frightened  from  his  consistency,  because  he  fears 
that  there  may  be  some  trouble  arising  hereafter  ? 
The  amendment  of  the  gentleman  from  North 
ampton,  (Mr.  Huntington,)  as  modified  by  the 
amendment  of  the  gentleman  for  Wilbraham, 
covers  all  manner  of  difficulties,  and  if  it  did  not, 
the  learned  gentleman  from  Taunton,  (Mr.  Mor 
ton,)  the  gentleman  for  Manchester,  the  gentleman 
from  Boston,  and  all  who  are  troubled  upon  tlu's 
subject,  could  tell  you  where  the  trouble  is.  My 
friend  from  Boston  (Mr.  Hillard)  told  you,  that 
we  must  stop  short,  because  the  adoption  of  the 
resolve  would  be  injuring  the  criminal.  I  appre 
hend  criminals  would  not  choose  such  advocates 
of  their  cases.  The  judges,  where  the  law  is 
apparent  upon  the  face  of  the  indictment,  will 
still  have  the  control  of  the  law.  If  there  is  no  such 
law,  you  can  make  a  motion  to  quash  the  indict 
ment.  If  it  is  founded  upon  an  unconstitutional 
law,  the  case  need  not  go  to  the  jury,  for  the  right 
to  quash  the  indictment  is  left  with  the  court. 
The  court  now  have  the  right  to  set  aside  the  ver- 


510 


BILL   OF   RIGHTS. 


[69th  day. 


Thursday,] 


ABBOTT  —  MORTON  —  LORD. 


[July  28th. 


diet  of  guilty  because  it  is  against  evidence,  and 
does  any  man  in  his  senses  really  believe  that, 
under  the  amendment  of  the  gentleman  from  Bos 
ton,  the  court  will  not  exercise  the  power,  in  any 
and  every  case  where  there  is  a  decided  ground  of 
suspicion,  that  the  jury  have  erred  upon  the  law 
against  the  prisoner,  to  set  aside  their  verdict  ? 
Sir,  I  apprehend  that  all  these  objections  come  to 
nothing.  The  real  question  is,  shall  we  establish 
this  great  principle  of  the  common  law,  as  a  part 
of  the  Constitution?  I,  Sir,  for  one,  if  this  is 
voted  down,  desire  to  have  something  by  which 
we  shall  know  where  we  stand.  I  do  not  want 
that  anomalous  state  of  things,  I  may  say,  with 
all  respect,  that  ridiculous  state  of  things  now  ex 
isting  in  this  Commonwealth.  The  law  as  now 
settled  by  the  court,  and  I  understand  the  learned 
gentleman  from  Taunton  agrees  to  it,  that  the 
jury  have  the  power  to  find  the  law,  but  no  right 
so  to  do ;  that  they  must  take  the  law  from  the 
court,  and  if  they  exercise  on  that  subject  their 
own  consciences  and  judgments,  they  violate  their 
oaths.  Yet,  notwithstanding  such  is  the  estab 
lished  rule,  the  same  court,  laying  it  down,  say 
that  counsel  may  argue  the  law  to  the  jury, 
although  the  jury  have  no  discretion  on  that  sub 
ject,  but  must  follow  blindly  the  directions  of  the 
court.  To  what  absurdities  and  inconsistencies 
will  not  a  deflection  from  a  great  principle  lead 
even  grave  and  learned  courts  !  What  morality 
is  here  inculcated  !  The  jury  violate  their  oaths 
morally,  if  they  disregard  the  instructions  of  the 
court  on  the  law ;  still,  counsel  are  permitted  to 
argue  to  them,  hour  after  hour,  to  induce  them  to 
do  it ;  to  commit  moral  purjury.  The  jury  have 
the  power,  and  a  counsel  may  get  up  and  argue 
a  law  to  them,  and  then  they  have  not  the  right, 
without  a  violation  of  their  oaths,  to  undertake  to 
exercise  that  power.  You  may  argue  a  law  to 
the  jury  all  day  long,  and  then  the  judge  gets  up 
and  says  to  the  jury  :  "  Gentlemen,  you  have  the 
power  to  find  the  law,  but  if  you  exercise  that 
power,  you  violate  your  oaths ;  you  must  take 
the  law  from  the  court." 

Mr.  MORTON,  of  Taunton.  I  understand  the 
gentleman  says,  that  I  denied  that  they  had  the 
right  to  decide  what  the  law  is.  I  said  in  so 
many  words,  if  the  jury,  having  heard  the  direc 
tion  of  the  court,  upon  their  consciences  believe 
the  law  was  not  so,  they  had  the  power,  and  the 
right,  and  it  was  their  duty  to  say  so. 

Mr.  ABBOTT.  I  am  delighted  that  the  gen 
tleman  from  Taunton  goes  with  us,  and  if  the 
court  had  so  ruled,  we  should  not  have  needed 
this  resolve.  I  ask  him  to  put  it  into  the  Consti 
tution  so  that  the  judges  cannot  get  by  it,  and  say 
to  the  jury  :  "  You  have  the  power,  but  if  you 


exercise  that  power  against  the  instruction  of  the 
court,  you  violate  your  oaths."  I  say,  let  us  have 
something  definite  upon  this  subject,  that  can  be 
understood  and  appreciated.  The  argument  of 
the  gentleman  from  Taunton  really  cannot  be 
worth  much,  that  there  is  no  evil  to  be  met,  be 
cause  the  evil  has  already  arisen.  The  construc 
tion  of  the  law,  as  given  by  the  gentleman  from 
Taunton,  does  not  agree  with  the  construction 
laid  down  by  the  highest  tribunal  of  this  Com 
monwealth.  I  want  to  constitutionally  enact  the 
statement  of  the  law  as  laid  down  by  the  gentle 
man  from  Taunton,  so  that  rightfully  and  legally, 
and  without  being  told  that  a  man  violates  his 
oath,  one  may  have  a  right  to  do  just  what  is  his 
duty,  and  what  his  conscience  tells  him  to  do.  So 
that  when  the  whole  matter  is  before  the  jury 
man,  and  he  has  received  the  law  from  the  court, 
and  has  brought  his  conscience  and  judgment  to 
bear  upon  the  whole  subject,  he  shall  have  not 
only  the  power,  but  the  right,  to  say  that  he  finds 
the  fact  and  the  law  as  his  conscience  directs  him. 

Mr.  LOUD,  of  Salem.  I  yesterday  proposed 
an  inquiry  to  the  gentlemen  who  advocate  this 
resolve.  I  now  desire  to  inquire,  in  the  first 
place,  of  the  gentleman  who  represents  Wilbra- 
ham,  (Mr.  Hallett,)  whether,  by  this  resolve,  he 
does  not  give  absolute  power  to  the  court  over 
any  finding  of  the  jury  r  Does  not  he  who  stands 
here,  to  interfere  and  protect  the  rights  of  the 
jury  against  the  judges,  give  by  this  resolve,  the 
judges  absolute  power  over  any  finding  of  the 
jury  which  convicts  a  criminal  ? 

I  understand  he  limits  that  power  to  the  find 
ing  of  the  jury  in  case  of  conviction.  Now,  is 
not  the  conviction  of  a  guilty  man  as  important 
as  the  acquittal  of  an  innocent  one  ?  Have  not 
the  jury  the  same  right  to  judge  of  guilt  that  they 
have  to  judge  of  innocence?  Is  it  granting  a 
proper  power  to  say  to  the  jury,  the  judge  shall 
have  power  over  you  in  case  you  decide  one  way, 
but  he  shall  not  have  power  over  you  in  case  you 
decide  the  other  way  ?  That  is  one  inquiry  which 
I  should  like  to  have  the  gentleman  for  Wilbra- 
ham,  (Mr.  Hallett,)  answer. 

I  know  of  no  other  escape.  If  this  resolve  is 
adopted,  the  law  is  considered  a  matter  of  fact,  to 
be  proved  by  evidence.  And  how  is  that  evidence 
to  be  introduced  ?  According  to  this  resolve,  it  is 
to  be  introduced  under  the  direction  of  the  judge. 
That  is  to  say,  you  will  give  the  jury  the  power 
of  deciding  what  the  law  is  as  a  matter  of  fact, 
and  yet  you  will  give  the  judge  the  power  of  say 
ing  what  shall  be  the  evidence  of  that  fact. 
Now,  we  all  of  us  who  have  had  any  practise 
in  the  courts,  know  that  it  is  not  the  practise  of 
the  judges  to  allow  the  jury  to  read  law  books 


69th  day.] 


BILL  OF   RIGHTS. 


511 


Thursday,] 


LORD. 


[July  28th. 


for  themselves.  But  I  want  to  know,  if  they  are 
to  be  the  judge  of  what  the  law  is,  why  you  do 
not  secure  to  them  the  right  to  read  the  law  ?  If 
what  the  law  is,  is  a  fact,  that  fact  is  to  be  proved. 
If  an  attorney  on  one  side  of  the  case  gets  up  and 
reads  from  a  book,  and  says  that  is  law,  they 
are  not  to  be  governed  by  what  he  says,  but 
they  should  be  allowed  to  take  the  book,  and  see 
if  there  is  not  something  there,  on  the  next  page, 
to  qualify  the  passage  quoted,  for  we  all  know 
that  lawyers  generally  select  some  passage,  and 
read  what  suits  their  own  purposes,  without  read 
ing  the  clause  that  qualifies  it,  and  does  not  suit 
their  purpose  ;  therefore  a  juror  says  :  "I  should 
like  to  take  that  book  for  a  moment ;  I  should 
like  to  see  whether  there  is  not  some  qualification 
to  what  you  lay  down  as  law."  If  the  lawyer 
has  read  a  part  of  a  section,  the  juror  says  :  "  I 
should  like  to  look  into  that  book,  and  see  if  you 
have  read  the  whole  section."  Now,  Sir,  I  say 
that  if  the  law  of  the  case  is  to  be  reduced  to  a 
matter  of  fact  for  the  jury  to  decide,  they  ought 
to  have  the  means  given  them  of  determining  in 
telligibly  what  the  law  is ;  and  I  say,  therefore, 
that  experts  in  the  law  should  be  called  in  to  tes 
tify.  When  we  want  to  ascertain  what  the  law 
of  any  foreign  country  is,  upon  any  particular 
subject,  we  call  in  some  one  versed  in  that  foreign 
law,  to  testify  in  relation  to  it,  and  we  prove  it  as 
a  matter  of  fact.  We  prove  it  by  the  testimony 
of  those  who  have  practised  in  that  law.  Upon 
the  same  ground,  if  the  law  is  to  be  made  a  mat 
ter  of  fact  for  the  jury  to  decide,  provision  should 
be  made  for  calling  in  experts  to  prove  it ;  and  I 
say  this  resolution  is  imperfect,  until  such  a  pro 
vision  is  made. 

For  instance,  a  man  is  indicted  and  brought 
before  the  court  for  an  offence.  I  say,  the  charge 
is  not  sufficient  to  convict  the  man,  and  I  propose 
to  introduce  testimony  in  respect  to  the  law,  to 
prove  that  fact  to  the  jury.  But  the  judge  says, 
No,  Sir  ;  the  same  resolution  which  provides  that 
the  jury  shall  be  the  judges  of  the  law  as  well  as 
fact,  says  that  the  judge  shall  determine  the  ad 
mission  of  evidence,  and  this  is  a  species  of  evi 
dence  you  cannot  introduce.  Gentlemen  propose 
to  give  the  jury  the  right  to  decide  upon  the  law 
as  a  matter  of  fact,  and  yet  they  refuse  to  give 
them  the  evidence  upon  which  to  decide  it. 

Now,  I  agree  entirely  with  the  gentleman  from 
Taunton,  that  the  difficulty  with  the  resolution  is 
not  that  it  affords  too  much  protection  to  the 
party  charged  with  crime,  but  on  the  other  hand 
that  it  takes  away  that  protection.  I  am  not  at 
all  satisfied  with  the  argument  of  the  gentleman 
from  Lowell,  (Mr.  Abbott,)  upon  this  subject. 
I  am  not  satisfied  that  under  this  resolution  any 


judge  in  the  Commonwealth  will  have  the  right 
to  say  there  is  no  law  upon  which  a  prisoner  can 
be  convicted,  when  it  is  to  be  left  for  the  jury  to 
settle  the  question  whether  there  is  a  law  or  not. 
Your  resolve  says  that  the  question  of  law  or  no 
law,  is  to  be  settled  by  the  jury.  Do  you  mean 
to  put  into  the  hands  of  different  tribunals  to 
settle  the  question  whether  the  proposition  is 
is  law  or  whether  it  is  not  ?  Shall  the  judge  set 
tle  it  or  shall  the  jury,  or  will  you  give  them  con 
current  jurisdiction  ;  that  is,  give  it  to  the  power 
which  outstrips  the  other,  for  I  believe  that  is  the 
general  principle  upon  which  concurrent  juris 
diction  operates.  The  party  that  can  get  it  in 
its  power  first,  keeps  it  and  exercises  it  against 
the  right  of  the  other  party.  Well,  Sir,  do  you 
propose  to  constitute  a  concurrent  jurisdiction 
on  the  subject  of  law  or  no  law  ?  Is  it  necessary 
to  the  security  of  the  individuals  ?  Sir,  I  want  to 
hear  the  member  for  Wilbraham  answer  the  last 
question  put  to  him  by  the  delegate  for  Manches 
ter,  (Mr.  Dana).  It  is  this  :  whether  the  friends 
of  this  resolve  mean  to  give  to  the  court  the 
power  of  reversing  the  decisions  of  fact  made  by 
the  jury  ?  Do  they  mean  that  ?  And  I  want  to 
know  if  the  gentlemen  who  mean  that,  are  not 
those  who  are  standing  up  for  the  rights  of  juries 
against  judges  ?  I  have  not  heard  any  gentleman 
say — there  is  not  a  gentleman  upon  this  floor 
who  dares  to  stake  his  reputation  upon  denying 
that  the  judge  ought  to  have  the  power  to  revise 
the  decisions  of  the  jury.  Yet,  while  they  give 
the  judges  the  power  to  set  the  verdicts  of  the 
juries  aside,  they  will  not  give  them  the  power  to 
instruct  the  jury  in  law. 

Now,  Sir,  I  think  the  whole  trouble  has  arisen 
out  of  confounding  all  offences  with  a  particular 
class  of  offences ;  to  wit,  political  offences.  All 
this  talk  about  juries  being  the  judges  of  the  law 
as  well  as  of  the  fact,  has  arisen  out  of  political 
questions,  and  nothing  else.  And  political  of 
fences  in  this  country,  thank  God,  are  pretty 
rare  ;  and  they  will  be  rarer  in  the  future  than 
they  have  been  in  the  past.  Very  few  instances 
where  protection  is  needed  in  cases  of  that  char 
acter,  are  recorded  in  the  past,  or  are  likely  to 
occur  in  the  future.  Well,  Sir,  the  power  the 
jury  have  and  the  rights  they  have  upon  that 
subject,  in  my  judgment,  are  well  enough,  so  far 
as  political  offences  are  concerned,  under  the 
present  Constitution;  and  they  are  the  only 
cases  in  which  any  one  can  desire  to  have  it 
applied,  or  in  which  the  principle  claimed  can  be 
applied. 

Now,  Sir,  we  should  either  say  that  the  jury 
should  be  subject  to  the  court  in  matters  of  law, 
or  independent  of  it.  They  must  be  one  or  the 


512 


BILL   OF   RIGHTS. 


[69th  day. 


Thursday,] 


IIUNTINGTOX. 


[July  28th. 


other.  And  if  they  are  independent,  the  court 
has  no  right  to  revise  their  decisions. 

Mr.  I1UNT1NGTON,  of  Salem.  Having  been 
a  member  of  the  Committee,  a  portion  of  which 
submitted  this  resolve,  I  desire  to  submit  a  very 
few  remarks  concerning  it.  The  subject  is  one 
which  I  regard  of  the  greatest  importance,  but  I 
am  very  sure  that  if  the  Convention  fully  under 
stood  the  effect  of  the  resolve— if  they  understood 
fully  the  designs  of  the  gentleman  who  proposed 
it,  they  would  not  adopt  it.  I  understand  the 
gentleman  to  mean  by  this  resolve — although 
it  is  not  expressed  in  terms — to  mean  by  it  that 
the  jury  shall  have  the  right,  in  criminal  trials, 
to  determine  matters  of  law  against  the  decisions 
of  the  highest  tribunals  in  the  country,  or  the 
highest  tribunals  in  the  world,  in  every  particu 
lar  case. 

Now,  Sir,  in  one  view  which  may  be  taken  of 
the  resolve,  I  see  no  harm  in  it,  because,  as  I  under 
stand  it,  under  the  present  Constitution,  in  every 
case  the  jury  do  determine  the  law  and  the  fact.  In 
most  cases,  the  question  submitted  to  the  jury  is  a 
question  of  law  and  fact.  They  are  sworn  to  try  the 
issue  between  the  Commonwealth  and  the  defend 
ant,  and  of  course  they  pass,  and  must  pass,  upon 
the  law  as  well  as  upon  the  fact.  There  is,  how 
ever,  no  occasion  for  this  resolve  to  accomplish  this 
object,  because  it  is  already  accomplished  by  the 
existing  laws.  The  principle  has  never  been 
doubted.  They  are  to  determine  matters  of  law, 
under  the  direction  of  the  court. 

Mr.  HALLETT,  (interrupting).  I  would  sug 
gest  to  the  gentleman  that  they  have  not  absolute 
jurisdiction. 

Mr.  HUNTINGTON.  I  cannot  yield  to  the 
gentleman  to  interrupt  me.  I  say  that  if  this 
resolve  only  declares  that,  it  only  declares  what 
is  now  law,  and  what,  from  the  very  nature  of 
the  case,  must  be  the  fact.  The  jury,  in  a  crim 
inal  case,  have  the  law  submitted  to  them  as  evi 
dence,  and  they  must  bring  in  their  verdict  of 
guilty  or  not  guilty  upon  their  decision  of  the 
law  as  well  as  the  fact,  and  therefore  I  say,  in 
this  view  of  the  case,  I  can  see  no  harm  in  the 
resolve.  But  the  gentleman  who  introduced  it 
means  something  different  from  this.  He  in 
tends  to  provide  that  when  general  law,  or  if  you 
please,  constitutional  law,  has  been  determined 
by  the  supreme  court  of  the  Commonwealth,  the 
jury  may  disregard  that  decision.  He  means 
that  when  a  question  of  constitutional  law  has 
been  carried  from  the  judicial  tribunals  of  this 
Commonwealth  to  the  supreme  court  of  the  United 
States,  and  decided  there,  by  the  highest  judicial 
authority  in  the  country,  that  a  jury  of  twelve  men, 
brought  into  court  for  the  first  time  in  their  lives, 


to  try  a  particular  case,  involving  these  questions 
of  law  which  have  thus  received  the  highest  judi 
cial  decision,  may  disregard  that  decision. 

But  the  friends  of  the  resolve  see  difficulties  in 
carrying  out  this  principle.  They  have  slept 
upon  it  over  night,  and  they  find  some  little  diffi 
culty  in  submitting  absolutely,  without  control 
or  remedy,  all  questions  of  law  to  a  jury  of  twelve 
men  ;  and  this  morning  they  propose  an  amend 
ment,  providing  that,  in  case  of  conviction,  the 
court  may  set  aside  the  verdict,  because  the  jury 
may  have  decided  the  law  wrongfully.  Now  I 
submit  that  there  is  no  reason  in  making  this 
provision,  whatever.  The  jury  should  either  be 
the  judges  of  the  law,  or  they  should  not  be  the 
judges.  If  it  is  safe  and  right  to  make  the  jury 
the  judges  of  the  law,  absolutely  and  indepen 
dently,  in  any  particular  case,  then  say  so.  But 
gentlemen  are  not  prepared  for  that.  O  no ; 
they  are  not  prepared  to  trust  to  the  judgment  of 
a  jury  of  twelve  men  in  case  of  conviction ;  they 
want  the  power,  in  that  case,  of  appealing  from  the 
jury  to  the  court.  If  the  jury  acquit,  there  is  an 
end  of  the  matter.  There  is  no  remedy.  The 
community  have  no  remedy,  although  the  pris 
oner  may  have  been  ever  so  improperly  acquitted. 
But  if  the  verdict  is  guilty,  then  they  may  come 
in  and  ask  the  court  to  set  aside  the  verdict.  It 
shows  that  gentlemen  are  afraid  of  that  princi 
ple.  It  shows  that  they  are  afraid  to  trust  to  the 
jury  so  important  a  principle,  but,  upon  the  con 
trary,  they  themselves  want  the  privilege  of  ap 
pealing  to  the  impartiality  of  the  court,  in  case  of 
conviction. 

Mr.  President :  We  live  under  a  government  of 
laws,  and  we  have  the  right  to  the  protection  of 
law.  We  have  the  right  to  be  judged  by  the 
laws  of  the  Commonwealth,  as  they  have  been 
interpreted  by  the  highest  judicial  authority,  and 
as  they  are  known  to  exist.  Now  I  undertake 
to  say,  that  if  this  resolve  be  adopted,  and  you 
give  to  it  the  force  which  the  gentleman  for  Wil- 
braharn  claims  for  it,  that  the  juries  will  become 
the  absolute  judges  of  the  law,  independent  of  the 
court,  and  independent  of  former  judicial  de 
cisions,  and  no  man  knows  what  the  law  is.  No 
man  can  tell  one  day,  what  ihe  law  will  be  the 
next.  When  two  cases,  arising  upon  precisely 
the  same  state  of  facts,  one  case  is  submitted 
to  one  jury,  and  they  find  a  verdict  of  guilty ; 
and  the  other  case  is  submitted  to  another  jury, 
upon  the  same  state  of  facts  precisely,  and  they 
find  a  verdict  of  not  guilty.  Is  that  a  govern 
ment  of  laws?  Are  we  to  be  protected  under 
laws  thus  decided,  and  thus  administered  ? 

Sir,  I  regard  the  judicial  tribunal,  as  consti 
tuted  in  this  Commonwealth,  as  the  most  perfect 


69th  day.] 


BILL  OF   RIGHTS. 


513 


Thursday,] 


HUNTINGTON  —  KEYES. 


[July  28th. 


instrument  ever  invented  by  man.  The  discov 
ery  of  a  practical,  learned,  and  impartial  court  to 
expound  and  interpret  the  laws,  and  of  a  set  of 
impartial  men,  selected  from  the  various  classes 
of  community,  to  judge  of,  and  determine  the 
facts  of  the  case,  I  regard  as  the  most  important 
invention,  and  the  most  perfect  instrument  which 
ever  emanated  from  the  mind  of  man. 

But  with  this  resolve,  as  interpreted  by  the 
gentleman  bringing  it  forward,  I  maintain  we 
have  no  security.  Ordinarily,  in  quiet  times,  I 
admit  that  perhaps  it  will  make  but  little  differ 
ence  ;  but  in  cases  of  great  excitement,  upon  which 
the  public  opinion  is  divided — and  particularly  in 
regard  to  a  political  offence — I  maintain  that  this 
is  a  power  which  should  not  be  given  to  a  jury. 

I  mean  to  say,  in  cases  where  the  public  senti 
ment  is  much  divided,  because  these  gentlemen 
are  disposed  to  put  the  law  as  well  as  the  fact  to 
the  jury.  I  presume  to  say,  that  an y  gentleman 
who  should  undertake  to  argue  the  question  of 
fact  or  law  arising  out  of  a  case,  where  public 
opinion  was  strongly  divided,  could  get  one  or 
two  jurymen  who  would  stand  out.  Sir,  I  pray 
gentlemen  to  consider  the  effect  of  this  resolu 
tion  as  the  gentleman  designed  it.  I  regard  it  as 
a  very  dangerous  innovation,  if  that  construction 
is  put  upon  it,  as  I  suppose  it  will  be. 

Mr.  KEYES,  for  Abington.  Sir,  I  hope  that 
the  Convention,  in  consequence  of  what  has 
occurred  here  this  morning,  will  not,  at  least, 
be  frightened  into  a  decision  on  this  question. 
After  having  had  it  pretty  thoroughly  discussed 
yesterday,  and  a  vote  taken  by  a  large  majority  in 
favor  of  these  resolutions,  and  the  end  having 
arrived,  as  in  ordinary  cases  of  the  end  of  a  dis 
cussion,  there  has  been  a  perfect  avalanche  of 
speeches  on  one  side,  as  if  by  some  combination 
it  had  been  determined  to  frighten  the  Conven 
tion  from  its  propriety,  if  there  was  any  pro 
priety  in  the  decision  of  the  Convention  yester 
day.  Now,  I  do  not  know  but  there  may  have 
been  a  great  deal  of  reason  in  the  speeches  which 
we  have  heard  to-day,  but  at  least,  they  have  not 
affected  my  nerves  at  all.  If  there  is  any  virtue 
in  persistence,  the  gentlemen  on  that  side  of  the 
question  have  a  great  deal  of  virtue,  I  confess. 

Sir,  in  what  position  does  the  case  now  stand  ? 
We  have  it  confessed  on  all  hands,  and  more 
completely  by  the  gentleman  who  has  just  taken 
his  seat,  that  the  provisions  of  this  resolution  are 
now  the  law,  that  they  have  always  been  the  law. 
We  all  know  that  judge  after  judge,  sitting  on 
the  bench,  has  told  the  jury  himself  that  that  was 
the  law,  and  asked  them  to  decide  in  that  manner 
and  on  that  principle.  Now,  where  is  the  dan 


ger 


?    Where  have  been  the  immense  evils  which 

35 3 


have  been  pictured  before  us  to-day  so  brilliantly, 
and  who  has  seen  them?  The  story  has  been 
repeated  over  and  over  again,  and  after  all,  these 
frightful  effects  have  been  proved  to  be  only  imag 
inary.  Why  not  adopt  this,  and  make  universal 
what  is  now  only  partial  ?  It  is  confessed  that  this 
same  principle  was  adopted  and  was  universal  till 
1828  ;  and  whether  universal  or  not,  there  were  a 
thousand  cases  which  could  be  pointed  out  where 
the  judge  on  the  bench  himself  has  told  the  jury 
before  him,  that  they  had  all  this  power.  And, 
how  have  they  exercised  it  ?  Have  any  of  these 
evils  resulted  from  it,  of  which  there  is  said*to  be 
so  much  danger  ?  Not  one.  There  is  no  pre 
tence  that  one  of  them  has  ever  resulted  from  it. 
Now,  with  regard  to  that  point  which  the  gen 
tleman  for  Manchester,  (Mr.  Dana,)  made,  that 
they  were  to  be  the  judges  of  evidence.  I  do 
not  think  there  is  much  necessity  for  this  very 
amendment  which  has  been  offered  this  morning. 
The  resolution  does  not  touch  any  present  power 
of  the  judges.  If  they  can  now  grant  a  new 
trial,  they  can  as  well  under  this  resolution,  with 
out  the  amendment.  Now,  I  say  that  the  decision 
of  the  judge  on  the  admissibility  of  evidence, 
does  not  prevent  the  jury  from  entertaining  an 
opinion,  and  being  influenced  by  the  opinion  of 
the  judge  on  the  question  of  the  evidence.  Who 
ever  sat  on  a  jury  that  did  not  know  that  the 
very  fact  of  listening  to  what  it  was  proposed  to 
prove  by  a  witness,  had  its  effect,  though  the 
witness  was  rejected  ?  It  would  have  as  much 
weight  on  a  jury  as  if  the  testimony  had  been 
received.  Suppose  a  witness  is  brought  on  and 
the  counsel  tells  what  he  means  to  prove,  and  gives 
the  reason  for  it ;  and  suppose  the  judge  rejects 
the  witness.  The  jury  will  decide  in  their  own 
minds  whether  he  is  properly  rejected  or  not,  and 
on  what  grounds  he  is  rejected.  At  any  rate, 
whether  they  allow  themselves  to  take  notice  of 
the  precise  language  which  it  is  said  the  witness 
would  utter,  or  not,  the  purpose  for  which  he 
was  introduced,  and  the  reasons  for  which  he  was 
rejected,  will  have  an  influence  on  the  minds  of 
the  jury.  They  cannot  help  it ;  they  never  ought 
to  help  it ;  but  every  step  in  the  progress  of  the 
trial,  and  every  decision  that  that  judge  makes, 
all  go  to  affect  the  minds  and  opinions  of  that 

jury- 
Now,  this  resolution,  as  originally  stated,  leaves 
all  the  present  power  of  the  judges  to  them.  They 
reject  the  evidence  or  admit  it,  or  grant  a  new 
trial  or  not,  in  the  same  manner  as  they  would 
under  this  amendment. 

But  I  only  rose  to  speak  of  the  position  that  we 
occupied  yesterday,  compared  with  what  appears 
to  be  the  position  of  some  to-day.  Whether  our 


514 


BILL   OF   RIGHTS. 


[69th  day. 


Thursday,] 


KEYES  —  ROCKWELL. 


[July  28th. 


old  men  saw  visions  and  our  young  men  dreamed 
dreams  last  night,  or  not,  I  cannot  say.  But  I  should 
suppose  they  had  all  eaten  hearty  suppers  and  fed 
on  horrors,  that  they  should  be  so  harrassed  and 
alarmed  to-day,  when  they  were  so  quiet  and 
calm  yesterday.  I  have  seen  nothing  of  these 
horrors  which  we  are  to  have  result  from  this. 
We  have  had  experience  on  this  subject ;  and  the 
experience  of  a  hundred  years  is  better  than  all 
their  imaginations.  And  when  the  judges  in  the 
past,  in  all  these  years,  have  informed  juries  that 
they  had  this  power  and  that  they  might  exercise 
it,  an^  when  it  is  supposed  they  did  exercise  it, 
we  still  hear  how  dangerous  it  is.  There  is  no 
danger,  as  has  been  proved ;  and  there  has  not 
been  an  example  brought  forward  to  show  that  it 
is  not  as  safe  as  any  other  mode. 

I  will  now  refer  to  the  case  spoken  of  by  the 
gentleman  from  Boston.     He  says,  that  in  nine 
cases  out  of  ten,  it  will  make  no  difference.     I 
agree  that  it  will  make  no  difference,  because  the 
tendency  of  the  juries  is  to  take  the  law  from  the 
court.      The    judge,   sitting    in    authority,    and 
clothed  with   knowledge  and   character,  always 
has  an  overpowering   influence  over  the  jury 
men,  and  the  tendency  is  always  in  that  direc 
tion,   to    take    away  from    the   jurymen    their 
responsibility.     If   the  jurymen  were   to   have 
more  of  the  credit  or  the  disgrace  of  a  decision 
thrown  upon  them,  then  they  would  seek  of  the 
learned  judge  his  knowledge  to  qualify  them  to 
come  to  a  correct  decision.     But  this  is  really  the 
case ;  it  may  happen,  sometime  or  other,  that  the 
popular  sentiment  may  have  an  effect  on  the  de 
cision  of  a  case.     It  is  just  as  likely  to  have  an 
effect  011  the  judge  as  on  the  jury ;  and  the  ques 
tion  is,  where  shall  we  put  this  authority — into 
the  hands  of  this  one  man,  when  affected  by  pop 
ular  sentiment,  or  into  the  hands  of  twelve  men  r 
I  would  as  soon  leave  the  decision  to  one  jury 
man,  as  to  one  judge.     I  believe  that  judges  are 
not  infallible.     I  believe  that  a  volume  has  been 
published  to  the  world,  to  show  the  inconsisten 
cies  of  judges  in  making  their  decisions,  and  their 
mistakes.   There  is  such  a  volume  as  that.    Then, 
you  see,  the  judges  are  not  entirely  perfect.     By 
putting  more  responsibility  upon  the  jurors,  I  ask 
you  if  you  will  not  induce  them  to  act  more  cau 
tiously,  to  maintain  their  own  characters  ?     Be 
cause,  these  jurors  are  respectable  men,  who  wish 
to  maintain  a  proper  standing  in  society,  just  as 
much  as  the  judges  do  ;  and  it  will  be  an  extra 
inducement  for  them  to  seek  from  the  judge  the 
knowledge  which  he  has,  and  which  they  lack 
themselves.      The    more    that    responsibility    is 
placed  on  them,  the  more  they  will  feel  the  ne 
cessity  of  acquiring  that    knowledge  from  the 


judge  which  they  have  not  themselves.  For 
these  reasons,  although  I  have  no  objection  to 
the  amendment,  it  strikes  me  there  is  no  danger 
in  passing  the  resolution,  as  we  adopted  it  yester 
day  ;  and  I  do  not  believe  the  heavens  would  fall 
if  we  were  to  pass  it  in  that  way. 

Mr.  ROCKWELL,  of  Pittsfield.  No  man  is 
more  disinclined,  for  a  single  moment,  to  inter 
rupt  the  progress  of  this  Convention,  than  I  am 
myself.  It  is  because  I  consider  the  question  to 
be  in  the  condition  that  it  is,  that  I  wish  to  say  a 
few  words  expressive  of  my  opinion  on  the  sub 
ject.  It  is  because  there  is  a  persistence,  upon 
both  sides  of  this  question,  and  for  the  reason 
that  time  and  time  again  might  be  given,  for  the 
consideration  of  important  questions  here,  that 
the  rules  which  govern  us  have  been  adopted,  as 
I  apprehend.  And  time  and  time  again  does  it 
happen,  as  every  man  knows  who  knows  any 
thing  about  legislative  assemblies,  that  proposi 
tions  which  have  passed  their  first  and  second 
stages  by  a  great  majority,  have  been  defeated  by 
common  consent  at  the  last  or  a  subsequent  stage. 

Now  this  is  a  practical  question.  The  heavens 
will  not  fall,  however  we  may  decide  it  to-day  ; 
the  heavens  may  never  fall,  however  it  may  be 
decided.  Nevertheless,  it  may  be,  as  I  deem  it  to 
be,  of  great  importance  to  this  community  upon 
which  it  is  to  operate. 

Now,  Sir,  my  practise  has  been  in  the  country 
part  of  the  Commonwealth,  and  I  confess  here 
that  there  have  been  times,  when  the  law  has  been 
pressed  hardly  upon  my  clients,  when  I  was  ready 
to  go  out  of  the  court-room,  dissatisfied  with  the 
law  as  laid  down  by  the  bench,  and  ready  to  vote, 
and  give  my  influence  to  give  that  question  to  the 
jury,  with  whom  I  might  have  supposed  I  would 
have  a  better  chance  for  the  relief  of  my  client. 
But,  upon  cooler  reflection,  I  have  been  led  to 
doubt  how  I  could  follow  up  these  impulses  of 
my  mind  properly  thereafter.  Now,  what  is  the 
situation  of  those  persons  usually,  who  are  in 
dicted  in  the  counties  in  the  country  ?  Most  of 
them  are  poor,  without  pecuniary  means ;  most 
of  them  unable  to  demand  counsel.  They  have 
against  them  always  the  friends  of  the  Common 
wealth  ;  they  have  against  them  the  most  respect 
able  men  to  take  care  of  the  Commonwealth.  They 
must  either  have  no  counsel  at  all,  or  such  counsel 
as  may  be  induced  to  volunteer  for  them,  or  be  ob 
tained  by  other  motives  than  those  which  they  can 
present  in  a  pecuniary  form.  There  is  the  judge 
upon  the  bench,  perfectly  understanding  the  law. 
No  matter  who  their  counsel  is,  so  that  he  present 
all  the  points  that  can  be  presented  in  the  case. 
And  if  any  one  of  them  is  such  that  the  court  can 
recognize  it  as  a  protection  to  the  accused,  then  he 


69th  day.] 


BILL   OF   RIGHTS. 


515 


Thursday,] 


ROCKWELL  —  YEAS. 


[July  28th. 


has  the  benefit  of  the  law  as  fully  as  though  he  were 
defended  by  the  ablest  counsel  that  money  could 
obtain.  Now  how  is  it  that  so  many  persons  are 
indicted  every  term,  and  that,  in  so  many  cases, 
the  law  steps  in  to  relieve  them  ?  Every-body 
knows  it,  that  knows  anything  of  the  practise  of 
our  criminal  courts.  Is  this  worth  nothing  ? 
Consider  if  you  were  indicted,  as  any  man  may 
be  indicted  ;  consider  if  you  were  brought  to  the 
bar  of  the  court  of  common  pleas  in  this  Com 
monwealth  ;  consider  that  you  have  an  able  dis 
trict-attorney  learned  in  the  law  and  armed  with 
experience  ;  consider  that  he  may  call  to  his  aid, 
also,  the  best  legal  talent  in  the  Commonwealth, 
even  the  present  attorney- general ;  consider  this 
to  be  the  situation  of  the  person  indicted,  and 
whether  he  ought  not  to  have,  also,  the  influence 
of  the  law  and  the  influence  derived  from  the 
power  to  instruct  the  jury,  which  the  learned 
judge  has. 

But,  Sir,  this  matter  may  come  up  perhaps,  not 
to  your  or  my  experience,  but  to  the  experience, 
however,  of  some  of  our  posterity,  or  of  the  citi 
zens  of  this  Commonwealth,  in  times  of  political 
excitement,  when  that  spirit  rages  which  no  man 
who  has  attempted  has  succeeded  in  controlling  ; 
when  that  mob  spirit,  which,  in  the  power  of  the 
tempest,  has  no  parallel  in  the  comparison,  and  of 
which  hurricanes  and  earthquakes  are  but  feeble 
illustrations — when  that  rages  abroad  in  the  com 
munity,  and  the  accused  is  brought  to  the  bar 
where  the  public  opinion  is  arrayed  against  him 
and  he  receives  his  doom.  What  then  ?  We  all 
claim,  every-body  claims  who  knew  him,  that  he 
was  a  peace-loving  man.  What  then  will  be  the 
influence  upon  that  jury,  I  ask  ?  Now,  it  will  be 
said,  here  has  been  a  verdict  of  public  opinion 
against  the  popular  sentiment.  But  a  learned 
judge  has  declared  the  law,  is  bound  to  declare 
the  law  to  the  jury,  and  the  jury  under  that  in 
struction  has  given  its  verdict.  But  suppose  the 
judge  could  walk  above  that  enraged  community, 
and  could  say  that  the  jury  have  given  a  verdict 
which  I  would  not  have  given ;  I  have  not  in 
structed  them  at  all ;  I  am  under  no  responsi 
bility.  Then  comes  upon  the  devoted  heads  of 
those  twelve  men,  unprotected  by  the  shield  of 
the  law,  the  indignation  of  the  excited  commu 
nity.  I  do  not  overdraw  this  picture  at  all.  I 
believe  there  are  elements  in  this  community, 
that  in  time,  may  produce  these  effects.  And  I 
have  seen  them,  and  any  man  who  has  seen  them 
•will  never  forget  them.  Now  the  judge  is  bound 
— and  this  is  my  safety  and  yours  also — the 
court  is  bound  to  declare  the  law.  As  it  has  been 
decided,  and  is  the  law,  that  the  court  is  bound 
to  declare  it,  the  judge  upon  the  bench  has 


more  reasons  than  one  why  he  should  declare  it 
so.  In  the  first  place,  his  legal  reputation,  which 
is,  in  most  instances,  his  only  property,  is  at  stake. 
In  the  next  place  he  is  liable  to  impeachment ; 
and  the  fact  that  he  has  given  a  flagrant  decision 
and  flagrant  instructions  to  the  jury,  under  cir 
cumstances  which  may  lead  to  corruption,  or  may 
be  the  effect  of  corruption,  is  a  portion  of  the 
evidence  which  may  lead  to  conviction  upon  a 
trial  for  impeachment,  and  he  knows  it. 

Then  the  protection  of  the  individual  is,  that  in 
the  first  place  every  safeguard  which  can  be  given 
has  been  thrown  by  the  law  around  the  law  itself, 
and  also  in  the  opportunity  which  he  may  have 
before  the  jury  in  setting  forth  the  facts  of  his  case. 
To  say  nothing  of  any  other  reasons,  it  seems  to 
me  that  this  is  conclusive  why  we  should  not 
now  allow  this  innovation  to  be  made.  It  has 
been  suggested  to  me  by  some  gentlemen,  for 
whose  opinions  I  have  a  great  respect,  that  this  is 
one  of  the  reforms  of  the  present  time,  and  that  all 
reforms  are  resisted,  but  that  all  reforms  prove  to 
be  beneficial.  Let  us  consider  that  matter.  There 
are  millions  of  reforms  proposed,  while  there  are 
but  thousands  or  perhaps  hundreds  adopted ;  and 
those  are  only  adopted  after  undergoing  the  agony 
of  investigation  and  argument,  persistent  argu 
ment  on  both  sides,  stage  after  stage,  and  time 
after  time.  It  is  only  reforms  of  that  kind  which 
are  finally  adopted,  and  which  are  beneficial. 
Whether  this  is  one  of  those,  will  depend  upon 
the  issue  of  this  debate.  It  is  not  enough  to  say 
to  us  that  this  comes  in  the  shape  of  a  reform  ;  it 
may  be  one  of  those  which,  like  millions  of  others, 
has  only  to  be  examined  in  order  to  be  rejected. 

Mr.  DAY,  of  Templeton,  then  moved  the  pre 
vious  question. 

Mr.  DANA,  for  Manchester,  moved  that  the  re 
solve  and  amendments  be  laid  upon  the  table. 

Mr.  EARLE  asked  the  yeas  and  nays  upon 
the  motion  of  Mr.  Dana ;  and  they  were  or 
dered. 

Mr.  BROWN,  of  Medway,  moved  a  reconsid 
eration  of  the  vote  by  which  the  yeas  and  nays 
were  ordered  ;  which  was  agreed  to. 

The  question  then  recurred  upon  the  motion 
for  the  yeas  and  nays — and  they  were  again 
ordered,  more  than  one- fifth  voting  therefor. 

The  question  being  then  taken  on  the  motion 
of  Mr.  Dana,  the  result  was — yeas,  153  j  nays, 
182— as  follows  :— 


Adams,  Benjamin  P. 
Aldrich,  P.  Emory 
Allen,  Joel  C. 
Allen,  Parsons 
Alley,  John  B. 


Andrews,  Robert 
Aspinwall,  William 
At  wood,  David  C. 
Ayres,  Samuel 
Ball,  George  S. 


516 

BILLL   OF  RIGHTS. 

[69th  day. 

Thursday,] 

YEAS  —  NAYS. 

[July  28th. 

Barrows,  Joseph 
Bartlett,  Russel 

Hinsdale,  William 
Hobart,  Aaron 

White,  Benjamin 
Wilbur,  Joseph 

Wilson,  Milo 
Winn,  Jonathan  B. 

Bartlett,  Sidney 

Hobbs,  Edwin 

Wilder,  Joel 

Woods,  Josiah  B. 

Bates,  Eliakim  A. 

Hopkinson,  Thomas 

Wilkins,  John  H. 

Bell,  Luther  V. 

Houghton,  Samuel 

Bennett,  William,  Jr. 

Howland,  Abraham  H. 

NAYS. 

Bigelow,  Jacob 

Hubbard,  William  J. 

Abbott,  Josiah  G. 

Graves,  John  W. 

Bliss,  Gad  O. 

Hunt,  William 

Adams,  Shubael  P. 

Green,  Jabez 

Bradbury,  Ebenezer 

Huntington,  Asahel 

Allen,  James  B. 

Greene,  William  B. 

Bradford,  William  J.  A 

Hurlburt,  Samuel  A. 

Allis,  Josiah 

Griswold,  Josiah  W. 

Braman,  Milton  P. 

Jackson,  Samuel 

Alvord,  D.  W. 

Griswold,  Whiting 

Brewster,  Osmyn 

James,  William 

Austin,  George 

Hadley,  Samuel  P. 

Brinley,  Francis 

Jenkins,  John 

Baker,  HiUel 

Hallett,  B.  F. 

Briggs,  George  N. 

Jenks,  Samuel  H. 

3ates,  Moses,  Jr. 

Hapgood,  Lyman  W. 

Buck,  Asahel 

Kellogg,  Giles  C. 

3eal,  John 

Hapgood,  Seth 

Bullock,  Rufus 

Kendall,  Isaac 

Bennett,  Zephaniah 

Haskins,  William 

Bumpus  Cephas  C. 

Kinsman,  Henry  W. 

Bigelow,  Edward  B. 

Hawkes,  Stephen  E. 

Carter,  Timothy  W. 

Knight,  Joseph 

Bird,  Francis  W. 

Hayden,  Isaac 

Chandler,  Amariah 

Knowlton,  Charles  L. 

Boutwell,  George  S. 

Hazewell,  Charles  C. 

Chapin,  Chester  W. 

Kuhn,  George  II. 

3outwell,  Sewell 

Heath,  Ezra,  2d, 

Chapin,  Daniel  E. 

Ladd,  John  S. 

Breed,  Hiram  N. 

Hewes,  James 

Childs,  Josiah 

Littlefield,  Tristram 

Bronson,  Asa 

Hewes,  William  H. 

Coggin,  Jacob 

Livermore,  Isaac 

Brown,  Adolphus  F. 

Hobart,  Henry 

Cogswell,  Nathaniel 

Lord,  Otis  P. 

Brown,  Alpheus  R. 

Hood,  George 

Cole,  Lansing  J. 

Lothrop,  Samuel  K. 

Brown,  Artemas 

Hooper,  Foster 

Conkey,  Ithamar 

Loud,  Samuel  P. 

Brown,  Hammond 

Howard,  Martin 

Cooledge,  Henry  F. 

Lowell,  John  A. 

Brownell,  Frederick 

Hoyt,  Henry  K. 

Copeland,  Benjamin  F 

Marvin,  Theophilus  R. 

Brownell,  Joseph 

Hunt,  Charles  E. 

Crittenden,  Simeon 

Miller,  Seth,  Jr. 

Bryant,  Patrick 

Huntington,  Charles  P, 

Crockett,  George  W. 

Mixter,  Samuel 

Burlingame,  Anson 

Hurlbut,  Moses  C. 

Crosby,  Leander 

Morey,  George 

Caruthers,  William 

Hyde,  Benjamin  D. 

Crowcll,  Seth 

Morton,  Elbridge  G. 

Case,  Isaac 

Ide,  Abijah  M.,  Jr. 

Curtis,  Wilber 

Noyes,  Daniel 

Clark,  Henry 

Jacobs,  John 

Dana,  Richard  II.,  Jr. 

Orcutt,  Nathan 

Clark,  Ransom 

Johnson,  John 

Davis,  Solomon 

Park,  John  G. 

Clark,  Salah 

Keyes,  Edward  L. 

Dawes,  Henry  L. 

Parker,  Adolphus  G. 

Clarke,  Alpheus  B. 

Kimball,  Joseph 

Deming,  Elijah  S. 

Parsons,  Thomas  A. 

Clarke,  Stillman 

Kingrnan,  Joseph 

Deiiison,  Hiram  S. 

Peabody,  George 

Cleverly,  William 

Knight,  Hiram 

Dorman,  Moses 

Perkins,  Jonathan  C. 

Cole,  Sumner 

Knight,  Jefferson 

Eames,  Philip 

Plunkett,  William  C. 

Crane,  George  B. 

Knowlton,  J.  S.  C. 

Eaton,  Lilley 

Pomroy,  Jeremiah 

Cressy,  Oliver  S. 

Knowlton,  William  II. 

Edwards,  Samuel 

Putnam,  John  A. 

Cushman,  Thomas 

Knox,  Albert 

Ely,  Homer 

Read,  James 

Cutler,  Simeon  N. 

Ladd,  Gardner  P. 

Eustis,  William  T. 

Reed,  Sampson 

Davis,  Charles  G. 

Langdon,  Wilber  C. 

Farwell,  A.  G. 

Rockwell,  Julius 

Davis,  Ebenezer 

Lawrence,  Luther 

Fay,  Sullivan 

Sampson,  George  R. 

Davis,  Robert  T. 

Leland,  Aldeii 

Foster,  Aaron 

Sanderson,  Chester 

Day,  Gilman 

Loomis,  E.  Justin 

Fowle,  Samuel 

Sargent,  John 

Dean,  Silas 

Marcy,  Laban 

Fowler,  Samuel  P. 

Schouler,  William 

Deiiton,  Augustus 

Marvin,  Abijah  P. 

French,  Charles  II. 

Sikes,  Chester 

Dunham,  Bradish 

Mason,  Charles 

Gale,  Luther 

Sleeper,  John  S. 

Earle,  John  M. 

Merritt,  Simeon 

Gardner,  Henry  J. 

Smith,  Matthew 

Easton,  James,  2d, 

Monroe,  James  L. 

Gilbert,  Wanton  C. 

Souther,  John 

Eaton,  Calvin  D. 

Moore,  James  M. 

Giles,  Joel 

Stetson,  Caleb 

Edwards,  Elisha 

Morss,  Joseph  B. 

Gould,  Robert 

Stevens,  Charles  G. 

Ely,  Joseph  M. 

Morton,  Marcus,  Jr. 

Goulding,  Dalton 

Stevens,  Granville 

Fellows,  James  K. 

Morton,  William  S. 

Goxilding,  Jason 

Sunnier,  Increase 

Fisk,  Lyman 

Nash,  Hiram 

Gray,  John  C. 

Talbot,  Thomas 

Foster,  Abram 

Nichols,  William 

Hale,  Artemas 

Tileston,  Edmund  P. 

Freeman,  James  M. 

Nute,  Andrew  T. 

Hammond,  A.  B. 

Train,  Charles  R. 

French,  Charles  A. 

Orne,  Benjamin  S. 

Harmon,  Phineas 

Turner,  David 

French,  Rodney 

Osgood,  Charles 

Haskell,  George 

Upham,  Charles  W. 

French,  Samuel 

Packer,  E.  Wing 

Hathaway,  Elnathai: 

P.  Walcott,  Samuel  B. 

Frothingham,  R.,  Jr. 

Paine,  Benjamin 

Hayward",  George 

Wallace,  Frederick  T. 

Gardner,  Johnson 

Paine,  Henry 

Heard,  Charles 

Walker,  Samuel 

Gates,  Elbridge 

Parris,  Jonathan 

Henry,  Samuel 

Weeks,  Cyrus 

Gilbert,  Washington 

Partridge,  John 

Horsey,  Henry 

Wetmore,  Thomas 

Giles,  Charles  G. 

Pease,  Jeremiah,  Jr. 

Hillard,  George  S. 

Wheeler,  William  F.           Gooding,  Leonard 

Penniman,  John 

69th  day.] 

CONSTITUTIONAL   CONVENTIONS,  &c.                          517 

Thursday,] 

ABSENT  —  MORTON  —  LORD.                                        [July  28th. 

Perkins,  Daniel  A. 

Sumner,  Charles                   Turner,  David  P.             Warner,  Marshal 

Perkins,  Jesse 

Swain,  Alanson 

Tyler,  John  S.                  Whitney,  James  S. 

Perkins,  Noah  C. 

Taft,  Arnold 

Tyler,  William                 Wilkinson,  Ezra 

Phelps,  Charles 

Thayer,  Joseph 

Upton,  George  B.             Winslow,  Levi  M. 

Pierce,  Henry 

Thayer,  Willard,  2d 

Wales,  Bradford  L.         Wood,  Nathaniel 

Pool,  James  M. 

Thomas,  John  W. 

Powers,  Peter 

Thompson,  Charles 

Absent  and  not  voting,  84. 

Rantoul,  Robert 

Tilton,  Abraham 

Rawson,  Silas 

Tilton,  Horatio  W. 

So  the  motion  was  not  agreed  to. 

Rice,  David 

Underwood,  Orison 

The  question  then  recurred  on  the  motion  of 

Richards,  Luther 
Richardson,  Daniel 
Richardson,  Nathan 

Viles,  Joel 
Vinton,  George  A. 
Wallis,  Freeland 

Mr.  Day,  of  Templeton,  that  the  main  question 
be  now  put  ;  which  was  agreed  to. 

Richardson,  Samuel  H 

.  Walker,  Amasa 

The  first  question  was  on  the  amendment  of 

Ring,  Elkanah,  Jr. 

Ward,  Andrew  H. 

Mr.  Huntington,  of  Northampton,  to  add  at  the 

Rogers,  John 

Warner,  Samuel,  Jr. 

close  of  the  resolve,  the  following  :  — 

Ross,  David  S. 

Waters,  Asa  H. 

Royce,  James  C. 

Weston,  Gershom,  B. 

But  it  shall  be  the  duty  of  the  court  to  super 

Sanderson,  Amasa 

White,  George 

intend  the  course  of  the  trial,  to  decide  upon  the 

Sherril,  John 

Whitney,  Daniel  S. 

admission  or  rejection  of  evidence,  upon  all  ques 

Simmons,  Perez 

Wilbur,  Daniel 

tions  of  law  raised  during  the  trial,  and  upon  all 

Simonds,  John  "W. 

Williams,  Henry 

collateral  and  incidental  proceedings,  and  also  to 

Sprague,  Melzar 

Williams,  J.  B. 

allow  bills   of  exceptions  ;  and   the   court  may 

Spooner,  Samuel  W. 

Wilson,  Henry 

grant  a  new  trial  in  cases  of  conviction. 

Stacy,  Eben  H. 

Wilson,  Willard 

Stevens,  Joseph  L.,  Jr. 

Wood,  Charles  C. 

The  amendment  was  agreed  to  ;  and  the  re 

Stevens,  William 
Stiles,  Gideon 

Wood,  Otis 
Wood,  William  H. 

solve,  as  thus  amended,  was  passed. 

Strong,  Alfred  L. 

Wright,  Ezekiel 

Amendments  of  the  Constitution. 

ABSENT. 

Abbott,  Alfred  A.           Hale,  Nathan 
Allen,  Charles                   Hall.  Charles  B. 

The  resolves  on  the  subject  of  Amendments  of 
the  Constitution  were  then  taken  up,  and  read  the 

Appleton,  William 

Heywood,  Levi 

second  time,  as  amended  ;  and  the  question  was 

Ballard,  Alvah 

Holder,  Nathaniel 

stated  on  their  final  passage. 

Bancroft,  Alpheus 

Huntiiigton,  George  H. 

Mr.  MORTON,  of  Quincy.     Mr.  President  : 

Banks,  Nath'l  P.,  Jr. 
Barrett,  Marcus 
Beach,  Erasmus  D. 

Kellogg,  Martin  R. 
Lawton,  Job  G.,  Jr. 
Lincoln,  Abishai 

This  subject  has  been  considered  by  the  Conven 
tion  at  length  ;  the  resolves  have  been  printed, 

Beebe,  James  M. 

Lincoln,  F.  W.,  Jr. 

and  put  into  the  hands  of  every  member  of  this 

Bishop,  Henry  W. 

Little,  Otis 

body,  so  that  there  has  been  a  full  opportunity  to 

Blagden,  George  W. 

Marble,  William  P. 

examine  the  whole  subject,  and  I  think  we  are 

Bliss,  William  C. 
Booth,  William  S. 
Brown,  Hiram  C. 
Bullen,  Amos  H. 

Meader,  Reuben 
Morton,  Marcus 
Nayson,  Jonathan 
Newman,  Charles 

prepared  to  vote  upon  it  without  any  farther  dis 
cussion.     I  therefore  move  the  previous  question. 
Mr.  LORD,  of  Salem.     I  want  to  know  if  the 

Butler,  Benjamin  F. 

Norton,  Alfred 

previous  question  was  not  ordered  on  this  matter 

Cady,  Henry 

Ober,  Joseph  E. 

last  night,  on  the  ground  that  the  question  was 

Chapin,  Henry 

Oliver,  Henry  K. 

not  on  the  final  passage  of  the  resolves,  and  that 

Choate,  Rufus 
Churchill,  J.  McKean 
Cook,  Charles  E. 

Paige,  James  W. 
Parker,  Joel 
Parker,  Samuel  D. 

there  was  to  be  another  stage  ;  and  was  it  not  the 
express  uiiderstanding  that  when  they  came  up  on 

Cross,  Joseph  W. 

Parsons,  Samuel  C. 

their  final  passage,  there  would  be  an  opportunity 

Crowninshield,  F.  B. 

Payson,  Thomas  E. 

afforded  to  discuss  them  farther  ?     That  is  the 

Cummings,  Joseph 

Peabody,  Nathaniel 

way  that  I  understood  it.     I  do  not  believe  that 

Cushman,  Henry  W. 
Davis,  Isaac 
Davis,  John 

Phinney,  Silvanus  B. 
Preston,  Jonathan 
Prince,  F.  O. 

this  Convention  is  quite  ready  to  put  this  matter 
through  without  another  word  being  said  about 

Dehon,  William 

Putnam,  George 

it.     It  is  a  most  important  proposition,  and  I  de 

DeWitt,  Alexander 

Rockwood,  Joseph  M. 

sire  to  have  it  thoroughly  understood  before  we 

Doane,  James  C. 

Sheldon,  Luther 

proceed  to  vote  upon  it  ;  and  I  am  not  ready  to 

Duncan,  Samuel 
Durgin,  John  M. 
Easland,  Peter 
Fiske,  Emery 

Sherman,  Charles 
Stevenson,  J.  Thomas 
Storrow,  Charles  S. 
Stutson,  William  • 

believe  that  the  Convention  will  order  the  previous 
question  without  allowing  an  opportunity  for  far 
ther  amendments  to  be  proposed.     Mr.  President, 

Fitch,  Ezekiel  W. 

Taber,  Isaac  C. 

I  move  thaf  when  the  question  be  taken  upon 

Gooch,  Daniel  W. 

Taylor,  Ralph 

ordering  the  previous  question,  it  be  taken  by 

Greenleaf,  Simon 

Tower,  Ephraim 

yeas  and  nays. 

518 


CONSTITUTIONAL   CONVENTIONS. 


[69 tli  day. 


Thursday,] 


JEXKINS  —  BRADFORD —  BRADBURY. 


[July  28th. 


Mr.  DANA,  for  Manchester.  The  gentleman 
from  Salem  is  right  in  his  statement. 

Mr.  MORTON,  of  Quincy.  If  the  gentle 
man  will  allow  me,  in  order  to  stop  discus 
sion,  I  withdraw  the  motion  for  the  previous 
question. 

The  question  then  recurred  on  the  final  passage 
of  the  resolves,  as  amended. 

Mr.  JENKINS,  of  Falmouth.  Mr.  President : 
In  all  future  Conventions  of  the  people  for  the 
purpose  of  amending  their  Constitution,  I  think  it 
is  obviously  just  and  proper  that  delegates  shall 
be  so  elected  as  fully  and  fairly  to  represent  the 
will  of  a  majority  of  the  people  of  the  Common 
wealth.  But,  Sir,  as  I  understand  it,  these  re 
solves  do  not  so  provide;  and  to  this  I  object. 
For  the  purpose  of  remedying  what  I  consider  to 
be  a  defect,  I  propose  to  introduce  an  amendment 
to  the  first  resolve.  I  think  it  is  desirable  that  in 
all  Conventions  the  people  should  be  fairly  and 
fully  represented  ;  but  how  is  it  in  this  Conven 
tion  ?  Here  is  one  of  the  north-western  counties 
in  this  Commonwealth,  having  a  population  of 
thirty  thousand,  and  it  is  represented  upon  this 
floor  by  twenty- six  delegates  ;  and  here  is  another 
county,  having  a  much  larger  population,  or  fifty 
thousand,  which  has  only  twenty-three  delegates. 
Is  this  a  fair  representation  ?  I  ask  members  of  this 
Convention  if  they  regard  this  as  fair  and  equal  r 
Now,  Sir,  these  resolves,  as  they  are  reported,  are 
designed  to  perpetuate  this  inequality ;  audit  is  this 
provision  that  I  wish  to  strike  out.  Sir,  the  gen 
tleman  from  Boston,  upon  my  left,  said,  the  other 
day,  that  the  chain  was  put  about  our  necks 
but  this  provision  designs  to  rivet  it  there.  I 
agree  with  him  in  that  expression.  Sir,  if  one 
portion,  and  one  section,  of  this  Commonwealth 
is  to  be  disfranchised  in  part,  I  think  that  the 
emblem  of  industry  in  this  hall  should  be  taken 
down.  I  do  not  wish  to  have  it  there  as  a  me 
morial  of  oppression  ;  and  in  the  name  of  that 
portion  of  the  people  whom  I  have  the  honor  to 
represent  here,  I  protest  against  this.  The  amend 
ment  which  I  propose  is  this  :  to  strike  out  the 
following  words,  immediately  after  the  word 
"  ensuing,"  in  the  first  resolve,  "  Meetings  shall 
be  held,  and  delegates  shall  be  chosen,  in  all  the 
towns,  cities,  and  districts  in  the  Commonwealth, 
in  the  manner  and  number  then  provided  by  law 
for  the  election  of  the  largest  number  of  repre 
sentatives,  which  the  towns  and  cities  shall  then 
be  entitled  to  elect,"  and  to  insert  in  lieu  thereof 
the  words  :  "  The  qualified  voters  of  each  sena 
torial  district  in  the  Commonwealth  shall  elect,  in 
the  same  manner  as  they  shall  elect  senators  to 

the  general  court, delegates."  I  leave  the 

blank  for  the  Convention  to  fill  with  such  num 


ber  as  they  shall  think  proper  ;  and  upon  the 
amendment  I  ask  the  yeas  and  nays. 

Mr.  BRADFORD,  of  Essex,  moved  to  amend 
the  amendment,  by  striking  out  all  after  the  word 
"  chosen,"  to  the  end  of  the  sentence,  and  insert 
ing,  in  lieu  thereof,  the  following  : — 

In  the  same  manner  as  the  senators  shall  by 

law  be  chosen,  in  the  proportion  of to  each 

senator,  to  be  elected  by  general  ticket  in  each 
senatorial  district,  unless  before  that  time  the 
State  shall  be  by  law  divided  into  single  districts 
for  that  purpose,  or  for  the  election  of  representa 
tives  ;  in  which  case,  one  delegate  shall  be  chosen 
for  each  district  thus  constituted. 

The  question  being  taken  on  the  amendment 
to  the  amendment,  it  was  not  agreed  to. 

The  question  being  taken  on  ordering  the  yeas 
and  nays  on  the  amendment  of  Mr.  Jenkins,  on 
a  division  there  were — ayes,  72  ;  noes,  158 — so 
the  yeas  and  nays  were  ordered. 

Mr.  BRADBURY,  of  Newton.  This  is  a  prop 
osition  I  did  not  expect  to  hear,  but  it  is  one  I 
very  much  like.  I  think  it  may  reach  and  remedy 
the  enormous  evils  which  must  naturally  and 
inevitably  result  from  the  constitution  of  the 
House  of  Representatives,  as  settled  by  this  Con 
vention. 

If  the  question  were  simply  wrhether  we  should 
now  undertake  to  establish  the  organic  basis  for  a 
future  Convention,  on  the  principle  upon  which 
this  body  is  instituted,  I  could  not  give  my  vote 
for  it,  because  I  should  deem  it  an  unjust  viola 
tion  of  popular  rights.  The  injustice  of  such  a 
basis  was  clearly  demonstrated  during  the  discus 
sions  of  the  basis  of  the  House.  It  was  shown 
that  a  small  minority  of  the  people,  as  represented 
in  this  Convention,  had  undertaken  to  establish 
what  shall  be  the  present  and  prospective  consti 
tution  of  the  House  of  Representatives ;  but  I 
shall  not  now  go  into  that  question,  or  comment 
upon  what  has  been  definitely  decided  by  the 
Convention. 

If  we  are  to  have  another  Convention,  either 
in  ten,  or  twenty  years,  or  at  any  other  period, 
let  its  constitution  rest  upon  contemporary  facts 
and  considerations — let  it  be  based  upon  the  pop 
ulation  of  the  period.  I  cannot  believe  that  this 
body  fully  comprehends  the  prospective  operation 
of  the  last  modification  it  gave  to  the  basis  of  the 
House  of  Representatives.  That  modification 
was  submitted  but  thirty  minutes  previous  to  the 
final  vote,  and  no  adequate  examination  was,  or 
could  be,  given  to  that  radical  proposition. 

Sir,  in  1873,  by  the  resolves  under  considera 
tion,  a  much  smaller  minority  of  the  people  will 
be  here,  constituting  a  controlling  majority  of  a 
Convention  for  modifying  your  organic  law,— a 


69th   day.] 


CONSTITUTIONAL   CONVENTIONS. 


519 


Thursday,; 


BBADBURY. 


[July  28th. 


minority  smaller  than  that  which  all  men  know 
— in  and  out  this  house — controls  the  action  of 
this  body  upon  all  questions  of  the  division  of 
power,  and  the  assignment  of  representative  rights. 

But  this  unjust  inequality  will  be  constantly 
augmenting  by  the  legitimate  action  of  the  system 
attempted  to  be  fastened  upon  the  State.  By  the 
estimated  census  of  1870  it  will  be  enormously 
increased.  It  will  then  be  but  a  small  portion 
of  the  Commonwealth  which  will  possess  a  con 
trol  over  its  legislation,  and  that  same  small  por- 
on  will,  by  the  resolves  under  consideration,  be 
invested  with  a  power  that  can,  in  a  Constitu 
tional  Convention,  effectually  secure  that  power 
in  its  own  hand:?.  That  small  minority  can,  as  it 
pleases,  preserve,  for  its  own  advantage,  the  basis 
of  representation,  or  it  can  surrender  its  advan 
tages  and  consent  to  alter  the  most  vital  part  of 
your  organic  law,  as  an  act  of  magnanimity. 
The  question  submitted  in  such  a  case  will  be 
this  :  Will  you  retain  the  political  power  with 
which  you  are  now  constitutionally  clothed,  or 
surrender  magnanimously  what  has  been  wrong 
fully  held,  if  not  improperly  acquired  ? 

Sir,  if  we  are  to  have  a  Convention  in  1870, 
founded  on  the  basis  of  the  representation  that 
will  then  exist,  it  will  be  utterly  impossible,  in  any 
degree,  to  modify  the  basis  of  the  House  of  Repre 
sentatives. 

There  have  been,  as  gentlemen  well  know, 
without  reference  to  particular  instances,  nu 
merous  cases  of  unequal  representation  in  the 
political  history  of  the  older  States  of  this  Union, 
which  have  been  the  result  of  popular  changes 
and  the  unequal  growth  of  different  sections  rep 
resented. 

I  need  but  advert  to  a  single  instance  under  the 
Constitution  of  Virginia.  The  slave-holding  and 
planting  sections  of  that  State  controlled  the 
government  completely.  Less  than  a  third  of  the 
free  people  held  a  majority  of  legislative  power 
over  the  two-thirds,  and  this  minority  succeeded, 
for  twenty  years,  in  resisting  all  attempts  at  an 
equalization  of  representation.  But,  in  1830, 
after  violent  agitation,  and  an  apprehended  di 
vision  of  that  State,  a  Convention  was  obtained. 
Upon  the  question  of  representation,  those  sec 
tions  of  the  State  in  possession  of  an  undue  share 
of  legislative  power,  clung  tenaciously  to  the  re 
tention  of  the  power  they  had  enjoyed,  and  by  an 
adroitness  of  management  not  exceeded  by  mi 
norities  elsewhere,  they  succeeded,  at  a  late  day, 
in  shutting  the  door  to  all  farther  concessions  of 
power  to  the  popular  majority.  How  ?  By 
limiting  the  future  distribution  of  representatives 
to  counties  and  cities,  so  as  not  to  disturb  certain 
lines  between  slavery  and  freedom.  And  here 


we  have  from  gentlemen  who  detest  the  motives 
that  guided  the  minority  of  that  Convention,  a 
carefully  prepared  plan,  having  the  same  object — 
the  establishment  of  a  constitutional  guarantee  of 
unjust  authority  and  power  against  the  popular 
majority. 

Sir,  there  is  some  extenuation  for  that  commu 
nity  that  endures  inequalities  of  representation 
which  have  grown  up  gradually,  as  the  unavoid 
able  result  of  popular  changes,  and  the  varying 
ratios  of  increase  in  its  different  sections.  It  is 
impossible  that  any  advancing  community  should 
not  change  the  relations  of  its  different  parts, 
and  no  honest  man  will  advocate  an  organic  law, 
destitute  of  a  provision  to  meet  and  equalize  these 
relations.  All  will  admit  the  necessity  of  some 
provision  of  this  kind,  and  no  man  expects  or 
dares  to  go  before  his  constituents  to  defend  its 
omission. 

Now  if  we  are  to  establish  a  mode  of  effecting 
a  change  of  our  organic  law,  let  us  have  reference 
to  the  condition  of  things  which  may  demand  it, 
and  not  attempt  to  bind  the  future  action  of  the 
people  by  an  iron  rule,  made  for  the  present  con 
dition  of  things.  Let  us  not  attempt  to  confine 
the  people  in  their  future  action  upon  their  organ 
ic  law,  by  a  rule  founded  on  the  present  interests, 
condition,  or  politics  of  the  State.  Let  us  not  say 
to  the  future  that  it  shall  act  only  in  the  manner 
which  we,  under  existing  circumstances,  consider 
it  proper  to  proceed. 

Sir,  I  have  not  the  statistics  here,  but  I  am  sure 
that  a  much  smaller  minority  will  have  the  power 
of  determining  the  time  and  manner  in  which  the 
Constitution  is  to  be  amended  again ;  the  power 
of  determining  what  shall  be  the  basis  of  the 
House  ;  and  whether,  and  how  long,  an  increas 
ing  majority  of  the  people  of  the  Commonwealth 
shall  submit  to  a  waning  minority.  There  can  be 
little  doubt  that  the  number  of  members  of  the 
House  of  Representatives  will,  in  1870,  be  four 
hundred  and  forty,  exclusive  of  those  from  the 
new  towns,  which  will  be  created  between  now 
and  then.  And  how  many  such  will  be  incor 
porated  within  that  period  ?  Why,  Sir  we  made 
seven  within  the  last  three  years,  and  according 
to  that  ratio,  it  will  give  us  fifty  additional  by  the 
creation  of  new  towns  up  to  1873.  Then,  Sir, 
we  shall  have  four  hundred  and  ninety  represen 
tatives,  and  the  majority  of  the  people  in  that 
House  will  have  some  thirty  per  cent,  less  power 
to  rectify  that  inequality,  if  this  is  to  be  the  basis 
of  a  Constitutional  Convention.  I  would  ask, 
Sir,  what  any  honest,  liberal  man,  can  say  against 
a  rule  which  shall  be  precisely  in  proportion  to 
the  people  as  they  exist  in  different  parts  of  the 
State  ?  Why  should  you  fix  a  rule  that  in  1873 


520 


LIMITATION   OF  DEBATE,  &c. 


[69th   day. 


Thursday,] 


BRADBURY  —  ALVORD  —  GRISWOLD  —  THOMPSON. 


[July  28th. 


will  give  to  about  one-fourth  of  the  people  of 
Massachusetts— and  I  am  certain  I  speak  within 
bounds — the  right  to  elect  a  majority  of  a  Consti 
tutional  Convention  which  is  to  have  submitted 
to  them  the  question  whether  they  will  retain  or 
surrender  that  proportion  of  the  law-making 
power.  Sir,  it  is  an  enormity  that  cannot  be 
found  in  the  history  of  law-making  or  Constitu 
tion-altering  in  the  whole  country,  enormous  as 
they  have  been,  and  condemned  as  they  have  been, 
by  every  man  in  Massachusetts  who  has  looked 
at  them.  Sir,  the  Rhode  Island  revolution  pro 
ceeded  from  the  same  grasping  of  power. 

Our  forefathers  submitted  to  a  rotten-borough 
system  and  its  enormities,  for  a  while,  but  they 
did  not  from  choice^  It  grew  up  with  the  pecu 
liar  institutions  under  which  they  lived.  And 
here  we  are,  without  any  excuse  or  extenuation, 
sending  out,  at  the  last  hour  of  a  protracted  Con 
vention,  a  system  of  representation  which  we 
know  will  grow  more  and  more  unequal  every 
year.  And  more — and  more  inexcusable — we 
now  propose,  as  a  future  remedy  for  the  inequal 
ities  we  have  created,  to  submit  the  question  of 
their  rectification  to  the  magnanimity  of  their  ben 
eficiaries  !  If  an  aggrandized  minority  choose  to 
grant  the  principle  of  equal  representation,  the 
people  will  gain  their  rights,  if  not,  they  must 
endure  them  for  two  more  decades  for  a  new 
chance. 

Sir,  I  wish  some  gentleman,  better  posted  up 
in  these  prospective  legislative  statistics  than  I 
am,  had  risen  to  present  to  the  Convention  more 
clearly  the  inequalities  thus  produced,  and  the 
enormous  injustice  of  submitting  the  question — 
whether  we  shall  have  the  Constitution  altered 
in  1783  to  a  legislature  elected  by  one-fourth  of 
the  people  of  Massachusetts.  Sir,  I  want  the 
people  to  settle  the  question ;  and  I  hope  that 
this  amendment  will  be  adopted. 

Limitation  of  Debate, 

Mr.  ALVORD,  for  Montague.  In  order  to  let 
in  a  motion  for  the  limitation  of  debate  upon  this 
subject,  I  move  that  the  Orders  of  the  Day  be 
laid  upon  the  table. 

The  motion  was  agreed  to. 

Mr.  ALVORD.  I  now  move  that  debate  cease 
upon  this  subject,  and  that  we  proceed  to  take 
the  vote  upon  this  question  at  fifteen  minutes 
past  one  o'clock. 

Mr.  ASPINWALL,  of  Brookline.  I  move 
that  when  the  question  is  taken  on  that  motion, 
it  be  taken  by  yeas  and  nays. 

A  division  was  called  for  on  the  demand  for 
the  yeas  and  nays,  and  resulted — 54  in  the  affirm 
ative  and  133  in  the  negative— and,  there  being 


more  than  one-fifth  in  favor  of  the  yeas  and  nays, 
the  yeas  and  nays  were  ordered. 

Orders  of  the  Day. 

Mr.  ALVORD,  for  Montague.  I  move  that 
the  Convention  now  proceed  to  the  consideration 
of  the  Orders  of  the  Day. 

Mr.  GRISWOLD,  for  En-ing.  I  wish  the 
gentleman  for  Montague  would  withdraw  that 
motion  for  a  moment.  I  wish  to  make  a  motion 
that  will  occupy  no  time. 

Mr.  ALVORD.  I  withdraw  the  motion  for 
the  Orders  of  the  Day. 

Hour  of  Adjournment. 

Mr.  GRISWOLD,  for  Erving.  I  understand 
that  there  are  some  matters  now  pending  which 
it  is  important  should  be  disposed  of  to-day,  so 
that  they  may  go  to  the  Committee  on  Enrolment 
to-night.  I  therefore  move  that  our  session  this 
afternoon  may  be  continued  until  eight  o'clock. 

The  PRESIDENT.  The  question  pending 
before  the  Convention  is  on  the  motion  lim 
iting  debate  on  the  Orders  of  the  Day,  which  has 
just  been  laid  on  the  table,  and  fixing  the  time 
for  taking  the  question  at  fifteen  minutes  past  one 
o'clock.  The  Chair  is  of  opinion  that  the  motion 
of  the  gentleman  for  Erving  is  not  in  order  at  this 
time.  It  may  be  accomplished  by  moving  to  lay 
the  question  limiting  debate  upon  the  table. 

Mr.  GRISWOLD.     Then  I  make  that  motion. 

The  question  was  accordingly  laid  upon  the 
table. 

Mr.  GRISWOLD.  I  now  move,  that  in  our 
afternoon  session  the  Convention  shall  sit  until 
eight  o'clock  this  evening. 

Mr.  GARDNER,  of  Boston.  I  wish  to  in 
quire  whether,  if  this  motion  is  adopted,  it  will 
preclude  the  Convention  from  adjourning  at  an 
earlier  hour  ? 

The  PRESIDENT.  The  Convention  can  ad 
journ  at  any  time  it  pleases. 

Mr.  GARDNER.  Then  I  do  not  see  the  ob 
ject  of  the  motion  of  the  gentleman  for  Erving. 

Mr.  GRISWOLD.  I  think,  for  the  reasons  I 
have  stated,  it  will  be  necessary  for  the  Conven 
tion  to  sit  until  that  time,  and  I  merely  make 
the  motion  with  the  view  of  giving  the  members 
notice,  so  that  gentlemen  might  not  leave  us 
without  a  quorum. 

Mr.  THOMPSON,  of  Charlestown.  I  very 
much  doubt  the  expediency  of  that  motion,  for 
I  think  that  long  before  that  period  we  shall  be 
left  without  a  quorum.  We  intended  last  evening 
to  sit  somewhat  later  than  usual,  but  we  found 
that  long  before  seven  o'clock  there  was  not  a 
quorum  here.  It  appears  to  me  to  be  inexpedient 


69th  day.] 


CONSTITUTIONAL    CONVENTIONS,   &c. 


521 


Thursday,] 


GRISWOLD  —  LORD  —  SCHOULER  —  JENKINS  —  YEAS. 


[July   28th. 


to  pass  such  a  vote  when  it  has  been  thoroughly 
proved  that  we  cannot  have  a  quorum.  And  I 
would  ask  whether  it  is  possible  to  act  here  with 
out  a  quorum  ?  If  not,  I  think  we  had  better  wait 
till  the  afternoon,  and  see  whether  members  are 
here. 

The  question  on  the  motion  to  continue  the 
session  until  eight  o'clock  was  then  taken,  and 
on  a  division,  there  were — ayes,  106 ;  noes,  109. 

So  the  motion  was  not  agreed  to. 

Priority  of  Motions. 

Mr.  GRISWOLD.  I  now  move  to  take  the 
motion  of  the  gentleman  for  Montague  from  the 
table. 

Mr.  LORD,  of  Salem.  I  am  as  desirous  of 
hurrying  business  as  anybody,  and  am  sorry  to 
see  these  motions  made,  which  merely  tend  to  the 
consumption  of  time.  I  move  that  we  proceed 
to  the  consideration  of  the  Orders  of  the  Day. 

The  PRESIDENT.  'The  Orders  of  the  Day 
are  upon  the  table. 

Mr.  LORD.  Precisely,  Sir ;  so  I  understood  ; 
and  I  move  to  take  them  up  from  the  table. 

The  PRESIDENT.  The  first  question  in  or 
der  is  the  motion  of  the  gentleman  for  Erving, 
(Mr.  Griswold,)  to  take  from  the  table  the  motion 
of  the  gentleman  for  Montague,  (Mr.  Alvord). 

Mr.  LORD.  I  move  that  the  Convention  pro 
ceed  to  the  consideration  of  the  Orders  of  the  Day, 
and  I  make  that  motion  as  a  privileged  motion. 

The  PRESIDENT.  The  Orders  of  the  Day 
are  upon  the  table. 

Mr.  LORD.  I  am  aware  of  it,  and  move  to 
take  them  up. 

Mr.  GRISWOLD.  I  wish  to  inquire  whether 
the  motion  which  I  made  has  not  precedence  of 
the  motion  of  the  gentleman  from  Salem  ? 

The  PRESIDENT.  The  Chair  is  of  opinion, 
without  having  time  to  reflect  upon  or  consider 
the  subject,  that  the  motion  to  take  up  the  Orders 
of  the  Day  will  have  precedence  over  the  motion 
fixing  the  time  for  closing  debate. 

The  question  was  then  taken  on  the  motion  to 
proceed  to  the  consideration  of  the  Orders  of  the 
Day,  and,  a  division  being  demanded,  there  were 
— ayes,  87  ;  noes,  126. 

So  the  motion  to  take  up  the  Orders  of  the 
Day,  was  not  agreed  to. 

Mr.  GRISWOLD.  I  now  move  to  take  from 
the  table  the  motion  of  the  gentleman  for  Mon 
tague. 

The  motion  was  agreed  to. 

The  PRESIDENT.  The  question  now  recurs 
on  the  motion  to  limit  debate  on  the  first  question 
in  the  Orders  of  the  Day,  to  fifteen  minutes  past 
one  o'clock. 


Amendments  of  the  Constitution. 

Mr.  SCHOULER,  of  Boston.  I  now  move  to 
take  the  Orders  of  the  Day,  from  the  table. 

The  question  was  put,  and  the  motion  was 
agreed  to. 

The  PRESIDENT.  The  question  is  upon  the 
amendment  of  the  gentleman  from  Falmouth, 
(Mr.  Jenkins). 

Mr.  JENKINS,  of  Falmouth.  I  desire  to 
modify  my  amendment  by  striking  out  the  last 
four  lines,  all  after  the  word  "  and,"  and  insert 
the  words  "  the  legal  voters  of  each  senatorial 
district  shall,  by  general  ticket,  in  the  manner 
then  provided  by  law  for  the  election  of  delegates, 
choose delegates." 

The  PRESIDENT.  The  question  is  upon  the 
amendment  as  modified,  and  upon  that  the  Con 
vention  have  ordered  the  yeas  and  nays. 

Mr.  SCHOULER.  I  would  inquire  if  the 
hour  of  two  o'clock  should  arrive  before  the 
calling  of  the  roll  shall  be  finished,  would  the 
Convention  be  adjourned  at  that  time  ? 

The  PRESIDENT.  If  the  Convention  com 
mence  to  divide,  the  rule  in  relation  to  the  time 
of  adjournment  will  not  interrupt  the  proceeding. 

The  question  was  then  taken,  and  there  were 
— ayes,  90  ;  nays,  161 — as  follows  : — 


Aldrich,  P.  Emory 
Andrews,  Robert 
Atwood,  David  C. 
Barrows,  Joseph 
Bartlett,  Sidney 
Bates,  Eliakim  A. 
Bigelow,  Jacob 
Bradbury,  Ebenezer 
Braman,  Milton  P. 
Bronson,  Asa 
Browncll,  Frederick 
Carter,  Timothy  W. 
Cogswell,  Nathaniel 
Cooledge,  Henry  F. 
Copeland,  Benjamin 
Crosby,  Leander 
Crowell,  Seth 
Curtis,  Wilber 
Davis,  Charles  G. 
Davis,  Solomon 
Dawes,  Henry  L. 
Denison,  Hiram  S. 
Dorman,  Moses 
Eaton,  Lilley 
Fiske,  Emery 
Fowler,  Samuel  P. 
Frothingham,  Rich'd 
Gardner,  Henry  J. 
Gilbert,  Wanton  C. 
Giles,  Joel 
Gould,  Robert 
Gray,  John  C. 
Hale,  Artemas 


YEAS. 

Hale,  Nathan 

Haskell,  George 

Hathaway,  Elnathan  P. 

Heard,  Charles 

Hersey,  Henry 

Hillard,  George  S. 

Hinsdale,  William 

Hooper,  Foster 

Hopkinson,  Thomas 

Hubbard,  William  J. 

Hunt,  William 

Huntington,  Asahel 

Hurlburt,  Samuel  A. 

Jackson,  Samuel 
F.  James,  William 

Jenkins,  John 

Kellogg,  Giles  C. 

Kinsman,  Henry  W. 

Kuhn,  George,  H. 

Ladd,  John  S. 

Lawton,  Job  G.,  Jr. 

Lincoln,  Frederic  W.,  Jr. 

Littlefield,  Tristram 

Liver-more,  Isaac 

Lord,  Otis  P. 

Lothrop,  Samuel  K. 
,  Jr.  Lowell,  John  A. 

Miller,  Seth,  Jr. 

Morey,  George 

Morton,  Marcus 

Noyes,  Daniel 

Oliver,  Henry  K. 

Orne,  Benjamin  S. 


522 

CONSTITUTIONAL   CONVENTIONS. 

[69th  day. 

Thursday,] 

NAYS  —  ABSENT. 

[July  28th. 

Park,  John  G. 

Tileston,  Edmund  P.           Partridge,  John 

Stiles,  Gideon 

Parker,  Samuel  D. 

Train,  Charles  R. 

Pease,  Jeremiah,  Jr. 

Taft,  Arnold 

Peabody,  George 

Upham,  Charles  W. 

Penniman,  John 

Thayer,  Willard,  2d 

Perkins,  Daniel  A. 

Upton,  George  B. 

Perkins,  Jesse 

Thomas,  John  W. 

Plunkett,  William  C. 

Wales,  Bradford  L. 

Perkins,  Noah  C. 

Tilt  on,  Abraham 

Rantoul,  Robert 

Walker,  Samuel 

Phelps,  Charles 

Tilton,  Horatio  W. 

Read,  James 

Weeks,  Cyrus 

Pierce,  Henry 

Turner,  David 

Reed,  Sampson 

Wetmore,  Thomas 

Pomroy,  Jeremiah 

Turner,  David  P. 

Sargent,  John 

Wheeler,  William  F. 

Pool,  James  M. 

Viles,  Joel 

Stevens,  Charles  G. 

Wilkins,  John  II. 

Rawson,  Silas 

Vinton,  George  A. 

Talbot,  Thomas 

Williams,  Henry 

Rice,  David 

Wallace,  Frederick  T. 

Thompson,  Charles 

Wilson,  Milo 

Richards,  Luther 

Wallis,  Freeland 

Richardson,  Daniel 

Ward,  Andrew  H. 

NAYS. 

Richardson,  Nathan 

Warner,  Samuel,  Jr. 

Abbott,  Josiah  G. 

Gale,  Luther 

Richardson,  Samuel  H. 

White,  Benjamin 

Adams,  Shubael  P. 

Giles,  Charles  G. 

Ring,  Elkanah,  Jr. 

White,  George 

Allen,  Charles 

Gooding,  Leonard 

Rockwood,  Joseph  M. 

Whitney,  Daniel  S. 

Allen,  James  B. 

Goulding,  Dalton 

Rogers,  John 

Whitney,  James  S. 

Allen,  Joel  C. 

Graves,  John  W. 

Ross,  David  S. 

Wilson,  Henry 

Allen,  Parsons 

Green,  Jabez 

Royce,  James  C. 

Wilson,  Willard 

Alvord,  D.  W. 

Griswold,  Josiah  W. 

Sanderson,  Amasa 

Winslow,  Levi  M. 

Baker,  Hillel 

Griswold,  Whiting 

Sherril,  John 

Wood,  Charles  C. 

Ball,  George  S. 

Hallett,  B.  F. 

Simonds,  John  W. 

Wood,  Otis 

Bancroft,  Alpheus 

Hapgood,  Lyman  W. 

Smith,  Matthew 

Wood,  William  H. 

Barrett,  Marcus 

Hapgood,  Seth 

Spooner,  Samuel  W. 

AVoods,  Josiah  B. 

Bates,  Moses,  Jr. 

Harmon,  Phineas 

Stacy,  Eben  H. 

Wright,  Ezekiel 

Bennett,  William,  Jr. 

Hawkes,  Stephen  E. 

Stevens,  William 

O        * 

Bennett,  Zephaniah 

Hayden,  Isaac 

Bigelow,  Edward  B. 

Heath,  Ezra,  2d, 

ABSENT. 

Bird,  Francis  W. 

Hewes,  James 

Abbott,  Alfred  A. 

Cleverly,  William 

Booth,  William  S. 

Hewes,  William  H. 

Adams,  Benjamin  P. 

Coggin,  Jacob 

Boutwell,  Sewell 

Hobart,  Henry 

Alley,  John  B. 

Cole,  Lansing  J. 

Breed,  Hiram  N. 

Hobbs,  Edwin 

Allis,  Josiah 

Cole,  Sumner 

Brinley,  Francis 

Hood,  George 

Appleton,  William 

Conkey,  Ithamar 

Briggs,  George  N. 

Howard,  Martin 

Aspinwall,  William 

Cook,  Charles  E. 

Brown,  Artemas 

Howland,  Abraham  H. 

Austin,  George 

Crittenden,  Simeon 

Brownell,  Joseph 

Hoyt,  Henry  K. 

Ayres,  Samuel 

Crockett,  George  W. 

Bryant,  Patrick 

Huntington,  Charles  P. 

Ballard,  Alvah 

Cross,  Joseph  W. 

Cady,  Henry 

Huntington,  George  H. 

Banks,  Nathaniel  P.,  Jr.  Crowninshield,  F.  B. 

Case,  Isaac 

Hurlbut,  Moses  C. 

Bartlett,  Russel 

Cummings,  Joseph 

Chapin,  Daniel  E. 

Ide,  Abijah  M.,  Jr. 

Beach,  Erasmus  D. 

Cushman,  Henry  W. 

Churchill,  J.  McKean 

Jacobs,  John 

Beal,  John 

Cushman,  Thomas 

Clark,  Henry 

Kendall,  Isaac 

Beebe,  James  M. 

Dana,  Richard  H.,  Jr. 

Clark,  Ransom 

Keyes,  Edward  L. 

Bell,  Luther  V. 

Davis,  Ebenezer 

Clark,  Salah 

Kimball,  Joseph 

Bishop,  Henry  W. 

Davis,  John 

Clarke,  Stillman 

Kingman,  Joseph 

Blagden,  George  W. 

Davis,  Robert  T. 

Crane,  George  B. 

Knight,  Jefferson 

Bliss,  Gad  O. 

Day,  Gilman 

Cressy,  Oliver  S. 

Knowlton,  J.  S.  C. 

Bliss,  Willam  C. 

Dehon,  William 

Cutler,  Simeon  N. 

Knowlton,  William  II  . 

Boutwell,  Geo.  S. 

Deming,  Elijah  S. 

Davis,  Isaac 

Knox,  Albert 

Bradford,  William  J.  A 

DeWitt,  Alexander 

Dean,  Silas 

Ladd,  Gardner  P. 

Brewster,  Osmyn 

Doane,  James  C. 

Denton,  Augustus 

Lawrence,  Luther 

Brown,  Adolphus  F. 

Duncan,  Samuel 

Dunham,  Bradish 

Leland,  Alden 

Brown,  Alpheus  R. 

Durgin,  John  M. 

Eames,  Philip 

Lincoln,  Abishai 

Brown,  Hammond 

Easland,  Peter 

Earle,  John  M. 

Loomis,  E.  Justin 

Brown,  Hiram  C. 

Easton,  James,  2d 

Eaton,  Calvin  D. 

Merritt,  Simeon 

Buck,  Asahel 

Ely,  Homer 

Edwards,  Elisha 

Monroe,  James  L. 

Bullock,  Rufus 

Eustis,  William  T. 

Edwards,  Samuel 

Moore,  James  M. 

Bullen,  Amos  H. 

Farwell,  A.  G. 

Ely,  Joseph  M. 

Morton,  Elbridge  G. 

Bumpus,  Cephas  C. 

Fitch,  Ezekiel  W. 

Fay,  Sullivan 

Morton,  Marcus,  Jr. 

Burlingame,  Anson 

Fowle,  Samuel 

Fellows,  James  K. 

Nash,  Hiram 

Butler,  Benjamin  F. 

French,  Charles  H. 

Fisk,  Lyman 

Nayson,  Jonathan 

Caruthers,  William 

Gardner,  Johnson 

Foster,  Aaron 

Nichols,  William 

Chandler,  Amariah 

Gates,  Elbridge 

Foster,  Abram 

Nute,  Andrew  T. 

Chapin,  Chester  W. 

Gilbert,  Washington 

Freeman,  James  M. 

Osgood,  Charles 

Chapin,  Henry 

Gooch,  Daniel  W. 

French,  Charles  A. 

Packer,  E.  Wing 

Childs,  Josiah 

Goulding,  Jason 

French,  Rodney 

Paine,  Benjamin 

Choate,  Rufus 

Greene,  William  B. 

French,  Samuel 

Parris,  Jonathan 

Clarke,  Alpheus  B. 

Greenleaf,  Simon 

69th   day.] 


CONSTITUTIONAL   CONVENTIONS. 


523 


Thursday,] 


HOLDER  —  HOOPER  —  ASPINWALL  —  LORD. 


[July  28th. 


Hadley,  Samuel  P. 
Hall,  Charles  B. 
Hammond,  A.  B. 
Haskins,  William 
Hayward,  George 
Hazewell,  Charles  C. 
Henry,  Samuel 
Heywood,  Levi 
Hobart,  Aaron 
Holder,  Nathaniel 
Houghton,  Samuel 
Hunt,  Charles  E. 
Hyde,  Benjamin  D. 
Jeiiks,  Samuel  H. 
Johnson,  John 
Kellogg,  Martin  R. 
Knight,  Hiram 
Knight,  Joseph 
Knowlton,  Charles  L. 
Langdon,  Wilber  C. 
Little,  Otis 
Loud,  Samuel  P. 
Marble,  William  P. 
Marcy,  Labaii 
Marvin,  Abijah  P. 
Marvin,  Theophilus  R. 
Mason,  Charles 
Meader,  Reuben 
Mixter,  Samuel 
Morss,  Joseph  B. 
Morton,  William  S. 
Newman,  Charles 
Norton,  Alfred 
Ober,  Joseph  E. 
Orcutt,  Nathan 
Paige,  James  W. 
Paine,  Henry 
Parker,  Adolphus  G. 
Parker,  Joel 
Parsons,  Samuel  C. 
Parsons,  Thomas  A. 
Payson,  Thomas  E. 
Peabody,  Nathaniel 
Perkins,  Jonathan  C. 
Phimiey,  Silvanus  B. 


Powers,  Peter 
Preston,  Jonathan 
Prince,  F.  O. 
Putnam,  George 
Putnam,  John  A. 
Rockwell,  Julius 
Sampson,  George  R. 
Sanderson,  Chester 
Schouler,  William 
Sheldon,  Luther 
Sherman,  Charles 
Sikes,  Chester 
Simmons,  Perez 
Sleeper,  John  S. 
Souther,  John 
Sprague,  Melzar 
Stetson,  Caleb 
Stevens,  Granville 
Stevens,  Joseph  L.,  Jr. 
Stevenson,  J.  Thomas 
Storrow,  Charles  S. 
Strong,  Alfred  L. 
Stutson,  William 
Sumner,  Increase 
Sumner,  Charles 
Swain,  Alanson 
Taber,  Isaac  C. 
Taylor,  Ralph 
Thayer,  Joseph 
Tower,  Ephraim 
Tyler,  John  S. 
Tyler,  William 
Underwood,  Orison 
Walcott,  Samuel  B. 
Walker,  Amasa 
Warner,  Marshal 
Waters,  Asa  H. 
Weston,  Gershom  B. 
Wilbur,  Daniel 
Wilbur,  Joseph 
Wilder,  Joel 
Wilkinson,  Ezra 
Williams,  J.  B. 
Whin,  Jonathan  B. 
Wood,  Nathaniel 


Absent  and  not  voting,  168. 

So  the  amendment  was  rejected. 
The  hour  of  two  o'clock  having  arrived,  the 
Convention  then  adjourned. 


AFTERNOON    SESSION. 

The  Convention  reassembled  at  three  o'clock. 

On  motion  of  Mr.  HOLDER,  of  Lynn,  the  con 
sideration  of  the  Orders  of  the  Day,  being  the 
resolves  in  relation  to  Conventions  to  Revise  the 
Constitution,  was  resumed. 

Mr.  HOOPER,  of  Fall  River.  We  have  di 
rected  the  census  to  be  taken  in  1855,  and  every 
ten  years  thereafter ;  consequently,  it  will  be  taken 
in  1865  and  in  1875  ;  so  that,  if  this  provision-  is 
adopted,  the  Convention  will  be  held  the  year 
before  the  census  will  be  taken.  For  this  reason 


I  move  that  the  figures  "  1873  "  be  stricken  out, 
and  "  1875  "  inserted,  in  the  following  part  of  the 
first  resolve : — 

A  Convention  to  revise  or  amend  this  Consti 
tution,  may  be  called  and  held  in  the  following 
manner  :  At  the  general  election  in  the  year  1873, 
and  in  each  twentieth  year  thereafter,  the  quali 
fied  voters  in  State  elections  shall  give  in  their 
votes  upon  the  question,  "  Shall  there  be  a  Con- 
vention  to  revise  the  Constitution  ? " 

Mr.  ASPINWALL,  from  Brookline.  I  sug 
gest  to  the  gentleman,  that  the  census  will  be 
taken  in  May,  1875,  and  it  will  be  impossible  to 
apportion  the  representation  before  the  time  pro 
vided  for  holding  the  Convention,  and  therefore, 
the  delegates  to  the  Convention  of  1875  cannot 
be  elected  on  the  basis  of  the  representation  of 
1875.  It  seems  to  me  that  the  year  should  be 
changed,  if  changed  at  all,  to  1876,  if  the  inten 
tion  is  that  the  Convention  shall  be  regulated  by 
the  basis  of  representation  of  1875. 

Mr.  HOOPER.  I  accept  the  suggestion,  and 
modify  my  motion  accordingly. 

The  question  was  then  taken  upon  the  motion 
of  Mr.  Hooper,  and  there  were,  upon  a  division 
— ayes,  54  ;  noes,  80. 

So  the  amendment  was  rejected. 

Mr.  LORD,  of  Salem.  I  would  inquire  if 
there  is  any  amendment  pending  r 

The  PRESIDENT.     There  is  not. 

Mr.  LORD.  I  move,  then,  to  insert  after  the 
word  "  affirmative,"  in  the  first  resolve,  in  the 
thirteenth  line,  the  words,  "  and  if  the  number  of 
affirmative  votes  shall  be  at  least  in  number  two- 
fifths  of  the  whole  number  of  votes  cast  for  gov 
ernor  at  such  election,"  so  that  that  portion  of 
the  resolve  shall  read : — 

Which  votes  shall  be  received,  counted,  record 
ed  and  declared,  in  the  same  manner  as  in  the 
election  of  Governor ;  and  a  copy  of  the  record 
thereof,  shall,  within  one  month,  be  returned  to 
the  office  of  the  Secretary  of  State,  who  shall, 
thereupon,  examine  the  same,  and  shall  publish, 
in  the  newspapers  in  which  the  laws  are  then 
published,  the  number  of  yeas  and  nays  given 
upon  said  question,  in  each  town  and  city,  and  if 
a  majority  of  said  votes  shall  be  in  the  affirma 
tive,  and  if  the  number  of  affirmative  votes  shall 
be  at  least  in  number  two-fifths  of  the  whole 
number  of  votes  cast  for  Governor  at  such  elec 
tion,  it  shall  be  deemed  and  taken  to  be  the  will 
of  the  people  that  a  Convention  should  meet  ac 
cordingly. 

I  do  not  propose  to  make  any  extended  remarks 
at  this  stage  of  the  proceeding.  I  proposed  an 
amendment  yesterday  afternoon,  which  received 
no  attention  whatever. 


524 


CONSTITUTIONAL   CONVENTIONS. 


[69th  day. 


Thursday,] 


LOED  —  ALVORD  —  WILSON  —  GILES  —  SCHOULER. 


[July  28th. 


The  PRESIDENT.  The  Chair  would  remind 
the  gentleman,  that  the  Convention  have  ordered 
that  no  debate  should  be  had  after  a  certain  hour, 
which  hour  is  already  passed. 

Mr.  LORD.  That  being  so,  I  move  the  yeas 
and  nays  upon  the  amendment. 

The  House  was  divided  upon  ordering  the  yeas 
and  nays,  and  there  were,  upon  a  division — ayes, 
18  ;  noes,  153. 

So  the  yeas  and  nays  were  refused. 

The  question  then  recurring  upon  the  amend 
ment  offered  by  Mr.  Lord,  it  was  put,  and  there 
were,  upon  a  division— ayes,  30  ;  noes,  136. 

So  the  amendment  was  rejected. 

Mr.  ALVORD,  for  Montague.  I  move  to 
amend  the  resolves  by  striking  out  the  last  one, 
which  is  as  follows  : — 

3.  Resolved,  The  foregoing  provisions  shall  in 
nowise  restrain  or  impair  the  reserved  right  of  the 
people,  in  their  sovereign  capacity,  and  by  such 
mode  of  proceeding  as  shall  fully  and  fairly  col 
lect  and  ascertain  the  will  of  the  majority,  at  all 
times,  to  reform,  alter,  or  totally  change  their 
Constitution  and  Frame  of  Government. 

Mr.  SIMMONS  called  for  the  yeas  and  nays 
upon  the  motion,  but  they  were  not  ordered, 
twenty  members  only  voting  in  favor  thereof. 

The  question  was  then  taken  upon  the  amend 
ment,  and  there  were,  upon  a  division— ayes,  25  ; 
noes,  143. 

So  the  amendment  was  rejected. 

Mr.  WILSON,  of  Natick.  I  now  move  to 
strike  out  the  words  "  and  by  such  mode  of  pro 
ceeding  as  shall  fully  and  fairly  collect  and  ascer 
tain  the  will  of  the  majority,"  in  the  following 
third  resolve : — 

3.  Resolved,  The  foregoing  provisions  shall  in 
nowise  restrain  or  impair  the  reserved  right  of  the 
people,  in  their  sovereign  capacity,  and  by  such 
mode  of  proceeding  as  shall  fully  and  fairly  collect 
and  ascertain  the  will  of  the  majority,  at  all  times, 
to  reform,  alter,  or  totally  change  their  Constitu 
tion  and  Frame  of  Government. 

The  PRESIDENT.  The  amendment  is  not 
in  order,  because  the  Convention  have  decided 
that  the  resolve  shall  stand  as  it  is. 

Mr.  GILES.  Is  it  in  order  to  move  to  strike 
out  and  insert  ? 

The  PRESIDENT.    It  is. 

Mr.  GILES.  I  then  move  to  strike  out  the 
same  words  moved  to  be  struck  out  by  the  gen 
tleman  from  Natick,  (Mr.  Wilson,)  and  to  insert 
in  lieu  thereof  the  words  "  according  to  their  will 
legally  expressed." 

The  question  was  taken,  and  the  amendment 
was  rejected. 


Mr.  LORD.  I  move  to  amend  the  first  resolve 
at  the  same  place  where  I  moved  to  amend  it  be 
fore,  by  inserting  the  words  "  and  if  the  number 
of  affirmative  votes  shall  be  at  least,  in  number, 
one- third  of  the  whole  number  of  votes  cast  for 
governor,  at  such  election." 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  the  amendment  is  substantially  the  same  as 
the  one  before  offered  by  the  gentleman,  but  the 
Chair  will  put  it  to  the  Convention. 

Mr.  LORD.  I  demand  the  yeas  and  nays 
upon  it. 

The  yeas  and  nays  were  not  ordered. 

The  question  was  then  taken,  and  the  amend 
ment  was  not  agreed  to. 

The  question  then  recurring  upon  the  final 
passage  of  the  resolves, 

Mr.  GILES,  of  Boston,  asked  for  a  division  of 
the  resolves,  so  that  the  question  should  be  taken 
on  the  last  resolve  by  itself. 

The  question  was  then  taken  upon  the  final 
passage  of  the  first  and  second  resolves,  and  it  was 
decided  in  the  affirmative. 

The  question  was  then  taken  upon  the  third 
resolve,  and  there  were  upon  a  division — ayes, 
142 ;  noes,  64. 

So  the  resolves  were  passed. 

Mr.  SCHOULER.  I  now  move  to  reconsider 
the  vote  by  which  the  last  resolve  was  passed,  and 
I  do  it  not  for  the  purpose  of  consuming  the  time 
of  the  Convention,  for  I  am  as  anxious  as  any 
one  to  finish  our  labors.  But  I  do  not  believe 
that  this  Convention  would  pass  the  third  resolve, 
if  they  wholly  understood  it.  Nearly  the  whole 
debate  has  been  upon  the  mode  of  choosing  dele 
gates,  and  this  third  resolve  has  not  been  considered 
at  all.  I  think  if  gentlemen  will  look  at  it,  they 
will  see  that  it  is  nothing  more  or  less  than  legal 
izing  anarchy. 

Mr.  STETSON,  of  Braintree.  I  rise  to  a  ques 
tion  of  order.  I  desire  that  the  motion  to  recon 
sider  be  placed  upon  the  Orders  of  the  Day  for 
to-morrow,  under  the  rule. 

Mr.  SCHOULER.  Then  I  move  to  suspend 
the  rule,  in  order  that  the  motion  may  be  taken 
up  and  considered  at  this  time. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

Mr.  SCHOOLER.  Now,  Mr.  President,  I  ask 
the  attention  of  the  Convention  to  this  third  re 
solve.  I  should  like  to  have  some  gentleman 
who  advocates  it,  explain  what  it  means.  If  it 
means  anything,  it  means  nothing  but  anarchy. 
Without  any  form  of  law,  any  number  of 'men  in 
this  Commonwealth  may  call  a  Convention  to 
amend  the  Constitution.  What  does  it  say  ?  It 
is  this : — 


69th    day.] 


CONSTITUTIONAL   CONVENTIONS. 


525 


Thursday,] 


SCHOTJLER  —  LORD  —  WHITNEY. 


[July  28th. 


The  foregoing  provisions  shall  in  nowise  re 
strain  or  impair  the  reserved  right  of  the  people, 
in  their  sovereign  capacity,  and  by  such  mode  of 
proceeding  as  shall  fully  and  fairly  collect  and 
ascertain  the  will  of  the  majority,  at  all  times,  to 
reform,  alter,  or  totally  change  their  Constitution 
and  Frame  of  Government. 

What  does  that  mean  ?  Are  the  people  in  their 
sovereign  capacity  to  make  any  kind  of  change 
outside  of  the  legislature,  and  without  its  being 
done  by  legislative  rules  ?  Are  we  to  have  a  form 
of  law  in  calling  a  Convention,  or  shall  an  unle- 
galized  mass  of  people  call  a  Convention  ?  If  the 
gentlemen  who  advocate  the  resolve  can  explain 
what  it  means,  will  they  tell  us  what  that  mean 
ing  is.  I  know  a  majority  of  this  Convention 
will  go  for  no  such  thing,  if  they  understand  it. 
If  there  is  to  be  a  Convention,  it  should  be  under 
legal  forms,  there  must  be  a  vote,  and  that  vote 
should  be  legally  given,  and  legally  returned,  and 
these  can  only  be  had  under  law.  Now,  I  want 
to  know  if  this  resolve  does  not  mean  something 
else  ?  Perhaps  gentlemen  who  are  anxious  about 
this  matter,  can  tell  what  it  means. 

Mr.  LORD,  of  Salem.  Before  the  gentleman 
for  Wilbraham  answers  the  questions,  I  desire  to 
know  if  the  gentleman  for  Wilbraham  should 
draw  up  a  subscription  paper  to  this  effect :  "  We 
hereby  agree  that  the  Bill  of  Rights  be  stricken 
from  the  Constitution,"  and  should  get  the  signa 
tures  of  a  majority  of  the  people  of  the  Common 
wealth,  whether  that  would  not  alter  the  Consti 
tution,  for  the  Bill  of  Rights  is  a  part  of  the 
Constitution.  The  resolve  says  : — 

The  foregoing  provisions  shall  in  nowise  re 
strain  or  impair  the  reserved  right  of  the  people, 
in  their  sovereign  capacity,  and  by  such  mode  of 
proceeding  as  shall  fully  and  fairly  collect  and 
ascertain  the  will  of  the  majority,  at  all  times,  to 
reform,  alter,  or  totally  change  their  Constitution 
and  Frame  of  Government. 

If  it  means  anything,  it  means  that  if  I  should 
get  the  subscription  of  a  majority  of  the  people  of 
the  Commonwealth  to  such  a  paper,  that  would 
alter  the  Constitution.  I  desire  that  gentlemen 
who  voted  this  thing  through  with  a  rush,  with 
out  giving  us  the  yeas  and  nays,  should  hear  my 
protest  against  altering  the  Constitution  by  a  sub 
scription  paper.  If  that  resolve  does  not  mean 
that,  it  is  meaningless.  Anything  which  shall 
get  the  full  opinion  of  the  people,  will  alter  the 
Constitution.  Now,  Sir,  I  am  not  going  to  ask 
the  yeas  and  nays  upon  this  proposition,  be 
cause  the  Convention  have  made  up  their  minds 
not  to  do  anything  of  that  kind,  if  I  may  judge 
from  the  vote  just  passed. 

But  I  desire  that  it  shall  not  pass  without  my 


protest.  If  the  Convention  would  only  allow  me 
to  record  my  vote  upon  a  question  so  important 
as  this,  I  should  not  trouble  them  with  these  re 
marks  ;  but,  upon  a  question  which  legalizes 
anarchy  and  confusion,  if  I  cannot  be  permitted 
to  record  my  vote,  I  may  be  permitted  to  protest 
against  it. 

Mr.  WHITNEY,  of  Conway.  I  hope  the  mo 
tion  to  reconsider  the  vote  by  which  the  Conven 
tion  adopted  the  resolution,  will  prevail,  but  not 
for  the  reason  given  by  the  gentleman  from  Salem, 
(Mr.  Lord).  Sir,  if  this  resolution  has  any  effect 
at  all,  its  effect  will  be  as  the  gentleman  from 
Boston,  (Mr.  Schouler,)  has  said,  to  introduce 
anarchy  and  misunderstanding  of  what  is  the 
proper  mode  of  proceeding  when  the  people  de 
sire  to  revise  the  Constitution.  What  does  the 
resolution  provide  for  r 

Resolved)  The  foregoing  provisions  shall  in  no 
wise  restrain  or  impair  the  reserved  right  of  the 
people,  in  their  sovereign  capacity. 

Now,  I  take  it,  that  if  the  people  have  "reserved 
rights,"  they  cannot  be  interfered  with  if  the  reso 
lution  should  be  rejected,  for  those  rights  are  not 
only  reserved,  but  it  is  declared  elsewhere  in  the 
Constitution,  that  rights  not  granted  are  "  re 
served  rights."  I  think  they  are  more  fully  pro 
vided  for ;  and,  therefore,  this  resolve  so  far  is 
worthless,  and  will  have  no  effect  at  all.  But 
the  resolve  goes  on  : — 

And  by  such  mode  of  proceeding  as  shall  fully 
and  fairly  collect  and  ascertain  the  will  of  the  ma 
jority,  at  all  times,  to  reform,  alter,  or  totally 
change  their  Constitution  and  Prame  of  Govern 
ment. 

Now,  Sir,  we  have  provided  in  a  preceding  re 
solve,  for  calling  a  Convention  to  revise  the  Con 
stitution.  We  have  provided  that  the  people  shall 
vote  upon  the  question  for  calling  a  Convention 
at  certain  specified  times,  and  at  any  other  time 
when  the  legislature  shall  see  fit  to  submit  the 
question  to  the  people.  So  that  we  have  provided 
already,  that  every  twenty  years,  and  as  much 
oftener  as  the  legislature  think  proper  to  submit 
the  question,  a  legitimate  mode  for  the  people  to 
"  reform,  alter,  or  totally  change  that  Constitution 
and  Frame  of  Government,"  as  they  may  choose, 
shall  be  had.  And  now,  I  ask,  what  do  you  want 
more  ?  Why  indicate  that  these  are  not  the 
proper  modes  of  accomplishing  that  result  ?  As 
the  gentleman  from  Salem  said,  by  this  resolution 
the  people  may  alter  and  reform  the  Constitution 
by  circulating  a  subscription  paper,  or  in  any 
other  way.  Sir,  it  does  seem  to  me  that  this  re- 


526 


CONSTITUTIONAL   CONVENTIONS. 


[69th  day. 


Thursday,] 


HOOPER  —  STEVENSON  —  MILLER. 


[July  28th. 


solve  is  only  calculated  to  lead  to  misunderstand 
ing  among  the  people  as  to  the  proper  mode  of 
revising  the  Constitution. 

I  agree  that  the  major  will  of  the  people  have 
the  right  "  to  alter,  reform,  or  totaUy  change  their 
Constitution  and  Frame  of  Government "  at  any 
time.  I  go  as  far  as  the  gentleman  for  "Wilbra- 
ham  in  support  of  that  doctrine  ;  but,  I  wish  to 
provide  some  definite  and  proper  method  by 
which  the  will  of  the  people  shall  be  expressed 
and  ascertained,  and  that  we  have  provided  in  the 
preceding  resolves.  Now,  I  repeat  that  this  reso 
lution  is  either  worthless,  or  else  it  means  to 
legalize  undefined  action.  Why,  Sir,  what,  I  ask 
again,  is  there  in  the  foregoing  resolutions,  that  is 
calculated  to  "  impair  the  reserved  rights  of  the 
people  in  their  sovereign  capacity  ? "  I  can  see 
nothing  that  takes  away  these  rights.  I  hope  the 
motion  to  reconsider  will  prevail,  and  that  the 
resolve  will  be  stricken  out. 

Mr.  HOOPER,  of  Fall  River.  I  hope  this 
resolve  will  be  retained,  as  it  seems  to  me  there 
are  sufficient  reasons  why  it  should  be.  The  first 
two  resolves  are  framed  to  provide  for  calling  a 
Convention  upon  the  basis  of  the  House  of  Rep 
resentatives,  as  agreed  to  in  this  Convention. 
Now,  Sir,  no  man  can  say,  at  this  day,  what  will 
be  the  practical  operation  of  that  basis  in  future. 
It  may  be,  that  under  the  system  we  have  adopt 
ed,  within  twenty  years  from  this  time,  a  majority 
of  the  House  of  Representatives  can  be  elected 
by  one- fifth,  or  even  one-eighth  of  the  people.  I 
believe  it  may  so  work,  and  if  it  does,  and  a  Con 
vention  is  called  on  the  basis  of  the  House,  as 
these  resolves  provide,  one- fifth  or  one- eighth  of 
the  people  will  elect  a  majority  of  that  Conven 
tion.  Now,  Sir,  did  you  ever  know  any  man,  or 
set  of  men,  voluntarily  to  give  up  political  power  ? 
Suppose  a  Convention  should  be  called  upon  such 
a  basis — do  you  suppose  the  majority  of  that  Con 
vention,  representing  one-fifth  or  less  of  the  peo 
ple  of  the  Commonwealth,  would  adopt  measures 
that  would  allow  the  whole  people  to  be  equally 
represented  ?  No,  Sir ;  it  would  be  in  Massachu 
setts,  as  it  was  in  Rhode  Island,  several  years  ago, 
when  the  agitation  commenced  there.  One-fifth 
of  the  people  there  elected  the  legislature,  and 
whenever  a  Constitutional  Convention  was  called, 
it  was  always  upon  the  same  basis  as  the  repre 
sentative  body  that  called  it,  to  reform  the  Char 
ter  and  establish  the  Constitution.  But,  Sir,  the 
minority  held  the  power,  and  they  never  gave  it 
up  till  compelled,  which  they  were  in  part,  by 
the  Dorr  Rebellion. 

Now,  Sir,  we  may  be  under  the  necessity,  at 
some  future  time,  of  calling  a  Convention  outside 
of  the  government ;  and  there  is  something  here 


upon  which  we  could  found  such  a  proceeding, 
should  it  ever  be  found  necessary  for  the  purpose 
of  equalizing  representation.  I,  for  one,  hold  the 
doctrine  declared  in  that  resolution  as  a  sound 
one.  It  is  the  doctrine  by  which,  in  1842,  we 
carried  the  State  of  Massachusetts ;  and  it  is  one 
I  am  unwilling  to  give  up  at  this  time.  I  hope, 
therefore,  that  this  vote  will  not  be  reconsidered, 
but  that  this  resolve  will  be  permitted  to  stand  as 
it  was  passed,  and  that  the  rights  of  the  people 
will  be  declared  to  be  beyond  the  power  of  the 
legislature,  or  any  other  power,  to  overthrow 
them. 

Mr.  STEVENSON,  of  Boston.  I  have  no  in 
tention  of  occupying  the  time  of  the  Convention 
for  a  single  moment.  I  rise  simply  for  the  pur 
pose  of  making  an  inquiry.  This  resolve,  which 
it  is  proposed,  and  which  the  Convention  have 
once  voted  to  put  into  the  Constitution,  makes  a 
requirement  concerning  alterations  to  the  Consti 
tution.  Now,  I  desire  to  ask  the  gentleman  who 
proposed  the  resolve,  who  are  to  be  the  judges  of 
whether  that  requirement  has  been  complied 
with;  who  is  to  judge  whether  the  "will  of  the 
people"  has  been  fairly  collected  ?  It  seems  to 
me  we  have  made  a  requirement,  and  put  it  into 
the  Constitution,  without  any  conceivable  tribu 
nal  to  determine  whether  that  requirement  has 
been  properly  complied  with.  I  hope,  therefore, 
for  that  simple  reason,  if  for  no  other,  that  this 
vote  will  be  reconsidered,  and  that  this  resolve 
will  be  stricken  out. 

Mr.  MILLER,  of  Wareham.  I  suppose  there  is 
no  member  of  this  Convention  who  is  more  willing 
that  those  who  come  after  us  shall  have  full  power 
to  alter  and  revise  this  Constitution,  whenever  it 
shall  be  the  wish  of  a  majority  of  the  people  so  to 
do,  than  I  am.  I  also  believe,  that  there  is  not  a 
man  in  this  Commonwealth — no  sober,  wise,  and 
discerning  man — who  would  desire,  for  a  mo 
ment,  to  put  any  provision  into  the  Constitution 
which  may  hereafter  be  so  construed  as  to  have 
a  tendency,  in  any  manner,  to  produce  colli 
sion,  war,  and  bloodshed.  I  believe  there  is  not 
a  man  in  the  Convention  who  would  be  willing 
to  put  anything  in  the  Constitution  which  could 
possibly  lead  to  such  a  result ;  but  that  it  is  the 
wish  of  all,  that  hereafter,  we  may  have  peace 
and  quietness  in  all  our  borders. 

Now,  I  ask,  if,  aside  from  this  resolution,  we 
have  made  all  the  provision  that  any  reasonable 
man  could  require,  for  the  alteration  of  the  Con 
stitution  at  any  future  period  of  time  ?  In  the 
first  place,  we  have  provided,  that  once  in  twenty 
years,  the  people  of  the  Commonwealth  shall  vote 
upon  the  question,  whether  they  will  have  a  Con 
vention  to  revise  the  Constitution,  or  not.  That 


69th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


527 


Thursday,] 


MILLER  —  GILES  —  WILSON. 


[July  28th. 


is  one  mode.  Again,  you  require,  by  a  second 
section,  that  whenever  one- third  of  the  voters  in 
the  various  cities  and  towns  of  the  Commonwealth 
declare  their  wish  to  call  a  Convention,  it  shall  be 
the  duty  of  the  legislature  to  call  a  Convention. 
And  again,  in  the  same  section,  it  is  provided  that 
the  legislature  may,  at  any  time  they  may  think 
proper,  submit  the  question  to  the  people.  Now, 
it  seems  to  me,  that  this  is  making  all  the  pro 
vision  that  it  is  desirable  to  make,  for  this  pur 
pose.  All  any  man  wants  is  a  guarantee  to  those 
who  come  after  us,  that  they  shall  have  control 
of  the  matter,  and  that  is  provided  in  the  previous 
resolves.  I  submit,  that  this  third  resolve  can 
produce  no  good  result  that  will  not  be  produced 
without  it,  and  that  it  may,  if  adopted,  lead  to  the 
most  disastroiis  consequences.  I  shall,  therefore, 
vote  against  it,  when  the  question  comes  up ;  and 
I  hope  every  member  of  the  Convention  will  do 
the  same.  Let  me  call  the  attention  of  the  Con 
vention  to  the  phraseology : — 

3.  Resolved,  The  foregoing  provisions  shall  in 
nowise  restrain  or  impair  the  reserved  right  of 
the  people,  in  their  sovereign  capacity,  and  by 
such  mode  of  proceeding  as  shall  fully  and  fairly 
collect  and  ascertain  the  will  of  the  majority,  at 
all  times,  to  reform,  alter,  or  totally  change  their 
Constitution  and  Frame  of  Government. 

Now,  suppose  some  distinguished  man  in  the 
city  of  Boston  should  write  to  the  selectmen  of 
every  town  in  the  Commonwealth,  to  take  the 
vote  of  the  people  upon  the  question  of  calling  a 
Convention,  and  suppose  one-fourth  of  the  people 
of  the  State  should,  in  that  manner,  express  their 
opinions  in  favor  of  calling  a  Convention  —  if 
there  was  a  majority  of  all  the  votes  given,  it 
might  be  considered  as  the  will  of  the  people, 
fairly  collected,  and  they  might  go  on  and  form  a 
Constitution  ;  and  we  might  thus  have  two  gov 
ernments  going  on  at  the  same  time.  It  might 
lead  to  civil  war  and  bloodshed.  I  hope  we  shall 
not  have  any  such  provision  put  into  the  Consti 
tution. 

Mr.  GILES,  of  Boston.  I  wish  to  state  one  or 
two  reasons  why  I  want  this  vote  reconsidered 
for  the  purpose  of  amending  the  resolution.  My 
friend  for  Wilbraham,  (Mr.  Hallett,)  knows  that 
I  go  with  him  in  the  object  he  seeks  to  accom 
plish  ;  but  my  objection  to  this  third  resolution 
is,  that  it  is  a  limitation  upon  the  Bill  of  Rights 
as  it  now  stands.  So  far  as  it  can  have  any  legal 
or  constitutional  effect,  it  is  to  restrict  the  rights 
of  the  people  as  they  are  now  secured  to  them. 
It  is  impossible  to  declare  the  absolute  and  inalien 
able  right  of  the  people  to  reform,  alter,  and 
amend  their  Constitution  in  stronger  language 


than  is  used  in  the  Bill  of  Rights,  as  it  now  stands, 
to  wit  :— 

"Therefore,  the  people  alone  have  an  incon- 
testible,  unalienable,  and  indefeasible  right  to 
institute  government ;  and  to  reform,  alter,  or 
totally  change  the  same,  when  their  protection, 
safety,  prosperity  and  happiness  require  it." 

Now,  when  it  comes  to  that  pass,  and  the 
people  undertake  to  exercise  that  right,  I  do  not 
wish  to  impose  upon  them  any  restriction.  I  will 
allow  them  to  exercise  it  in  any  manner  they  may 
see  fit;  and  posterity  will  judge  for  themselves 
what  that  manner  shall  be  when  the  emergency 
shall  arise.  When  it  shall  become  necessary  to 
assert  that  right  outside  of  the  Constitution,  the 
people  will  exercise  it  according  to  their  sovereign 
will ;  and  I  do  not  wish  to  restrain  them  by  say 
ing  that  they  must  do  it  by  such  mode  of  pro 
ceeding  as  shall  fairly  collect  the  will  of  the 
majority.  I  will  leave  that  right  to  their  sover 
eign  pleasure. 

Another  objection  is  this  :  By  this  resolution 
you  will  place  the  people  of  the  Commonwealth, 
if  they  should  ever  have  occasion  to  exercise  this 
right,  in  a  position  of  hostility  against  their  own 
government.  You  will  have  a  Constitution  felo 
de  se,  and  may  set  the  people  to  cutting  their  own 
throats  by  law  and  Constitution. 

These  are  my  objections.  1  do  not  wish  to  take 
up  the  time  of  the  Convention  by  elaborating 
them. 

Mr.  WILSON,  of  Natick.  Mr.  President :  I 
hope  the  motion  made  by  the  delegate  from  Bos 
ton,  (Mr.  Schouler,)  will  prevail — that  this  reso 
lution  will  be  reconsidered,  and  either  amended  or 
stricken  out  altogether.  By  the  provisions  of  the 
7th  article  of  the  Bill  of  Rights,  "  the  people  alone 
have  an  incontestible,  unalienable,  and  indefeasi 
ble  right  to  institute  government,  and  to  reform, 
alter,  or  totally  change  the  same,  when  their  pro 
tection,  safety,  prosperity  and  happiness  require 
it." 

That  is  an  unlimited  and  unqualified  admission 
of  the  right  of  the  people,  to  alter,  or  amend,  or 
abolish  altogether  their  government  whenever 
they  shall  see  fit.  There  is  no  qualification  or 
limitation  whatever  of  this  right,  and  they  are  the 
sole  judges  of  the  whole  question — of  the  time 
and  mode.  Now,  by  the  provisions  of  this  reso 
lution,  we  repeat  this  doctrine,  but  we  repeat  it 
with  limitations  and  restrictions.  Sir,  I  am  op 
posed  to  putting  qualifications  or  restrictions  upon 
the  sovereign  rights  of  the  people  of  this  Common 
wealth  or  of  this  country,  to  change,  or  modify, 
or  alter,  or  abolish  their  government  whenever 
they  may  see  fit  to  do  so— whenever  they  believe 
their  happiness  will  be  promoted  by  so  doing. 


528 


CONSTITUTIONAL   CONVENTIONS. 


[69th  day. 


Thursday,] 


WILSON  —  HALLETT. 


[July  28th. 


I  therefore  hope  this  third  resolution  will  be 
reconsidered,  and  either  stricken  out  altogether, 
or  amended  by  striking  out  all  after  the  word 
"  capacity,"  down  to  the  words  "  at  all  times,"  so 
that  the  resolution  would  read : — 

Resolved,  That  the  foregoing  provisions  shall  in 
nowise  restrain  or  impair  the  reserved  right  of 
the  people,  in  their  sovereign  capacity,  at  all  times 
to  reform,  alter,  or  totally  change  their  Constitu 
tion  arid  Frame  of  Government. 

This  is  the  achieved  American  doctrine. 

It  will  then  be  but  a  repetition  of  the  declara 
tions  laid  down  in  the  7th  article  of  the  Bill  of 
Rights.  But  I  am  opposed  to  putting  anything 
into  this  Constitution  that  shall  limit  or  restrict 
the  people  in  the  exercise  of  their  sovereign  rights 
and  powers.  I  hope  that  amendment  will  be 
made,  or  that  the  section  will  be  stricken  out  alto 
gether,  and  that  this  Convention  will  not  put  into 
the  Constitution  any  provision  that  shall  limit 
the  rights  of  the  people,  declared  in  the  7th  article 
of  the  Bill  of  Rights,  which  was  placed  there  by 
the  men  of  1780,  who  laid  the  foundations  of  our 
Constitution  upon  the  eternal  doctrine  of  the 
unlimited  sovereignty  of  the  people  and  the  equal 
rights  of  man. 

Mr.  HALLETT,  for  Wilbraham.  I  certainly 
have  no  desire  to  limit  the  power  of  the  people. 
I  never  heard  that  accusation  brought  against  me 
before,  in  my  life.  The  trouble  generally  is  with 
those  who  differ  from  me  on  the  principles  of 
government,  that  I  want  too  little  governing 
power,  and  too  mucli  liberty  for  the  people.  Sir, 
I  am  not  alarmed  about  the  probable  fate  of  this 
resolution.  The  great  principle  of  success  in  life, 
is  the  calm  perseverance  of  moral  courage.  When 
you  have  fixed  upon  a  sound  principle,  be  not 
pertinacious,  nor  dogmatical,  but  patiently  perse 
vere,  and  you  must  carry  it  through.  If  you  can 
not  do  it  to-day,  wait  until  you  can  carry  it ;  to 
morrow,  or  next  year,  or,  if  need  be,  the  next 
generation.  Now  here  is  a  sound  principle.  If 
we  cannot  secure  the  adoption  of  this  principle 
now,  it  will  grow,  and  there  will  be  those  who 
•will  try  it  again,  twenty  years  hence,  in  another 
Convention.  That  is  my  position  in  relation  to 
all  the  great  principles  of  government  which  I 
have  endeavored  to  maintain  here.  If  gentlemen 
vote  them  down,  I  am  not  voted  down  ;  it  is  the 
principle  which  the  Convention  has  voted  down. 
I  am  nothing  to  this  principle,  nor  do  I  consider 
myself  in  any  personal  manner  identified  with  its 
success.  But,  Sir,  if  this  principle  does  not  pre 
vail  now,  I  am  satisfied  it  will  prevail  at  some 
future  time.  What  is  it  ?  The  gentleman  from 
Natick  misunderstands  it.  He  says,  the  Bill  of 


Rights  declares  that  the  people  have  at  all  times 
the  right  to  alter,  amend,  or  totally  abolish  their 
frame  of  government.  That  is  all  very  well  said, 
but  when  you  come  to  the  point,  how  is  it  to  be 
done?  The  answer,  and  the  only  answer  is, 
either  by  the  bayonet,  or  by  the  will  of  the  major 
ity.  Now,  how  will  the  gentleman  get  at  the  will 
of  the  people  in  spite  of  the  bayonets  r  I  hold  to 
the  right  of  revolution  by  the  bayonet ;  but  I 
hold  to  the  right  of  peaceful  revolution  also,  by 
the  ballot-box.  And  how  are  you  to  accomplish 
a  peaceful  revolution  ?  Why,  by  fairly  and  fully 
collecting  the  will  of  the  majority  of  the  people. 
That  every-body  pretends  to  believe  in,  but  when 
you  undertake  to  collect  the  will  of  the  people, 
where  there  is  not  an  express  law  for  it,  then  comes 
the  bayonet.  Sir,  I  maintain  that  the  people  of 
this  Commonwealth,  have  the  right  peacefully  to 
assemble  and  express  their  wishes  in  relation  to 
any  change  they  may  desire  in  their  government, 
and  that  the  will  of  the  majority  in  making 
organic  laws,  is  the  will  of  the  people.  But,  if 
the  legislature,  or  the  government,  will  not  let  the 
people  express  their  will  peacefully,  but  declares 
martial  law,  and  pronounces  the  people's  assem 
blies  riotous ;  of  what  practical  use  is  that  decla 
ration  in  the  Bill  of  Rights  ? 

What  is  the  gentleman  going  to  do  with  the 
people's  right  to  make  a  Constitution  ?  We  are 
all  for  the  people's  rights  on  paper ;  but  when  it 
comes  to  the  action  of  this  sovereign  people  with 
out  the  consent  of  their  servants,  the  legislature, 
what  will  the  people's  rights  do  for  us  when  they 
are  like  a  flock  of  sheep,  with  an  army  sent  after 
them  from  Washington  to  put  down  domestic 
violence  proclaimed  by  your  governor  ?  I  wish 
to  carry  out  in  this  new  Constitution,  the  princi 
ple  of  Mr.  Buchanan,  laid  down  in  the  Michigan 
case,  in  1836;  and  that  is  a  sufficient  answer  to 
the  gentleman  from  Salem.  This  is  what  Mr. 
Buchanan  says,  touching  this  very  question  of 
the  people  having  a  right  of  revolution  without 
being  obliged  always  to  fight  for  it. 

"  Is  it  the  position,  that  if  in  any  one  of  the  States 
of  this  Union,  the  government  be  so  organized  as 
utterly  to  destroy  the  right  of  equal  representa 
tion,  there  is  no  mode  of  redress  but  by  an  act  of 
the  legislature  authorizing  a  Convention,  or  by 
open  rebellion  ?  Must  the  people  step  at  once 
from  oppression  to  open  war  ?  Absolute  sub 
mission  or  absolute  revolution  ?  Is  there  no  mid 
dle  course  ?  This  is  found  only  in  the  principle 
established  by  the  whole  history  of  American 
government,  that  the  people  are  sovereign,  and 
that  a  majority  of  them  can  alter  or  change  their 
fundamental  laws  at  pleasure.  This  is  neither 
rebellion,  nor  revolution.  It  is  an  essential,  re 
cognized  principle  in  all  our  forms  of  govern 
ment." 


69th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


529 


Thursday,] 


HALLETT  —  SCHOULER. 


[July  28th. 


That  is  the  doctrine  of  James  Buchanan,  a  man 
who  knows  something  about  the  government  of 
this  country.  And  this  I  hold  is  the  true  doctrine 
of  American  liberties.  I  deny,  emphatically,  that 
in  changes  of  government,  the  people  of  the  States, 
in  this  Union,  hold  the  "  sacred  right  of  revolu 
tion,"  subject  to  be  hanged  for  treason  if  they 
fail  ?  This  is  the  right  of  serfs  and  slaves. 
American  citizens  claim  a  higher  right,  unaliena- 
ble  and  practical  as  a  great  political  right.  Not  a 
mere  physical  right  of  revolution  by  force,  which, 
whenever  resorted  to  must  be  at  the  risk  of  all  the 
penalties  attached  to  an  unsuccessful  resistance  to 
established  authority. 

For,  if  the  people  of  a.  State  are  practically 
denied  a  change  by  revolution,  and  can  get  no 
change  without  the  previous  consent  of  the  legis 
lature,  the  legislature  and  not  the  people  are  sover 
eign  in  government ;  and  in  practice,  whatever 
may  be  our  theory,  we  are  not  a  free  people. 

Hence,  if  you  would  have  a  popular  sover 
eignty,  that  can  act  without  a  conflict  of  blood 
with  the  government,  you  must  take  care  to  pro 
vide  for  it  in  the  organic  law,  so  that  the  legisla 
ture  cannot  make  it  treason,  or  the  executive  call 
in  the  military  power  of  the  United  States  to  pxit 
it  down  as  a  case  of  domestic  violence. 

Now,  what  do  we  propose  in  this  amendment  ? 
Merely  to  provide  that  the  people  may  lawfully 
do  what  the  supreme  court  of  the  United  States, 
in  the  Rhode  Island  causes,  were  obliged  to  ad 
mit,  that  if,  in  any  Constitution  or  law  of  that 
State  it  had  been  provided  the  people  might  do, 
would  have  established  a  popular  government  in 
Rhode  Island.  They  decided  that  there  must  be 
recognized  as  lawful  in  the  people,  some  form  of 
proceedings  by  which  they  could  fairly  and  fully 
collect  the  will  of  the  majority.  And  because 
there  was  no  such  form  recognized  in  Rhode 
Island,  the  courts  of  that  State  pronounced  the 
choice  of  delegates,  the  holding  of  a  Convention, 
and  all  the  meetings — the  primary  and  town 
meetings — lawless  assemblies  ;  and  the  supreme 
court  of  the  United  States  followed  the  decision 
of  the  State  court.  That  is,  the  decision  which 
renders  the  Bill  of  Rights  a  mere  rhetorical 
flourish.  I  want  a  shield  in  the  Constitution  to 
cover  the  rights  of  the  people  against  any  such 
legal  construction  to  render  those  rights  inopera 
tive.  You  say  that,  by  the  Bill  of  Rights,  the 
people  have  a  right  to  meet  and  petition,  or  vote  a 
Convention ;  but  what  if  the  courts  pronounce 
that  a  seditious  meeting,  because  there  is  no  law 
for  it !  you  have  no  appeal  but  to  arms.  But  if 
you  declare  in  the  Constitution  that  the  meetings 
of  the  people  shall  be  lawful,  and  may  be  held  in 
such  a  mode  as  will  fully  ascertain  the  will  of  the 

363 


majority,  then  if  the  people  meet  in  town  meet 
ings,  and  endeavor  peaceably  to  ascertain  the  will 
of  the  majority,  the  government  cannot  send  an 
army  to  shoot  them  down,  or  read  the  riot  act  to 
disperse  them ;  and  the  courts  of  the  country 
must  put  a  construction  upon  such  a  constitu 
tional  provision  that  will  enable  the  people  to 
ascertain  what  is  their  will,  and  whether  a  major 
ity  are  in  favor  of  holding  a  Convention,  or 
changing  their  form  of  government.  That  would, 
doubtless,  be  an  extreme  case,  but  that  is  the 
right  of  the  majority,  or  the  majority  has  no  right 
to  make  or  change  government. 

Now  these  three  resolutions  render  the  whole 
system  perfect ;  and  if  gentlemen  will  only  ad 
here  to  them  as  they  have  adhered  to  them  before, 
in  their  votes,  I  am  sure  we  shall  go  out  from 
this  Convention  with  a  more  honorable  and  ef 
fective  declaration  as  to  the  rights  of  the  people 
in  government,  than  was  ever  before  laid  down. 
First,  we  have  proposed  a  mode  for  revising  the 
Constitution  periodically,  every  twenty  years, 
without  asking  the  legislature  beforehand  to  do 
anything.  We  have  a  second  resolution,  which 
authorizes  one-third  of  the  voters  of  the  Com 
monwealth  to  make  a  proposition  requiring  the 
legislature  to  put  the  question  to  the  people  on 
calling  a  Convention  ;  or  the  legislature  may  put 
out  a  proposition,  at  any  time  they  see  fit,  for 
calling  a  Convention.  And  lastly,  comes  behind 
that,  the  great  reserved  sovereignty  of  the  people  ; 
and  we  simply  say,  in  that  declaration,  that  when 
the  people  assemble  together  for  the  purpose  of 
collecting  and  executing  their  will,  they  shall  not 
be  pronounced  rebels,  but  shall  be  recognized  by 
the  constituted  authorities.  Adhere  to  these  pro 
visions,  and  you  will  ingraft  a  great  American 
principle  upon  the  Constitution,  and  other  popu 
lar  governments  will  hereafter  follow  your  exam 
ple,  until  revolution  will  mean  something  more 
than  bayonets  and  bloodshed. 

Mr.  SCHOULER,  of  Boston.  If  the  Conven 
tion  understand  the  definition  given  to  these 
resolutions  by  the  gentleman  for  Wilbraham,  and 
the  gentleman  from  Fall  River,  I  think  they  will 
agree  with  the  gentleman  from  Natick,  that  this 
motion  of  mine  ought  to  prevail.  There  will  be 
nothing  but  anarchy  and  revolution  in  the  Com 
monwealth,  if  the  resolutions  are  adopted,  ac 
cording  to  the  argument  of  both  the  gentlemen, 
(Messrs.  Hallett  and  Hooper).  These  gentlemen 
want  something  outside  of  the  Constitution ;  and 
when  you  go  outside  of  the  Constitution,  you  go 
to  anarchy.  If  the  advocates  of  the  higher  law 
like  that,  I  am  not  one  who  does.  I  know  no 
right,  not  given  by  the  statute  and  common  law 
of  the  country ;  and  if  they  are  going  to  put 


530 


CONSTITUTIONAL   CONVENTIONS. 


[69th  day. 


Thursday,] 


SCHOULER  —  ALLEN. 


[July   28th. 


these  resolutions  into  the  Constitution,  so  as  to 
make  anarchy  whenever  a  portion  of  the  people 
wish  to  call  a  Convention,  I  want  the  sober 
sense  of  this  Convention  to  understand  it,  and 
let  them  see  whether  they  will  vote  for  it  or  not. 
I  do  not  want  to  legalize  a  Dorr  Rebellion,  in  the 
Constitution  of  Massachusetts ;  and  that  seems  to 
be  the  object  of  the  gentleman  for  Wilbraham,  in 
a  number  of  motions  which  he  has  made.  I  do 
not  know  what  he  said  at  that  time,  but  I  do  say 
that,  so  long  as  we  live  in  a  State  where  we  have 
a  Constitution  and  laws,  I  am  ready  to  stand  by 
them.  I  know  no  way  in  which  we  can  call  a 
Convention  ;  I  know  no  way  in  which  we  can 
have  a  liberty  worth  preserving  that  is  not  a 
liberty  founded  upon  constitutional  law  and  other 
laws.  I  do  not  deny  the  right  of  revolution ;  but 
there  is  no  use  in  putting  that  into  the  Constitu 
tion  of  the  Commonwealth,  any  more  than  there 
is  to  put  in  the  right  to  knock  another  man  down, 
when  he  comes  up  to  insult  you.  That  is  a  rev 
olution  on  a  small  scale  ;  it  is  taking  the  law  into 
our  own  hands.  But  we  are  here  forming  a  Con 
stitution,  making  a  bundle  of  laws,  and  laying 
down  principles,  and  I  want  nothing  revolution 
ary  in  it.  The  gentleman  asks  if  a  number  of 
men  meet  together  for  the  purpose  of  calling  a 
Convention  without  any  law,  whether  we  shall 
have  to  bring  out  our  bayonets  to  put  them 
down  ?  I  believe  that  if  we  put  nothing  of  that 
sort  into  the  Constitution,  there  are  no  men  in  the 
State  so  foolish  as  to  attempt  it ;  and  yet  the  gen 
tleman  who  thinks  that  such  a  principle  as  that  is 
such  a  wondrous  stretch  of  power,  if  a  poor  fugi 
tive  slave  should  come  to  Boston,  would  think 
we  had  a  revolution,  and  we  might  hear  of  troops 
coming  from  Washington  to  Boston,  to  put  it 
down  by  martial  law,  as  we  did  hear  about  it  a 
few  years  ago. 

I  say  these  resolutions  are  not  required  in  the 
Constitution,  that  they  will  produce  nothing  but 
anarchy,  if  carried  out ;  and  that  seventh  resolu 
tion,  of  which  my  friend  from  Boston  speaks,  I 
do  not  understand  as  he  does.  I  say  that  every 
article  in  the  Bill  of  Rights,  and  in  the  Constitu 
tion,  is  intended  to  be  carried  out  legally.  The 
framers  of  the  Constitution  of  1780  never  meant 
that  there  should  be  any  such  assemblies,  not 
recognized  by  law,  to  overturn  the  State.  The 
people  have  the  power,  I  admit ;  but  when  they 
express  their  voice  and  will,  it  is  to  be  done 
through  legal  means  and  legal  forms  of  changing 
the  Constitution,  and,  unless  it  is  done  so,  it  is 
only  a  mob  which  acts,  and  I  do  not  believe  the 
framers  of  our  government  ever  meant  that  mob 
law  should  rule  in  Massachusetts. 

I  acknowledge  the  right  of  revolution,  but  that 


is  not  what  is  attempted ;  the  attempt  is  to  in 
graft  into  the  Constitution  a  provision  by  which 
every  act  of  the  government  can  be  overturned 
by  an  unauthorized  body,  acting  without  law.  I 
say  the  minority  have  rights  which  are  secured 
by  the  Constitution  and  law,  and  if  it  was  not  for 
preserving  the  rights  of  minorities,  there  would  be 
no  necessity  for  any  Constitution  or  any  law. 
And  we  ought  to  guard,  and  we  do  guard,  the 
rights  of  minorities ;  and,  in  making  constitutional 
law  we  should  preserve  ourselves  from  the  re 
proach  of  instituting  any  mode  by  which  our 
government  can  be  changed  or  overturned  by  a 
number  of  men  collecting  on  Boston  Common,  or 
on  Sudbury  Meadows,  or  anywhere  else,  and  say 
ing  they  are  the  people,  and  the  Constitution 
must  be  overturned.  I  know  of  no  such  right ; 
and  I  say,  that  if  this  is  put  into  the  Constitution, 
it  will  not  be  worth  having,  and  it  ought  to  be 
kicked  and  spurned  by  the  people  of  Massachu 
setts,  instead  of  being  adopted  by  them. 

Mr.  ALLEN,  of  Worcester.  If  the  Convention 
is  not  too  tired  of  this  debate  to  listen  farther, 
I  will  make  a  remark  or  two  on  the  subject. 
The  condition  of  Massachusetts  and  of  Rhode 
Island  a  few  years  since,  are  very  unlike.  The 
people  of  Rhode  Island,  I  understand,  wanted  to 
frame  a  constitutional  government.  There  was 
110  provision,  by  any  fundamental  law,  by  which 
a  Convention  could  be  called.  The  legislature 
refused  to  present  the  question  to  the  people. 
They  had  no  remedy,  except  to  resort  to  irregular 
modes,  to  express  their  opinion  in  favor  of  a  Con 
vention  and  a  Constitution.  Therefore  they  pro 
ceeded  in  the  way  and  manner  which  was  left  to 
them,  and  acted  and  voted  upon  the  subject. 
Whether  that  was  the  wisest  course  or  not  I  will 
not  now  undertake  to  say,  or  to  give  any  opinion 
with  regard  to  the  proceedings  of  that  day  in 
Rhode  Island,  except  this  :  that  they  were  under 
restraints  which,  I  think,  were  of  an  unreasonable 
character  ;  that  the  government  having  delayed 
too  long,  by  far,  to  call  a  Convention,  or  submit 
the  question  of  calling  one  to  the  people,  drove 
the  people  to  seek  by  other  and  irregular  modes 
a  way  of  carrying  out  their  intentions. 

But  that  is  not  the  condition  of  things,  and  has 
not  been  our  condition,  in  Massachusetts.  We 
declare,  in  the  Bill  of  Rights,  the  principle  that 
the  people  have  a  right  at  all  times  to  change 
their  government.  We  provide  a  way  by  which 
amendments  may  be  made  by  successive  legisla 
tures  submitting  amendments  to  the  people. 
Then  we  provide  for  a  revision  of  the  Constitu 
tion,  on  the  question  whether  the  Constitution 
shall  be  submitted  to  the  people  once  in  twenty 
years.  That  must  be  done  absolutely.  Farther 


6 9 tli  day.] 


CONSTITUTIONAL   CONVENTIONS. 


531 


Thursday,] 


ALLEN  —  IVINGMAN. 


[July  28th. 


than  that,  we  provide  that  upon  application  of  a 
small  portion  of  the  people  to  the  legislature,  it 
shall  be  the  duty  of  the  legislature  to  submit  the 
whole  question  to  the  people  at  any  time,  either 
in  one,  five,  ten,  or  twenty  years.  We  have  pro 
vided,  in  this  way,  in  the  most  ample  manner, 
without  the  adoption  of  these  resolutions,  for 
amendments  to  be  made  to  the  Constitution 
whenever  the  people  shall  desire  it ;  not  in  one 
way  or  manner,  but  in  several. 

Having  done  that,  it  seems  to  me  to  be  unne 
cessary  to  go  farther,  and  unwise  to  say  that  the 
people,  or  any  part  of  the  people,  may  depart 
from  the  modes  prescribed  in  the  Constitution, 
and  by  any  irregular  action,  altogether  unneces 
sary,  determine  that  we  shall  have  a  new  Consti 
tution,  or  shall  have  a  Convention  for  the  purpose 
of  revising  the  existing  one.  Sir,  the  reasons 
which  might  render  such  action  proper  in  Rhode 
Island,  would  render  it  altogether  indiscreet  and 
unwise,  and,  I  apprehend,  wrong,  in  Massachu 
setts.  Suppose  this  Constitution  could  be  adopt 
ed,  and  the  people  of  Massachusetts,  or  any  por 
tion  of  the  people,  in  the  western  part  of  the  State 
for  instance,  should  desire  a  revision  of  the  Con 
stitution  ;  what  course  would  I  recommend  them 
to  take  ?  Would  I  recommend  to  them  to  hold 
caucuses  in  some  portion  of  the  interior  of  the 
State,  and  request,  through  that  caucus,  that  the 
selectmen,  without  the  authority  of  law,  would 
convene  the  people  of  their  several  towns,  and  in 
that  way  obtain  the  opinion  of  the  people  in  re 
spect  to  the  proposed  revision  of  the  Constitution, 
leaving  it,  of  course,  to  the  selectmen  of  the  seve 
ral  towns  to  call  or  withhold  the  meeting  at  plea 
sure  ;  so  that  in  some  portions  meetings  would  be 
held,  in  others  not ;  in  some  towns  in  one  man 
ner,  and  in  others  in  an  entirely  different  man 
ner  ?  The  result  would  be  confusion  inextricable. 
The  true  sense  of  the  people  might  not  be  known 
in  regard  to  the  matter.  But  let  them  take  either 
of  the  means  pointed  out  in  the  Constitution,  let 
them  pass  a  law,  such  as  the  Constitution  directs 
for  calling  a  Convention,  and  then  the  whole  sub 
ject  will  be  fairly  before  the  whole  people  of  the 
Commonwealth,  and,  through  the  forms  of  law, 
and  through  the  constituted  officers  of  the  people, 
their  sense  is  taken,  not  of  one  section  only,  but 
every  part  of  the  State,  with  regard  to  a  change 
of  the  Constitution  or  a  Convention  for  its  revision. 
It  seems  to  me  that  the  insertion  of  a  general 
provision,  like  that  contained  in  the  third  section, 
which  may  enable  portions  of  the  people  to  set 
aside  the  regular  and  orderly  mode  of  ascertaining 
public  sentiment,  pointed  out  in  the  Constitution, 
and  to  resort  to  some  other  mode  not  contained 
in  the  Constitution,  and  undefined,  would,  so  far 


from  promoting  the  rights  of  the  people,  tend  to 
bring  those  rights  into  great  jeopardy ;  for  the 
result  would  be,  that  it  would  be  contended  that 
the  people  were  desirous  of  an  amended  Consti 
tution,  founded  upon  the  action  of  this  portion  of 
the  State  and  another  portion  of  the  State,  and 
still  founded  upon  the  irregular  returns  of  irregu 
lar  meetings  ;  and  the  result  might  be,  that  great 
injustice  and  evil  might  be  clone  ;  that  a  false  idea 
might  be  presented  on  the  issue,  and  a  Convention 
might  be  called,  or  rejected,  through  an  entire 
misapprehension  of  public  sentiment. 

Sir,  if  there  is  any  act  to  be  done  by  the  people 
of  the  Commonwealth,  peculiarly  solemn  in  its 
character,  it  is  that  of  a  revision  of  their  funda 
mental  law.  Let  it  be  done,  then,  by  all  means, 
in  a  regular  and  orderly  manner  ;  let  there  be  no 
let  nor  hindrance  to  the  people,  and  yet  let  the 
mode  be  through  the  forms  of  law,  through  the 
agency  of  constituted  and  sworn  officers  of  the 
people,  so  that  the  true  sense  of  the  people  may 
be  ascertained,  and  that  the  act  which  purports  to 
be  theirs  may  be  in  conformity  with  their  delibe 
rate  and  solemnly  expressed  will,  through  regular 
channels  and  constituted  organs. 

Sir,  if  we  are  obliged  to  resort  to  irregular 
modes  to  obtain  redress  of  grievances,  or  ascertain 
the  will  of  the  people  as  to  the  necessity  of  a 
change  of  the  Constitution,  then,  I  say,  resort  to 
it,  even  to  revolution  ;  but  while  no  such  neces 
sity  exists,  and  while  the  way  is  open,  I  would 
no  more  say  that  the  Constitution  should  be  re 
vised,  except  in  certain  modes  pointed  out  by  the 
Constitution,  than  I  would  say  that  your  select 
men,  or  your  representatives,  might  be  elected 
either  according  to  the  mode  indicated  by  the 
Constitution,  or  by  any  other  manner  which  the 
people  may  designate. 

Sir,  I  hope  the  Constitution,  being  entirely 
sufficient  to  protect  the  rights  of  the  people,  we 
shall  not  jeopard  those  rights  by  attempting  an 
unnecessary  act,  by  inserting  in  the  Constitution 
a  provision  which  leads,  it  seems  to  me,  to  anar 
chy  and  to  the  practice  of  fraud  with  regard  to 
the  sentiments  of  the  people,  while  it  will  in  no 
way  promote  their  honest  will. 

Mr.  KINGMAN  moved  the  previous  question, 
which  was  seconded,  and  the  main  question  was 
ordered  to  be  now  put. 

The  question  being  then  taken  on  the  motion  to 
reconsider,  on  a  division,  there  were — ayes,  195  ; 
noes,  33— so  it  was  agreed  to. 

Mr.  ALLEN,  of  Worcester,  moved  to  amend 
the  resolves  by  striking  out  the  last  one. 

The  PRESIDENT  stated  that  this  motion  had 
already  been  put  once  and  negatived. 

Mr.  ALLEN.    If  it  is  in  order,  I  move  to  re- 


532 


CONSTITUTIONAL   CONVENTIONS. 


[69th  day. 


Thursday,; 


HOOPER  —  SCHOULER. 


[July  28th. 


consider  the  vote  by  which  the  Convention 
refused  to  strike  out  the  words  standing  as  the 
last  resolve. 

The  PRESIDENT.  That  motion  is  in  order, 
and  the  question  is  on  the  motion  to  reconsider. 

Mr.  HOOPER,  of  Fall  River.  I  am  in  hopes 
that  this  resolve  will  not  be  stricken  out ;  and  I 
wish  to  recall  to  the  minds  of  gentlemen  the  doc 
trine  which  has  been  put  forth  in  Massachusetts, 
and  which,  in  1842,  received  the  sanction  of  the 
people  of  Massachusetts.  For  the  purpose  of 
refreshing  the  memories  of  members  of  this  Con 
vention,  the  names  of  many  of  whom  I  find 
attached  to  this  document  which  I  hold  in  my 
hand,  I  wish  to  read  the  doctrine  which  was  then 
put  forth  and  made  the  issue  of  that  election,  and 
which  received  the  sanction  of  the  people  of  the 
State  ;  and  I  ask  gentlemen  if  it  is  not  precisely 
the  doctrine  contained  in  this  resolve  : — 

"  Throxighout  the  country,  parties  have  divided 
upon  the  Rhode  Island  question.  They  have 
done  so  because  it  involves  the  great  American 
principle  that  lies  at  the  foundation  of  all  free 
government.  Both  parties  have  heretofore  pro 
fessed  belief  in  the  sovereignty  of  the  people. 
This  question  has  demonstrated  that  if  the  Whig 
j-arty  hold  to  this  principle  in  theory,  they  deny 
it  in  practice. 

"  The  details  of  the  Rhode  Island  question,  or 
the  conduct  of  the  respective  parties,  is  not  the 
issue  between  those  who  take  opposite  sides  on 
that  question.  The  principle  that  lies  at  the 
threshold  is,  whether  the  maxim  laid  down  by 
Thomas  Jefferson,  in  the  Virginia  Bill  of  Rights 
in  1776,  and  substantially  adopted  by  every  State 
in  the  Union,  not  excepting  Rhode  Island  her 
self,  is  true,  namely  :  '  A  majority  of  the  com 
munity  hath  an  indubitable,  unalieiiable,  and 
indefeasible  right  to  reform,  alter,  or  abolish  gov 
ernment  in  such  a  manner  as  shall  be  judged 
most  conducive  to  the  public  weal.' 

"  This,  we  hold  to  be  the  American  doctrine  of 
government.  To  restrict  it  to  anything  less  than 
a  majority,  so  as  by  any  form  of  existing  laws  or 
limitations  of  suffrage,  to  compel  the  majority  of 
the  citizens  of  a  political  community  to  ask  the 
consent  of  authorities  chosen  by  a  qualified  or  a 
favored  minority,  to  alter,  reform,  or  abolish  the 
government,  is  to  run  into  the  doctrines  of  the  le 
gitimate  governments  of  Europe. 

"  The  doctrine  now  avowed  by  the  most  promi 
nent  men  in  the  Whig  party,  is,  that  it  is  unlawful 
for  the  people  of  Rhode  Island  to  frame  a  Con 
stitution  unless  by  consent  of  the  legislature. 

"  This  is  the  precise  doctrine  of  the  Holy  Alli 
ance,  put  forth  in  the  famous  Layback  circular, 
upon  the  restoration  of  the  Bourbons  : — 

"  <  In  the  name  of  the  most  Holy  and  Indivisible 
Trinity,  their  Majesties  the  Emperor  of  Austria, 
the  King  of  Prussia,  and  the  Emperor  of  Russia, 
solemnly  declare,  that  useful  and  necessary 
changes  in  legislation  and  administration  ought 
only  to  emanate  from  the  free  will  and  intelli 


gent  conviction  of  those  whom  God  has  rendered 
responsible  for  power.  All  that  deviates  from 
this  line  necessarily  leads  to  disorder,  commotions, 
and  evils  far  more  insufferable  than  those  which 
they  pretend  to  remedy.' 

"  We  can  see  no  distinction  between  this  doc 
trine  of  « legitimate'  government,  and  the  practi 
cal  application  of  it  by  the  governor  of  this  Com 
monwealth,  and  the  leaders  of  the  Whig  party,  to 
Rhode  Island.  They  care  not  whether  the  Con 
stitution  was  adopted  by  a  majority  of  the  whole 
people  or  not.  Their  only  question  is,  did  the 
Constitution  emanate  from  the  free  will  of  the 
constituted  authorities,  '  those  whom  God  has 
rendered  responsible  for  power' — the  charter  as- 
embly  ?  If  not,  they  hold  it  void,  and  all  who 
acted  under  it,  rebels. 

"  These  are  general  principles  applicable  to  the 
great  American  question,  involved  in  the  recent 
struggle  of  the  disfranchised  majority  of  the  free 
people  of  an  American  State,  to  obtain  for  them 
selves  equal  rights  with  the  minority  in  the  choice 
of  her  rulers.  It  seems  to  us  that  they  must 
commend  themselves  not  only  to  every  Democrat, 
but  to  every  man  who  has  an  American  heart  in 
his  bosom.  If  they  are  not  true,  the  whole 
theory  of  our  government  is  false,  and  the  Lay- 
back  circular  ought  to  take  the  place  of  the 
American  Declaration  of  Independence." 

This  is  the  Address  which  was  sent  out  by  the 
Democratic  members  of  the  legislature  in  1842, 
and  made  the  issue  before  the  people  at  that  elec 
tion  ;  and  it  then  received  the  sanction  of  the 
people  of  Massachusetts.  As  I  remarked,  there 
are  the  names  of  quite  a  number  of  the  members 
of  this  Convention  attached  to  this  circular,  but 
I  will  not  read  them.  It  is  asked,  who  shall  be 
the  judges  upon  this  matter  ?  What  said 
Thomas  Jefferson  ?  He  says  :  "  A  majority  of  the 
community  hath  an  indubitable,  inalienable,  and 
indefeasible  right,"  &c.  They  are  the  ones  who 
are  to  judge  in  this  case.  The  doctrine  of  Jeffer 
son  places  the  matter  in  its  true  position.  Now, 
I  ask  the  gentleman  from  Boston,  if,  upon  the 
principle  which  he  lays  down,  it  may  not  be 
safely  declared  that  this  Convention  is  illegally 
called,  and  that  we  are  sitting  here  without  any 
legal  authority  ?  And  if  so,  I  ask  him  where  he 
finds  the  authority  in  the  Constitution  for  our 
being  here  to-day?  Where  does  he  find  the 
authority  for  the  initiative  steps  in  calling  this 
Convention  ?  It  strikes  me  that  the  doctrine 
which  he  has  advanced,  and  which  his  friends 
have  advocated,  goes  to  the  full  extent  of  declar 
ing  that  we  are  here  now  without  authority. 

Mr.  SCHOULER,  of  Boston.  If  the  gentle 
man  desires  it,  I  will  answer  his  question.  We 
came  here  under  the  act  of  the  legislature,  the 
representatives  of  the  people;  and  that  is  suf 
ficient  authority  for  our  assembling  in  Conven 
tion. 


69th  day.] 


CONSTITUTIONAL   CONVENTIONS. 


533 


Thursday,] 


HOOPER  —  WHITNEY  —  LORD  —  HALLETT  —  BIRD. 


[July  28th. 


Mr.  HOOPER,  of  Fall  River.  Then  let  me 
inquire  where  the  representatives  got  their 
authority  to  pass  the  act  calling  the  Convention  ? 

Mr.  SCHOULER.  They  got  it  from  the 
people. 

Mr.  HOOPER.  Very  well;  the  representa 
tives  would  not  have  had  it  unless  they  had  got 
it  from  the  people.  Now,  if  the  people  could  give 
this  power  to  their  representatives  to  call  a  Con 
vention,  I  want  to  know  why  they  cannot  exer 
cise  it  themselves ;  and  that  is  all  that  we  claim  in 
this  resolve ;  more  especially  if  this  authority  is 
contained  in  the  original  agreement  or  compact 
upon  which  this  Constitution  was  made.  I  hope 
that  we  are  not  going  backwards — I  hope  that 
those  gentlemen  who  stood  upon  this  ground  in 
1842,  are  ready  to  stand  upon  it  to-day,  and  that 
instead  of  retrograding,  we  shall  be  a  progressive 
party. 

Mr.  WHITNEY,  of  Boylston.  I  do  not  rise  to 
debate  this  question  at  all,  but  I  wish  to  say  that 
I  think  it  has  been  discussed  about  long  enough. 
Why  should  we  spend  our  time  upon  this  mat 
ter  ?  I  think  I  can  assure  gentlemen  who  are 
making  provision  for  other  Conventions,  that  the 
people  will  remember  us  long  enough  not  to  want 
a  Convention  for  a  good  many  years  to  come. 
[Great  laughter.]  That  is  my  judgment  about 
the  matter.  I  do  not  think  that  we  need  to 
trouble  ourselves  at  all  about  any  other  Constitu 
tional  Convention  for  the  next  ten  years  ;  and  we 
have  already  got  a  provision  so  that  one  can  be 
called  in  twenty  years.  I  am  willing  for  one,  to 
wait  until  that  time,  and  if  we  can  get  the  reforms 
which  we  desire  then,  we  shall  be  more  fortunate 
than  I  fear  we  shall  be.  I  remember  hearing  a 
story  about  a  woman  who  said  that  she  was  afraid 
her  visitor  would  never  come  again ;  but  when 
the  reason  was  told,  it  was  because  she  was  afraid 
she  would  never  go  home.  [Laughter.]  I  do 
not  know  but  that  will  be  the  way  with  us.  Sir, 
I  move  the  previous  question. 

Mr.  LORD,  of  Salem.  I  would  like  to  make 
a  suggestion  to  the  gentleman  from  Worcester, 
for  I  am  exceedingly  anxious  to  hurry  the  busi 
ness  along,  although  when  I  made  a  motion  of 
that  kind,  this  morning,  it  was  voted  down.  In 
order  to  save  the  necessity  for  a  reconsideration,  I 
was  about  to  suggest,  that  the  gentleman  will  ac 
complish  his  whole  object  by  simply  asking  for  a 
division  of  the  question ;  and,  therefore,  those 
who  are  in  favor  of  the  two  first  resolves  will  vote 
for  them,  and  those  who  are  opposed  to  the  last 
will  vote  against  it.  As  the  previous  question 
is  moved  on  the  reconsideration,  if  he  will  with 
draw  that  motion,  I  suppose  the  previous  ques 
tion  will  drop  through,  from  having  its  bottom 


knocked  out ;  and  I  do  not  know  that  anybody 
else  desires  to  debate  it. 

The  question  being  put  on  ordering  the  main 
question,  it  was  agreed  to. 

The  question  being  then  stated  on  the  motion 
of  Mr.  Allen,  to  reconsider  the  vote  by  which  the 
Convention  refused  to  strike  out  the  third  resolve, 
Mr.  HOOPER  asked  for  the  yeas  and  nays  ;  but 
they  were  not  ordered. 

The  question  being  taken,  the  motion  to  recon 
sider  was  agreed  to. 

The  question  then  recurred  upon  the  amend 
ment  to  strike  out  the  third  resolve. 

Mr.  HALLETT,  for  Wilbraham,  then  moved  to 
amend  the  resolve  proposed  to  be  stricken  out,  by 
striking  out  from  it  the  following  words  :  "  And 
by  such  mode  of  proceeding  as  shall  fully  and 
fairly  collect  and  ascertain  the  will  of  the  major 
ity,"  so  that  the  resolve  would  read  as  follows,  if 
so  amended : — 

3.  Resolved,  That  the  foregoing  provisions  shall 
in  nowise  restrain  or  impair  the  reserved  right  of 
the  people,  in  their  sovereign  capacity,  at  all  times 
to  reform,  alter,  or  totally  change  their  Constitu 
tion  and  Frame  of  Government. 

Mr.  BIRD,  of  Walpole,  moved  the  previous 
question ;  which  was  ordered. 

The  question  being  then  taken  on  the  amend 
ment  of  Mr.  Hallett,  upon  a  division,  there  were 
— ayes,  159  ;  noes,  58 — so  it  was  agreed  to. 

The  question  then  recurred  on  the  motion  of 
Mr.  Alvord,  to  strike  out  the  third  resolve,  as 
amended ;  and  the  question  being  then  taken, 
upon  a  division,  there  were — ayes,  158  ;  noes,  89 
— so  it  was  agreed  to. 

The  PRESIDENT.  The  question  is  on  the 
final  passage  of  the  resolves,  and  on  that  question 
the  Convention  has  ordered  the  main  question. 

Mr.  HUBBABD,  of  Boston.  I  call  for  a  divi 
sion  of  the  question — that  is,  that  the  question 
be  taken  upon  the  resolves  separately. 

The  PRESIDENT.  The  Chair  stated  on  a 
previous  occasion,  that  the  resolves  were  not 
divisible  ;  but  upon  a  more  accurate  examination, 
he  is  now  of  a  different  opinion. 

Mr.  LORD.  I  desire  to  inquire,  whether  at 
any  time  the  yeas  and  nays  have  been  taken  upon 
these  resolves  ? 

The  PRESIDENT.  The  Chair  understands 
that  they  have  not  been  taken  upon  the  final  pas 
sage. 

Mr.  LORD.  Have  they  been  taken  upon  any 
stage  of  them  ?  My  opinion  is,  that  they  were 
passed  last  night  without  a  quorum  being  present, 
and  that  the  yeas  and  nays  have  not  been  taken 
in  any  stage  of  these  resolves. 


534 


ELECTIONS    BY  PLURALITY,    &c. 


[69th  day. 


Thursday,] 


LORD  —  MORTON  —  FRENCH  —  WILSON  —  BIRD. 


[July  28th. 


The  PRESIDENT.  The  yeas  and  nays  have 
been  had  on  amendments. 

Mr.  LORD.  But  I  desire  to  have  them  on  the 
final  passage ;  and  as  a  division  has  been  asked 
for,  and  the  question  is  to  be  taken  upon  each  re 
solve  separately,  I  will  say,  that  I  merely  desire 
the  yeas  and  nays  on  the  first  resolution. 

The  question  being  taken  on  a  division,  on  the 
demand  for  the  yeas  and  nays,  there  were — ayes, 
59;  noes,  198. 

So  the  yeas  and  nays  were  ordered. 

Report  from  a  Committee. 

Mr.  MORTON,  of  Taunton.  There  is  a  mat 
ter  which  was  specially  referred  to  the  Judiciary 
Committee,  and  they  were  authorized  to  sit  during 
the  sessions  of  the  Convention.  They  have  pre 
pared  a  Report  which  is  of  some  length,  and  it 
is  of  a  good  deal  of  importance  that  its  purport 
should  be  known,  so  that  it  may  go  before  the 
Revising  Committee.  It  is  supposed  to  be  neces 
sary  to  print  it,  and,  I  therefore  ask  the  unanimous 
consent  of  the  Convention,  to  submit  the  Report 
at  this  time,  because  it  will  farther  the  progress 
of  business  very  much. 

No  objection  was  made,  and  the  Report  was 
read,  as  follows,  and  ordered  to  be  printed  : — 

1.  Resolved,    That  persons    holding  office   by 
election  or  appointment  under  the  present  Con 
stitution,  shall  continue  to  discharge  the  duties 
thereof  until  their  term  of  office  shall  expire,  or 
officers  authorized  to  perform  their  duties,  or  any 
part  thereof,  shall  be  elected  and  qualified,  pur 
suant  to  the  provisions  of  this  amended  Constitu 
tion  ;  when  all  powers  not  reserved  to  them  by 
the  provisions  of  this  amended  Constitution  shall 
cease :    provided,    however,   that    Justices   of  the 
Peace,  Justices  of  the  Peace  and  of  the  Quorum, 
and  Commissioners  of  Insolvency,  shall  be  au 
thorized  to  finish  and  complete  all  proceedings 
pending    before   them   at  the  time    when   their 
powers   and  duties  shall  cease,  or  be  altered  as 
aforesaid. 

2.  Resolved,  That  the  legislature  shall  provide, 
from  time  to  time,  the  mode  in  which  commis 
sions  or  certificates  of  election  shall  be  issued  to 
all  officers  elected  pursuant  to  the  Constitution, 
except  in  case  where  provision   shall  be   made 
therein. 

3.  Resolved,  That  the  Governor,  by  and  with 
the  consent  of  the  Council,  may  at  any  time,  for 
cause  shown,  remove  from  office,  Clerks  of  Courts, 
Commissioners  of  Insolvency,  Judges  and  Regis 
ters  of  Probate,  District- Attorneys,  llegisters  of 
Deeds,  County  Treasurers,  County  Commission 
ers,  Sheriffs,  Trial  Justices  and  Justices  of  Police 
Courts  :  provided,  however,  a  copy  of  the  charges 
upon  which  said  removal  is  made,  shall  be  fur 
nished  to  the  party  to  be  removed,  and  a  reason 
able  opportunity  given  him  for  defence. 

4.  Resolved,   That  whenever   a   vacancy   shall 
occur  in  any  elective  office,  provided  for  in  this 


Constitution,  except  that  of  Governor,  Lieuten 
ant- Governor,  Councillor,  Senator,  member  of 
the  House  of  Representatives,  and  town  and  city 
officers,  the  Governor  for  the  time  being,  by  and 
with  the  advice  and  consent  of  the  Council,  may 
appoint  some  suitable  person  to  fill  such  vacancy, 
until  the  next  annual  election,  when  the  same 
shall  be  filled  by  a  new  election,  in  the  manner  to 
be  provided  by  law :  provided,  however,  Trial 
Justices  shall  not  be  deemed  to  be  town  officers 
for  this  purpose. 

0.  Resolved,  That  all  elections  provided  to  be 
had  under  this  amended  Constitution  shall,  unless 
otherwise  provided,  be  first  held  on  the  Tuesday 
next  after  the  first  Monday  of  November,  A.  D. 
185-i. 

Dispensing  with  Yeas  and  Nays. 

Mr.  FRENCH,  of  New  Bedford.  The  motion 
for  ordering  the  yeas  and  nays  was  not  under 
stood  in  this  part  of  the  Convention,  and  the 
number  above  one- fifth  was  so  small  that  we 
think  the  yeas  and  nays  might  be  dispensed  with. 
I  think  that  those  gentlemen  who  voted  for  order 
ing  them  will  not  insist  on  the  demand.  I  there 
fore  move  a  reconsideration  of  the  vote  by  which 
they  were  ordered. 

The  motion  was  rejected. 

Mode  of  Voting  at  Elections. 

Mr.  WILSON,  of  Natick.  I  move  that  the 
Orders  of  the  Day  be  laid  upon  the  table,  for  the 
purpose  of  taking  up  the  motion  of  the  gentleman 
from  Walpole,  (Mr.  Bird,)  to  reconsider  the  vote 
by  which  the  resolves  on  the  subject  of  elections 
by  plurality,  &c.,  were  finally  passed. 

The  motion  to  lay  the  Orders  of  the  Day  upon 
the  table  was  agreed  to. 

Mr.  BIRD,  of  Walpole.  I  made  this  motion, 
Mr.  President,  in  the  hope  that  if  the  reconsider 
ation  is  accorded,  either  myself  or  some  one  else 
might  propose  some  amendments  which  would 
make  the  resolves  more  acceptable  to  the  Conven 
tion.  I  believe  that  that  can  be  done,  and  for  the 
purpose  of  indicating  what  the  amendments  I 
propose  to  offer  are,  if  the  motion  to  reconsider 
should  be  carried,  I  will,  with  the  permis.^ion  of 
the  Convention,  read  what  I  propose  to  do.  I 
shall  move  to  amend  the  first  and  fourth  resolves, 
so  as  to  read  as  follows  : — 

1.  Resolved,  That  it  is  expedient  to  provide  in 
the  Constitution  that  a  majority  of  all  the  votes 
given  shall  be  necessary  to  the  election  of  a  Gov 
ernor,    Lieutenant- Governor,    Secretary,   Treas 
urer,  Auditor,  and  Attorney- General  of  the  Com 
monwealth,  until  otherwise  provided  by  law,  but 
no  such  law  providing  that  the  Governor,  Lieu 
tenant- Governor,  Secretary,  Treasurer,  Auditor, 
Attorney- General,    and'  Representatives   to  the 
General  Court,  or  either  of  them,  shall  be  elected 


69th  day.] 


ELECTIONS  BY   PLURALITY. 


535 


Thursday,] 


DAVIS  —  LORD  —  ASPINWALL  —  GRAY  —  WILSON. 


[July  28th. 


by  plurality,  instead  of  a  majority  of  votes  given 
in,  shall  take  effect  until  one  year  after  its  pas 
sage  ;  and  if  at  any  time  after  the  enactment  of 
any  such  law,  and  the  same  shall  have  taken 
effect,  such  law  shall  he  repealed,  such  repeal 
shall  not  become  a  law  until  one  year  after  the 
passage  of  the  repealing  act ;  and  in  default  of  any 
such  law,  if  at  any  election  of  either  of  the  above 
named  officers,  except  the  Representatives  to  the 
General  Court,  no  person  shall  have  a  majority 
of  the  votes  given,  the  House  of  Representatives 
shall,  by  a  majority  of  viva  voce  votes,  elect  two 
out  of  three  persons  who  had  the  highest,  if  so 
many  shall  have  been  voted  for,  and  return  the 
persons  so  elected  to  the  Senate,  from  which  the 
Senate  shall,  by  vi-ja  voce  vote,  elect  one  who 
shall  be  Governor,  or  other  officer  to  be  elected. 

4.  Resolved,  That  in  the  election  of  all  city  or 
town  officers  such  rule  of  election  shall  govern 
as  the  legislature  may  by  law  prescribe. 

Without  saying  anything  farther  in  relation  to 
this  matter,  I  will  only  express  the  hope  that  the 
vote  carrying  these  resolves  to  their  final  passage 
may  be  reconsidered,  and  then  I  will  present 
these  amendments  in  their  order,  and  say  a  very 
few  words  explanatory  of  the  object  of  each 
amendment. 

The  question  being  taken  on  the  motion  to 
reconsider,  it  was,  on  a  division,  decided  in  the 
negative — ayes,  112;  noes,  118. 

So  the  motion  to  reconsider  was  rejected. 

Mr.  DAVIS,  of  Plymouth.  I  believe  that  the 
question  on  the  last  vote  was  not  properly  under 
stood — I  mean  on  the  motion  to  reconsider.  I 
think  some  gentlemen  near  me  did  not  under 
stand  it. 

The  PRESIDENT.  The  attention  of  the  Chair 
has  been  called  to  the  result  of  the  vote.  The 
gentleman  from  Plymouth  will  pardon  the  Chair 
till  the  vote  is  again  announced.  Several  gentle 
men  have  expressed  the  opinion  that  the  an 
nouncement  of  the  Chair  was  incorrect ;  but  on 
a  second  examination  of  the  figures,  the  Chair 
finds  that  the  vote  was  correctly  announced. 

Mr.  DAVIS,  of  Plymouth.  I  understand  from 
several  gentlemen  in  this  quarter,  that  the  ques 
tion  on  the  motion  to  reconsider  was  not  dis 
tinctly  understood,  the  gentleman  from  Walpole 
(Mr.  Bird)  not  being  distinctly  heard.  If  it  is 
in  order,  I  would  like  to  move  that  the  question 
be  taken  again. 

The  PRESIDENT.  It  can  only  be  done  by 
general  consent. 

Mr.  LORD,  of  Salem.     I  object. 

Mr.  DAVIS.  Then  I  call  for  the  yeas  and 
nays. 

The  PRESIDENT.  The  yeas  and  nays  may 
be  taken,  if  they  are  ordered  by  the  Convention. 

Mr.  LORD.     Do  I  understand  the  President 


to  decide,  that  the  yeas  and  nays  may  be  taken 
after  a  formal  announcement  of  the  vote  on  a  di 
vision  of  the  House  ? 

The  PRESIDENT.  They  may.  The  yeas 
and  nays  are  for  a  verification  of  the  vote  taken 
by  count.  The  Chair  has  no  doubt  whatever, 
that  in  this  .state  of  the  question,  before  proceeding 
to  the  consideration  of  any  other  business,  the 
yeas  and  nays  may  be  ordered.  This  has  been 
repeatedly  done  during  the  session  of  the  Con 
vention,  and  the  recollection  of  the  Chair  is,  that 
it  has  been  done  on  the  demand  of  the  gentleman 
from  Salem  himself. 

Mr.  LORD.     Never  upon  any  motion  of  mine. 

The  PRESIDENT.  The  Chair  may  be  in 
error  as  to  that,  but  such  is  the  impression  of  the 
Chair  at  this  moment. 

Mr.  LORD.  I  may  have  called  for  the  yeas 
and  nays  before  the  vote  was  verified  by  a  count, 
or  I  should  say  before  the  result  of  the  count  was 
announced,  but  never  after  the  announcement ; 
for  I  did  not  conceive  it  at  all  possible  that  it 
could  be  done  according  to  parliamentary  usage. 
I  suppose  it  is  not  competent  for  any  member  who 
has  voted  affirmatively  or  negatively  in  a  count, 
to  change  his  vote  when  taken  by  yeas  and  nays, 
for  the  purpose  of  changing  the  result.  With 
such  a  practice,  we  might  go  on,  ad  libitum,  and 
results  might  be  changed  in  this  way,  at  any 
time. 

Mr.  ASPINWALL,  of  Brookline.  I  under 
stand  that  there  is  no  motion  before  the  Conven 
tion.  The  question  has  been  taken  on  the  motion 
to  reconsider,  and,  on  a  division,  was  rejected. 
That,  if  I  understand  anything,  entirely  disposes 
of  that  matter. 

The  PRESIDENT.  The  gentleman  from 
Brookline  overlooks  the  fact,  that  when  the  ques 
tion  was  first  taken  on  the  motion  to  reconsider, 
the  Chair  declared  the  vote  to  be  in  the  affirma 
tive.  A  division  was  then  demanded,  and,  a 
count  being  taken,  the  vote  was  declared  in  the 
negative — there  being  a  majority  of  six  against 
the  reconsideration.  And  now  the  gentleman 
from  Plymouth  desires  that  that  vote  may  be 
verified  by  the  yeas  and  nays,  which  the  Chair 
decides  to  be  clearly  in  order. 

Mr.  GRAY,  of  Boston.  I  dislike  to  dissent 
from  any  opinion  entertained  by  the  Chair  on  a 
question  of  order,  but  I  beg  leave  to  suggest  to 
the  Chair,  that  when  a  vote  has  been  declared  on 
a  division,  by  the  Chair,  and  that  vote  is  not 
questioned  before 

Mr.  WILSON,  of  Natick.  I  rise  to  a  point  of 
order. 

The  PRESIDENT.  The  gentleman  from  Na 
tick  will  state  his  point  of  order. 


536 


QUESTION   OF   ORDER,   &c. 


[69th  day. 


Thursday,] 


WILSON  —  GRAY  —  DAVIS  — BUCK  —  HATHAWAY  —  STEVENSON. 


[July  28th. 


Mr.  WILSON.  It  is  that  the  Chair  has  already 
decided  the  point  of  order,  and  that  it  is  not  far 
ther  debatable  unless  upon  an  appeal. 

The  PRESIDENT.  The  Chair  asks  the  ad- 
vice  of  the  gentleman  from  Boston,  (Mr.  Gray,) 
and  he  can  accordingly  proceed  with  his  remarks. 

Mr.  GRAY.  What  I  have  to  say,  is,  tnat  when 
a  vote  is  declared,  and  that  declaration  is  not 
questioned,  the  matter  is  placed  on  a  different 
ground.  I  am  satisfied,  however,  with  the  dec 
laration  of  the  Chair. 

The  PRESIDENT.  The  question  is  on  order 
ing  the  yeas  and  nays. 

Mr.  DAVIS,  of  Plymouth.  Before  the  yeas 
and  nays  are  ordered,  I  should  like  the  gentleman 
from  Walpole  to  restate  the  object  of  his  amend 
ments,  so  that  they  may  be  understood  by  the 
Convention. 

The  PRESIDENT.  It  is  not  in  order.  The 
question  is  on  taking  the  yeas  and  nays  on  the 
motion  to  reconsider  the  resolves. 

Mr.  BUCK,  of  Lanesborough.  Is  it  in  order 
to  have  the  resolves  read  ? 

The  PRESIDENT.  It  is  in  order.  The  mo 
tion  is  on  the  final  passage  of  certain  resolves. 
The  gentleman  from  Lanesborough  asks  that  the 
resolves  may  be  read.  The  gentleman  has  that  right. 

The  resolves  were  read  accordingly. 

Mr.  BUCK.  My  object  in  asking  for  the  read 
ing  of  the  resolves  was,  that  we  might  vote  un- 
derstandingly.  I  would  like  now  to  hear  the 
amendments  read. 

The  PRESIDENT.  It  is  not  in  order  to  read 
the  amendments,  the  motion  being  on  reconsider 
ing  the  vote  by  which  these  resolves  were  ordered 
to  their  final  passage. 

Mr.  HATHAWAY,  of  Freetown.  Does  not 
this  motion  to  reconsider,  open  the  whole  ques 
tion  involved  in  the  resolves  ? 

The  PRESIDENT.  If  the  Convention  order 
a  reconsideration  of  the  vote,  the  whole  question 
is  then  opened.  But  at  present  the  question  is 
on  ordering  the  yeas  and  nays,  for  the  purpose  of 
verifying  the  vote  as  taken  upon  a  division.  The 
Chair  will  read  the  third  rule  of  the  Convention. 

"He  [The President]  shall  declare  all  votes ;  but, 
if  any  member  doubts  a  vote,  the  President  shall 
order  a  return  of  the  number  voting  in  the  affirm 
ative,  and  in  the  negative,  without  any  farther 
debate  upon  the  question.  When  a  vote  is 
doubted,  the  members  for  or  against  the  question, 
when  called  on  by  the  President,  shall  rise  and 
stand  uncovered  till  they  are  counted." 

Question  of  Order. 

Mr.  STEVENSON,  of  Boston.  I  am  sorry  to 
be  under  the  necessity  of  stating  what  I  am  about 


to  state ;  but,  under  the  circumstances,  I  feel  it 
my  duty  to  appeal  from  the  decision  of  the  Chair, 
as  to  the  power  of  the  Convention  again  to  vote 
on  the  motion  to  reconsider,  after  that  vote  has 
been  solemnly  declared  on  a  count  of  the  House. 

The  PRESIDENT.  With  the  permission  of 
the  gentleman  from  Boston,  the  Chair  will  again 
state  the  position  of  the  question.  It  is  this : 
The  gentleman  from  Walpole  moves  the  recon 
sideration  of  a  vote.  After  stating  the  purpose 
for  which  he  makes  the  motion,  the  question  is 
put  to  the  Convention,  and  the  Chair  declares  it 
to  be  carried  affirmatively.  A  count  is  demanded, 
and  being  taken,  the  Chair  declares  the  vote  to  be 
in  the  negative;  and  the  gentleman  from  Ply 
mouth  asks  for  the  yeas  and  nays.  The  Chair, 
considering  the  yeas  and  nays  merely  a  matter  of 
verification  of  the  vote  by  count,  admits  the  mo 
tion  for  the  yeas  and  nays,  and  from  that  decision 
the  gentleman  from  Boston  (Mr.  Stevenson)  takes 
an  appeal.  The  question,  therefore,  is — shall  the 
decision  of  the  Chair  stand,  as  the  judgment  of 
the  Convention. 

Mr.  STEVENSON.  The  President  is  certainly 
aware,  if  110  others  in  the  Convention  are,  that  I 
would  not  appeal  from  any  decision  of  his,  unless 
I  felt  in  duty  bound  to  do  so.  I  understand  the 
rule  of  the  Convention,  and  of  all  parliamentary 
bodies,  to  be,  that  it  is  the  right  of  any  member, 
when  the  presiding  officer  has  declared,  under 
circumstances  under  which  there  can  be  a  doubt 
— namely,  as  where  the  manner  in  Avhich  the 
voices  of  members  fell  upon  his  ear — as  to  what 
the  vote  is,  then  it  is  the  right  of  any  member  of 
the  Convention,  or  of  any  other  parliamentary 
body,  to  doubt  whether  the  Chair  has  decided 
correctly ;  and  when  any  such  member  so  doubts, 
then  it  becomes  the  duty  of  the  Chair  to  make  it 
certain  whether  or  not  he  has  announced  correctly 
what  the  vote  was,  by  calling  upon  members  to 
stand  up  and  be  counted.  That  when  the  Chair 
has  proceeded  so  far,  and  has  called  upon  mem 
bers  of  the  assembly  to  stand  up  in  their  places 
and  be  counted,  as  to  how  they  voted,  that  then 
that  decision  is  final,  and  the  vote  is  passed.  And 
I  appeal,  not  only  to  the  assembly,  but  to  the 
Chair,  and  ask  him,  what  the  record  shall  be 
which  the  Secretary  is  bound  to  make  of  the  pro 
ceedings  of  this  Convention,  if  the  decision  of  the 
Chair  shall  now  stand  ?  What  is  the  record  of 
the  Secretary  ?  That  Secretary  has  already  made 
his  record ;  and  if  he  has  not  yet  made  it,  he  has 
not  performed  his  duty.  What  is  the  record? 
That  the  question  having  been  put  upon  the  mo 
tion  of  the  gentleman  from  Walpole,  (Mr.  Bird,) 
the  Chair  decided  that  it  was  not  a  vote ;  that  it 
was  doubted  ;  that  a  division  was  called  for ;  that 


69th  day.] 


QUESTION   OF   ORDER. 


537 


Thursday,] 


STEVENSON. 


[July  28th. 


a  division  being  had,  and  a  count  being  taken — 
the  thing  being  made  certain — the  Chair  had  de 
cided  that  it  was  not  a  vote,  and  therefore  the 
motion  of  the  gentleman  from  Walpole  had  been 
rejected.  And  after  that  record,  what  motion  is 
there  before  the  Convention  ?  After  that  record, 
what  question  is  there  upon  which  any  gentle 
man  upon  this  floor  can  get  up  and  ask  the  yeas 
and  nays  of  the  Convention  ?  If  the  Orders  of  the 
Day  be  up,  I  submit,  that  immediately  upon  that 
fact  being  announced,  the  next  article  in  the 
Orders  of  the  Day  is  before  the  Convention ;  and 
there  is  no  question  upon  which  gentlemen  can 
call  for  the  yeas  and  nays.  Now,  let  me  state  a 
reason  why  it  should  be  so,  if  it  were  not  per 
fectly  palpable  that  it  were  so.  It  should  be 
so,  if  you  desire,  that  in  every  deliberative  as 
sembly,  it  should  be  in  the  power  of  no  man  to 
undertake  to  alter  a  vote,  under  any  influence 
whatever.  You  desire  that  each  vote  which  any 
member  shall  give,  in  any  deliberative  assembly, 
shall  be  the  honest  expression  of  his  own  opin 
ions,  uncontrolled  by  the  opinion  of  anybody  else. 
We,  four  hundred  men,  have  stood  up  here  and 
given  expression,  each  of  us,  of  our  honest  opinion, 
and  given  that  expression  upon  a  motion  which 
our  rules  declare  shall  not  be  reconsidered  or  re 
viewed,  and  then  gentlemen  ask  for  the  yeas  and 
nays  upon  the  same  question.  We  have  each, 
here  in  this  assembly,  voted  upon  the  question, 
whether  or  not  the  motion  of  the  gentleman  from 
Walpole  ought  to  be  adopted;  and  the  reason 
why  you  have  provided  in  your  rules  that  when 
an  assembly  has  refused  to  reconsider  a  vote,  the 
same  motion  shall  not  be  presented  to  them  again 
is,  that  it  operates  to  prevent  your  undertaking  to 
take  the  vote  again  upon  the  same  question.  If 
it  may  not  be  offered  again,  may  it  be  voted  upon 
again  ?  I  ask,  if  the  decision  of  the  Chair  stand, 
what  the  record  is  ?  It  will  be  the  duty  of  your 
Clerk  to  declare,  upon  his  record,  that  this  assem 
bly  has  voted  yes  and  no  to  the  same  proposition, 
and  that  a  proposition,  mind  you,  Mr.  President, 
is  completed,  which  stands  as  the  fact  ?  Will  it 
which  your  rules  declare,  when  once  voted  upon, 
it  shall  not  be  reviewed ;  and,  Sir,  when  that  record 
be  the  fact,  that  this  assembly  have  refused  to  re 
consider,  according  to  the  record  as  it  stands  now, 
or  will  it  be  the  fact  that  they  have  reconsidered, 
in  case  a  vote  for  a  different  decision  be  passed  ? 
Each  of  the  entries  upon  the  journal  of  the  Sec 
retary  states  the  fact.  They  cannot  both  be  the 
fact.  Which  shall  be  the  record  ?  No,  Sir,  I  do 
not  understand,  with  yourself — although  I  am 
very  apt  to  agree  with  you  in  opinion,  as  you  are 
aware — I  do  not  understand,  with  yourself,  that 
the  purpose  of  the  yeas  and  nays  is  to  make  cer 


tain  the  result  of  a  vote.  It  has  another  purpose. 
The  purpose  of  a  division  is  to  make  certain  the 
result  of  a  vote.  Not  only  is  that  so  in  the  un 
derstanding  of  every-body,  but  it  is  so  according 
to  our  rules.  When  a  member  doubts,  and 
therefore  asks  for  a  division,  the  rule  says,  mem 
bers  shall  stand  in  their  places  and  be  counted  ; 
and  when  they  have  done  so,  and  have  been 
counted,  that  vote  is  decided.  And  I  ask, 
whether,  under  the  rule  that  a  motion  to  recon 
sider  shall  not  be  entertained  again,  you  will 
entertain  it  again,  after  it  has  been  passed  upon 
and  decided,  and  put  upon  your  journal,  because 
it  may  be  stated  by  the  Chair  that  the  yeas  and 
nays  are  a  mode  of  ascertaining  the  result  of  a 
vote  ?  The  yeas  and  nays  are  for  ascertaining  a 
very  different  thing.  They  are  not  for  the  pur 
pose  of  deciding  what  the  result  of  a  vote  was  ; 
for,  Sir,  the  yeas  and  nays  are  called  for  before 
anybody  doubts  what  the  result  of  a  vote  is. 
The  ordinary  fact  is,  that  he  who  calls  for  the 
yeas  and  nays,  in  a  deliberative  assembly,  is  a 
man  who  knows  what  the  result  of  the  vote  will 
probably  be,  or  who  thinks  he  knows,  and  there 
fore,  before  anybody  can  doubt  whether  the  pre 
siding  officer  has  decided  correctly  as  to  the  result 
of  the  vote.  The  yeas  and  nays  are  for  a  differ 
ent  purpose.  After  a  vote  has  been  decided  and 
gone,  there  is  nothing  pending  before  an  assembly 
upon  which  a  member  can  ask  for  the  yeas  and 
nays.  Your  rule  is,  when  any  measure  is  pend 
ing  upon  which  a  vote  is  to  be  taken,  one- fifth 
may  order  the  yeas  and  nays  upon  it.  That  rule 
is  not,  Sir,  that  after  the  question  has  been  de 
cided  by  the  Convention,  the  yeas  and  nays  may 
be  called  for,  to  see  if  you  cannot  induce  some 
gentlemen  to  change  their  votes. 

I  submit  the  question  contrary  to  my  own 
-wishes,  for  I  voted  for  the  reconsideration.  I  am 
impelled  entirely  by  a  sense  of  duty,  for  I  am 
in  favor  of  a  reconsideration ;  for  I  wish  this  as 
sembly  would  reconsider  the  vote  by  which  they 
passed  that  strange  thing.  I  desire  that  they 
should  reconsider,  and,  if  possible,  put  it  in  the 
right  shape,  before  they  present  it  to  the  people. 
But,  Sir,  when  the  presiding  officer  of  this  body 
says  that,  after  the  body  itself  has,  by  its  vote, 
decided  either  with  me  or  against  me,  that  another 
member  may  to-day,  to-morrow,  or  next  week, 
ask  for  the  yeas  and  nays  on  that  question,  I 
shall  be  under  the  necessity  of  appealing  from 
any  such  decision  of  the  Chair.  That  question 
has,  under  our  rules,  gone  out  of  our  possession 
as  completely  as  if  it  were  a  week  hence  that  we 
were  talking  about  the  yeas  and  nays.  If  you 
may  ask  them  now,  why  not  to-morrow,  why 
not  on  Saturday,  why  not  on  Monday  ?  The  pur- 


538 


QUESTTION   OF   ORDER. 


[69th  day. 


Thursday,] 


STEVENSON  —  LORD  —  WILSON  —  GHAT. 


[July  28th. 


poses  of  the  two  things  are  entirely  different,  name 
ly  :  the  "  division,"  and  the  "  yeas  and  nays."  A 
division  is  a  right  inhering  in  each  member  of  the 
Convention.  The  yeas  and  nays  are  a  right  in 
hering  in  one- fifth  of  the  Convention,  and  in  not 
less.  A  division  is  anything  which  any  man 
who  doubts  whether  the  speaker  is  incorrect  in 
opinion  as  to  which  way  men  voted,  can  call  for. 
The  yeas  and  nays  are  a  thing  which  not  less  than 
one-fifth  can  demand.  A  division,  under  the 
rules,  is  for  the  purpose  of  deciding  whether  a 
speaker  was  right  or  not  in  declaring  the  vote. 
The  yeas  and  nays  are  for  no  such  purpose. 
They  are  for  the  purpose  of  informing  the  con 
stituents  of  the  members  how  each  man  in  the 
assembly  may  have  voted  on  each  question  before 
them.  The  two  have  different  objects  and  differ 
ent  purposes.  They  are  under  different  control. 
And  yet,  the  decision  which  you  have  made,  Mr. 
President,  depends  entirely  upon  the  suggestion 
which  you  made  at  the  same  time,  that  the  yeas 
and  nays  are  called  for  the  same  reason  that  a 
division  is  demanded.  A  division  may  be  de 
manded  by  any  one  member.  Each  of  us,  as  we 
sit  in  our  seats,  have  just  as  much  right  to  our 
opinion  as  to  whether  the  ayes  or  the  noes  prevail 
ed,  as  the  presiding  officer  has.  The  presiding  officer 
has  the  power  to  announce  to  the  assembly  what 
he  thinks  on  that  one  point.  He  who  doubts 
whether  he  thinks  correctly  has  the  same  power 
which  the  presiding  officer  has,  and  he  may  not 
refuse  to  make  it  certain  which  is  correct  in  that 
respect — the  presumption  being  that  each  man  in 
an  assembly  like  this  votes  in  the  same  way, 
whether  he  votes  in  his  seat  unseen,  or  rises  in  his 
place  to  be  counted. 

[Here  the  hammer  fell ;  the  gentleman  having 
occupied  the  fifteen  minutes  allowed  by  the  rule 
limiting  debate.] 

Mr.  STEVENSON.  I  would  ask  the  Chair 
whether  there  is  any  limitation  to  debate  upon  a 
question  of  appeal  r 

The  PRESIDENT.  The  rule  of  the  Conven 
tion  is  as  follows  : — 

July  16th.  «  Resolved,  That  on  and  after  Mon 
day  next,  no  member  of  this  Convention  shall 
speak  more  than  fifteen  minutes  on  any  subject, 
without  leave." 

Mr.  LORD,  of  Salem.  I  never,  that  I  recol 
lect,  took  an  appeal  from  the  decision  of  any 
presiding  officer,  with  one  exception,  and  then 
merely  for  the  purpose  of  expressing  an  opinion 
on  the  subject,  and  not  for  the  purpose  of  having 
the  decision  reversed.  In  my  judgment  it  is  a 
matter  which  should  be  entertained  with  a  great 
deal  of  care,  and  should  be  entertained  and  con 


sidered  not  for  any  temporary  purpose,  but  as  a 
matter  of  judicial  decision  and  precedent.  To 
that  end  it  is  always  usual  in  any  case  of  im 
portance  to  settle  the  appeal  upon  the  record  by 
the  yeas  and  nays.  I  believe  that  is  the  universal 
practice,  and  before  I  sit  down,  I  propose  to  ask 
the  yeas  and  nays  upon  this  matter  of  appeal. 
But  I  hope  the  President  will  reconsider  his  de 
termination.  I  understand  that  this  motion  has 
never  been  entertained  in  either  branch  of  con 
gress.  Several  members  of  congress,  now  mem 
bers  of  this  Convention,  have  stated  that  within 
their  knowledge,  there  never  has  been  such  a 
motion  entertained,  after  the  decision  was  an 
nounced,  and  I  have  yet  to  hear  the  first  person 
state  a  single  instance  in  which,  after  the  vote  has 
been  verified  by  a  count,  and  after  it  has  been 
declared,  in  which  there  has  been  no  mistake,  and 
in  which  count  there  has  been  no  mistake,  such  a 
motion  has  been  entertained.  I  know  the  ques 
tion  was  discussed  in  the  last  House  of  Represent 
atives,  and  it  arose  upon  the  question  whether  the 
yeas  and  nays  could  be  called,  after  the  Chair  had 
called  upon  the  House  to  divide.  The  entire 
minority  of  that  body  held  that  after  the  Chair 
had  called  upon  the  House  to  divide,  the  yeas  and 
nays  could  not  be  called,  but  the  Speaker,  sus 
tained  by  a  majority  of  the  House,  ruled  that  the 
yeas  and  nays  might  be  called  at  any  time  before 
the  vote  had  been  verified  and  announced  from 
the  Chair. 

Now,  Sir,  if  there  is  any  reason  for  this  rule,  I 
desire  to  hear  it.  We  shall,  of  course,  hear  the 
reasons  of  the  President,  and  in  order  that  not 
only  that  gentleman  but  the  whole  assembly  may 
stand  exactly  right  upon  this  matter  of  precedent 
and  law,  I  move  that  when  the  question  upon 
this  appeal  is  taken,  it  be  taken  by  yeas  and  nays. 

A  division  being  called  for  upon  the  motion,  it 
was,  by  a  vote  of — ayes,  60  ;  noes,  161 — decided 
in  the  affirmative. 

So  the  yeas  and  nays  were  ordered. 

Mr.  WILSON,  of  Natick,  moved  that  the  ap 
peal  be  laid  upon  the  table. 

Mr.  GRAY,  of  Boston.  I  rise  to  a  question  of 
order.  Can  that  motion  be  entertained  ?  It  ap 
pears  to  me  that  under  the  rule  of  the  Convention 
no  other  business  is  in  order  until  the  question  of 
appeal  has  been  decided. 

The  PRESIDENT.  The  Chair  will  state  the 
question.  The  question  of  appeal  was  pending 
when  the  gentleman  from  Natick  moved  that  the 
appeal  lie  upon  the  table  ;  upon  that  the  gentle 
man  from  Boston  rose  to  a  question  of  order, 
whether  it  is  competent  to  lay  the  appeal  upon  the 
table.  There  are  two  usages  and  principles  upon 
which  this  question  will  be  decided.  It  is  the  prac- 


69th  day.] 


QUESTION   OF   ORDER. 


539 


Thursday,] 


GRAY  —  LORD  —  STEVENSON  —  BRIGGS. 


[July  28th. 


tice  of  the  House  of  Representatives,  invariably, 
where  appeals  are  taken  from  the  decision  of  the 
Chair,  to  entertain  the  motion  to  lay  the  question 
of  appeal  upon  the  table.  The  practice  of  the 
Senate  of  the  United  States,  however,  is  different ; 
and  several  years  since — in  1843  or  1844 — at 
least  one  or  two  days  were  expended  in  debate 
by  the  first  men  of  the  nation,  whether  the  ques 
tion  of  appeal  could  be  laid  upon  the  table,  and  it 
was  the  judgment  of  that  body  that  the  appeal 
could  not  be  laid  upon  the  table.  Since  that  time 
and  before,  however,  the  practice  of  the  House  of 
Representatives  has  been  different,  and  inasmuch 
as  the  Chair  prefers  to  adhere  to  the  usage  of  that 
body  contrary  to  its  own  inclination,  the  Chair 
rules  that  the  motion  to  lay  the  appeal  upon  the 
table  is  in  order. 

Mr.  GRAY,  of  Boston.  If  I  may  be  allowed 
the  indulgence  of  the  Convention  for  a  few  mo 
ments,  I  desire  to  state  that  whatever  has  been 
the  course  pursued  in  congress,  it  has  ever  been 
the  ruling  of  the  Chair  of  this  House,  that  an  ap 
peal  shall  be  decided  before  any  other  business  is 
transacted.  I  am  sorry  to  be  compelled  to  dissent 
from  the  decision  of  the  Chair,  but  an  experience 
of  twenty  years  has  taught  me  that  in  this  Com 
monwealth,  at  least,  the  practice  is  different.  If 
the  Chair  adheres  to  its  decision,  I  shall  call  for 
the  yeas  and  nays  on  the  motion  to  lay  the  appeal 
on  the  table. 

The  PRESIDENT.  The  Chair  does  not  doubt 
that  the  gentleman  is  correct  so  far  as  the  usage  of 
this  State  is  concerned.  The  Chair  desires  to 
say,  moreover,  that  confident  in  the  opinion  he 
has  given,  he  would  rather  that  the  Convention 
should  decide  this  matter  for  itself.  And  if  a 
motion  is  made,  he  will  rule  upon  it  as  he  has 
stated. 

Mr.  LORD.  I  desire  to  ask,  what  will  be  the 
effect  if  the  appeal  is  laid  upon  the  table,  and 
whether  the  decision  of  the  Chair  will  then  be 
considered  as  affirmed  ? 

The  PRESIDENT.  It  is  for  every  gentleman 
to  decide  for  himself  in  regard  to  the  effect. 

Mr.  LORD  asked  for  the  yeas  and  nays. 

The  PRESIDENT.  The  yeas  and  nays  have 
been  already  demanded. 

The  question  was  then  taken  on  ordering  the 
yeas  and  nays,  and  it  was  decided  in  the  affirma- 
ative. 

Mr.  STEVENSON,  of  Boston.  Before  the 
yeas  and  nays  are  taken,  if  the  gentleman  will 
allow  me,  I  desire  to  read  the  second  rule.  It  is 
as  follows : — 

"  The  President  shall  preserve  decorum  and 
order ;  may  speak  to  points  of  order  in  preference 
to  other  members  ;  and  shall  decide  all  questions 


of  order  subject  to  an  appeal  to  the  Convention 
on  motion  regularly  seconded ;  and  no  other 
business  shall  be  in  order  till  the  question  on  the 
appeal  shall  have  been  decided." 

"Would  it,  under  this  rule,  be  in  order  to  pro 
ceed  to  any  other  business  until  the  appeal  has 
been  disposed  of? 

The  PRESIDENT.  Certainly  not.  The  lay 
ing  of  the  appeal  upon  the  table  disposes  of  it. 

Mr.  BRIGGS,  of  Pittsfield.  It  always  gives 
me  pleasure  to  sustain  the  decision  of  the  Chair. 
According  to  the  practice  of  the  House  of  Rep-  / 
resentatives  at  Washington,  I  believe  that  the  last 
decision  is  correct,  though  I  think  the  practice  of 
the  Senate  of  the  United  States  is  somewhat  dif 
ferent.  I  recollect  several  instances  where  appeals 
have  been  laid  upon  the  table  in  the  former  body. 
But,  I  regret  to  say  that  I  cannot  sustain  the  de 
cision  of  the  Chair  in  relation  to  another  point, 
that  is,  the  taking  of  the  yeas  and  nays  after  the 
result  of  a  division  has  been  announced. 

The  PRESIDENT.  The  Chair  would  say, 
that  if  the  practice  of  the  House  of  Representa 
tives  is  different,  he  is  in  error. 

Mr.  BRIGGS.  I  would  state  to  the  Chair, 
that  in  twelve  years  experience,  I  have  no  recol 
lection  of  a  different  course  being  pursued  from 
that  to  which  I  have  alluded.  In  the  House  of 
Representatives  they  take  questions  by  standing 
up  and  counting,  and  by  tellers.  And  I  have 
frequently  known  the  call  for  the  yeas  and  nays, 
which  is  a  constitutional  right,  being  made,  after 
the  House  had  passed  between  the  tellers,  and  be 
fore  the  announcement  of  the  result  was  made, 
but  never  after  the  decision  of  the  tellers  has  been 
reported  to  the  Chair.  My  recollection  is  that  it 
was  always  pronounced  too  late  to  make  a  de 
mand  for  the  yeas  and  nays  after  such  a  decision 
had  been  announced. 

The  PRESIDENT.  The  gentleman  from  Pitts- 
field  will  find,  upon  examination,  that  there  are 
frequent  cases  where,  after  the  vote  has  been  an 
nounced,  and  the  result  of  the  division  has  been 
placed  upon  the  journal,  the  yeas  and  nays  have 
been  ordered.  The  Chair  is  confident  that  that  is 
the  practice,  and  upon  that  it  bases  its  decision. 
If  it  is  not  the  practice  of  the  House  of  Repre 
sentatives,  the  Chair  is  in  error.  With  the  leave 
of  the  Convention,  the  Chair  will  state  the  prin 
ciples  upon  which  this  decision  is  made,  aside 
from  the  practice  of  the  House  of  Representatives 
at  Washington,  to  which  the  Chair  has  adverted. 
It  is  that  the  yeas  and  nays  are  ordered,  not  only 
as  a  method  of  determining  a  vote,  but  for  the 
purpose  of  a  record.  One-fifth  of  the  members 
have  a  right  to  order  the  yeas  and  nays  to  be  taken 
upon  all  questions  for  the  purpose  of  obtaining  a 


540 


QUESTION   OF   ORDER. 


[69th  day. 


Thursday,]  WHITXEY  —  WILSON  —  HALLETT  —  ASPINWALL  —  LORD  —  BATES.         [July  28th. 


record.  There  is  no  record,  and  can  be  none,  ex 
cept  the  yeas  and  nays  be  taken,  and  this  is  pro 
vided  for  by  a  rule  of  the  Convention.  The 
Chair,  regarding  this  question  of  reconsideration 
as  a  question  embracing  a  principle  as  vital  as  any 
other,  beHeves  it  to  be  the  right  of  one- fifth  part  of 
the  Convention  to  have  the  record  by  yeas  and 
nays  upon  this  question,  as  upon  every  other 
where  it  is  demanded.  And  the  mere  fact  that  it 
may  have  been  determined  by  a  vote  of  sound, 
or  by  the  raising  of  hands,  or  by  the  report  of 
monitors,  which  it  is  at  the  option  of  the  Chair  or 
the  Convention  to  require  or  not,  can  produce  no 
record.  The  record  is  the  responses  of  members 
to  the  call  of  their  names,  and,  unless  the  Con 
vention  direct  the  call,  there  can  be  no  full  and 
perfect  record. 

But,  aside  from  this  theory,  the  Chair  stands 
upon  the  usage  of  the  House  of  Representatives. 
It  is,  that  when  a  question  has  been  taken  by 
sound,  and  declared,  and  a  decision  again  declared 
upon  the  count  of  the  Chair,  and  another  count 
still,  ordered  by  tellers,  and  such  count  is  taken 
and  announced  to  the  House,  one-fifth  of  the 
members  present,  if  a  quorum  be  present,  still 
have  a  right  to  a  verification  and  a  record  of  the 
vote  by  yeas  and  nays.  The  rule  of  the  Con 
vention  is  clear  and  explicit  upon  this  subject, 
and  is  substantially  the  same  as  the  constitutional 
provision  relating  to  the  House  of  Representatives 
of  the  United  States. 

This  is  one  of  those  questions  upon  which  one- 
fifth  of  the  members  present  have  a  right  to  have 
the  yeas  and  nays  taken  in  verification  of  the 
record.  The  Chair  has  no  doubt  of  the  correct 
ness  of  the  decision,  upon  the  well  established 
principles  of  American  parliamentary  law ;  and 
is  impressed  with  the  conviction  that  it  is  sustain 
ed  by  the  usage  of  the  first  and  highest  delibera 
tive  assembly  in  the  world. 

Mr.  WHITNEY  of  Couway  moved  the  pre 
vious  question. 

The  PRESIDENT.  The  Chair  desires  to  say, 
that  he  would  prefer  to  have  this  question  decided 
by  the  Convention  at  the  present  time. 

Mr.  WILSON,  of  Natick.  After  the  statement 
which  has  just  been  made  by  the  Chair,  I  will 
withdraw  my  motion  to  lay  the  appeal  upon  the 
table,  as  it  is  a  matter  personal  to  the  Chair. 

Mr.  HALLETT,  for  Wilbraham.  I  renew  the 
motion  of  the  gentleman  from  Natick,  to  lay  this 
appeal  on  the  table.  I  wish  to  make  an  explana 
tion  myself,  for  I  shall  be  unable  to  sustain  the 
decision  of  the  Chair.  I  do  not  wish  to  make  a 
personal  issue  with  that  gentleman,  however,  and 
I  think  we  can  all  vote  to  lay  the  question  upon 
the  table.  I  see  no  necessity  for  any  controversy 


of  this  kind  upon  a  nice  point  of  order,  and  I 
therefore  renew  the  motion  of  the  gentleman  from 
Natick,  (Mr.  Wilson,)  for  it  seems  to  me  to  be 
the  only  quiet  way  of  disposing  of  the  subject. 

Mr.  ASPINWALL,  of  Brookline.  I  would 
inquire  of  the  President,  if  it  is  not  competent 
for  any  member  after  the  present  appeal  is  laid 
upon  the  table,  to  appeal  from  the  decision  of  the 
Chair? 

The  PRESIDENT.  If  this  appeal  is  laid  upon 
the  table,  it  will  be  held  by  the  Chair  to  be  finally 
disposed  of. 

Mr.  LORD.  Suppose  that  it  is  laid  upon  the 
table  by  a  vote  of  this  body,  can  any  gentleman 
move  to  take  it  up  again  ? 

The  PRESIDENT.    Certainly. 

Mr.  LORD.  I  would  then  inquire  if  a  matter 
which  is  laid  upon  the  table  is  permanently  de 
cided,  and  until  it  is  decided,  can  we  go  on  with 
any  other  business  under  this  rule,  to  which  I 
desire  to  call  the  attention  of  the  President  ?  It 
is  the  second  rule. 

Mr.  BUTLER,  of  Lowell.  I  rise  to  a  point  of 
order. 

The  PRESIDENT.  The  gentleman  from  Sa 
lem  is  addressing  the  Chair. 

Mr.  BUTLER.  His  remarks  are  in  the  nature 
of  debate ;  and  I  submit  that  this  is  not  a  debata 
ble  question. 

Mr.  LORD.  I  desire  merely  to  make  an  in 
quiry  of  the  Chair,  in  regard  to  the  disposition  of 
this  subject.  The  second  rule  requires  that : — 

"The  President  shall  preserve  decorum  and 
order ;  may  speak  to  points  of  order  in  pref 
erence  to  other  members  ;  and  shall  decide  all 
questions  of  order,  subject  to  an  appeal  to  the 
Convention  on  motion  regularly  seconded ;  and 
no  other  business  shall  be  in  order  until  the  ques 
tion  on  the  appeal  shall  have  been  decided." 

Although  the  practice  under  the  rule  may  be 
different,  yet  if  I  can  move  to  take  a  matter  from 
the  table  when  it  has  been  ordered  to  lie  there 

Mr.  BATES,  of  Plymouth.  I  should  like  to 
know  what  question  the  gentleman  from  Salem 
is  discussing  ?  I  believe  there  is  no  question  before 
the  House  that  is  debatable. 

The  PRESIDENT.  The  gentleman  for  Wil 
braham,  (Mr.  Hallett,)  has  moved  that  the  appeal 
be  laid  upon  the  table ;  and  the  gentleman  from 
Salem,  (Mr.  Lord,)  rose  to  a  point  of  order.  The 
Chair  has  not  yet  ruled  upon  that  question  of 
order.  If  the  gentleman  will  indulge  him  for  a 
moment,  the  Chair  would  say,  that  the  motion  for 
the  previous  question  does  not  cut  off  the  motion 
to  lay  upon  the  table. 

Mr.  BATES.  Is  the  motion  to  lay  upon  the 
table  debatable  ? 


69th  day.] 


QUESTION   OF    ORDER. 


541 


Thursday,] 


LORD  —  BATES  —  MORTON  —  HALLETT  —  WHITNEY. 


[July  28th. 


The  PRESIDENT.  It  is  not.  The  gentle 
man  from  Salem  rose  to  a  point  of  order. 

Mr.  LORD.  The  point  which  I  was  suggest 
ing,  and  to  which  I  only  desire  to  call  the  atten 
tion  of  the  President,  was  this 

Mr.  BATES.  I  call  the  gentleman  to  order. 
The  question  is  on  ordering  the  appeal  to  lie  upon 
the  table,  and  that  question  is  not  debatable.  I 
therefore  insist  upon  my  point  of  order. 

The  PRESIDENT.  The  gentleman  from  Sa 
lem  does  not  state  the  question  of  order ;  the 
question  is  on  the  motion  of  the  gentleman  for 
Wilbraham  to  lay  the  appeal  upon  the  table. 

Mr.  LORD.  I  propose  to  state  the  point  of 
order,  if  the  gentleman  will  allow  me  to  proceed 
without  interruption  ;  but  I  cannot  do  it  without 
using  language.  My  proposition  is  this  :  that  by 
a  rule  of  this  House,  no  business  is  in  order  after 
an  appeal  is  taken  from  this  decision  of  the 
Chair,  until  that  appeal  has  been  decided ;  not 
temporarily  disposed  of,  but  decided.  Now,  the 
Chair  has  already  ruled,  that  it  is  competent  to 
take  this  subject  from  the  table,  after  it  has  been 
laid  there ;  but  I  belieye  there  is  a  parliamentary 
rule  which  says,  that  after  a  matter  has  been  once 
disposed  of,  by  laying  it  upon  the  table,  it  is  not 
in  order  to  take  it  up  again,  unless  there  has  been 
an  intervention  of  business  in  the  meantime.  So 
that  if  this  subject  is  now  laid  upon  the  table,  we 
can  do  no  business  under  the  rule,  until  it  has 
been  permanently  settled  by  a  decision  upon  it. 
Now,  I  desire  to  know  of  the  Chair,  not  by  any 
rule  of  precedent ;  not  by  any  rule  of  the  Senate, 
or  House  of  Representatives  of  the  United  States ; 
but,  whether  under  the  rules  of  this  body,  any 
business  can  be  done  until  a  question  of  appeal 
has  been  permanently  decided,  except  it  be  to 
adjourn.  Although  a  motion  to  lay  upon  the 
table  may  possibly  be  in  order,  yet  if  we  can  do 
nothing  but  adjourn,  after  taking  that  course — be 
cause  having  just  laid  it  down,  we  cannot  take  it 
up  again  or  proceed  to  other  business  in  the  mean 
time,  under  the  rules  of  the  Corvention — shall 
we  make  any  advance  by  such  a  course  ?  I  call 
this  fact  to  the  attention  of  the  Chair,  not  because 
I  have  not  a  great  respect  for  the  decision  of  the 
Chair,  for  I  have ;  but  because  it  seems  to  me, 
and  I  think  it  will  strike  other  gentlemen  in  the 
same  way,  that  laying  a  subject  upon  the  table  is 
not  such  a  final  decision  of  the  question,  as  the 
rule  contemplates. 

Mr.  MORTON,  of  Taunton.  I  rise  to  a  ques 
tion  of  order.  I  desire  to  call  the  attention  of 
the  Chair  to  the  course  of  events  here.  If  I 
understand  the  state  of  affairs  correctly ,-  the  gen 
tleman  from  Conway  (Mr.  "Whitney)  rose  and 
moved  the  previous  question.  Afterwards,  the 


gentleman  for  Wilbraham  (Mr.  Hallett)  moved 
to  lay  the  question  of  appeal  upon  the  table. 
What,  therefore,  is  the  question  pending  ? 

The  PRESIDENT.  The  immediate  question 
pending,  is  the  motion  to  lay  the  appeal  upon  the 
table. 

Mr.  MORTON.  Does  that  supersede  the 
motion  for  the  previous  question  ? 

The  PRESIDENT.  It  supersedes  it  for  the 
present.  The  Chair  will  read  the  rule  on  this 
point : — 

"  When  a  question  is  under  debate,  the 
President  shall  receive  no  motion  but  to  adjourn, 
to  lay  on  the  table,  for  the  previous  question,  to 
postpone  to  a  day  certain,  to  commit,  to  amend, 
or  to  postpone  indefinitely  ;  which  several  motions 
shall  have  precedence  in  the  order  in  which  they 
stand  arranged." 

Mr.  HALLETT,  for  Wilbraham.  If  the  gen 
tleman  from  Taunton,  (Mr.  Morton,)  will  give 
way,  I  desire  to  say  a  single  word.  The  previous 
question,  I  understand,  is  superseded  by  the 
motion  to  lay  upon  the  table.  I  made  the  motion 
to  lay  the  appeal  upon  the  table,  for  the  purpose  of 
having  an  opportunity  to  express  my  opinion  as 
to  the  best  mode  of  getting  rid  of  the  question ; 
but  as  the  President  has  intimated  that  he  is 
desirous  of  meeting  the  question,  and  as  I  am 
ready  to  meet  it  and  vote  upon  it  honestly  and 
courteously,  I  will  withdraw  my  motion. 

Mr.  MORTON,  of  Taunton.  I  wish,  in  a  few 
words,  to  give  the  reasons  why  I  shall  vote  to 
sustain  the  Chair  in  his  decision,  though  they  may 
be  somewhat  different  from  those  which  have 
been  submitted  by  other  gentlemen.  I  am  told, 
however,  that  the  previous  question  has  been 
demanded  ;  I  do  not  desire  to  interfere  with  that. 

Mr.  WHITNEY,  of  Conway.  I  will  with 
draw  my  motion  for  the  previous  question,  if  the 
gentleman  will  renew  it. 

Mr.  MORTON.  I  never  made  a  motion  for 
the  previous  question  in  my  life,  and  never  intend 
to  do  so. 

Mr.  WHITNEY.  I  wiU  withdraw  it  if  the 
gentleman  desires. 

Mr.  MORTON.  I  wish  to  state  a  few  of  the 
reasons  which  will  influence  me  in  voting  to 
sustain  the  decision  of  the  Chair.  And,  in  order 
to  understand  this  question  properly,  it  is  neces 
sary  we  should  look  for  a  moment  at  the  course 
of  events  which  brought  it  before  us.  A  motion 
was  made  to  reconsider  the  resolves  on  the  sub 
ject  of  elections  by  plurality  ;  it  was  put  to  a  vote, 
and  the  President  announced  the  decision.  A 
division  was  then  called  for— the  decision  first 
announced,  of  course  not  being  final  in  its  char 
acter — the  votes  were  counted,  and  the  President 


542 


QUESTION    OF    ORDER. 


[69th  day. 


Thursday,] 


DAVIS  —  MORTON  —  BUTLER  —  BRIGGS. 


[July  28th. 


announced  the  result.  Some  gentlemen,  how 
ever,  doubted  the  correctness  of  that  statement, 
supposing  that  an  error  had  arisen  either  in  com 
puting  the  returns  of  the  monitors  or  in  the 
monitors  themselves.  The  President  listened  to 
the  statements  made,  ree'xamined  his  figures,  and 
again  announced  the  result  as  before.  This  not 
being  satisfactory  to  the  minds  of  several  indi 
viduals,  the  yeas  and  nays  were  then  called  for,  and 
ordered.  These  are  briefly  the  facts  of  the  case, 
as  I  understand  them  ;  and  I  maintain,  Sir,  that 
there  never  was  a  final  enunciation  of  the  decis 
ion.  The  subject  was  then  under  consideration, 
and  if  any  person  in  this  Convention  had  de 
manded  another  count,  I  have  no  doubt  that  the 
President  would  unhesitatingly  have  ordered  it 
at  once,  and  every  one  would  have  acquiesced. 
If  this  was  the  case,  therefore,  the  question  was 
still  undecided,  and  the  motion  for  the  yeas  and 
nays  was  perfectly  in  order. 

Mr.  DAVIS,  of  Plymouth.  If  the  gentleman 
will  allow  me  to  interrupt  him  a  moment.  Ob 
jection  was  made  by  me  before  the  final  announce 
ment  of  the  vote  ;  and  having  commenced  making 
my  statement,  the  Chair  desired  me  to  wait  until  a 
new  count  was  had,  and  in  the  meantime  several 
gentlemen  stated  to  me  that  they  had  not  voted, 
because  they  did  not  understand  what  the  ques 
tion  was. 

Mr.  MOUTON.  I  was  arguing  upon  the  state 
of  the  facts,  as  I  regard  them,  and  the  fact  now 
stated  by  the  gentleman  from  Plymouth,  is  addi 
tional  evidence  which  very  much  strengthens  the 
view  I  took. 

If,  therefore,  it  was  an  open,  undecided  ques 
tion  at  the  time  the  division  was  called  for, 
no  gentleman  will  deny  that  it  was  entirely 
within  the  rule  ;  and  consequently,  it  was  proper 
and  legitimate  to  demand  the  yeas  and  nays. 
Gentlemen  were  entitled  to  have  them  taken,  for 
the  rule  provides  that  on  all  questions  whatever, 
the  yeas  and  nays  shall  be  ordered  if  one-fifth 
shall  demand  them.  I  contend,  therefore,  that  it 
was  perfectly  correct  to  order  the  yeas  and  nays, 
and  the  argument  of  the  gentleman  from  Boston, 
(Mr.  Stevenson,)  ingenious  and  able  as  it  was, 
was  based  upon  the  mistaken  supposition  that 
they  were  to  be  taken  upon  the  final  passage  of 
the  resolves,  instead  of  being  intended,  as  they 
were,  solely  to  verify  the  decision  of  the  Chair. 

Mr.  BUTLER,  of  Lowell.  I  wish  to  say  a 
word  in  regard  to  the  settlement  of  this  matter  in 
dispute ;  and  in  doing  so,  I  shall  rely  not  so  much 
upon  precedent,  as  upon  principle  and  right.  As 
I  understood  the  gentleman  from  Boston,  (Mr. 
Stevenson,)  his  argument  was,  that  when  a  ques 
tion  is  once  announced  as  finally  determined, 


there  can  be  no  such  thing  as  any  farther  verifica 
tion  of  the  same  by  yeas  and  nays,  but  that  such 
determination  must  forever  remain  as  the  decision 
of  the  body.  That  is  the  ground  of  his  appeal, 
and  of  the  argument  which  supported  it. 

Yeas  and  nays  are  simply  a  method  of  verifica 
tion.  Now,  suppose  by  accident  or  design,  that 
a  hundred  men  were  crowded  into  these  seats,  as 
was  the  case  once  in  the  French  Assembly,  who 
did  not  belong  here,  that  they  stood  up  and  were 
counted  by  the  monitors,  and  the  final  announce 
ment  of  the  vote  had  been  made,  when  some  gen 
tleman  should  arise  in  his  place  and  state  that  he 
had  reason  to  believe  that  the  vote  was  incorrect, 
and  in  order  to  verify  the  vote,  and  arrive  at  a 
more  satisfactory  conclusion,  he  should  demand 
the  yeas  and  nays.  I  want  to  know,  if  in  such 
a  case  as  that,  when  such  a  demand  is  made, 
that  the  yeas  and  nays  would  not  be  strictly  in 
order.  Who  is  to  say  that  it  can  be  done  in  one 
case,  and  cannot  be  done  in  another  ?  Therefore, 
I  am  ready  to  sustain  the  decision  of  the  Chair 
upon  that  point,  and  shall  also  vote  for  the  yeas  and 
nays  which  have  been  demanded.  What  are  we 
here  for,  but  to  arrive  at  the  deliberate  judgment 
of  this  assembly  ;  to  get  at  the  feelings  and  wishes 
of  this  body  ?  And  I  submit,  if  it  is  not  a  little  like 
child's  play,  that  we  are  to  be  told  because  the 
President  has  announced  a  vote  after  a  division, 
that  there  is  no  way  of  getting  at  the  voice  of  this 
Convention  in  a  more  certain  manner ;  that  we 
are  to  be  tied  hand  and  foot  in  our  deliberations, 
to  be  seized  by  a  sort  of  snap- judgment  from 
which  there  is  no  escape.  I  ask  is  that  according 
to  parliamentary  principle  and  usage  ? 

The  question  was  asked  what  is  the  deliberate 
voice  of  this  Convention  upon  a  certain  question  ? 
The  vote  was  taken  by  a  division  ;  a  gentleman 
having  some  doubt  in  regard  to  the  result  which 
had  been  announced,  desired  to  have  the  vote  re 
counted.  It  was  accordingly  done.  Still  it  was 
unsatisfactory,  and  the  yeas  and  nays  were  de 
manded  for  the  purpose  of  verifying  the  vote  with 
greater  accuracy.  The  yeas  and  nays  were  or 
dered,  and  the  gentleman  from  Boston  appealed 
from  the  decision  of  the  Chair,  and  for  what 
reason  ?  Because,  forsooth,  the  Convention  had 
voted  once  upon  the  question,  and  it  was  not  in 
order  to  verify  that  vote  in  another  manner. 
Upon  questions  of  parliamentary  usage,  I  have 
many  times  yielded  to  him  ;  but  on  the  present 
occasion,  I  feel  constrained  to  differ  with  him,  and 
shall  therefore  record  my  vote  to  sustain  the 
decision  of  the  Chair,  relying,  as  I  said  in  the 
beginning,  more  upon  principle  than  precedent. 

Mr.  BRIGGS,  of  Pittsfield.  I  desire  to  say 
but  a  single  word  upon  this  matter.  I  much  re- 


69th  day.] 


QUESTION   OF    ORDER. 


543 


Thursday,] 


BRIGGS  —  DAVIS  —  HALE  —  WATERS. 


[July  28th. 


gret  that  a  question  of  this  character  has  arisen, 
but  since  it  has  come  before  us,  I  trust  that  we 
shall  proceed  to  act  upon  and  consider  it  with 
deliberation  and  caution.  But  above  all  things, 
in  the  last  hours  of  the  session,  I  hope  we  shall 
not  allow  ourselves  to  be  excited  or  irritated  by 
the  introduction  of  such  a  subject  As  for  my 
self,  I  shall  be  compelled,  from  my  construction 
of  the  parliamentary  law,  to  vote  against  the  de 
cision  of  the  Chair.  The  President  has  stated 
the  true  grounds  on  which  the  yeas  and  nays 
were  ordered — that  is,  that  they  were  for  the  pur 
pose  of  making  a  record  of  the  vote  of  every  mem 
ber  of  this  Convention,  upon  one  side  or  the 
other,  and  not  for  the  purpose  of  verification,  as 
some  gentlemen  have  contended.  If  the  Chair  is 
correct  in  this  statement,  the  whole  foundation  of 
the  speech  of  the  gentleman  from  Lowell  is  re 
moved,  but  if  not  correct,  his  arguments  would 
certainly  be  very  strong. 

But  let  me  inquire  Avhat  is  the  mode  of  verify 
ing  a  vote  ?  The  President  rises,  puts  the  ques 
tion,  takes  the  sound  of  the  voice,  and  makes  a 
decision  accordingly.  The  vote  is  doubted,  and 
the  rule  requires  him  to  take  a  count.  What  is 
the  object  of  that?  Simply  for  the  purpose  of 
verifying  the  vote.  The  division  of  the  House 
takes  place,  and  the  Chair  announces  the  result. 
But  what  is  the  case  here  ?  The  result  of  the 
first  vote  was  questioned.  A  division  was  or 
dered,  and  the  monitors  reported ;  the  Chair 
announced  that  one  hundred  and  twelve  had 
voted  in  the  affirmative,  and  one  hundred  and 
eighteen  in  the  negative,  so  that  the  motion  to 
reconsider  was  lost.  Some  gentleman,  not  being 
perfectly  satisfied  as  to  the  correctness  of  that 
vote,  requested  the  President  to  reexamine  his 
figures  ;  he  did  so,  and  announced  the  same  re 
sult  as  before.  After  some  little  pause,  the  gen 
tleman  from  Plymouth,  (Mr.  Davis,)  arose,  and 
said,  Mr.  President,  there  is  some  mistake  about 
this  matter. 

Mr.  DAVIS,  of  Plymouth.  I  arose  and  ad 
dressed  the  Chair  before  the  announcement  of  the 
vote  was  made. 

Mr.  BRIGGS.  Yes,  Sir;  he  certainly  did 
address  the  Chair,  but  what  did  he  say  ?  He  said 
that  gentlemen  here  did  not  understand  the  vote, 
and  asked  if  the  yeas  and  nays  could  not  be 
taken.  But  did  he  call  for  the  yeas  and  nays 
then  ?  or  ask  to  have  a  record  made  ?  No,  Sir ; 
but  in  the  discussion  as  to  what  might  be  done, 
the  Chair  suggested  that  the  gentleman  might 
call  for  the  yeas  and  nays ;  and  in  accordance 
with  that  suggestion,  the  yeas  and  nays,  were  de 
manded.  These,  I  believe,  are  the  true  facts  of 
the  case. 


Now,  if  the  gentleman  from  Plymouth  had 
arisen  in  his  seat  before  the  Chair  had  made  the. 
second,  affirmed  statement,  and  had  questioned 
the  vote,  then,  as  the  gentleman  from  Taunton 
(Mr.  Morton)  says,  it  would  have  been  the  duty 
of  the  Chair  to  have  tried  the  vote  again,  if  de 
manded,  by  yeas  and  nays ;  but  he  did  neither. 
The  question  stands,  therefore,  as  I  have  stated. 
As  I  said  before,  I  am  sorry  to  differ  from  the 
Chair  as  to  the  congressional  practice,  but  I  under 
stand  the  practice  to  be  this  :  that  any  member 
has  a  right  to  demand  the  yeas  and  nays  at  any 
time  before  the  result  is  announced  by  the  Chair. 
I  am  certainly  desirous  of  acting  liberally  in  this 
matter,  but  I  am  equally  desirous  of  observing 
the  law ;  for  the  dignity,  decorum,  and  character 
of  all  bodies,  depend  entirely  upon  so  doing.  If 
I  supposed  that,  by  allowing  this  matter  to  pass 
by  we  should  be  acting  in  compliance  with  par 
liamentary  usage,  I  would,  with  pleasure,  vote  to 
sustain  the  decision  of  the  Chair  ;  but  under  the 
present  aspect  of  the  case,  I  do  not  believe  we 
should  be  acting  in  accordance  with  that  law, 
and  I  shall  therefore  be  compelled  to  give  my 
vote  against  him. 

Mr.  HALE,  of  Bridgewater.  I  do  not  propose 
to  discuss  this  question,  after  so  much  has  been 
said.  As  to  precedent,  I  merely  wish  to  observe 
that  in  all  the  experience  I  have  had,  here  or 
elsewhere,  in  legislative  bodies,  I  have  never 
known  an  instance  where  the  demand  for  the 
yeas  and  nays  was  made  and  sustained  upon  a 
question  after  the  decision  of  the  Chair.  I  have 
known  them  to  be  called  for,  but  it  was  always 
ruled  by  the  Chair  to  be  too  late. 

I  do  not  understand  that,  in  the  present  case, 
the  purpose  of  calling  the  yeas  and  nays  was  to 
verify  the  vote,  because  the  gentleman  distinctly 
stated  that  the  object  he  had  in  view  was  to  ac 
commodate  some  gentlemen  in  his  neighborhood, 
who  did  not  understand  the  question,  and  wished 
to  have  the  vote  taken  again. 

Mr.  WATERS,  of  Millbury.  I  call  for  the 
previous  question. 

The  PRESIDENT.  By  leave  of  the  Conven 
tion,  the  Chair  desires  to  say  to  the  gentleman 
from  Bridgewater,  that  there  are  many  precedents 
in  the  House  of  Representatives  at  Washington. 

Mr.  HALE.  I  merely  referred  to  my  own  ex 
perience  and  observation,  and  I  believe  that  it  is 
the  opinion  of  every  ex-member  of  congress  in 
this  body,  that  the  yeas  and  nays  would  not  be  in 
order  after  an  announcement  of  a  vote  by  the 
Chair  had  been  made. 

The  question  being  upon  sustaining  the  de 
cision  of  the  Chair,  the  yeas  and  nays  were  taken, 
with  the  following  result — yeas,  168  ;  nays,  62. 


544 

QUESTION  OF    ORDER. 

[69th  day. 

Thursday,] 

YEAS  —  NAYS  —  ABSENT. 

[July  28th. 

TEAS. 

Richardson,  Samuel  H. 

Turner,  David  P. 

Ring,  Elkanah,  Jr. 

Tyler,  William 

Abbott,  Josiah  GK 
Adams,  Benjamin  P. 

Freeman,  James  M. 
French,  Charles  A. 

Royce,  James  C. 
Sanderson,  Amasa 

Wallace,  Frederick,  T. 
Wallis,  Freeland 

Adams,  Shubael  P. 

French,  Rodney 

Sanderson,  Chester 

Walker,  Amasa 

Allen,  James  B. 

French,  Samuel 

Sherril,  John 

Ward,  Andrew  H. 

Allen,  Joel  C. 

Frothingham,  R.,  Jr. 

Sikes,  Chester 

Warner,  Samuel,  Jr. 

Allen,  Parsons 

Gale,  Luther 

Simmons,  Perez 

Waters,  Asa  H. 

Alley,  John  B. 

Gates,  Elbridge 

Simonds,  John  W. 

Weston,  Gershom  B. 

Allis,  Josiah 
Alvord,  D.  W. 
Austin,  George 

Gilbert,  Washington 
Giles,  Charles  G. 
Giles,  Joel 

Sprague,  Melzar 
Spooner,  Samuel  W. 
Stevens,  Granville 

White,  George 
Whitney,  James  S. 
Williams,  J.  B. 

Baker,  Hillel 

Green,  Jabez 

Stevens,  "William 

"Wilson   Henry 

Ball,  George  S. 

Greene,  William  B. 

Strong,  Alfred  L. 

"\Vinslow,  Levi  M. 

Bancroft,  Alpheus 
Bates,  Moses,  Jr. 
Bennett,  William,  Jr. 
Bennett,  Zephaiiiah. 
Bird,  Francis  W. 

Griswold,  Josiah  W. 
Griswold,  Whiting 
Hapgood,  Lyman  W. 
Harmon,  Phineas 
Haskins,  William 

Sumner,  Increase 
Swain,  Alanson 
Thompson,  Charles 
Tilton,  Horatio  W. 

Wood,  Charles  C. 
Wood,  Otis 
Wood,  William  H. 
Wright,  Ezekiel 

Booth,  William  S. 

Hawkes,  Stephen  E. 

N.A  v<:!  - 

Bout  well,  George  S. 

Heath,  Ezra,  2d 

Bout  well,  Sewell 

Howes,  James 

Aldrich,  P.  Emory 

Jenkins,  John 

Breed,  Hiram  N. 

Hobart,  Henry 

Andrews,  Robert 

Kellogg,  Giles  C. 

Brown,  Adolphus  F. 
Brown,  Hammond 

Hood,  George 
Howard,  Martin 

Aspinwall,  William 
Ayres,  Samuel 

Kinsman,  Henry  W. 
Knowlton,  J.  S.*  C. 

Brown,  Hiram  C. 

Howland,  Abraham  H. 

Bartlett,  Russel 

Lincoln,  Frederic  W.,  Jr. 

Brownell,  Frederick 
Brownell,  Joseph 
Bryant,  Patrick 
Bullock,  Rufus 
Bumpus,  Cephas  C. 
Burlingame,  Anson 
Butler,  Benjamin  F. 

Hoyt,  Henry  K. 
Hunt,  Charles  E. 
Huntington,  George  H. 
Hyde,  Benjamin  D. 
Ide,  Abijah  M.,  Jr. 
Jacobs,  John 
Kendall,  Isaac 

Bartlett,  Sidney 
Bradbury,  Ebenezer 
Brewster,  Osymn 
Brinley,  Francis 
Briggs,  George  N. 
Cogswell,  Nathaniel 
Conkey,  Ithamar 

Livermore,  Isaac 
Lord,  Otis  P. 
Lothrop,  Samuel  K. 
Loud,  Samuel  P. 
Marvin,  Theophilus  R. 
Miller,  Seth,  Jr. 
Mixter,  Samuel 

Cady,  Henry 
Caruthers,  William 

Kingman,  Joseph 
Knight,  Hiram 

Curtis,  Wilber 
Dawes,  Henry  L. 

Morey,  George 
Oliver,  Henry  K. 

Case,  Isaac 

Knowlton,  Charles  L. 

Ely,  Homer 

Orcutt,  Nathan 

Chapin,  Chester  W. 
Childs,  Josiah 

Knowlton,  William  H. 
Knox,  Albert 

Gardner,  Henry  J. 
Gilbert,  Wanton  C. 

Paige,  James  "W. 
Parker,  Samuel  D. 

Churchill,  J.  McKeaii 

Langdon,  Wilber  C. 

Goulding,  Jason 

Plunkett,  William  C. 

Clarke,  Alpheus  B. 
Cleverly,  William 
Cole,  Sumner 

Lawton,  Job  G.,  Jr. 
Little,  Otis 
Loomis,  E.  Justin 

Gray,  John  C. 
Hale,  Artemas 
Hale,  Nathan 

Preston,  Jonathan 
Rockwell,  Julius 
Schouler,  William 

Cooledge,  Henry  F. 
Crittenden,  Simeon 

Marvin,  Abijah  P. 
Mason,  Charles 

Hallett,  B.  F. 
Hapgood,  Seth 

Stevenson,  J.  Thomas 
Stiles,  Gideon 

Cross,  Joseph  W. 
Dana,  liichard  H.,  Jr. 

Merritt,  Simeon 
Monroe,  James  L. 

Heard,  Charles 
Henry,  Samuel 

Train,  C.  R. 
Upham,  Charles  W. 

Davis,  Charles  G. 
Davis,  Robert  T. 

Morton,  Elbridge  G. 
Morton,  Marcus 

Hillard,  George  S. 
Houghton,  Samuel 

Upton,  George  B. 
Walcott,  Samuel  B. 

Dean,  Silas 

Morton,  Marcus,  Jr. 

Hubbard,  William  J. 

Weeks,  Cyrus 

Deming,  Elijah  S. 

Morton,  William  S. 

Hunt,  William 

Wilkinson,  Ezra 

Denton,  Augustus 
Duncan,  Samuel 

Nash,  Hiram 
Nayson,  Jonathan 

Huntington,  Asahel 
Hurlburt,  Samuel  A. 

Wilson,  Milo 
Woods,  Josiah  B. 

Dunham,  B  radish 

Nichols,  William 

Durgin,  John  M. 

Nute,  Andrew  T. 

ABSENT. 

Eames,  Philip 

Osgood,  Charles 

Abbott,  Alfred  A. 

Bigelow,  Jacob 

Earle,  John  M. 

Packer,  E.  Wing 

Allen,  Charles 

Bishop,  Henry  W. 

Easland,  Peter 

Paine,  Benjamin 

Appleton,  William 

Blagden,  George  W. 

Easton,  James,  2d 

Parker,  Adolphus  G. 

Atwood,  David  C. 

Bliss,  Gad  O. 

Eaton,  Calvin  D. 

Parris,  Jonathan 

Ballard,  Alvah 

Bliss,  William  C. 

Edwards,  Elisha 

Partridge,  John 

Banks,  Nathaniel  P.,  Jr. 

Bradford,  William  J.  A. 

Edwards,  Samuel 

Permiman,  John 

Barrows,  Joseph 

Braman,  Milton  P. 

Ely,  Joseph  M. 

Perkins,  Daniel  A. 

Barrett,  Marcus 

Bronson,  Asa 

Fay,  Sullivan 

Phelps,  Charles 

Bates,  Eliakim  A. 

Brown,  Alpheus  R. 

Fellows,  James  K. 

Phinney,  Silvanus  B. 

Beach,  Erasmus  D. 

Brown,  Artemas 

Fisk,  Lyman 

Pierce,  Henry 

Beal,  John 

Buck,  Asahel 

Foster,  Aaron 

Pomroy,  Jeremiah 

Beebe,  James  M. 

Bullen,  Amos  II. 

Foster,  Abram 

Rawson,  Silas 

Bell,  Luther  V. 

Carter,  Timothy  W. 

Fowle,  Samuel 

Richards,-  Luther 

Bigelow,  Edward  B. 

Chandler,  Amariah 

69th  day.] 


ELECTIONS   BY  PLURALITY,   &c. 


545 


Thursday,] 


ABSENT  —  FRENCH. 


[July  28th. 


Chapin,  Daniel  E. 
Chapin,  Henry 
Choate,  Rufus 
Clark,  Henry 
Clark,  Ransom 
Clark,  Salah 
Clarke,  Stillman 
Coggin,  Jacob 
Cole,  Lansing  J. 
Cook,  Charles  E. 
Copeland,  Benjamin  F. 
Crane,  George  B. 
Creasy,  Oliver  S. 
Crockett,  George  W. 
Crosby,  Leander 
Crowell,  Seth 
Crowninshield,  F.  B. 
Cummings,  Joseph 
Cushman,  Henry  W. 
Cushman,  Thomas 
Cutler,  Simeon  N. 
Davis,  Ebenezer 
Davis,  Isaac 
Davis,  John 
Davis,  Solomon 
Day,  Gilman 
Dehon,  William 
Denison,  Hiram  S. 
DeWitt,  Alexander 
Doane,  James  C. 
Dorman,  Moses 
Eaton,  Lilley 
Eustis,  William  T. 
Far  well,  A.  G. 
Fiske,  Emery 
Fitch,  Ezekiel  W. 
Fowler,  Samuel  P. 
French,  Charles  H. 
Gardner,  Johnson 
Gooch,  Daniel  W. 
Gooding,  Leonard 
Gculd,  Robert 
Goulding,  Dalton 
Graves,  John  W. 
Greenleaf,  Simon 
Hadley,  Samuel  P. 
Hall,  Charles  B. 
Hammond,  A.  B. 
Haskell,  George 
Hathaway,  Elnathan  P, 
Hayden,  Isaac 
Hayward,  George 
Hazewell,  C.  C. 
Hersey,  Henry 
Hewes,  William  H. 
Hey  wood,  Levi 
Hinsdale,  William 
Hobart,  Aaron 
Hobbs,  Edwin 
Holder,  Nathaniel 
Hooper,  Foster 
Hopkinson,  Thomas 
Huntington,  Charles  P. 
Hurlbut,  Moses  C. 
Jackson,  Samuel 
James,  William 
Jenks,  Samuel  H. 
Johnson,  John 


Kellogg,  Martin  R. 
Keyes,  Edward  L. 
Kimball,  Joseph 
Knight,  Jefferson 
Knight,  Joseph 
Kuhn,  George  H. 
Ladd,  Gardner  P. 
Ladd,  John  S. 
Lawrence,  Luther 
Leland,  Alden 
Lincoln,  Abishai 
Littlefield,  Tristram 
Lowell,  John  A. 
Marble,  William  P. 
Marcy,  Laban 
Meader,  Reuben 
Moore,  James  M. 
Morss,  Joseph  B. 
Newman,  Charles 
Norton,  Alfred 
Noyes,  Daniel 
Ober,  Joseph  E. 
Orne,  Benjamin  S. 
Paine,  Henry 
Park,  John  G. 
Parker,  Joel 
Parsons,  Samuel  C. 
Parsons,  Thomas  A. 
Payson,  Thomas  E. 
Peabody,  George 
Peabody,  Nathaniel 
Pease,  Jeremiah,  Jr. 
Perkins,  Jesse 
Perkins,  Jonathan  C. 
Perkins,  Noah  C. 
Pool,  James  M. 
Powers,  Peter 
Prince,  F.  O. 
Putnam,  George 
Putnam,  John  A. 
Rantoul,  Robert 
Read,  James 
Reed,  Sampson 
Rice,  David 
Richardson,  Daniel 
Richardson,  Nathan 
Rockwood,  Joseph  M. 
Rogers,  John 
Ross,  David  S. 
Sampson,  George  R. 
Sargent,  John 
Sheldon,  Luther 
Sherman,  Charles 
Sleeper,  John  S. 
Smith,  Matthew 
Souther,  John 
Stacy,  Eben  H. 
Stetson,  Caleb 
Stevens,  Charles  G. 
Stevens,  Joseph  L.,  Jr. 
Storrow,  Charles  S. 
Stutson,  William 
Sunnier,  Charles 
Taber,  Isaac  C. 
Taft,  Arnold 
Talbot,  Thomas 
Taylor,  Ralph 
Thayer,  Joseph 

37 3 


Thayer,  Willard,  2d 
Thomas,  John  W. 
Tileston,  Edmund  P. 
Tilton,  Abraham 
Tower,  Ephraim 
Turner,  David 
Tyler,  John  S. 
Underwood,  Orison 
Viles,  Joel 
Yinton,  George  A. 
Wales,  Bradford  L. 
Walker,  Samuel 
Warner,  Marshal 


Wetmore,  Thomas 
Wheeler,  William  F. 
White,  Benjamin 
Whitney,  Daniel  S. 
Wilbur,  Daniel 
Wilbur,  Joseph 
Wilder,  Joel 
Wilkins,  John  H. 
Williams,  Henry 
Wilson,  Willard 
Winn,  Jonathan  B. 
Wood,  Nathaniel 


Absent,  and  not  voting,  189. 

So  the  decision  of  the  Chair  was  sustained. 


Elections  by  Plurality. 

The  question  recurred  on  the  motion  to  recon- 
sider  the  vote  on  the  subject  of  elections  by  plu 
rality,  upon  which  the  yeas  and  nays  had  been 
ordered. 

Mr.  FRENCH,  of  New  Bedford,  moved  to  re 
consider  the  vote  by  which  the  yeas  and  nays 
were  ordered. 

The  motion  was  agreed  to,  and  the  question 
being  taken,  the  demand  for  the  yeas  and  nays 
was  not  sustained. 

The  question  then  being  taken  on  the  motion 
to  reconsider  the  vote  on  the  subject  of  elections 
by  plurality,  it  was  upon  a  division — ayes,  138  ; 
noes,  49 — decided  in  the  affirmative. 

So  the  motion  to  reconsider,  was  agreed  to. 

The  question  being  on  the  final  passage  of  the 
resolves  on  the  subject  of  elections  by  plurality,, 
they  were  read,  as  follows  : — 

1.  Resolved,   That  it  is  expedient  to  provide  in 
the  Constitution,  that  a  majority  of  all  the  votes 
given,  shall  be  necessary  to  the  election  of  a  Gov 
ernor,  Lieutenant-  Governor,  Secretary,  Treasurer, 
Auditor,  and  Attorney- General  of  the  Common 
wealth  :  provided,  that  if  at  any  election  of  either 
of  the  above  named  officers,  no  person  shall  have 
a  majority  of  the  votes  given,  the  House  of  Rep 
resentatives   shall,   by   a   majority   of  viva  voce 
votes,  elect  two  out  of  three  persons  who  had  the 
highest,  if  so  many  shall  have  been  voted  for, 
and  return  the  persons  so  elected  to  the  Senate, 
from  which  the  Senate  shall,  by  viva  voce  vote, 
elect  one  who  shall  be  Governor. 

2.  Resolved,  That  in  all  elections  of  Senators 
and  Councillors,  the  person  having  the  highest 
number  of  votes,  shall  be  elected. 

3.  Resolved,  That  it  is  expedient  so  to  amend 
the  Constitution,  as  to  provide  that  a  majority  of 
the  votes  shall  be  necessary  for  the  election  of 
Representatives  to  the  General  Court,  until  other 
wise  provided  by  law. 

4.  Resolved,  That  in  the  election  of  all  city  and 
town  officers,  the  same  rule  shall  govern  as  in 
case  of  Representatives  to  the  General  Court. 

5.  Resolved,  That  in  the  election  of  all  county 


546 


ELECTIONS    BY   PLURALITY. 


[69th  day. 


Thursday,] 


BIRD. 


[July  28th. 


and  district  officers,  the  person  having  the  highest 
number  of  votes  shall  he  elected. 

6.  Resolved,  That  in  all  elections  where  the  person 
having  the  highest  number  of  votes  may  be  elect 
ed,  and  there  is  a  failure  of  election  because  two 
persons  have  an  equal  number  of  votes,  subse 
quent  trials  may  be  had  at  such  times  as  may  be 
prescribed  by  the  legislature. 

Mr.  BIRD,  of  Walpole.  I  regret,  exceedingly, 
that  I  have  been  the  cause  of  so  much  uneasiness 
for  the  last  hour,  but  as  the  matter  has  been 
finally  settled,  I  desire  to  submit  a  few  amend 
ments.  I  move  to  amend  the  first  resolve  by  in 
serting  after  the  word  "  Commonwealth,"  in  the 
fourth  line,  the  words  "  until  otherwise  provided 
by  law."  If  this  amendment  is  adopted,  I  propose 
to  submit  the  following  as  a  new  resolve,  to  be 
inserted  after  the  third  resolve : — 

Resolved,  That  any  law  providing  that  the  Gov 
ernor,  Lieutenant- Governor,  Secretary,  Treasurer, 
Auditor,  Attorney-  General,  and  Representatives  to 
the  General  Court,  or  either  of  them,  shall  be  elect 
ed  by  plurality  instead  of  majority,  shall  not  take 
effect  until  one  year  after  its  passage. 

I  also  propose  to  add  the  following  in  place  of 
the  fourth  resolve : — 

Resolved,  That  in  the  election  of  city  and  town 
officers,  such  rules  shall  govern  as  the  legislature 
may  prescribe. 

It  will  be  seen  that  the  effect  of  the  first  amend 
ment  which  I  propose,  will  be  to  give  to  the  legis 
lature  the  power  to  prescribe  that  the  plurality 
shall  elect  the  six  State  officers,  instead  of  the 
majority.  The  first  resolve  now  provides  that  a 
majority  of  the  votes  given  shall  be  necessary  to 
the  election  of  these  six  State  officers.  If  this 
amendment  is  adopted,  the  legislature  will  have 
the  power  to  provide  for  their  election  by  plural 
ity,  but  the  fourth  resolve  provides  that  any  such 
change  by  the  legislature,  shall  not  go  into  opera 
tion  until  one  year  after  its  passage.  That  is,  if 
the  legislature  pass  a  plurality  law,  an  opportunity 
shall  be  given  to  the  people  to  revise  the  proceed 
ings  of  that  legislature  by  the  election  of  another 
body,  who  shall  meet  and  act  upon  the  matter. 
If  they  please  to  repeal  the  proceedings  of  the 
preceding  legislature,  they  can  do  so,  but  if  not, 
the  law  stands  ratified.  One  great  object  of  this 
change  was  to  provide  something  which  should 
look,  and  be,  in  reality,  more  uniform,  and  which 
would  give  something  more  of  symmetry  to  the 
system  than  it  at  present  possesses.  As  a  friend 
of  the  majority  rule,  I  feel  that  I  can  now  retain 
that  rule  as  applied  to  the  election  of  the  six  State 
officers  named  in  the  resolution,  until  a  majority 
of  the  people  of  the  Commonwealth,  through  their 


representatives,  express  the  desire  that  it  shall  be 
changed ;  but  at  the  sarre  time,  provision  is  made 
that  such  a  change  shall  not  take  effect  until  one 
year  afterwards.  The  object  of  this  is  merely  to 
prevent  an  accidental  majority  from  passing  this 
law,  and  also  to  prevent  the  trickery  of  politicians, 
who  may  desire  to  subserve  their  own  particular 
and  selfish  ends.  There  is  a  slight  change,  also, 
in  the  third  resolve,  to  which  I  have  proposed  an 
amendment.  As  the  resolve  now  stands,  repre 
sentatives  are  to  be  chosen  by  majority  until 
otherwise  provided  by  law.  The  only  change 
this  amendment  will  make  is,  that  this  provision 
will  not  go  into  operation  until  a  year  after  its 
passage. 

The  next  proposition  is  to  strike  out  the 
fourth  resolve.  I  can  see  no  reason  why  the 
election  of  town  officers  should  be  the  same 
as  the  election  of  State  officers,  and  I  have 
therefore  proposed  to  substitute  a  provision  that 
the  election  of  those  officers  shall  take  place  in 
such  manner  as  the  legislature  shall  provide. 
I  take  it  there  can  be  no  objection  to  such  a  pro 
vision,  for  it  is  evident  that  if  the  people  desire  to 
have  a  different  law,  they  may,  through  their  rep 
resentatives,  obtain  one.  So  far  as  my  acquaint 
ance  extends,  however,  there  is  no  practical  diffi 
culty  in  the  election  of  town  officers  at  the  present 
time,  and  I  think  none  need  be  anticipated. 

It  is  unnecessary  to  argue  these  points  to  any 
great  extent,  for  they  are  plain,  intelligible,  and 
will  be  easily  understood.  We  of  the  majority 
would  prefer  to  retain  that  rule  in  the  Constitu 
tion,  without  leaving  it  to  the  power  of  the  legis 
lature  to  change  it ;  but,  for  one,  I  am  entirely 
willing  to  submit  this  matter  to  the  people.  If 
they  are  desirous  of  making  this  change,  let  them 
have  it;  and  we  shall  have  an  opportunity  of 
changing  it,  if  necessary,  at  the  succeeding  legis 
lature.  At  any  rate,  by  adopting  such  a  provis 
ion,  we  shall  be  preventing  any  hasty  action  on 
the  part  of  legislative  bodies. 

I  trust  that  those  who  have  acted  with,  me  in  this 
matter,  and  who  are  in  favor  of  the  majority  prin 
ciple,  will  look  at  these  propositions  carefully  be 
fore  they  vote  against  them.  I  am  aware  that  it  is 
said  we  are  yielding  too  much  to  plurality,  but  it 
strikes  me  that  this  is  not  the  case,  strictly  speak 
ing.  We  yield  to  the  will  of  the  people  and  to 
that  alone,  and  if  they  demand  the  plurality  let 
them  have  it.  No  one  will  deny  that  the  tendency 
is  towards  the  adoption  of  the  plurality  rule  in  ail 
elections,  and  let  us  have  an  opportunity  to  try  it 
first  in  the  election  of  county  and  district  officers. 
If  we  find  that  it  works  well  in  this  instance,  if 
we  find  that  the  interests  of  the  community  will 
be  promoted  by  the  change,  we  can  make  the 


69th    day.] 


ELECTIONS   BY   PLURALITY. 


547 


Thursday,] 


TRAIN  —  ALVORD  —  GARDNER  —  WILSON  —  LORD  —  GRAY. 


[July  28th. 


change,  and  apply  the  rule  to  the  election  of  other 
and  more  important  officers.  But  if,  on  the  con 
trary,  we  do  not  like  its  operation,  we  can  come 
back  to  our  present  system  and  retain  this. 

Mr.  TRAIN,  of  Framingham.  I  move  to 
amend  the  amendment  to  the  first  resolve,  by 
striking  out,  in  the  second  line,  the  words  "  ma 
jority  of  votes  given;"  also  to  strike  out  the 
amendment  of  the  gentleman  from  Walpole,  (Mr. 
Bird,)  and  add  after  the  word  "  Commonwealth," 
the  words  "  and  the  person  having  the  highest 
number  of  votes  shall  be  duly  declared  to  be  elect 
ed." 

The  PRESIDENT.  It  is  not  competent,  at 
this  stage  of  business,  to  submit  such  an  amend 
ment,  as  it  is  in  the  nature  of  a  substitute  to  the 
amendment  proposed  by  the  gentleman  from 
Walpole,  (Mr.  Bird). 

Mr.  ALVORD,  for  Montague,  called  for  the 
previous  question. 

Mr.  GARDNER,  of  Boston.  I  trust  that  the 
gentleman  for  Montague  does  not  intend  to 
force  us  to  a  vote,  by  making  such  a  demand. 

Mr.  ALVORD.  I  will  withdraw  my  motion, 
if  the  Convention  will  agree  to  take  the  vote 
upon  this  question  at  a  quarter  before  eight 
o'clock. 

Mr.  GARDNER.  I  really  hope  that  the  gen 
tleman  will  not  force  the  main  question  at  this 
time.  Here  is  a  new  proposition  made  to  us,  un 
der  the  color  of  an  amendment,  at  the  very  last 
stage  of  this  question,  a  question  of  grave  im 
portance,  and  of  great  consequence  to  every  por 
tion  of  the  State,  and  to  every  individual  in  it. 
We  have  spent  some  three  or  four  hours  in  the 
discussion  of  preliminary  questions,  and  now  the 
amendment  of  the  gentleman  from  Walpole  is 
introduced.  Hardly  has  it  been  stated  to  the 
Convention,  when  the  gentleman  for  Montague 
rises  and  moves  the  previous  question,  before  one 
word  can  be  said  by  any  member  of  the  House 
except  the  gentleman  who  introduced  these  im 
portant  propositions.  I  believe  that  if  the  pre 
vious  question  is  ordered  now,  it  will  result  in 
the  loss  of  much  valuable  time  to  this  Conven 
tion.  There  are  gentlemen  here,  who  desire  to 
express  their  views  upon  this  subject,  and  I  hope 
that  no  attempt  to  gag  them,  or  shut  them  off  in 
this  manner,  will  be  sustained.  Gentlemen  have 
met  here  to  discuss  the  propriety  of  making  pro 
visions  which  may  probably  be  a  part  of  the 
organic  law  of  the  Commonwealth  for  the  next 
twenty  years  ;  they  are  sent  into  this  assembly  for 
the  sacred,  solemn  purpose,  of  providing  an,  or 
ganic  law  for  this  State,  and  I  submit  whether 
they  ought  to  be  debarred  from  the  privilege  of 
considering  and  debating  such  questions  as  may 


come  before  them  ?  I  do  not  believe  that  the  ma 
jority  of  this  Convention  will  sanction  such  a 
step,  and,  unless  the  gentleman  withdraws  his 
motion,  I  shall  be  compelled  to  call  for  the  yeas 
and  nays. 

The  question  being  taken  on  ordering  the  yeas 
and  nays,  it  was,  upon  a  division — ayes,  44  ; 
noes,  94— one-fifth  voting  in  favor,  decided  in  the 
affirmative. 

So  the  yeas  and  nays  were  ordered. 

Mr.  WILSON,  of  Natick.  I  would  suggest 
to  my  friend  for  Montague,  that  it  would  be 
better  to  withdraw  his  motion,  so  that  we  can 
move  to  lay  the  subject  upon  the  table  for  the 
present.  We  have  agreed  not  to  adjourn  until 
eight  o'clock,  and  I  think  we  can  dispose  of  the 
subject  this  evening. 

Mr.  LORD,  of  Salem.  I  understand  that  the 
President  of  the  Convention  has  ruled,  that  after 
the  yeas  and  nays  have  been  ordered  upon  the 
previous  question,  tho  motion  cannot  be  with 
drawn  but  by  universal  consent. 

The  PRESIDENT.  The  Chair  has  made  110 
such  decision  within  his  recollection. 

Mr.  LOUD.  I  am  aware  it  was  not  the  deci 
sion  of  the  present  occupant  of  the  Chair. 

Mr.  GRAY,  of  Boston.  I  believe  that  such  a 
decision  was  made  by  the  President  pro  tempore, 
the  other  day. 

The  PRESIDENT.  The  Chair  is  of  the  opin 
ion,  that  the  ordering  of  the  yeas  and  nays  would 
not  preclude  the  withdrawal  of  such  a  motion. 

Mr.  LORD.  I  supposed  that  such  was  the 
case,  although  it  was  differently  ruled  by  the  gen 
tleman  who  occupied  the  Chair  of  the  Conven 
tion  the  other  day.  Now,  Sir,  I  do  not  want  the 
motion  for  the  previous  question  withdrawn,  for 
the  purpose  of  laying  the  orders  upon  the  table, 
for  the  purpose  of  rescinding  a  vote,  for  the  pur 
pose  of  having  an  evening  session,  to  crowd 
through  this  resolution  which  nobody  knows  any 
thing  about.  But  I  think  we  had  better  adjourn 
until  to-morrow  morning,  and,  in  the  meantime, 
have  the  amendments  printed,  so  that  we  may 
know  what  they  are.  We  are  acting  upon  a 
fundamental  law,  with  which,  perhaps,  a  few  gen 
tlemen  may  be  fully  acquainted  ;  but  it  is  quite 
important  that  the  Convention  should  be,  also, 
fully  acquainted  with  it.  It  is  important,  too, 
that  a  proposition  of  the  character  of  this,  should 
not  be  forced  through  in  a  single'  night,  because 
I  do  not  think  it  would  be  right  to  adopt  a  prin 
ciple  in  our  Constitution,  contrary  to  the  recorded 
judgment  of  this  Convention.  It  is  for  this  rea 
son  that  I  am  opposed  to  going  on  with  the  con 
sideration  of  this  subject  at  the  present  time.  We 
do  not,  all  of  us,  know  what  is  the  amendment 


548                                    ELECTIONS   BY   PLURALITY. 

[69th  day. 

Thursday,]                                               LORD  —  YEAS  —  NAYS. 

[July  28th. 

which  has  been  proposed,  and  some  gentlemen     Bancroft,  Alpheus 

Hurlburt,  Samuel  A. 

have  not  even  heard  it  read.     If  we  adjourn, 

Bates,  Moses,  Jr. 

Ide,  Abijah  M.,  Jr. 

there  are  two  desirable  objects  which  would  be 
attained.     In  the  first  place,  the  Secretary  will 

Beal,  John 
Bennett,  William,  Jr. 
Bird,  Francis  W. 

Kendall,  Isaac 
Kingman,  Joseph 
Knowlton,  J.  S.  C. 

have  the  amendments  printed,  so  that  we  can 

Booth,  William  S. 

Knowlton,  William  H. 

know  where  we  stand  upon  this  matter,  and  be 

Boutwell,  George  S. 

Knox,  Albert 

ready  to  vote  upon  it  in  the  morning.     In  the 

Bout  well,  Sewell 

Ladd,  Gardner  P. 

next  place,  if  we  call  the  yeas  and  nays   now 

Breed,  Hiram  N. 

Langdon,  Wilber  C. 

upon  ordering  the  previous  question,  they  cannot 
be  taken  before  eight  o'clock,  when  the  time  will 

Brown,  Adolphus  F. 
Brown,  Hammond 
Brown,  Hiram  C. 

Little,  Otis 
Loomis,  E.  Justin 
Marcy,  Laban 

have  arrived  when  this  Convention  must  adjourn. 

Brownell,  Joseph 

Marvin,  Abijah  P. 

Now,  Sir,  in  order  to  accomplish  both  of  these 

Bryant,  Patrick 

Mason,  Charles 

desirable  results,  and  get  rid  of  the  previous  ques 

Bumpus,  Cephas  C. 

Merritt,  Simeon 

tion,  I  move  that  the  Convention  do  now  adjourn. 
The  question  was  taken,  and,  upon  a  division 

Burlingame,  Alison 
Butler,  Benjamin  F. 
Cady,  Henry 

Monroe,  James  L. 
Morton,  Elbridge  G. 
Morton,  Marcus 

—  ayes,    56  ;    noes,     103  —  the  motion  was  not 

Caruthers,  William 

Morton,  Marcus,  Jr. 

agreed  to. 

Case,  Isaac 

Morton,  William  S. 

Mr.  LORD  demanded  the  yeas  and  nays. 

Chapin,  Chester  W. 

Nash,  Hiram 

A  division  being  called  for  on  the  motion,  there 

Churchill,  J.  McKean 

Nute,  Andrew  T. 

were  —  ayes,  38  ;    noes,  109  —  one-fifth  voting  in 
the  affirmative. 

Clarke,  Alpheus  B. 
Clark,  Ransom 
Cole,  Sumner 

Ober,  Joseph  E. 
Osgood,  Charles 
Packer,  E.  Wing 

So  the  yeas  and  nays  were  ordered. 

Cushman,  Thomas 

Parris,  Jonathan 

The  question  recurred  on  the  motion  of  the 

Dana,  Richard  H.,  Jr. 

Partridge,  John 

gentleman  from    Salem,  to  adjourn,  and  being 
taken  by  yeas  and  nays,  it  was  decided  in  the 
negative—  yeas,  56  ;  nays,  144—  as  follows  :  — 

Davis,  Charles  G. 
Davis,  Robert  T. 
Day,  Gilman 
Dean,  Silas 

Penniman,  John 
Phelps,  Charles 
Phinney,  Sylvanus  B. 
Pierce,  Henry 

Deining,  Elijah  S. 

Rawson,  Silas 

YEAS. 

Denton,  Augustus 

Rice,  David 

Adams,  Benjamin  P.       Hinsdale,  "William 

Earle,  John  M. 

Richards,  Luther 

Aldrich,  P.  Emory          Houghton,  Samuel 

Easland,  Peter 

Richardson,  Daniel 

Andrews,  Robert             Hubbard,  William  J. 

Easton,  James,  2d 

Richardson,  Samuel  H. 

Aspinwall,  William         Hunt,  William 

Eaton,  Calvin  D. 

Rock  wood,  Joseph  M. 

Barrows,  Joseph               James,  William 

Edwards,  Samuel 

Ross,  David  S. 

Bell,  Luther  Y.                Jenkins,  John 

Ely,  Joseph  M. 

Royce,  James  C. 

Bliss,  Gad  O.                   Kellogg,  Giles  C. 

Fay,  Sullivan 

Sanderson,  Amasa 

Bradbury,  Ebenezcr         Lincoln,  Fred.  W.,  Jr. 

Fellows,  James  K. 

Schouler,  William 

Brinley,  Francis               Livermore,  Isaac 

Fisk,  Lyman 

Sikes,  Chester 

Buck,  Asahel                   Lord,  Otis  P. 

Freeman,  James  M. 

Simmons,  Perez 

Cogswell,  Nathaniel        Marvin,  Theophilus  R. 

French,  Charles  A. 

Simonds,  John  W. 

Conkey,  Ithamar              Miller,  Seth,  Jr. 

French,  Rodney 

Sprague,  Melzar 

Crittenden,  Simeon         Morey,  George 

Gale,  Luther 

Spooner,  Samuel  W. 

Crosby,  Leander              Noyes,  Daniel 

Gardner,  Johnson 

Stevens,  Charles  G. 

Crowell,  Seth                    Oliver,  Henry  K. 

Gates,  Elbridge 

Stevens,  Granville 

Davis,  Solomon                Orcutt,  Nathan 

Gilbert,  Washington 

Strong,  Alfred  L. 

Dawes,  Henry  L.             Parker,  Samuel  D. 

Giles,  Charles  G. 

Sumner,  Charles 

Dennison,  Hiram  S.        Perkins,  Daniel  A. 

Green,  Jabez 

Swain,  Alanson 

Edwards,  Elisha               Plunkett,  William  C. 

Greene,  William  B. 

Thayer,  Joseph 

Eustis,  William  T.           Sherril,  John 

Griswold,  Josiah  W. 

Tilton,  Horatio  W. 

Gardner,  Henry  J.           Stevenson,  J.  Thomas 

Griswold,  Whiting 

Turner,  David 

Gilbert,  Wanton  C.         Thompson,  Charles 

Hallett,  B.  F. 

Turner,  David  P. 

Goulding,  Jason               Train,  Charles  R. 

Hammond,  A.  B. 

Tyler,  William 

Gray,  John  C.                  Weeks,  Cyrus 

Hapgood,  Lyman  W. 

Upton,  George  B. 

Hale,  Artemas                 White,  Benjamin 

Hapgood,  Seth 

Wallace,  Frederick  T. 

Hale,  Nathan                    Wilder,  Joel 

Hathaway,  Elnathan  P. 

Wallis,  Freeland 

Harmon,  Phineas             Wilkinson,  Ezra 

Heath,  Ezra,  2d 

Ward,  Andrew  II. 

Hillard,  George  S.           Wilson,  Milo 

Hewes,  James 

Warner,  Samuel,  Jr. 

Heywood,  Levi 

Waters,  Asa  H. 

NAYS. 

Hobart,  Henry 

Weston,  Gershom  B. 

Hood,  George 

Whitney,  James  S. 

Adams,  Shubael  P.        Alvord,  D.  W. 

Howard,  Martin 

Williams,  Henry 

Allen,  James  B.               Austin,  George 

Howland,  Abraham  H. 

Wood,  Charles  C. 

Allen,  Parsons                Baker,  Hillel 

Hoyt,  Henry  K. 

Wood,  Otis 

Allis,  Josiah                    Ball,  George  S. 

Huntington,  George  H. 

Wood,  William  H. 

69th  day.] 

ELECTIONS    BY   PLURALITY.                                    549 

Thursday,] 

ABSENT  —  STEVENSON.                                                [July  28th. 

ABSENT. 

Mixter,  Samuel                 Souther,  John 

Abbott,  Alfred  A. 
Abbott,  Josiah  G. 
Allen,  Charles 
Allen,  Joel  C. 
Alley,  John  B. 
Appleton,  William 
Atwood,  David  C. 
Ayres,  Samuel 
Ballard,  Alvah 
Banks,  Nathaniel  P., 
Bartlett,  Russel 
Bartlett,  Sidney 
Barrett,  Marcus 
Bates,  Eliakim  A. 
Beach,  Erasmus  D. 
Beebe,  James  M. 
Bennett,  Zephaniah 
Bigelow,  Edward  B. 
Bigelow,  Jacob 
Bishop,  Henry  W. 
Blagden,  George  W. 
Bliss,  William  C. 
Bradford,  William  J. 
Braman,  Milton  P. 
Brewster,  Osmyn 
Briggs,  George  N. 
Bronson,  Asa 
Brown,  Alpheus  R. 
Brown,  Artemas 
Brownell,  Frederick 
Bullen,  Amos  H. 
Bullock,  Rufus 
Carter,  Timothy  W. 
Chandler,  Amariah 
Chapin,  Daniel  E. 
Chapin,  Henry 
Childs,  Josiah 
Choate,  Rufus 
Clark,  Henry 
Clark,  Salah 
Clarke,  Still  man 
Cleverly,  William 
Coggin,  Jacob 

Eames,  Philip 
Eaton,  Lilley 
Ely,  Homer 
Farwell,  A.  G. 
Fiske,  Emery 
Fitch,  Ezekiel  W. 
Foster,  Aaron 
Foster,  Abram 
Fowle,  Samuel 
Jr.  Fowler,  Samuel  P. 
French,  Charles  H. 
French,  Samuel 
Frothirgham,  R'd,  Jr. 
Giles,  Joel 
Gooch,  Daniel  W. 
Gooding,  Leonard 
Gould,  Robert 
Goulding,  Dalton 
Graves,  John  W. 
Greenleaf,  Simon 
Hadley,  Samuel  P. 
Hall,  Charles  B. 
A.  Haskell,  George 
Haskins,  William 
Hawkes,  Stephen  E. 
Hayden,  Isaac 
Hayward,  George 
Hazewell,  Charles  C. 
Heard,  Charles 
Henry,  Samuel 
Hersey,  Henrv 
Hewes,  William  H. 
Hobart,  Aaron 
Hobbs,  Edwin 
Holder,  Nathaniel 
Hooper,  Foster 
Hopkinson,  Thomas 
Hunt,  Charles  E. 
Huntington,  Asahel 
Huntington,  Charles  P. 
Hurlbut,  Moses  C. 
Hyde,  Benjamin  D. 
Jackson,  Samuel 

Moore,  James  M.              Stacy,  Eben  II. 
Morss,  Joseph  B.             Stetson,  Caleb 
Nayson,  Jonathan            Stevens,  Joseph  L.,  Jr. 
Newman,  Charles             Stevens,  William 
Nichols,  William              Stiles,  Gideon 
Norton,  Alfred                 Storrow,  Charles  S. 
Orne,  Benjamin  S.           Stutson,  William 
Paige,  James  W.             Sumner,  Increase 
Paine,  Benjamin              Taber,  Isaac  C. 
Paine,  Henry                    Taft,  Arnold 
Park,  John  G.                  Talbot,  Thomas 
Parker,  Adolphus  G.      Taylor,  Ralph 
Parker,  Joel                      Thayer,  Willard,  2d 
Parsons,  Samuel  C.         Thomas,  John  W. 
Parsons,  Thomas  A.        Tileston,  Edmund  P. 
Payson,  Thomas  E.          Tilton,  Abraham 
Peabcdy,  George              Tower,  Ephraim 
Peabody,  Nathaniel        Tyler,  John  S. 
Pease,  Jeremiah,  Jr.         Underwood,  Orison 
Perkins,  Jesse                   Upham,  Charles  W. 
Perkins,  Jonathan  C.      Viles,  Joel 
Perkins,  Noah  C.             Vinton,  George  A. 
Pomroy,  Jeremian           Walcott,  Samuel  B. 
Pool,  James  M.                Wales,  Bradford  L. 
Powers,  Peter                   Walker,  Amasa 
Preston,  Jonathan            Walker,  Samuel 
Prince,  F.  O.                    Warner,  Marshal 
Putnam,  George               Wetmore,  Thomas 
Putnam,  John  A.             Wheeler,  William  F. 
Rantoul,  Robert               White,  George 
Read,  James                      Whitney,  Daniel  S. 
Reed,  Sampson                 Wilbur,  Daniel 
Richardson,  Nathan         Wilbur,  Joseph 
Ring,  Elkanah,  Jr.          Wilkius,  John  H. 
Rockwell,  Julius              Williams,  J.  B. 
Rogers,  John                     Wilson,  Henry 
Sampson,  George  R.        Wilson,  Willard 
Sanderson,  Chester          Winn,  Jonathan  B. 
Sargent,  John                   Winslow,  Levi  M. 
Sheldon,  Luther               Wood,  Nathaniel 
Sherman,  Charles             Woods,  Josiah  B. 
Sleeper,  John  S.               Wright,  Ezekiel 
Smith,  Matthew 

Cole,  Lansing  J. 

Jacobs,  John 

Absent  and  not  voting,  219. 

Cook,  Charles  E. 

Jenks,  Samuel  H. 

Cooledge,  Henry  F. 

Johnson,  John 

So  the  Convention  refused  to  adjourn. 

Copelaiid,  Benjamin 

F.  Kellogg,  Martin  R. 

The  PRESIDENT.     The  question  is  upon  or 

Crane,  George  B. 
Cressy,  Oliver  S. 
Crockett,  George  W. 
Cross,  Joseph  W. 

Keyes,  Edward  L. 
Kimball,  Joseph 
Kinsman,  Henry  W. 
Knight,  Hiram 

dering  the  main  question,  and  upon  that  the  yeas 
and  na}  s  have  been  ordered. 
Mr.  STEVENSON,  of  Boston.     I  hope  that 

Crowninshield,  F.  B. 

Knight,  Jefferson 

the  Convention  will  not,  at  this  late  stage  of  the 

Cummings,  Joseph 

Knight,  Joseph 

proceedings,  order  the  main  question  to  be  put  ; 

Curtis,  Wilbur 
Cushman,  Henry  W 
Cutler,  Simeon  N. 
Davis,  Ebenezer 

Knowlton,  Charles  L. 
Kuhn,  George  H. 
Ladd,  John  S. 
Lawrence,  Luther 

and  my  reason  is  this  :     Here  is  a  proposition  for 
a  radical  change  in  the  Constitution,  submitted, 
which  has  never  before  been  suggested  in  the 

Davis,  Isaac 

Lawton,  Job  G.,  Jr. 

Commonwealth  ;  a  proposition  entirely  new,  and 

Davis,  John 

Leland,  Alden 

which  has  had  none  of  the  consideration  of  the 

Dehon,  William 
DeWitt,  Alexander 
Doane,  James  C. 
Dorman,  Moses 

Lincoln,  Abishai 
Littlefield,  Tristram 
Lothrop,  Samuel  K. 
Loud,  Samuel  P. 

members  of  this  Convention  upon  this  floor,  what 
ever  may  have  been  its  consideration  elsewhere  ; 
and,  consequently,  no  opportunity  has  been  al 

Duncan,  Samuel 

Lowell,  John  A. 

lowed  to  see  what  will  be  the  effect  produced  by 

Dunham,  Bradish 

Marble,  William  P. 

its  adoption,  and  how  it  will  operate.     And  yet, 

Durgin,  John  M. 

Meader,  Reuben 

it  is  proposed  here,  that  we  shall  vote,  yea  or  nay, 

550 


QUESTION   OF   ORDER,   &c. 


[69th  day. 


Thursday,] 


HALE  —  STEVENSON  —  BUTLER  —  SCHOULER. 


[July  28th. 


upon  it,  without  having  any  such  opportunity 
afforded. 

Now,  I  ask,  for  what  reason  can  the  previous 
question  be  ordered,  under  such  circumstances  ? 
It  must  be  for  the  purpose  of  saving  time ;  but  I 
ask  if  it  will  save  any  time  ? 

Mr.  HALE,  of  Bridgewater.  I  rise  to  a  ques 
tion  of  order.  Is  there  not  a  vote  of  the  Conven 
tion,  to  adjourn  at  eight  o'clock  ? 

The  PRESIDENT.  The  Chair  has  no  knowl 
edge  of  any  vote  to  that  effect. 

Mr.  HALE.  I  am  confirmed  in  that  opinion, 
from  the  fact  that  the  Chair  proposed,  a  few  mo 
ments  ago,  that  the  subject  be  laid  upon  the  table, 
so  that  the  Convention  might  be  able  to  adjourn 
at  8  o'clock,  to  meet  again  this  evening. 

The  PRESIDENT.  The  Chair  will  read  the 
Secretary's  record,  respecting  the  vote  to  which 
the  gentleman  refers.  It  is  as  follows  : — 

"Mr.  Griswold  moved  that  the  session  be  ex 
tended  to  eight  o'clock  this  evening,  and  it  was 
carried." 

The  Chair  accordingly  rules,  that  it  is  compe 
tent  for  the  Convention  to  sit  as  long  as  it  may 
feel  disposed.  The  gentleman  from  Boston  can 
proceed  with  his  remarks. 

Mr.  STEVENSON.  I  was  observing,  when 
interrupted,  that  this  is  a  question  of  saving  time. 
But  I  submit,  that  but  one  vote  can  be  taken  up 
on  these  amendments  which  have  been  proposed, 
and  a  motion  may  be  made  to  reconsider  to-mor 
row,  and  the  discussion  would  then  probably 
occupy  a  much  longer  time  than  it  would  this 
evening.  So  that,  in  fact,  there  is  little  or  no 
time  to  be  gained  by  it.  There  is  another  objec 
tion,  which  I  have,  and  that  is,  that  I  hold  in  my 
hand  an  amendment,  which.  I  desire  to  propose, 
and  which  I  believe  will  receive  the  approval  of 
many  members  of  the  Convention,  and  as  yet  no 
opportunity  has  been  allowed  me  to  propose  it. 

Now,  I  appeal  to  gentlemen,  as  a  matter  of 
justice — is  it  right,  in  a  body  like  this,  to  allow 
the  previous  question  to  be  sustained  before  mem 
bers  have  had  time  or  opportunity  to  reflect  upon 
the  matter  under  consideration  ?  Is  it  right,  that 
the  moment  a  gentleman  has  submitted  an  im 
portant  proposition,  and  given  us  his  views  in 
regard  to  it,  another  member  should  at  once  rise 
and  demand  the  previous  question,  thus  cutting 
off  all  debate  and  amendments  ?  Is  it  the  way  in 
which  we  have  conducted  our  business  hereto 
fore,  or  the  -way  in  which  a  body  of  the  dignified 
character  and  importance  of  this,  should  conduct 
its  labors  at  any  time  ?  Is  there  any  reason  why 
a  member  of  this  body  should  not  have  an  oppor 
tunity  to  ask  the  mover  of  a  proposition,  what  is 


its  effect — what  is  its  purpose  ?  If  we  adopt  the 
previous  question  now,  nobody  can  propose  any 
amendments.  And  I  do  not  believe  it  is  intended 
to  recommend  to  the  people  of  Massachusetts  to 
adopt  amendments  to  the  Constitution  of  the 
State,  which  we  ourselves  have  never  consider 
ed. 

I  am  perfectly  aware  that  it  is  not  in  order  to 
state  objections  to  the  proposition  of  the  gentle 
man  from  Walpole,  (Mr.  Bird,)  but  it  is  in  order 
to  state,  that,  as  I  heard  it  read,  I  saw  objections 
which  would,  I  believe,  if  laid  before  this  Con 
vention,  move  the  minds  of  gentlemen  to  no  small 
degree. 

In  regard  to  the  other  point,  whether  you  shall 
settle  the  question  to-night  or  to-morrow  morn 
ing,  that  is  a  matter  which  must  be  left  with  the 
Convention,  who  have  a  right  to  sit  here  as  long 
as  they  choose.  But  I  submit,  whether  it  is 
proper  for  such  a  body  as  this  to  ask  the  people  of 
Massachusetts  to  alter  the  fundamental  law  in  a 
manner  which  they  themselves  have  not  consid 
ered.  As  one  of  the  minority  of  this  Convention, 
I  appeal  to  the  majority,  in  good  faith,  whether  it 
is  right  to  drive  members  to  vote  upon  a  proposi 
tion  of  this  character ;  and  whether  it  is  not  due 
to  every  individual  here,  that  before  he  records 
his  vote  upon  any  subject,  he  should  be  allowed 
to  express  his  views  in  regard  to  it. 

I  hope  the  previous  question  will  not  be  sus 
tained.  No  good  motive  for  it  has  been  or  can  be 
shown,  but  on  the  contrary  there  are  many  pal 
pable  objections  to  such  a  course  being  taken  at 
this  time. 

Mr.  BUTLER,  of  Lowell.  I  do  not  wish  to 
say  but  a  single  word  upon  this  matter.  And 
first,  the  gentleman  from  Boston  says  there  is  no 
good  reason  why  we  should  sustain  the  previous 
question. 

Question  of  Order. 

Mr.  SCHOULER,  of  Boston.  I  rise  to  a  point 
of  order.  I  desire  to  know,  if  the  Chair  has  de 
cided  that  this  Convention  did  not  vote  to  adjourn 
at  eight  o'clock  ? 

The  PRESIDENT.  The  Chair  has  read  the 
vote  which  was  passed.  The  Convention  voted 
it  would  hold  an  evening  session  until  eight 
o'clock. 

Mr.  SCHOULER.  I  want  the  decision  of  the 
Chair  itself  upon  this  point. 

The  PRESIDENT.  The  Chair  will  again  read 
the  vote,  from  the  journal. 

The  entry  made  by  the  Secretary  was  accord 
ingly  read. 

The  PRESIDENT.  In.  accordance  with  this 
resolve,  the  Chair  does  not  consider  it  imperative 


69th  day.] 


QUESTION   OF   ORDER. 


551 


Thursday,; 


SCHOULER  —  BUTLER  —  DANA  —  ALVORD  —  GRISWOLD. 


[July  28th. 


upon  him  to  adjourn  the  Convention  at  eight 
o'clock. 

Mr.  SCHOULER.  Then  I  appeal  from  the 
decision  of  the  Chair. 

Mr.  BUTLER,  of  Lowell.  I  rise  to  a  point  of 
order. 

The  PRESIDENT.  The  delegate  from  Bos 
ton  has  appealed  from  the  decision  of  the  Chair. 

Mr.  BUTLER.  Still,  I  rise  to  a  point  of  order ; 
and  that  is,  that  no  gentleman  has  a  right  to 
make  inquiries  while  another  is  speaking,  in  order 
to  get  a  decision  of  the  Chair  upon  which  to  base 
an  appeal.  I  wish  farther  to  know  whether  the 
decision  of  the  Chair  can  take  away  my  right  to 
the  floor? 

Mr.  DANA,  for  Manchester.  I  would  inquire 
if  the  question  before  the  House  is  upon  the  pre 
vious  question  or  upon  the  appeal  ? 

The  PRESIDENT.  The  question  was  upon 
ordering  the  main  question,  pending  which  the 
gentleman  from  Boston  (Mr.  Schouler)  appealed 
from  the  decision  of  the  Chair,  that  it  is  not  im 
perative  for  the  Chair  to  adjourn  the  Convention 
at  eight  o'clock. 

Mr.  SCHOULER,  of  Boston.  I  will  state  the 
grounds  of  my  appeal.  By  a  vote  of  the  Conven 
tion,  we  decided  not  to  adjourn  until  seven 
o'clock.  I  had  the  floor,  and  was  about  to  address 
the  Convention,  when  the  gentleman  for  Erving 
(Mr.  Griswold)  asked  me  to  allow  him  to  make 
a  motion.  I  complied  with  his  request,  and  he 
then  moved  to  extend  that  rule  to  eight  o'clock. 
That  was  the  motion  made,  I  care  not  what  it 
says  upon  the  journal.  And  I  will  leave  it  to  the 
gentleman  himself  whether  in  making  that  motion 
he  intended  to  raise  a  quibble,  or  whether  he 
honestly  expected  to  extend  the  time  to  eight 
o'clock  when  the  Convention  should  adjourn  ? 

Mr.  ALVORD,  for  Montague.  I  rise  to  a 
point  of  order.  Some  little  time  ago,  I  under 
stood  the  gentleman  from  Bridgewater,  (Mr. 
Hale,)  to  make  an  inquiry  of  the  Chair  concern 
ing  the  hour  of  adjournment.  The  Chair  in 
reply  read  the  resolution  which  had  been  passed, 
and  stated  distinctly  that  in  his  opinion  the  Con 
vention  could  remain  in  session  as  long  as  it 
saw  fit.  No  appeal  was  taken  from  that  decis 
ion,  and  I  submit — as  other  business  has  inter 
vened  before  the  gentleman  from  Boston  rose  to 
a  point  of  order — whether  it  is  not  too  late  for  an 
appeal  ? 

Mr.  SCHOULER.  I  ask  the  gentleman  for 
Erving  to  answer  my  question. 

Mr.  GRISWOLD,  for  Erving.  As  the  gen 
tleman  has  made  a  personal  appeal  to  met  I  am 
perfectly  willing  to  state  what  I  did  and  what 
was  my  object.  My  design  in  making  that 


motion  to  extend  the  session,  was  to  give  notice 
to  the  Convention  that  there  would  be  an  even 
ing  session,  so  that  we  might  close  up  the  busi 
ness  as  early  as  possible,  and  have  it  ready  for  the 
Committee.  That  is  the  reason  I  made  the  mo 
tion.  I  had  no  particular  idea  one  way  or  the 
other  in  regard  to  the  hour  of  adjournment ;  but 
if  any  existed,  it  was  that  the  Convention  might 
sit  beyond  that  hour  if  it  chose  to  do  so. 

Mr.  ALYORD,  for  Montague.  I  rise  to  a 
point  of  order.  I  submit  that  the  appeal  is  too  late. 

The  PRESIDENT.  The  Chair  understands 
the  question  to  be  this  :  The  person  now  occu 
pying  the  Chair  was  placed  in  it  at  a  quarter  past 
eight  o'clock,  when  the  question  was  raised  by 
the  gentleman  from  Bridgewater,  (Mr.  Hale,)  in 
regard  to  the  hour  of  adjournment.  The  Chair 
read  the  vote  of  the  Convention,  and  still  believes 
that  under  that  vote  he  has  no  right  to  adjourn 
this  body,  but  the  Convention  must  say  for  itself 
when  it  will  adjourn. 

Mr.  SCHOULER.  I  would  inquire  of  the 
Chair  if  I  am  in  order  ?  I  was  called  to  order  by 
the  gentleman  for  Montague. 

The  PRESIDENT.  The  Chair  would  say 
that  he  does  not  desire  to  press  this  matter,  or  to 
assume  any  arbitrary  power,  but  merely  desires 
to  act  in  accordance  with  what  he  believes  to  be 
right. 

Mr.  SCHOULER.  I  know  the  good  nature  of 
the  Chair,  and  his  desire  to  decide  properly  in 
this  matter,  and  I  am  the  last  man  to  take  an 
appeal  from  any  decision  that  the  Chair  may 
make,  but  I  do  not  think  that  he  understands  the 
motion  of  the  gentleman  for  Erving,  (Mr.  Gris 
wold,)  as  I  understood  it.  A  motion,  however, 
was  made  about  seven  o'clock  this  evening,  by 
the  gentleman  now  occupying  the  chair,  to  lay 
the  orders  upon  the  table,  in  order  that  the  time 
of  adjournment  might  be  extended  until  eight 
o'clock,  which  is  conclusive  proof  to  my  mind 
that  the  Chair  understood  the  order  precisely  as 
I  understood  it. 

Now,  Sir,  passing  from  that  subject,  we  are 
here  very  near  the  close  of  our  session.  There  is 
no  desire  on  the  part  of  any  one  to  extend  the 
session,  and  after  having  thus  far  gone  through 
with  our  labors  without  any  serious  trouble,  I 
trust  that  we  shall  not  make  the  last  day's  pro 
ceedings  a  scene  of  excitement  or  uproar,  but 
allow  every  subject  which  is  to  come  before  us  to 
be  acted  upon  in  perfect  harmony.  I  think  that 
if  we  adjourn  now  and  have  the  amendments 
printed,  we  can  come  in  to-morrow  and  vote  upon 
them  understandingly,  and  if  necessary,  I  am 
willing  to  vote  to  meet  at  eight  o'clock. 

Mr.  BUTLER,  of  Lowell.     I  rise  to  a  point  of 


552 


QUESTION   OF   ORDER. 


[69th  day. 


Thursday,] 


SCHOULER  —  LORD  —  JEXKS  —  EARLE  —  DAVIS  —  BUTLER. 


[July  28th. 


order.  The  gentleman  is  not  discussing  the  ap 
peal,  but  some  other  subject. 

The  PRESIDENT.  The  Chair  rules  that  the 
gentleman  must  confine  his  remarks  to  the  ques 
tion  of  appeal. 

Mr.  SCHOULER.  If  the  Chair  still  rules  that 
this  Convention  ought  not,  in  accordance  with  its 
vote,  to  adjourn  at  eight  o'clock,  I  hold  my  ap 
peal  to  be  good. 

The  PRESIDENT.  The  Chair  will  state  the 
question  as  he  understands  it,  and  the  gentleman 
may  then  make  such  explanation  as  may  be 
necessary.  The  Chair  understands  the  matter  to 
be  this  :  The  gentleman  for  Erving,  (Mr.  Gris- 
wold,)  moved  that  the  Orders  of  the  Day  lie  upon 
the  table.  The  motion  was  agreed  to,  and  the 
gentleman  then  moved  that  the  session  be  ex 
tended  until  eight  o'clock.  That  motion  was  also 
agreed  to,  and  under  that  vote  the  Chair  holds 
that  it  is  not  his  duty  to  adjourn  this  Convention 
until  he  is  authorized  by  a  specific  vote  to  do  so. 
The  delegate  from  Boston,  (Mr.  Schouler,)  ap 
peals  from  the  decision  of  the  Chair,  and  the 
question  therefore  is,  shall  the  decision  of  the 
Chair  be  sustained  ? 

Mr.  LORD,  of  Salem.  I  desire  to  make  an 
inquiry  of  the  Chair.  During  almost  the  whole 
of  the  session  we  have  had  a  rule  to  adjourn  at 
one  o'clock,  except  on  Saturdays,  when  the  session 
was  extended  by  a  vote  of  the  Convention  until 
two  o'clock.  I  would  ask  whether  the  same 
form  of  motion  was  not  used  in  the  present  case, 
as  is  used  in  extending  the  session  on  that  day  ? 
if  so,  I  contend  that  the  same  rule  ought  to  be 
applied  here. 

Mr.  ELY,  of  Westfield.  I  would  inquire  if 
there  has  been  any  rule  by  which  the  afternoon 
session  has  been  adjourned  at  a  particular  hour  ? 

Mr.  LORD.  Will  the  Chair  be  kind  enough 
to  answer  my  inquiry,  whether  the  vote  by  which 
the  Convention  adjourned  at  two  o'clock  in  the 
afternoon,  is  not  precisely  in  the  same  form  as 
the  order  which  has  been  read? 

Mr.  BATES,  of  Plymouth.  I  rise  to  a  point 
of  order;  the  gentleman  is  not  discussing  the 
question  of  appeal. 

The  PRESIDENT.  The  Chair  must  rule  that 
the  questions  propounded  by  the  gentleman  from 
Salem,  (Mr.  Lord,)  are  not  proper  to  be  answered 
by  the  Chair.  If  the  gentleman  requests  it,  the 
Secretary  will  be  directed  to  read  the  vote  to  which 
he  refers. 

Mr.  JENKS,  of  Boston.  I  would  like  to  say 
a  word  upon  a  question  of  order.  It  seems  to  me 
that  the  vote  taken  by  the  Convention  was  this : 
that  the  afternoon  session  shall  be  extended  to 
eight  o'clock.  Now  what  did  that  vote  mean  ? 


Did  it  mean  to  imply  that  the  session  should  close 
at  eight  o'clock,  this  evening,  or  that  we  should 
remain  in  session  until  eight  to-morrow  morning  ? 
I  want  to  know  whether  a  man  who  is  sentenced 
to  be  hung  at  eight,  and  is  not  hung  until  nine 
o'clock,  is  hung  lawfully  ?  [Laughter.] 

Mr.  EARLE,  of  Worcester.  I  would  inquire 
of  the  Chair,  whether  he  has  decided  the  appeal 
from  the  decision  of  the  Chair  to  be  in  order  ? 

The  PRESIDENT.  The  Chair  has  decided 
that  the  appeal  taken  from  the  decision  of  the 
Chair  by  the  gentleman  from  Boston,  (Mr. 
Schouler,)  is  in  order,  and  the  question  before  the 
Convention  is,  shall  the  decision  of  the  Chair 
stand  as  the  judgment  of  this  Convention  ? 

Mr.  EARLE.  I  would  inquire  whether,  when 
a  question  has  been  settled  and  other  business  has 
intervened,  it  is  competent  to  take  an  appeal  from 
the  decision  of  the  Chair  ? 

The  PRESIDENT.  The  Chair  is  not  able  to 
decide  that  question. 

Mr.  DAVIS,  of  Plymouth.  I  rise  to  a  point 
of  order.  I  submit  that  this  is  not  an  appeal  from 
the  decision  of  the  Chair  ;  but  if  anything,  it  is  an 
appeal  from  the  record  of  the  Convention,  and  there 
would  be  just  as  much  propriety  in  appealing 
from  a  resolution  which  has  been  passed,  as  from 
this  vote,  for  such  in  fact  it  is,  after  it  has  once 
been  recorded  upon  the  journal. 

I  think  that  it  is  not  a  matter  upon  which  the 
Chair  is  competent  to  decide,  for  I  consider  it  to 
be  entirely  beyond  his  jurisdiction,  it  being  an 
appeal  from  the  record  of  the  Convention,  and 
not  from  the  decision  of  the  Chair.  I  submit, 
therefore,  that  it  is  not  in  order. 

Mr.  LORD,  of  Salem.  In  order  to  avoid  this 
difficulty  which  has  arisen,  and  prevent  the  call 
ing  of  the  yeas  and  nays  which  have  been  ordered, 
and  in  order  also  to  be  good  natured  all  around, 
believing  still,  however,  that  the  outside  limit 
should  be  eight  o'clock,  I  move  that  this  Conven 
tion  do  now  adjourn. 

Mr.  BUTLER,  of  Lowell.  I  rise  to  a  question 
of  order.  My  legislative  experience  has  been  con 
fined  to  the  last  winter,  and  then  it  was  decided 
over  and  over  again,  that  after  a  motion  to  adjourn 
had  been  made  and  decided  in  the  negative,  another 
motion  was  not  in  order  until  some  subsequent 
business  had  been  acted  upon.  I  found  fault 
with  this  decision,  not  that  there  may  not  be 
business  intervening,  but  the  question  with  me 
was,  what  constitutes  such  business  ?  Does  the 
President  decide  that  the  motion  to  adjourn  is  in 
order,  under  the  present  circumstances  ? 

The  PRESIDENT.  The  question  before  the 
Convention  is  on  the  appeal  taken  from  the  de 
cision  of  the  Chair  by  the  gentleman  from  Bos- 


69th   day.] 


QUESTION  OF   ORDER. 


553 


Thursday,]          BRADBURY  —  BUTLER  —  HILLARD  —  WESTON  —  LORD  —  GARDNER.         [July  28th. 


ton,  (Mr.  Schouler,)  and  the  gentleman  from 
Salem  (Mr.  Lord)  moves  that  the  Convention  do 
now  adjourn.  The  Chair  is  of  opinion  that  the 
motion  to  adjourn  is  in  order. 

The  question  being  taken,  it  was,  upon  a 
division — ayes,  68  ;  noes,  118 — decided  in  the 
negative. 

So  the  motion  to  adjourn  did  not  prevail. 

The  question  recurred  on  sustaining  the  de 
cision  of  the  Chair  ? 

Cries  of  "  Question  !  "  "  Question  !  " 

Mr.  BRADBURY,  of  Newton.  I  have  stood 
here  too  many  times  in  defence  of  my  parliament 
ary  rights,  to  be  silenced  by  this  call  for  the  ques 
tion. 

I  rise  merely  to  state  the  reasons  why  I  cannot 
concur  in  the  decision  of  the  Chair,  that,  under 
the  order  adopted  to-day,  this  session  does  not 
terminate  at  eight  o'clock.  The  record  which 
has  been  read  seems  to  indicate  that  this  session 
should  close  at  that  time. 

But,  in  order  to  be  certain  what  is  demanded 
by  good  faith,  we  must  ascertain  what  is  the  ap 
parent  meaning  of  the  order,  and  the  manifest 
understanding  with  which  it  was  adopted  ;  and, 
in  order  to  this,  I  desire  that  the  Secretary  refer 
to  the  language  of  the  standing  order  terminating 
our  morning  sessions  at  one  o'clock,  and  also  to 
the  subsequent  order  by  which,  for  Saturdays,  it 
was  extended  to  two  o'clock.  And  it  seems,  if  I 
were  occupying  your  Chair,  Mr.  President,  that 
the  form  in  which  I  should  find  those  orders, 
would  guide  me  in  giving  a  decision  in  the  present 
instance. 

Besides,  Sir,  under  such  an  order  as  has  been 
read  to  us  by  the  Secretary,  gentlemen  had  reason 
able  ground  to  expect  that  this  session  would 
terminate  at  eight  o'clock.  It  looks  to  me  like  a 
breach  of  faith  to  absent  members,  to  continue 
this  session  beyond  eight  o'clock,  under  existing 
circumstances  ;  and  I  would  as  soon  cut  off  a 
right  hand  as  vote  to  do  so  with  these  impressions. 

Mr.  BUTLER,  of  Lowell.  I  would  inform  the 
gentleman  that  there  has  been  no  hour  fixed,  by 
any  rule  whatever,  for  this  Convention  to  adjourn 
in  the  afternoon. 

Mr.  BRADBURY.  The  record  will  show  us 
the  nature  of  the  order.  We  are  assembled  here 
to  act  upon  grave  questions,  and  they  must  soon 
be  settled  definitively.  We  owe  to  ourselves  and 
the  public  our  most  considerate  action  upon  these 
questions.  They  should  be  settled  in  a  full  Con 
vention,  and  if  there  is  dereliction  of  duty  in  the 
absence  of  members,  I  submit  that  it  is  not  at  this 
time  the  fault  of  the  minority.  And  I  farther 
submit  to  this  Convention,  whether,  under  exist 
ing  circumstances,  we  ought  not  now  to  adjourn, 


to  meet  to-morrow  morning,  when  we  can  act 
upon  the  subjects  before  us  more  deliberately  and 
understandingly  than  by  sitting  here  to-night  ? 

Mr.  HILLARD,  of  Boston.  In  my  younger 
days  I  studied  a  book  called  "  Paley's  Moral 
Philosophy,"  and  in  that  is  laid  down  this  moral 
rule,  that  when  A  makes  a  contract  with  B,  A 
shall  execute  it  according  to  the  way  in  which  he 
knows  B  to  understand  it.  Now,  I  can,  with 
justice,  apply  that  rule  to  this  Convention.  The 
order  which  has  been  read,  is  a  contract  between 
the  majority  and  the  minority  ;  and  I  ask 
whether,  in  accordance  with  this  moral  rule, 
the  majority  is  not  to  interpret  the  contract,  or 
vote  in  the  sense  in  which  they  suppose  the 
minority  understand  it  ?  Now,  if  the  majority 
vote  that  the  session  of  the  Convention  shall  be  ex 
tended  to  eight  o'clock,  I  should  like  to  know 
whether  there  is  a  man  in  that  majority,  possess 
ing  natural  common  sense,  who  does  not  believe 
that  it  is  the  understanding  of  every  person  in  the 
minority  that  it  is  intended  to  adjourn  at  eight 
o'clock,  and  at  no  other  time  ?  If  that  be  so,  I 
put  it  to  the  moral  sense  of  every  gentleman  here 
if  they  are  not  now  bound  to  stand  by  that  con 
struction. 

The  PRESIDENT.  The  motion  made  by  the 
delegate  for  Erving,  (Mr.  Griswold,)  was,  that 
the  session  be  extended  to  eight  o'clock  this  even 
ing.  The  order  of  adjournment  at  one  o'clock, 
reads  as  follows  : — 

That  the  Convention  hereafter  adjourn  at  one 
o'clock  in  the  afternoon,  until  otherwise  ordered. 

Mr.  WESTON,  of  Duxbury.  I  am  surprised 
that  gentlemen  profess  not  to  have  understood  the 
motion  of  the  gentleman  for  Erving.  For  their 
information,  I  will  state  that  when  that  motion 
was  made  this  morning,  a  gentleman  arose  and 
asked  the  Chair  whether,  if  the  motion  should 
prevail,  it  would  make  it  imperative  upon  the 
Convention  to  adjourn  at  eight  o'clock,  and  it 
was  the  decision  of  the  Chair  that  it  was  not  im 
perative  upon  the  Convention,  but  that  it  was  an 
open  question,  to  adjourn  at  eight  o'clock,  or  ex 
tend  the  session  beyond  that  hour. 

Mr.  LORD,  of  Salem.  If  the  gentleman  will 
allow  me,  I  desire  to  make  a  correction.  The 
inquiry  was  this  :  whether  we  might  not  adjourn 
before  that  time  ;  and  the  decision  of  the  President 
was,  that  the  Convention  might  do  so  if  they  de 
sired  ;  but  there  was  no  statement  that  the  session 
could  be  extended  beyond  eight  o'clock. 

Mr.  GARDNER,  of  Boston.  I  merely  desire  to 
say,  that  when  the  gentleman  for  Erving  (Mr. 
Griswold)  made  that  motion,  I  inquired  of  you,  as 
President  pro  tcmpore  of  the  Convention,  whether 


554 


ELECTIONS   BY   PLURALITY,  &c. 


[69th  day. 


Thursday,] 


WESTON  —  BALL  —  BUTLER  —  TRAIN  —  ALTORD  —  HALE. 


[July  28th. 


that  motion  compelled  us  to  remain  in  session 
until  eight  o'clock,  and  your  reply  was,  that  the 
Convention  might  adjourn  at  any  time  it  saw  fit 
before  that  hour.  I  understood  nothing,  however, 
in  regard  to  remaining  in  session  after  that  time. 

Mr.  WESTON.  The  decision  of  the  Chair,  as 
I  understood  it,  was  that  the  vote  did  not  make  it 
imperative  upon  the  Convention  to  adjourn  be 
fore  or  after  eight  o'clock  ;  and  it  seems  very 
strange  to  me  that  gentlemen  pretend  that  we 
were  to  be  confined  to  that  hour. 

Mr.  BALL,  of  Upton.  One  of  the  gentlemen 
who  has  risen  to  discuss  this  question,  has  laid 
down  a  principle  of  moral  philosophy,  and  I  hold 
that  I  am  bound,  and  we  are  all  bound,  to  act  in 
accordance  with  that  principle.  Now,  this  ques 
tion  was  talked  over  by  the  gentlemen  in  the 
eastern  gallery,  who  are  known  by  those  who 
have  watched  their  votes,  to  be  in  favor  of  com 
pleting  the  business  of  this  Convention  at  the 
earliest  day  possible,  that  we  may  go  to  our 
homes  and  families ;  and  we  decided,  without  the 
dissent  of  a  single  member,  that  if  the  rest  of  the 
Convention  would  do  so,  we  would  stay  here  un 
til  eight  o'clock  to-morrow  morning.  The  prop 
osition  was  made  in  the  Convention  to  extend  the 
session  until  eight  o'clock,  but  it  was  the  under 
standing  of  members  in  the  gallery,  that  we 
might  extend  that  hour  still  farther,  if  the  state 
of  the  business  should  demand  it ;  and  according 
ly,  gentlemen  were  prepared  to  remain  here  so 
long  as  the  session  should  continue.  Now  I  ap 
peal  to  gentlemen  whether  it  is  not  about  time  to 
close  the  labors  of  this  Convention,  and  allow 
those  who  reside  at  a  distance,  to  return  to  their 
families.  My  business  requires  that  I  should  be 
at  home  now,  and  there  are  many  others  equally 
as  impatient  as  myself,  to  be  released  from  the 
deliberations  of  this  body. 

In  regard  to  another  matter.  I  think  that  the 
majority  of  the  Convention  will  do  themselves 
great  harm,  if  they  order  the  main  question  to  be 
put  at  this  stage  of  the  proceedings.  At  any 
rate,  I  shall  be  compelled  to  vote  against  it.  I 
hope  that  the  Convention  will  be  ready  to  come 
together,  and  discuss  the  question  which  has  been 
proposed,  in  good  spirit,  as  much  so  as  may  be 
necessary,  and  take  the  vote  upon  it,  and  close  up 
the  business  at  as  early  a  day  as  possible. 

The  question  was  then  taken  on  sustaining  the 
decision  of  the  Chair,  and  it  was  decided  in  the 
affirmative. 

Elections  by  Plurality. 

Mr.  BUTLER,  of  Lowell.  When  interrupted, 
I  was  about  saying  that  I  could  adduce  many 
reasons  why  the  main  question  should  be  put 


now,  and  among  others,  was  the  action  of  certain 
gentlemen  who  had  a  habit  of  calling  for  the 
yeas  and  nays  upon  the  most  unimportant  ques 
tions,  thus  causing  a  delay  in  the  proceedings  of 
the  Convention.  Another  reason,  and  a  very 
important  one,  too,  is,  that  I  now  see  more  of  the 
solid  men  of  Boston  in  this  hall,  than  I  have  seen 
since  the  commencement  of  the  session,  and  I  do 
not  wish  to  have  them  detained  from  their  fami 
lies  any  longer  than  possible.  I  hope  that  the 
main  question  will  be  ordered,  if  for  no  other 
purpose  than  to  accommodate  them.  Another  rea 
son  is,  that  if  we  do  not  pass  these  resolves  to 
night,  they  will  lie  over  until  to-morrow,  when 
they  would,  in  all  probability,  be  postponed  until 
the  next  day,  a  result  which,  I  trust,  the  good 
sense  of  the  majority  will  not  permit  to  be  brought 
about. 

Now  I  propose — for  I  have  not  an  overbearing 
disposition — to  allow  every  gentleman  who  de 
sires  it,  to  discuss  this  question  fully  and  fairly. 
The  gentleman  from  Boston,  (Mr.  Stevenson,) 
says  that  he  desires  to  submit  an  amendment, 
and  whether  he  desires  to  speak  or  not,  we  are 
all  here  ready  to  sit  and  listen  to  him,  though  I, 
myself,  happen  to  be  one  of  those  unfortunate 
men  who  have  had  to  go  without  their  suppers. 
[Laughter.]  I  think,  therefore,  that  it  is  better 
that  the  previous  question  should  be  withdrawn, 
and  we  will  then  fix  the  time  at  half-past  ten  for 
the  question  to  be  taken.  In  the  mean  time,  let 
every  gentleman  prepare  his  amendments,  and 
we  will  proceed  to  consider  them  with  all  good 
nature  and  harmony  possible. 

Mr.  TRAIN,  of  Framingham.  I  hope  gentle 
men  understand  that  this  will  be  a  final  vote. 

Mr.  BUTLER.  My  friend  from  Framingham 
says  that  this  will  be  the  final  vote ;  it  certainly  is 
the  case,  but  if  necessary,  a  reconsideration  may 
be  moved. 

Mr.  ALVORD,  for  Montague.  I  once  offered 
to  withdraw  my  motion  for  the  previous  ques 
tion,  provided  I  could  be  permitted  to  substitute 
a  motion  to  close  debate  at  a  particular  hour.  I 
am  willing  to  do  this  at  any  moment,  and  place 
that  hour  as  late  in  the  night  as  gentlemen  may 
think  advisable.  I  therefore  now  withdraw  my 
motion  for  the  previous  question. 

Mr.  BUTLER  moved  that  the  Orders  of  the 
Day  be  laid  upon  the  table. 

The  motion  was  agreed  to. 

Mr.  BUTLER.  I  now  move  that  the  debate 
upon  the  question  cease  at  ten  o'clock. 

Mr.  HALE,  of  Bridgewater.  I  admire  the 
good  nature  of  the  gentleman  from  Lowell,  and 
I  hope  that  the  Convention  will  follow  his  exam 
ple,  for  by  so  doing,  I  believe  we  shall  much 


69th  day.] 


ELECTIONS   BY   PLURALITY. 


555 


Thursday,]         LIVERMORE  —  SCHOULER  —  DANA  —  GARDNER  —  ALVORD  —  EARLE.         [July  28th. 


sooner  arrive  at  the  object  we  have  in  view.  I 
think  that  we  may  make  a  compromise  in  this 
matter,  provided  gentlemen  will  agree  to  yield  a 
little  to  each  other.  As  has  been  already  sug 
gested,  I  believe  that  we  had  better  separate  to 
night,  and  fix  upon  some  hour  in  the  morning 
for  taking  the  question.  This  will  give  every 
opportunity  to  members  to  express  their  views 
upon  this  important  subject ;  but  if  it  is  settled 
to-night,  the  result  will  be  by  no  means  satisfac 
tory,  and  may  even  tend  to  extend  the  session 
much  longer  than  we  now  anticipate.  I  would 
suggest,  therefore,  that  the  most  appropriate  course 
for  the  Convention  to  pursue,  will  be  to  adjourn 
to-night,  after  fixing  some  hour  in  the  morning 
for  debate  to  cease  upon  this  question  ;  we  can 
then  meet  and  consider  this  subject  in  a  much 
more  satisfactory  manner  than  would  be  the  case 
if  we  continued  in  session  to-night. 

Mr.  LIVERMORE,  of  Cambridge.  I  believe 
I  am  as  good  natured  as  my  friend  from  Lowell, 
and  just  as  desirous  of  closing  up  this  session  as 
he  is.  But  I  cannot  see  that  we  shall  gain  any 
thing  by  continuing  our  labors  to-night.  I  there 
fore  move  to  amend  the  motion  of  the  gentleman, 
by  substituting  ten  o'clock  to-morrow  morning, 
in  place  of  the  words  half-past  ten  tins  even 
ing. 

Mr.  SCHOULER,  of  Boston.  If  this  ques 
tion  is  to  be  decided  so  good  naturedly,  I  think  I 
may  be  allowed  to  say  a  word  or  two.  [A  laugh.] 
I  think  that  this  is  a  perfectly  fair  proposition, 
and  it  would  be  doing  no  more  than  justice  to 
the  minority  of  the  Convention,  to  give  them  the 
opportunity  which  this  proposition  would  afford, 
of  offering  their  amendments,  and  expressing 
their  views  in  regard  to  the  question.  It  is  true, 
a  little  bad  blood  has  been  stirred  up,  but  it  has 
now  entirely  subsided,  and  we  are  prepared  to 
act  harmoniously  and  deliberately. 

I  hope  that  the  gentleman  from  Lowell,  (Mr. 
Butler,)  will  consent  to  amend  his  motion,  in  the 
manner  suggested,  to  adjourn  to-night,  meet  to 
morrow  morning,  at  an  early  hour,  and,  at  ten 
o'clock,  take  the  vote  upon  the  question. 

Mr.  DANA,  for  Manchester.  I  would  ask  for 
information,  so  that  there  may  be  no  misunder 
standing,  whether  this  question  can  be  again  re 
considered,  the  gentleman  from  Walpole  having 
once  moved  to  reconsider  it  ?  Many  gentlemen 
may  vote  under  the  impression  that  it  can  be  re 
considered  after  it  has  been  finally  disposed  of. 

The  PRESIDENT.  The  Chair  would  inform 
the  gentleman  for  Manchester,  that  the  question 
before  the  Convention  has  been  reconsidered,  and 
amendments  have  been  submitted  by  the  gentle 
man  from  Walpole,  (Mr.  Bird,)  so  that  it  would 


not  be  properly  in  order  to  entertain  a  motion  to 
reconsider  a  second  time. 

Mr.  GARDNER,  of  Boston.  I  am  afraid  that 
the  Convention  will  think  that  all  the  good  nature 
is  contained  within  the  sixth  division.  I  was 
about  to  rise  for  the  purpose  of  making  the  same 
inquiry  which  the  gentleman  for  Manchester  has 
made,  because  I  felt  a  serious  apprehension  that 
if  the  final  vote  was  taken  at  ten  o'clock,  this 
evening,  the  question  having  once  been  recon 
sidered,  a  second  motion  to  reconsider  could  not 
be  entertained. 

The  PRESIDENT.  That  is  the  understanding 
of  the  Chair. 

Mr.  GARDNER.  Under  these  circumstances, 
and  as  there  are,  moreover,  but  very  few  mem 
bers  of  the  Convention  who  have  heard  the 
resolutions  and  amendments  read,  or  know  their 
meaning,  I  submit  to  the  good  sense  and  judgment 
of  gentlemen,  whether  it  is  not  best  to  postpone 
farther  action  until  to-morrow  morning  ?  In  the 
meantime,  the  resolves  and  amendments  can  be 
printed ;  we  can  read  and  consider  them  at  our 
leisure,  and  submit,  if  necessary,  such  additional 
amendments  as  may  be  suggested  to  our  minds. 

Mr.  ALYORD,  for  Montague.  I  wish  to  call 
the  attention  of  gentlemen  to  the  fact,  that  after 
we  have  disposed  of  the  matter  now  before  the 
Convention,  we  have  still  to  act  upon  the  motion 
of  the  gentleman  fromTaunton,  (Mr.  Morton,)  in 
reference  to  the  submission  of  an  alternative  prop 
osition  to  the  people,  on  the  subject  of  Represen 
tation  ;  and  also  upon  the  Report  of  the  Com 
mittee  on  Revision.  Members  can  judge  for 
themselves  of  the  time  which  will  be  required  to 
complete  this  business ;  and,  if  this  motion  is 
adopted,  to  adjourn  until  to-morrow,  I  think  it 
will  be  utterly  impossible  to  close  our  session 
until  sometime  next  week.  I  hope,  therefore,  we 
shall  dispose  of  this  matter  to-night,  and  leave 
only  those  two  questions  I  have  named  to  be  con 
sidered  by  the  Convention. 

Mr.  EARLE,  of  Worcester.  I  have  endeavored 
to  get  the  floor  for  the  purpose  of  making  the 
suggestions  to  which  we  have  just  listened.  It 
seems  to  me,  that  if  we  intend  to  get  through  with 
our  labors  this  week,  we  must  finish  the  con 
sideration  of  this  question  to-night.  There  are 
present,  as  will  be  perceived  from  the  last  vote 
which  was  taken,  as  many  members  as  there  are 
at  any  time  in  the  course  of  the  day ;  there  is  a 
disposition  to  go  on  with  the  business,  and  I  hope 
that  there  will  be  no  objection  to  our  proceeding 
and  settling  this  matter  to-night.  The  propositions 
which  have  been  submitted  are  simple  in  their 
character,  and  have  been  discussed  over  and  over 
again,  in  all  their  bearings,  and  I  have  no  doubt 


556 


ELECTIONS   BY   PLURALITY. 


[69th  day. 


Thursday,]        UPTON  —  BUTLER  —  WALKER  —  GARDNER  —  SCHOULER — STEVENSON.     [July  28th. 


that  they  can  be  decided  in  a  very  short  time,  if 
members  will  consent  to  sit  an  hour  or  two  longer. 
Gentlemen  are  desirous  of  returning  to  their 
homes  as  soon  as  possible,  and  are  therefore 
anxious  to  do  as  much  as  can  be  done  when  there 
is  an  opportunity  afforded,  and  I  have  not  the 
slightest  doubt,  if  we  settle  this  matter  to-night, 
that  we  shall  be  able  to  adjourn  this  week. 

Mr.  UPTON,  of  Boston.  I  cannot  say  like 
some  gentlemen  here,  that  I  am  too  full  for  utter 
ance,  for  I  have  not  yet  had  my  supper.  [Laugh 
ter.]  If  there  is -a  disposition,  however,  on  the 
part  of  the  majority  to  stop  and  make  a  night  of 
it,  I  am  willing  and  ready  to  meet  them.  I 
would,  therefore,  propose  to  the  gentleman  from 
Lowell  to  withdraw  his  motion,  and  let  us  go  on 
with  the  discussion  of  the  question.  "We  can 
ascertain  by  midnight,  whether  the  Convention  is 
ready  to  take  a  vote  or  not ;  and  if  not,  we  can 
then  adjourn,  and  resume  the  discussion  to-mor 
row. 

Mr.  BUTLER,  of  Lowell.  If  the  course  sug 
gested  by  the  gentleman  from  Boston,  can  be 
taken,  I  will  withdraw  my  motion,  with  pleas 
ure. 

Mr.  WALKER,  of  North  Brookfield,  moved 
that  the  Orders  of  the  Day  be  taken  from  the 
table. 

The  motion  was  agreed  to. 

The  question  being  on  agreeing  to  the  amend 
ments  to  the  resolutions, 

Mr.  GARDNER,  of  Boston,  asked  for  the  read 
ing  of  the  resolutions. 

They  were  accordingly  read  by  the  Secretary. 

Mr.  SCHOULER,  of  Boston,  moved  that  the 
resolutions  be  acted  upon  separately. 

The  motion  was  agreed  to. 

The  question  was,  therefore,  upon  adopting  the 
first  amendment  submitted  by  the  gentleman  from 
Walpole,  (Mr.  Bird). 

Mr.  SCHOULER.  If  it  is  in  order,  I  move  to 
amend  the  first  resolution,  by  striking  out  the 
words  "  a  majority  of  all  the  votes  given  shall  be 
necessary  to  the  election,"  and  inserting  the  words 
"the  person  having  the  highest  number  of  votes 
shall  be  deemed  and  taken  to  be  elected,"  so  that 
if  amended,  it  will  read : — 

That  it  is  expedient  to  provide  in  the  Constitu 
tion,  that  the  person  having  the  highest  number 
of  votes  shall  be  deemed  and  taken  to  be  elected 
in  the  election  of  a  Governor,  Lieu  tenant -Gov 
ernor,  Secretary,  Treasurer,  Auditor,  and  Attor 
ney-General  of  the  Commonwealth. 

The  question  being  taken,  the  amendment  was 
rejected. 

The  question  being  on  adopting  the  amendment 
of  the  gentleman  from  Walpole,  (Mr.  Bird). 


Mr.  STEVENSON,  of  Boston.  If  I  under 
stand  the  amendment  of  the  gentleman  from 
Walpole,  he  is  making  no  constitutional  provision 
at  all,  except  that  the  law  which  may  be  passed 
by  one  legislature  upon  this  subject,  shall  not  take 
effect  until  it  shall  have  been  ratified  by  a  second 
legislature,  and  then  it  may  be  made  a  part  of  the 
Constitution.  It  seems  to  me,  that  by  the  adop 
tion  of  such  a  provision,  we  shall  be  throwing 
into  that  body  every  year  a  party  quarrel  in  re 
gard  to  the  election  of  these  six  State  officers 
named,  although  the  gentleman  has  attempted  to 
guard  against  such  an  occurrence,  by  providing, 
that  the  plurality  law  which  may  be  passed  by 
one  legislature  may  stand,  unless  the  people  choose 
a  body  the  next  year  for  the  sole  purpose  of  re 
pealing  it.  Now,  if  the  gentleman  is  correct  in 
saying,  that  this  is  submitting  this  question  to  the 
people,  I  should  like  to  know  what  is  the  ob 
jection  to  our  submitting  it  to  the  people  at  once  ? 
Surely,  if  he  has  so  much  confidence  in  them 
as  he  professes  to  have,  I  see  no  reason  why  he 
should  have  made  it  incumbent  upon  two  succes 
sive  legislatures  to  establish  the  law. 

While  the  Committee  were  considering  this 
subject,  a  compromise  was  proposed, — not  like 
the  one  now  introduced  by  the  member  from 
Walpole ;  but  a  compromise  in  which  some  dis 
tinction  could  be  drawn,— to  this  effect :  that  an 
arrangement  should  be  made,  providing  for  the 
election  of  some  officers  by  the  plurality,  and  of 
others  by  the  majority  principle ;  but  in  both 
cases,  the  election  of  officers  of  the  Common 
wealth  to  be  left  in  the  hands  of  the  people.  It 
was  proposed  that  the  Convention  should  recom 
mend,  that  the  plurality  should  rule  in  those 
cases  where,  after  repeated  trials,  the  failure  to 
elect  was  not  provided  for,  and  leave  the  majority 
rule  to  be  employed  in  those  cases  where  election 
would  take  place  upon  the  first  or  second  ballots 
always  leaving  the  power  to  elect,  however,  in  the 
hands  of  the  people,  instead  of  transferring  it  to 
the  legislature. 

Now,  I  can  see  no  advantage  which  will  result 
from  the  resolution,  if  it  is  amended  in  the  man 
ner  proposed  by  the  gentleman  ;  but,  on  the  con 
trary,  it  introduces  not  only  into  the  legislature 
a  party  contest  as  to  what  the  law  shall  be,  but 
also  at  the  polls,  in  regard  to  those  who  may  be 
sent  here  to  legislate  with  reference  entirely  to 
that  one  question.  And,  Sir,  I  do  not  believe, 
that  the  people  of  Massachusetts  desire  to  choose 
representatives  for  any  such  purpose.  If  the 
amendment  suggested  by  the  gentleman  from 
Walpole  gives  the  question  to  the  voters  when 
the  law  has  been  passed  by  the  legislature,  what 
earthly  reason  can  there  be,  why  we  should  not 


69th   day.] 


ELECTIONS    BY   PLURALITY. 


557 


Thursday,] 


STEVENSON  —  HILLARD  —  BIRD  —  UPTON  —  BUTLER. 


[July  28th. 


submit  it  to  them  directly  ?  Do  not  set  a  politi 
cal  firebrand  of  this  character  in  the  legislature ; 
but  let  us  recommend  one  or  the  other  of  these 
two  rules  :  The  majority  or  plurality  directly  to 
the  people ;  and  let  them  determine  which  one 
they  will  have,  when  they  vote  upon  the  adoption 
of  the  Constitution.  The  gentleman  gains  noth 
ing  by  his  amendment,  and  the  probability  is, 
that  it  would  only  result  in  producing  disorder 
and  danger. 

We  all  know  the  unpleasant  consequences 
which  result  in  a  legislature,  where,  in  a  con 
test  for  election,  members  have  been  voted  for 
with  reference,  especially,  to  one  particular 
question.  We  know  that  the  result  has  been 
that  that  question  has  been  log-rolled  more 
than  any  other  question  in  the  State  House. 
And  in  regard  to  forming  a  constitutional  pro 
vision,  there  is  but  one  plain,  proper  mode  of 
dealing  with  the  people,  as  to  how  they  shall  vote 
for  it ;  and  that  is,  to  propose  it  to  them  directly, 
fairly,  and  openly,  instead  of  submitting  it  to 
them  in  the  indirect  way  proposed  by  the  gentle 
man  from  Walpole.  It  has  been  found,  that 
whenever  there  has  been  dragged  into  an  election 
of  candidates  to  the  legislature  a  question  upon 
which  the  people  are  divided,  it  has  been  made 
the  centre  around  which  log-rolling  has  been  going 
on.  There  never  was,  and  never  will  be,  a  legis 
lative  body  where  this  will  not  be  the  case.  The 
amendment  of  the  gentleman  proposes  nothing, 
neither  a  majority  nor  a  plurality  rule,  but  simply 
leaves  it  with  the  legislature  to  act  upon  the  sub 
ject  or  not,  as  it  may  feel  disposed. 

As  I  said  before,  I  think  that  the  Convention 
has  but  one  step  to  take  in  the  premises ;  and  that 
is,  to  submit  the  plurality  principle  to  the  people 
with  the  Constitution,  and  let  them  vote  upon  it 
as  they  please ;  if  they  want  it,  they  will,  of 
course,  make  it  known  by  their  votes  ;  but,  I 
hope  that  we  shall  not  consent  to  let  the  matter 
be  placed  in  the  hands  of  the  legislature,  to  be 
there  made  a  matter  of  party  contest  and  turmoil. 
For  these  reasons,  I  hope  that  the  amendment 
will  not  be  adopted. 

Mr.  HILLARD,  of  Boston.  I  desire  to  ask 
but  a  single  question,  and  that  is,  whether  the 
gentleman  means  to  give  to  all  subsequent  legis 
latures  the  power  of  repealing  the  act,  and 
whether  it  is  a  matter  that  may  be  hereafter  acted 
upon  like  any  other  legislative  question  ? 

Mr.  BIRD,  of  Walpole.  I  think  that  the  gentle 
man  from  Boston  is  far  more  competent  to  answer 
that  inquiry  than  I  am.  The  question  is  simply 
whether  one  legislature  can  repeal  an  act  passed 
by  the  preceding  legislature. 

Mr.  UPTON,   of  Boston.     I  hope  that  the 


amendment  of  the  gentleman,  as  it  now  stands, 
will  not  be  ado?  ted.  Gentlemen  who  have  been 
in  the  legislature,  know  as  well  as  I  do,  that 
whenever  any  question  of  amendment  to  the 
Constitution  has  been  proposed,  it  has  been  kept 
as  a  foot-ball  for  years,  and  especially  would  it  be 
the  case  were  we  to  allow  so  important  and  vital 
a  question  as  this  is,  to  be  placed  within  their 
reach.  Sir,  I  hold  it  to  be  not  only  unsound  in 
principle,  but  it  is  sometliing  to  which  I  might 
apply  much  stronger  language,  to  leave  the  man 
ner  of  electing  the  six  State  officers  named  in  the 
resolution,  to  be  determined  by  a  body  so  fluc 
tuating  and  changeable  in  its  character  as  the 
legislature  of  our  Commonwealth.  I  hope  that 
this  Convention  will  not  so  settle  a  fundamental 
law  of  Massachusetts. 

As  I  understand  this  matter,  if  we  adopt  the 
amendment  now  under  discussion,  the  question 
will  arise  in  the  next  legislature,  whether  the 
governor  and  other  State  officers  shall  be  elected  by 
the  plurality,  or  be  elected  as  they  are  at  the  pres 
ent  time.  If  this  question  is  passed  upon  affirm 
atively,  it  then  goes  over  to  the  succeeding  legis 
lature,  when  it  will  come  up  for  consideration 
again. 

If  that  body  do  not  repeal  it,  it  will  then,  of 
course,  be  an  open  question,  and,  from  that  time 
henceforward,  instead  of  amendments  to  the  Con 
stitution,  you  will  for  years  and  years  have  a  use 
less,  exciting  question,  which  will  cost  the  Com 
monwealth  thousands  upon  thousands  of  dollars 
to  settle;  when  this  Convention  has  the  power 
to  submit  it  directly  to  the  people,  and  ascertain 
from  them,  at  once,  what  are  their  wishes  in  re 
gard  to  it. 

Sir,  I  submit  that  it  is  trifling  with  the  voters 
of  this  Commonwealth,  to  undertake  here,  in  the 
fundamental  law,  to  leave  this  question  subject 
to  legislative  action,  year  in  and  year  out,  unde 
termined  and  undecided.  I  would  either  put  in 
the  Constitution  the  majority  rule  or  the  plurality 
rule,  and  decide  one  way  or  the  other,  before  I 
would  consent  to  leave  this  an  open  question  for 
future  legislation.  It  would  be  a  shame,  disgrace 
ful  to  the  Commonwealth  of  Massachusetts,  and 
disgraceful  to  the  proceedings  of  this  Convention, 
were  we  to  leave  a  proposition  of  the  importance 
of  this,  to  be  kicked  about  like  a  foot-ball, 
from  one  legislature  to  the  other.  So  far  as  the 
amendment  affects  the  first  resolve,  I  hope  that  it 
will  not  be  adopted. 

Mr.  BUTLER,  of  Lowell.  I  would  not  have 
spoken  upon  this  question,  were  I  not  the  chair 
man  of  the  Committee  which  reported  these  re 
solves  which  are  now  proposed  to  be  amended. 
And,  while  I  am  in  favor  of  them,  I  desire  to 


558 


ELECTIONS  BY  PLURALITY. 


[69th  day. 


Thursday,] 


BUTLER  —  SCHOULER —  WHITNEY. 


[July  28th. 


state  to  the  Convention  the  reasons  why  I  hope 
they  will  be  adopted,  and  the  inducements  which 
weigh  upon  my  mind,  trusting  that  they  will 
have  the  same  effect  upon  the  minds  of  gentlemen 
of  the  Convention.  When  I  made  this  report, 
the  thing  which  most  troubled  me  was  the  charge 
which  has  been  brought  by  the  minority,  that  we 
have  left  these  five  or  six  great  State  officers  to  be 
trucked  and  dickered  about ;  and  they  seemed  to 
intimate  that  it  was  for  some  foregone  political 
purpose  that  it  was  so.  Well,  Sir,  I  admit  that  it 
did  have  a  look  which  would  give  uncharitable 
men  an  opportunity  to  suppose  it  was  the  case ; 
and  it  occurred  to  me,  that  whatever  could  be 
done  to  remove  this  apprehension,  should  be  done. 
Now,  what  do  we  propose  to  do  ?  One  part  of 
the  Convention  want  the  majority  rule,  the  other 
part  want  the  plurality  rule  ;  neither  know  ex 
actly  what  rule  the  people  do  desire,  although  we 
of  course,  have  our  opinion.  Now,  we  say  we 
will  put  the  majority  system  forward  as  the  judg 
ment  of  the  Convention,  but  in  order  not  to  tie 
up  the  people,  to  confine  them  to  this,  we  will 
leave  it  to  the  legislature  to  alter  it  whenever  the 
people  may  feel  disposed  to  choose  a  body  for  that 
purpose.  It  may  be,  and  is  said,  that  the  ques 
tion  will  be  used  for  political  purposes  ;  but  the 
next  amendment  provides  that  that  law  shall  not 
take  effect  until  the  second  legislature  has  passed 
upon  and  agreed  to  it,  and  after  it  has  been  thus 
passed  upon,  there  can  be  no  such  thing  as  re 
pealing  it,  because  it  has  become  the  settled 
policy  of  the  Commonwealth.  No  man  can  cal 
culate  two  years  ahead  as  to  what  will  be  the 
political  state  of  the  Commonwealth,  and,  conse- 
sequently,  it  cannot  possibly  be  made  to  subserve 
political  or  party  ends. 

Mr.  SCHOULER,  of  Boston.  The  third  legis 
lature  may  repeal  it  if  the  people  do  not  like  it. 

Mr.  BUTLER.  So  it  may,  provided  the  peo 
ple  desire  it ;  but  it  cannot  be  made  a  political 
engine.  If  the  people  want  the  plurality,  which 
fact  we  shall  know  from  their  votes,  the  legisla 
ture  will  adopt  it,  and  so  long  as  they  have  that 
desire,  it  will  be  a  moral  impossibility  to  repeal 
it.  And  it  is  for  the  sole  purpose  of  removing 
any  unjust  or  uncharitable  supposition  on  the 
part  of  our  minority  friends,  that  this  proposition 
is  intended  to  truck  and  dicker  with,  that  we  have 
said  that  we  will  leave  it  with  the  people  to  fix 
the  matter  as  they  please.  If  the  majority  of  the 
Convention,  however,  choose  to  establish  the 
plurality  or  majority  principles,  so  be  it ;  I  am 
perfectly  content  with  that  result,  and  hope  that 
other  gentlemen  will  regard  it  in  the  same  man 
ner.  These  are,  briefly,  my  reasons  why  I  shall 
sustain  the  resolutions  and  amendments. 


Mr.  WHITNEY,  of  Conway.  The  gentleman 
from  Lowell  has  anticipated  my  remarks,  but 
there  has  been  a  single  consideration  urged  here 
against  this  amendment,  which,  I  believe,  has  not 
been  met,  and  is  not,  in  fact,  entitled  to  much 
weight,  though  it  deserves  a  reply.  It  is  this : 
that  if  the  legislature  shall,  in  future,  adopt  the 
plurality  rule,  it  will  become  a  foot- ball  in  that 
body,  to  be  constantly  kicked  about  from  one 
session  to  the  other.  Now,  I  think  we  have  some 
of  the  past  history  of  Massachusetts  to  guide  us 
upon  this  subject.  In  1851,  we  adopted  the  plu 
rality  rule  so  far  as  it  applied  to  the  election  of 
members  of  congress.  Has  that  been  made  a 
foot-ball?  No,  Sir;  nor  do  I  believe  that  any 
legislature  for  ten  years  to  come  will  agitate  the 
question.  It  has  been  settled,  permanently  set 
tled,  that  representatives  to  congress  shall  be 
elected  by  the  plurality  rule.  It  has  been  said, 
too,  that  this  will  prove  a  log-rolling  machine  ; 
but,  Sir,  I  think  that  is  an  argument  entitled  to 
little  weight.  The  gentlemen  from  Boston  pre 
dicted  that  such  would  be  the  case  in  regard  to 
the  election  of  members  of  congress,  but  so  far  as 
the  rule  has  been  applied  there,  it  has  been  per 
fectly  successful  and  satisfactory.  It  has  not  been 
a  matter  of  agitation  as  yet,  and  there  seems  but 
little  probability,  at  the  present  time,  that  it  ever 
will  be. 

I  desire,  for  a  moment,  to  call  the  attention  of 
gentlemen  to  the  history  of  these  resolutions. 
The  subject  of  plurality  was  introduced  in  the 
early  part  of  the  session,  and  was  one  of  the  first 
matters  discussed  in  Convention.  When  we 
came  to  vote  upon  it,  we  found  that  the  Conven 
tion  was  about  equally  divided  in  regard  to  the 
adoption  of  the  plurality  rule.  Under  these  cir 
cumstances,  it  was  thought  best  to  recommit  the 
subject  to  a  Select  Committee ;  this  was  done, 
and  the  Committee,  in  due  time,  reported  resolu 
tions  to  the  effect,  that  in  the  choice  of  the  follow 
ing  officers,  to  wit :  senators,  representatives,  and 
other  officers  elected  by  the  people,  where  there 
was  a  failure  to  elect  by  the  first  ballot,  the  plu 
rality  rule  should  be  appplied  thereafter. 

Now,  Sir,  I  like  those  resolutions  as  they  then 
stood,  and,  although  they  were  once  adopted,  the 
Convention  afterwards  reversed  their  original  de 
cision.  The  proposition  is  now  made  to  leave  so 
much  of  the  resolution  as  relates  to  the  governor, 
lieutenant-governor,  and  other  State  officers,  to 
the  jurisdiction  of  the  legislature,  and,  in  my 
opinion,  it  is  a  perfectly  proper  amendment.  If 
gentlemen  desire  the  plurality  rule  they  can  reach 
it  there.  Does  the  gentleman  from  Boston  feel 
that  the  legislature  will  not  sustain  the  plurality  ? 
If  he  does,  we  ought  not  to  put  it  in  our  Consti- 


69th  day.] 


ELECTIONS    BY   PLURALITY. 


559 


Thursday,] 


WHITNEY  —  HALE  —  SCHOULER  —  BIRD  —  GARDNER. 


[July  28th. 


tution,  where  it  cannot  be  reached.  If  the  people 
favor  the  plurality  rule,  we  shall  be  sure  to  get  it 
through  the  legislature  ;  if  not,  the  present  system 
will  stand  as  heretofore.  But  it  will  not  be  made 
a  foot-ball,  to  be  bandied  and  kicked  about  at  the 
mercy  of  some  political  party.  There  is  nothing 
in  the  history  of  the  Commonwealth  to  warrant 
such  an  intimation,  or  lead  to  any  such  conclu 
sion,  nor  will  it  be  the  history  of  the  Common 
wealth  if  this  amendment  should  prevail. 

Mr.  HALE,  of  Bridgewater.  Was  not  an  at 
tempt  made  in  the  legislature,  two  or  three  years 
ago,  to  adopt  the  plurality  ? 

Mr.  WHITNEY.  It  may  have  been  attempted 
in  one  portion  of  the  legislature,  but  it  was  not 
sustained.  I  do  not  know  that  the  proposition 
cost  much  money,  or  produced  much  agitation  in 
the  Commonwealth ;  certainly  I  never  heard  that 
such  was  the  case.  And,  since  gentlemen  are  so 
nearly  divided  in  their  opinion  in  regard  to  the 
majority  and  plurality,  it  has  been  proposed  to 
refer  the  matter  to  the  decision  of  the  legislature. 
But,  if  it  is  incorporated  in  the  Constitution, 
without  any  power  being  allowed  to  the  legisla 
ture  to  act  upon  it,  the  probability  is  that  we 
should  be  necessitated  to  call  another  Convention 
in  the  course  of  a  few  years,  to  provide  against 
the  difficulties  which  would  result  from  this  pro 
position.  The  question  is  one  that  may  be  safely 
left  with  the  legislature,  and  why  will  gentlemen, 
who  acknowledge  themselves  to  be  in  favor  of  the 
plurality  principle  in  toto,  object  to  such  a  course 
being  taken  ?  We  have  already  referred  to  that 
body  so  much  of  the  resolution  as  relates  to  the 
choice  of  representatives  by  this  rule,  and  I  can 
not  see  what  reason  there  is  why  we  should  not 
also  refer  to  them  the  clause  in  question.  I  hope 
that  gentlemen  will  consider  this  as  a  matter  of 
compromise.  As  for  myself,  I  am  entirely  in 
favor  of  the  plurality  rule,  but  I  do  not  think  it 
would  be  acting  wisely  to  incorporate  it  in  the 
Constitution  before  we  have  heard  from  the  peo 
ple  their  opinion  in  regard  to  it,  and  before  it  is 
so  fully  matured  as  might  be  desired.  Therefore, 
I  think  it  was  wisely  proposed  to  leave  the  mat 
ter  with  the  legislature.  In  regard  to  the  diffi 
culties  which  have  been  suggested  as  likely  to 
result  from  such  a  reference,  I  merely  wish  to  say, 
that  all  such  intimations  of  danger,  are  founded 
on  no  good,  substantial  reasons,  growing  out  of 
the  past  history,  or  from  any  prospective  view 
that  we  may  take  of  the  action  of  the  people  of 
the  Commonwealth  ;  and  consequently  no  faith  or 
confidence  should  be  placed  in  them.  I  hope 
that  the  amendment  will  prevail. 

Mr.  SCHOULER,  of  Boston.  I  move  to 
amend  the  amendment  of  the  gentleman  from 


Walpole,  by  adding  after  the  words  "  until  one 
year  after  its  passage,"  the  words,  "  and  if  repeal 
ed,  the  same  shall  not  take  effect  until  one  year 
after  its  passage." 

Mr.  BIIID.     I  accept  the  amendment. 

Mr.  GARDNER,  of  Boston.  The  gentleman 
from  Conway,  (Mr.  Whitney,)  says  he  thinks 
that  the  objection  which  was  urged  in  debate,  that 
if  this  amendment  was  adopted  by  the  Conven 
tion,  it  would  introduce  log-rolling  and  party 
spirit  into  the  legislature,  making  this  entirely  a 
political  question,  is  entitled  to  great  weight,  pro 
vided  the  past  history  of  the  Commonwealth  sus 
tained  that  idea ;  and  he  has  argued  that  the  past 
history  of  Massachusetts  does  not  sustain  that 
idea.  That  is  the  point  at  which  his  remarks 
were  aimed. 

Now,  Sir,  the  gentleman  from  Conway  is 
usually  pretty  well  informed  in  these  matters ; 
but,  if  he  had  been  acquainted  with  the  facts  of 
this  case,  he  would  not  have  arisen,  as  he  did,  for 
this  purpose  of  alluding  to  the  past  history  of 
Massachusetts  as  bearing  upon  this  subject ;  and 
if  I  could  convince  him  that  the  past  history  is 
what  my  colleague  claimed,  I  may  safely  say  that 
his  vote  would  be  cast  against  the  proposition. 
The  facts  are  these  :  Three  years  ago,  one  branch 
of  the  legislature,  in  this  building,  enacted  that 
electors  and  members  of  congress  should  be  chosen 
by  the  plurality  rule,  011  the  second  trial ;  and  the 
very  next  year,  the  other  branch  passed  a  law  that 
the  electors  for  president  and  members  of  con 
gress  should  be  elected  by  the  majority  rule. 
The  qtiestion  was  discussed  for  several  day?,  and 
when  the  vote  was  taken  there  were  but  live  or 
six  majority  who  voted  against  changing  the  law. 
My  friend  is  mistaken  when  he  says  it  caused  no 
party  division  ;  it  did.  It  commanded  almost  the 
whole  strength  and  support  of  a  certain  party, 
and  had  it  not  been  for  three  or  four  gentlemen 
whom  I  see  here  to-night,  who  broke  from  party 
and  party  trammels,  it  would  have  been  repealed. 
And  one  or  two  gentlemen  who  now  sit  near  the 
gentleman  from  Conway,  were  of  the  small  band 
who  voted  in  favor  of  sustaining  the  plurality. 
It  came  within  a  mere  handful  of  votes  of  being 
reconsidered  and  repealed.  So  much  for  the  past 
history  of  the  Commonwealth  in  regard  to  this 
matter. 

Now  the  gentleman  from  Walpole,  (Mr.  Bird,) 
has  introduced  a  proposition  here  which  varies 
the  action  of  the  Convention  hereafter  in  several 
very  important  particulars,  though  the  difficulty 
which  would  result  from  it  has  been  obviated  to 
some  extent  by  his  acceptance  of  the  amendment 
of  my  colleague,  (Mr.  Schouler,)  so  that  it  now 
provides  that  it  shall  require  the  action  of  two 


560 


ELECTIONS   BY  PLURALITY. 


[69th   day. 


Thursday,] 


GARDNER  —  WHITNEY  —  SCHOULER. 


[July  28th, 


consecutive  legislatures  to  establish  the  plurality 
principle,  and  the  action  of  two  consecutive  legis 
latures  to  repeal  it.  I  should  like  to  know  if, 
under  such  circumstances,  any  subsequent  legis 
lature  could  touch  the  subject  thereafter  ?  But 
why  are  gentlemen  so  much  afraid  of  the  people, 
that  instead  of  submitting  the  question  directly 
to  them  for  their  decision,  they  should  provide 
that  two  consecutive  legislatures  should  be  re 
quired  to  create  the  law  ?  So  that,  in  fact,  the 
people  themselves  have  nothing  to  do  or  say 
about  the  matter.  Why  is  this  invidious  distinc 
tion  made  ? 

Then  again,  this  Convention  has  decided  that 
members  of  the  House  of  Representatives  shall 
be  elected  by  a  plurality  vote,  but  the  amend 
ment  of  the  gentleman  makes  it  necessary  that 
two  legislatures  shall  also  be  required  to  author 
ize  this  law.  Now,  I  ask,  what  are  those  who 
are  in  favor  of  plurality  to  gain  by  such  a  com 
promise  as  that  ?  The  original  compromise  was 
that  members  should  be  elected  by  the  plurality ; 
the  second  was  that  it  should  require  one  legisla 
ture  to  enact  the  law,  and  now  the  third  compro 
mise  is  that  two  consecutive  legislatures  shall  be 
necessary  for  this  purpose. 

Sir,  I  fear  that  if  this  Convention  does  not 
adjourn,  we  shall  make  another  compromise  still, 
that  a  half-a-dozen  legislatures  shall  be  required 
to  pass  upon  this  provision  before  it  can  become 
a  law  of  the  land.  The  more  talk  there  is,  the 
more  compromises  are  made. 

Now  I  want  to  ask  where  it  is,  what  part  of 
the  State  it  is,  which  is  deprived  of  its  representa 
tives  by  a  non-election  ?  Why,  Sir,  it  is  in  those 
towns  which  are  entitled  to  one  representative 
only ;  they  are  the  ones  upon  whom  the  loss 
most  heavily  falls.  And  I  want  to  ask  the  dele 
gates  from  those  towns,  thus  situated,  whether 
they  are  in  favor  of  piling  Ossa  upon  Pelion  ? 
Now  we  require  the  sanction  of  two  consecutive 
legislatures  to  authorize  the  small  towns  to  send 
their  representatives  here  by  a  plurality  vote.  If 
the  towns  are  to  be  represented,  it  is  to  be  brought 
about  by  the  plurality  principle,  and  by  this  alone. 
In  the  early  part  of  the  session  there  was  an 
amendment  submitted  by  a  gentleman,  proposing 
a  very  important  alteration  ;  it  was  introduced  as 
a  kind  of  compromise,  and  was,  in  fact,  the  only 
tub  thrown  to  the  whale,  having  been  passed  by 
a  majority  of  the  Convention ;  but  of  which  I 
have  heard  nothing  since  that  time.  And  now 
it  is  proposed  to  go  back  and  change  all  that  has 
been  done. 

This  is  the  advantage  of  compromises ;  but  I  did 
not  expect  this  Convention  to  be  so  favorably 
disposed  towards  them.  I  have  heard  the  voices 


of  many  of  the  prominent  members  of  this  body 
raised  in  opposition.  I  have  listened  to  the  most 
eloquent  diatribes  against  this  vile  compromise  ; 
but  yet,  the  only  argument  which  can  be  adduced 
in  favor  of  the  amendment  under  discussion  is, 
that  it  is  in  the  nature  of  a  compromise,  and  will 
be  more  acceptable  to  the  people. 

As  for  myself,  I  have  voted  for  this  question  of 
plurality  from  the  first  to  the  last,  in  accordance 
with  my  sentiments,  uniformly  and  conscien 
tiously,  and  I  am  free  to  say  that  I  should  prefer 
to  see  the  plurality  question  settled  here,  rather 
than  have  the  amendment  of  the  gentleman  from 
Walpole  adopted  as  the  sense  of  this  body.  In 
deed,  I  may  say  that  I  would  vastly  prefer  to  see 
the  majority  principle  reestablished,  rather  than 
to  have  this  hermaphrodite  principle  which  gen 
tlemen  are  endeavoring  to  instil  into  our  minds. 
I  desire  to  stand  fairly,  honestly,  and  openly  in 
this  matter ;  to  have  something  tangible  upon 
which  to  rely,  so  that  when  the  question  is  asked 
me,  What  has  been  the  action  of  the  Conven 
tion  ?  I  need  not  be  compelled  to  search  through 
a  half-a-dozen  volumes  of  law  books,  constitu 
tions,  amendments,  compromises,  and  public  doc 
uments  for  a  reply.  I  desire  to  have  the  matter 
plain  and  explicit ;  so  that  it  can  be  understood 
by  all  the  people. 

If  we  do  not  adjourn  on  Saturday,  I  am  afraid 
we  shall  be  undoing,  or  digging  up  other  plain 
questions  that  have  already  been  acted  upon  and 
decided  by  the  Convention,  and  enclosing  and 
enveloping  them  in  such  obscurity  that  we  our 
selves  cannot  tell  what  has  been  the  result  of  our 
proceedings  here.  In  conclusion,  let  me  tell  my 
friends  that  if  they  expect  the  people  to  accept  the 
Constitution  we  shall  present  to  them,  they  must 
make  such  provision  that  when  the  people  ask 
for  fish,  we  shall  not  give  them  a  serpent ;  and 
when  they  ask  for  bread,  they  shall  not  receive  a 
stone ;  we  must  give  them  something  that  when  it 
is  presented  to  them,  they  will  not  be  compelled 
to  stop  and  taste  of  it  to  ascertain  its  quality. 

Mr.  WHITNEY,  of  Conway.  I  directed  my 
remarks  particularly  to  the  question  of  the  elec 
tion  of  members  of  congress,  and  I  believe  that 
I  am  right,  so  far  as  the  matter  of  history  is  con 
cerned.  In  the  matter  of  the  election  of  electors 
for  the  office  of  president,  it  was  agitated  in  the 
legislature,  but  not  to  any  extent  among  the 
people.  The  subject  of  members  of  congress, 
however,  I  am  free  to  say,  has  had  no  very  con 
siderable  agitation  anywhere,  though  it  is  a  matter 
of  considerable  importance  in  times  of  high  po 
litical  excitement,  such  as  we  have  about  the 
period  of  the  presidential  election. 

Mr.  SCHOULER.     The  statement  made  by 


69th  day.] 


ELECTIONS   BY   PLURALITY. 


561 


Thursday, 


BATES  —  MIXTER. 


[July  28th. 


the  gentleman  from  Conway,  I  believe,  is  perfectly 
correct  in  regard  to  the  action  of  the  House  upon 
the  repeal  of  that  part  of  the  plurality  law  which 
relates  to  the  election  of  electors.  It  passed  the 
Senate  and  came  into  the  House,  and  without 
debate  was  laid  upon  the  table. 

Now,  Sir,  I  presume  that  the  amendment  of  the 
gentleman  from  Walpole  is  going  to  pass,  and 
as  he  has  accepted  my  amendment,  which  I  hope 
will  be  adopted  also,  I  have  no  farther  doubt  in 
regard  to  it. 

Mr.  BATES,  of  Plymouth.  I  will  detain  the 
Convention  but  a  moment.  I  understood  the 
gentleman  representing  Barre,  (Mr.  Aldrich,) 
when  he  first  arose,  to  state  that  it  had  been  con 
ceded  on  all  hands,  that  the  people  of  Massachu 
setts  were  unanimously  in  favor  of  the  plurality 
principle. 

Mr.  ALDRICH.  The  gentleman  misunder 
stood  me.  I  did  not  say  so. 

Mr.  BATES.  Sir,  I  do  not  believe  that  the 
people  are  so  much  in  favor  of  the  new  principle, 
as  many  gentlemen  imagine.  I  shall  vote  for 
this  thing,  because  I  believe  it  gives  a  little  more 
to  the  majority  than  it  did  before.  I  came  here 
in  favor  of  the  majority  principle,  and  shall  vote 
with  great  reluctance  for  anything  which  goes  to 
sustain  the  plurality.  I  shall  vote  for  the 
amendment  of  the  gentleman  from  Walpole, 
however,  because  it  gives  the  power  to  the  legis 
lature  to  regulate  the  election  of  the  various  offi 
cers  named,  and  if  the  people  desire  any  change, 
they  can  obtain  it  by  electing  representatives  for 
that  purpose. 

Mr.  MIXTER,  of  New  Braintree.  I  desire  to 
state  my  views  in  regard  to  the  matter  under 
consideration,  and  as  1  have  not  before  intruded 
myself  upon  the  Convention,  it  being  the  first 
time  I  have  addressed  the  Chair,  I  trust  that  I 
may  be  indulged  for  a  few  moments.  Nor  would 
I  now  break  the  silence  which  I  have  hitherto 
preserved,  did  I  not  believe  that  the  importance 
of  this  question  demanded  that  I  should,  in  com 
mon  with  other  gentlemen,  express  my  views  in 
regard  to  it. 

Sir,  I  believe  that  the  people  of  the  town  which 
I  represent,  as  well  as  of  other  towns  in  the 
vicinity  of  my  home,  expected  that  this  Conven 
tion  would  establish  the  plurality  principle 
throughout,  wrhen  it  came  together ;  and  as  near 
as  I  can  judge,  I  am  led  to  believe  that  this  was 
the  main  reason  why  the  people  were  willing  and 
ready  to  vote  for  the  calling  of  this  Convention. 
From  the  beginning,  I  have  been  in  favor  of  the 
plurality  system,  and  am  so  still ;  but  I  am  not  in 
favor  of  the  system  which  will  be  established  by 
the  adoption  of  this  amendment.  I  think  that  we 

33 8 


came  here  for  the  purpose  of  making  a  Constitution 
that  should  be  acceptable  to  the  people  of  this 
Commonwealth ;  we  came  here  to  consult  and 
deliberate  as  to  the  best  mode  of  promoting  their 
interests  and  welfare,  and  not  for  the  purpose  of 
making  a  sliding  rule,  so  to  speak,  which  may  be 
turned  over  and  changed  by  the  legislature. 
While  we  are  here,  it  is  our  duty  to  adopt  either 
the  majority  or  plurality  rule ;  we  have  been 
considering  the  plurality  rule,  but  from  the  votes 
which  have  been  taken,  I  am  inclined  to  believe 
that  we  have  in  a  great  measure  departed  from 
that  principle.  Certainly,  there  is  no  principle  at 
all  in  the  course  we  have  taken,  and  which  gen 
tlemen  seem  disposed  to  take  this  evening  in 
adopting  this  amendment.  If  we  are  to  have 
either  of  the  systems,  the  majority  or  plurality,  let 
us  have  the  principle  of  the  thing,  for  when  we 
curtail  it,  it  is  no  longer  a  principle,  but  simply  a 
rule  of  action. 

Now,  we  have  established  the  plurality  rule 
for  the  election  of  some  officers  of  the  govern 
ment,  and  the  majority  rule  for  the  election  of 
some  others ;  and  this  is  the  kind  of  Constitution 
which  we  are  to  send  out  to  our  constituents  as 
the  result  of  our  labors  here.  But,  this  is  not 
all.  The  attempt  is  now  made  to  establish  a 
sliding  scale,  by  which  we  shall  allow  the  legis 
lature  of  Massachusetts  to  alter  the  organic  law 
of  the  land  without  the  sanction  of  a  direct  vote 
of  the  people,  so  that  at  any  time  when  that  body 
is  in  session,  it  may  make  such  amendments  to 
the  Constitution  as  it  may  be  disposed  to  make. 

Again,  by  the  adoption  of  this  amendment,  the 
operation  of  the  plurality  law  is  to  be  suspended 
for  two  years,  in  order  to  give  time  to  two  legis 
latures  to  act  upon  it,  and  repeal  or  accept  it,  as 
the  circumstances  may  be.  Amendments  may 
therefore  be  made  to  the  Constitution  by  two 
legislatures,  without  the  concurrence  of  the  peo 
ple.  And,  mark  ye,  Sir,  these  legislatures  are  to 
be  assembled  and  elected  under  a  rule  established 
by  this  Convention,  which  is  admitted  by  every 
gentleman  who  has  examined  it,  to  be  unjust 
and  unsound.  I  ask  why  are  we  not  willing  to 
make  such  a  Constitution  as  we  were  sent  here  to 
frame  ?  We  have  provided  a  basis  of  represent 
ation  whereby  the  legislature  is  to  be  elected  by 
less  than  a  majority  of  the  people,  and  it  is  to  be 
allowed  to  assemble  here  and  make  laws,  and 
amend  our  Constitution  without  the  concurrence 
of  the  people,  and  without  allowing  them  to  ex 
press  by  their  votes,  their  opinion  upon  those 
changes. 

Sir,  I  enter  my  protest  against  any  provision  of 
this  kind  ;  I  do  not  believe  that  it  is  required ;  I 
do  not  believe  we  were  sent  here  to  vote  upon 


562 


ELECTIONS    BY   PLURALITY. 


[69th  day. 


Thursday,; 


WALKER  —  LORD. 


[July  28th. 


any  such  proposition.  I  think  that  its  operation 
will  be  most  injurious  to  the  interests  of  the  peo 
ple,  and  that  it  will  introduce  difficulties  in  every 
election  that  may  hereafter  take  place.  It  is  our 
duty  to  make  a  Constitution  such  as  our  con 
sciences  may  tell  us  is  right,  give  it  to  the  people, 
and  let  them  act  upon  it  just  as  they  may  think 
proper.  But,  as  for  this  mongrel  system,  which 
we  are  preparing  to  send  out — this  unjust  basis 
of  representation,  this  election  of  officers  of  gov 
ernment  partly  by  one  rule  and  partly  by  another, 
and  last  of  all,  this  reposing  of  so  much  power 
in  the  hands  of  the  legislature — I  am  entirely 
opposed  to  it.  For  these  reasons,  I  shall  feel 
bound  to  vote  against  the  amendment. 

Mr.  WALKER,  of  North  Brookfield.  The 
amendment  now  before  us  provides,  that  all  the 
State  officers,  governor,  lieutenant-governor,  sec 
retary  of  state,  attorney-general,  &c.,  and  also 
all  representatives  to  the  general  court,  shall  be 
placed  on  one  platform,  and  elected  by  a  majority 
of  votes ;  and,  also,  that  the  legislature  shall 
have  power  to  provide  by  law,  that  they  may  be 
elected  by  a  plurality,  the  law  making  the  change 
not  to  take  effect  until  one  year  after  its  passage. 

That  I  understand  to  be  the  sum  and  substance 
of  this  amendment.  This  is,  in  fact,  to  throw 
the  matter  into  the  hands  of  the  people,  and  if  it 
be  their  will  that  we  shall  be  governed  by  a  plu 
rality  instead  of  a  majority,  they  will  say  so  at 
the  polls  and  through  their  representatives  ;  and, 
as  one  legislature  will  intervene,  they  cannot  have 
the  measure  sprung  upon  them  contrary  to  their 
wishes.  They  will  understand  the  whole  matter, 
and  have  ample  opportunity  to  repeal  the  act 
should  it  be  obnoxious  to  them. 

Now,  I  think  it  marvellously  strange,  that  cer 
tain  gentlemen  here,  belonging  to  the  party  now  in 
power  in  this  Commonwealth,  should  manifest  such 
extreme  anxiety  to  defeat  the  proposition  before 
us.  They  have  been  very  solicitous,  during  the 
whole  session,  to  establish  the  plurality  principle, 
and  now,  when  it  is  proposed  to  give  the  legisla 
ture  power  to  do  this  very  thing,  they  are  out  in 
violent  hostility  to  the  measure  !  They  have  dis 
covered  that  it  is  not  safe  and  proper  to  trust  the 
people,  through  their  representatives,  with  this 
power,  and  they  are  in  great  alarm  and  trepida 
tion  about  the  matter.  Such  is  the  pretence,  Sir ; 
but  I  suppose  the  real  fact  is,  that  they  foresee 
that  this  provision,  as  it  renders  our  Constitution 
consistent,  and  virtually  gives  the  people  the  al 
ternative  of  majority  or  plurality,  will  make  that 
instrument  so  perfect  and  popular,  that  they  shall 
not  be  able  to  rally  even  their  own  party  against 
it. 

They  did  expect  to  make  a  great  deal  of  politi 


cal  capital  out  of  the  fact,  that  we  had  provided 
that  the  governor,  lieutenant-governor,  &c.,  should 
be  elected  in  one  way,  and  representatives  in 
another.  Now  they  see,  distinctly,  that  the  pres 
ent  amendment  is  to  remove  that  objection,  and 
destroy  all  reasonable  ground  of  opposition.  This 
is  the  explanation  of  the  affair. 

I  am  opposed  to  the  plurality  system,  but  I 
say  if  the  people  want  it,  let  them  have  it.  If 
they  want  the  majority  rule,  let  them  have  it.  I 
have  no  faith  in  the  plurality  principle  myself, 
and  I  agree  with  the  gentleman  for  Wilbraham, 
(Mr.  Hallett,)  who  has  declared  here,  that,  when 
ever  the  government  is  chosen  by  any  number 
less  than  a  majority,  it  ceases  to  be  a  democracy. 
I  believe  that  to  be  true,  hence  I  am  opposed,  and 
have  been  throughout,  as  every-body  knows,  to 
the  plurality  system.  But  I  cannot  conceive  any 
thing  inconsistent  in  my  voting  for  this  amend 
ment,  because  it  provides  for  election  by  majority 
in  all  cases,  except  in  that  of  senators  and  county 
officers  ;  and,  in  regard  to  these,  for  obvious  rea 
sons,  there  cannot  be  two  trials.  But,  in  regard 
to  all  the  State  officers,  we  establish  the  majority 
principle,  and,  at  the  same  time,  generously  throw 
it  out  to  the  people,  to  say  whether  they  prefer 
the  plurality  principle.  Now,  if  they  want  it,  let 
them  have  it. 

Mr.  LORD.  I  wish  to  ask  the  gentleman  a 
question.  My  difficulty  is,  I  have  not  been  able 
to  see  this  resolution,  and  I  do  not  know  whether 
I  understand  it.  I  understand  that  for  all  the 
higher  officers,  the  majority  rule  is  in  force.  Do 
these  resolutions  propose  to  submit  to  the  people 
whether  the  plurality  rule  shall  be  adopted  ? 

Mr.  WALKER.  I  have  repeatedly  said,  the 
majority  principle  is  to  be  enforced  hereafter,  in 
regard  to  those  officers,  until  the  legislature  shall 
otherwise  determine. 

Mr.  LORD.  I  beg  pardon.  I  understood  it 
was  to  be  left  to  the  people  to  pass  upon  the  ques 
tion. 

Mr.  WALKER.  It  is  now  proposed,  by  the 
amendment  before  us,  that  it  be  left  to  the  legis 
lature,  whether  any  change  of  principle  shall  be 
made. 

Mr.  LORD.  Then  I  understand  that  the  gen 
tleman  does  not  wish  to  allow  the  people  to  de 
cide  it,  but  prefers  to  put  it  through  the  legisla 
ture. 

Mr.  WALKER.  That  is  one  of  the  gentle 
man's  own  inferences.  I  have  said  that  I  wish 
to  have  the  majority  principle  established  by  this 
Convention,  but  am  willing  the  legislature  should 
have  power  to  change  it,  in  the  manner  provided 
in  the  amendment  under  consideration.  That,  I 
regard  the  same  thing,  in  effect,  as  submitting  the 


69th   day.] 


ELECTIONS  BY   PLURALITY. 


563 


Thursday,] 


SCHOULEB,  —  DAVIS  —  TRAIN. 


[July  28th. 


question  directly  to  the  popular  vote,  because,  as 
the  law  making  the  change  cannot  go  into  effect 
until  after  one  year,  another  legislature  will  inter 
vene,  and  the  people  will  have  an  opportunity  to 
reverse  the  action  of  the  previous  legislature  if 
they  choose  to  do  so.  It  is,  therefore,  virtually 
submitting  the  question  to  the  people  in  the  best 
manner  possible. 

Now,  while  I  am  most  heartily  and  unequivo 
cally  in  favor  of  the  majority  principle,  I  think  I 
am  consistent  in  being  in  favor  of  the  proposed 
amendment,  because  it  makes  our  Constitution 
uniform  in  regard  to  all  State  officers,  and  places 
the  power  of  changing  the  principle  really  in  the 
hands  of  the  people,  jwhere,  of  course,  it  most 
properly  belongs. 

Mr.  SCHOULER,  of  Boston.  I  wish  to  ask 
one  question,  which  is,  wherein  this  amendment 
changes,  substantially,  the  Constitution  from  what 
it  now  is  ?  The  legislature  has  already  the  power 
to  change  the  mode  of  voting  in  two  years. 

Mr.  DAVIS,  of  Plymouth.  I  am  extremely 
reluctant  to  intrude  upon  the  Convention,  and  I 
do  not  do  so  to  make  an  argument,  but  merely 
to  make  a  statement,  inasmuch  as  I  fully  agree 
with  the  opinion  of  the  gentleman  from  North 
Brookfield,  (Mr.  Walker,)  in  regard  to  the  ques 
tion  of  plurality  and  majority,  but  I  am  willing, 
for  one,  to  vote  for  this  proposition.  It  seems  to 
me  that  those  gentlemen  who  are  opposed  to  the 
plurality  principle,  may  safely  unite  upon  it,  and 
those  who  consider  the  majority  system  a  matter 
of  principle,  will  be  very  unwilling  to  vote  for 
such  a  principle  as  one  to  be  incorporated  into  the 
organic  law. 

I  merely  rose  to  correct  what  I  supposed  might 
be  an  erroneous  impression  in  the  mind  of  the 
gentleman  from  Walpole,  in  regard  to  the  amend 
ment  of  the  gentleman  from  Boston.  I  under 
stand  its  effect  to  be  this  :  that  in  case  the  plural 
ity  system  be  adopted  by  one  legislature,  and  the 
sanction  of  the  next  legislature  be  withheld,  the 
system  not  having  gone  into  operation,  might  be 
repealed  without  going  into  operation  at  all.  I 
submit  that  the  original  amendment,  as  it  now 
stands,  is  contradictory.  The  latter  part  of  it  con 
tradicts  the  former.  I  suppose  the  intention  was, 
that  it  should  be  repealed  after  going  into  opera 
tion,  although  such  repeal  should  not  take  effect 
until  a  year  afterwards.  As  it  now  reads,  if  one 
legislature  passes  the  law,  and  the  next  repeals  it, 
it  will  go  into  effect  notwithstanding.  I  would, 
therefore,  suggest  to  the  gentleman  from  Walpole, 
the  propriety  of  amending  his  amendment. 

The  PRESIDENT.  Did  the  gentleman  from 
Plymouth  propose  any  amendment  ? 

Mr.  DAVIS,  of  Plymouth.     Yes,  Sir.     I  move 


to  insert  after  the  word  "  repeal,"  the  words, 
"  and  if  repealed,  such  repeal  shall  not  go  into 
operation  until  one  year  thereafter." 

Mr.  TRAIN,  of  Framingham.  I  rise  to  a 
question  of  order.  I  believe  this  is  an  amend 
ment  in  the  third  degree. 

The  PRESIDENT.  No,  Sir.  The  gentleman 
from  Walpole  accepted  the  amendment  of  the 
gentleman  from  Boston. 

Mr.  TRAIN.  I  am  sorry,  Sir,  to  detain  the 
Convention  for  a  single  moment  upon  this  sub 
ject,  at  this  late  hour.  We  have  outlived  the 
moles  and  the  bats.  They  have  been  with  us  and 
have  departed,  save  one  solitary  specimen  of  the 
latter  that  I  see  flitting  about  still,  within  these 
walls,  wondering,  no  doubt,  at  this  unusual  in 
trusion  upon  his  domain.  I,  Sir,  came  to  this 
Convention  a  plurality  man,  that  is,  an  advocate 
of  the  plurality  system  ;  I  have  continued  to  be 
a  plurality  man,  and  shall  go  away  a  plurality 
man.  And  I  do  not  wish  that  this  Convention 
should  submit  any  proposition  to  the  people  that 
will  require  of  me  an  effort  to  explain.  And  now 
I  say,  if  the  Convention  pass  this  provision,  as 
submitted  by  the  gentleman  from  Walpole,  they 
will  not  only  need  to  go  to  school  to  be  enabled  to 
understand  it,  for  it  will  be  bad  grammer,  but  it 
will  be  necessary  that  we  should  go  into  a  discus 
sion  in  reference  to  it,  in  order  to  persuade  the 
people  that  it  is  suitable  to  be  adopted.  And  there 
are  three  sets  of  principles,  or  rules,  to  be  advoca 
ted.  Sir,  they  cannot  be  successfully  defended. 
There  is  no  consistency  about  the  matter.  And  the 
gentleman  from  North  Brookfield,  (Mr.  Walker,) 
and  others,  have  no  right  to  take  the  ground  that 
they  concede  something,  and  express  surpise  be 
cause  we  are  not  satisfied  with  their  concession. 
Sir,  who  would  be  satisfied  with  the  concession 
which  allows  the  people  to  say  next  November, 
whether  they  will  elect  their  representatives  by 
majority  or  plurality  ?  There  is  no  concession 
about  it.  It  is  neither  fish,  flesh,  nor  good  red 
herring.  It  is  neither  the  will  of  the  people  ex 
pressed  at  the  polls,  nor  the  will  of  the  people 
expressed  through  the  legislature,  but  a  mixture 
of  both.  Sir,  if  I  understand  what  was  the  sit 
uation  of  this  Convention,  down  to  the  time  when 
the  resolutions  on  this  subject  were  laid  upon  the 
table,  as  stated  in  the  leading  journals  of  the  day, 
the  plurality  rule  was  opposed  on  the  ground  that 
it  was  wrong  in  principle,  and  would  be  wrong 
in  practice.  Sir,  I  find  in  the  report  of  a  speech 
of  the  gentleman  from  Natick,  the  following  : — 

"  I  oppose  the  plurality  system,  because  I  be 
lieve  it  tends  to  degrade  the  politics  of  the  country, 
and  to  demoralize  the  politicians  of  the  country. 
I  think  this  has  been  the  experience  of  the  coun- 


564 


ELECTIONS    BY   PLURALITY. 


[69th  day. 


Thursday,; 


THA.IN  —  SPOON  KB. 


[July  28th. 


try.  It  has  increased  the  power  of  the  caucus, 
the  convention,  party  organizations,  great  combi 
nations,  great  interests,  and  the  influence  of 
political  leaders,  and  it  has  diminished  the  power 
of  the  people,  who  follow  their  higher  and  better 
sentiments."  *  * 

"The  majority  system  gives  the  men  of  prin 
ciples,  ideas  and  sentiments,  the  power  to  resist 
the  schemes  of  party  leaders,  and  to  make  them 
feel,  whenever  they  enter  the  caucus  arid  the 
convention,  that  they  must  not  outrage  the  higher 
sentiments  of  the  best  men  of  their  parties.  Now, 
Sir,  adopt  the  plurality  rule  in  all  your  elections, 
and  you  make  the  caucus  and  the  convention 
omnipotent;  you  give  full  sway  to  the  political 
chiefs  who  are  controlled  by  interest  arid  ambi 
tion.  The  whole  tendency  of  the  system  is  to 
debauch  the  public  sentiment  of  the  country,  and 
to  enthrone  the  omnipotent  power  of  the  caucus 
and  the  convention.  Politicians  go  into  the 
caucus  or  the  convention  prompted  by  ambition 
and  interest,  adopt  their  own  schemes  of  policy, 
and  when  the  day  of  election  comes,  and  the  men 
who  are  governed  by  their  higher  and  better  sen 
timents  assemble  around  the  ballot-box,  they  are 
told  that  they  must  take  the  '  choice  of  evils,'  that 
they  must  vote  for  a  candidate  they  know  to  be 
unworthy,  whose  <  nomination  was  not  fit  to  be 
made,'  or  his  and  their  political  opponent  will  be 
elected.  The)'-  know  the  contest  must  be  then 
and  there  decided.  They  feel  the  pressure.  They 
pause,  hesitate,  yield,  vote  for  a  candidate  they 
know  to  be  unworthy,  and  go  home  degraded  in 
their  own  eyes,  and  more  ready  to  yield  again  to 
the  demands  of  the  caucus  and  the  convention. 
The  whole  machinery  of  caucuses  and  conven 
tions  in  this  country  is  one  of  the  worst  features 
of  our  democratic  institutions.  The  majority 
system  gives  the  people  the  power  to  checkmate 
their  influence ;  the  plurality  system  lets  them 
have  free  course  and  be  glorified." 

Now,  Sir,  that  gentleman  is  the  exponent  of  the 
views  of  his  party.  He  spoke  the  faith  of  the 
party.  He  was  followed  by  his  party.  If  it  was 
true  in  his  belief  then,  it  is  true  to-night.  If 
right  then,  they  are  bound  to  stand  by  it  now. 
And  they  have  no  right  to  concede  to  the  friends 
of  plurality. 

I  put  it  to  gentlemen,  if  they  intend  to  be  con 
sistent.  I  oppose  this  amendment,  because  it  does 
not  give  me  plurality.  What  does  it  propose  ? 
That  the  legislature  every  two  years  may  agitate 
the  question.  It  is  nothing  but  a  miserable 
make  weight,  and  when  you  go  to  the  people  and 
tell  them  here  is  plurality,  when  in  fact  it  is  not 
so  much  as  you  have  had  for  the  last  ten  years. 
And  now  gentlemen  come  in  here  with  a  propo 
sition  designed  to  cheat  the  people  into  the  belief 
that  they  are  getting  the  plurality  system,  when 
in  fact  they  are  getting  no  such  thing  at  all.  And 
the  gentleman  from  North  Brookfield,  (Mr 
Walker,)  who,  I  have  no  doubt,  has  read  Ten 
Thousand  a  Year,  and  will  recollect  a  certain  legal 


gentleman  therein  described,  and  will  have  no 
trouble  in  recognizing  him  as  his  own  counter 
part,  tells  us  that  if  the  people  wish  for  the  plu 
rality  system,  they  will  express  their  opinion 
through  the  legislature,  and  he  will  go  home  and 
tell  his  constituents  that  he  is  consistent,  beauti 
fully  consistent.  If  that  is  consistency,  I  know 
not  what  consistency  means.  No,  Sir,  it  is  no 
consistency.  You  propose  to  let  the  people  pass 
upon  what  shall  be  the  fundamental  law  ;  but  you 
cannot  do  it  in  this  way.  I  am  willing  to  let  the 
people  say  whether  they  will  have  plurality  or 
majority;  but  if  you  undertake  to  say  that  the 
legislatute  shall  first  pass  a  law  to  establish  it, 
and  then  be  at  liberty  to  pass  another  law  repeal 
ing  it,  what  sort  of  a  provision  are  you  likely  to 
have  ?  It  will  have  to  stand  for  a  year  upon  the 
statute  book  before  it  will  have  any  vitality.  For 
these  reasons,  I  am  opposed  to  the  proposed 
amendment.  I  wish  to  have  a  Constitution  that 
shall  be  consistent.  I  wish  the  people  to  have  an 
opportunity  to  say  whether  they  will  have  the 
majority  or  the  plurality  rule.  And  I  challenge 
gentlemen  on  the  other  side  to  defend,  on  principle, 
this  proposition  if  they  can.  The  six  highest 
officers  in  the  Commonwealth  to  be  chosen  by  a 
majority,  and  county  and  town  officers  by  such 
law  as  the  legislature  shall  hereafter  see  fit  to 
direct.  If  the  principle  is  right  in  the  election  of 
any  of  your  officers,  it  is  right  in  relation  to  your 
senators,  your  governor,  &c.  Sir,  as  we  were 
told  by  the  gentleman  from  Natick,  the  difficulty 
was,  the  truck  and  dicker  stuck  right  straight  out. 
It  left  the  highest  officers  to  be  bargained  for. 
Now,  the  same  charge  applies  still.  It  still  leaves 
these  officers  to  be  made  a  matter  of  trade.  The 
plurality  law  is  to  be  a  matter  of  trade.  Now  I 
have  said  substantially,  earnestly,  courteously,  I 
hope,  what  are  my  views  in  regard  to  this  matter. 
I  trust  the  proposed  amendment  will  be  voted 
down,  and  that  we  shall  have  a  clear  and  distinct 
proposition  substituted  for  it,  if  we  are  to  have 
any  provision  on  the  subject.  As  an  amendment 
is  not  now  in  order,  I  suppose  I  must  give  notice 
that  at  some  time,  when  in  order,  I  shall  take 
occasion  to  mqve  to  strike  out  "  majority"  and  in 
sert  "plurality." 

Mr.  SPOONER,  of  Warwick.  Will  the  gen 
tleman  tell  us  what  he  means  by  a  legislature 
chosen  by  one-third  of  the  people  ?  If  he  refers 
to  the  House  of  Representatives,  particularly,  I 
will  say  to  him  there  is  no  system  of  representa 
tion,  town,  district,  nor  any  other,  which  more 
truly,  fairly,  thoroughly  indicates  the  popular 
sentiment  of  Massachusetts,  than  the  House  of 
Representatives,  as  at  present  constituted.  Com 
pare  it  with  the  Senate.  The  Senate  has  been 


69th  day.] 


ELECTIONS    BY   PLURALITY. 


565 


Thursday,] 


HURLBUT  —  LORD. 


[July  28th. 


set  forth  as  representing  politically  the  people  of 
Massachusetts.  Who  are  the  people  r  What  is 
meant  by  the  phrase  people  ?  It  means  those 
who  have  a  voice  in  the  election  of  representatives 
Will  the  voters  of  Framingham  and  Berkshire, 
have  as  much  voice  as  those  of  the  large  cities  in 
this  Commonwealth  ?  No,  Sir.  Far  from  it. 

Gentlemen  tell  us  that  the  people  are  asking 
for  the  establishment  of  the  plurality  rule.  They 
are  asking  for  no  such  thing.  They  do  not  want 
it.  They  only  want  to  adopt  the  plurality  in 
cases  where  they  are  obliged  to  have  it,  where 
they  cannot  get  along  without  it,  and  nowhere 
else.  Where  the  majority  principle  occasions 
delay  and  expense  beyond  endurance,  there  the 
psopie  are  willing  that  the  plurality  shall  be  used 
to  avoid  the  difficulty,  and  nowhere  else.  And, 
this  amendment  does  the  very  thing  that  is 
wanted ;  it  provides  for  the  plurality  where  the 
people  really  want  it,  and  must  have  it,  and  saves 
the  majority  rule  wherever  it  can  be  preserved 
without  occasioning  inconvenience  and  delay. 
The  great  cause  of  delay  and  inconvenience  in 
the  legislature  heretofore,  has  been  in  filling  up 
the  Senate,  the  Governor's  Council,  &c.  Well, 
we  have  reduced  the  number  of  officers  to  be 
chosen  by  the  legislature,  from  fifty  to  about  five. 
This  number  does  not  furnish  a  sufficient  capital 
to  trade  upon ;  it  does  not  furnish  an  inducement 
to  create  delay  and  difficulty.  I  hope  the  amend 
ment  will  be  adopted. 

Mr.  HURLBUT,  of  Sudbury.  I  do  not  pro 
pose,  at  this  late  hour — almost  midnight  as  it  is 
— to  detain  the  Convention  with  any  remarks  at 
length,  but  I  desire,  in  a  few  words,  to  meet  this 
question  in  all  candor.  Gentleman  are  well 
aware  of  the  position  which  I  have  heretofore 
taken  and  maintained  on  this  subject.  From  the 
beginning,  until  the  present  time,  at  the  last  hour 
of  the  Convention  almost,  I  have  been  a  majority 
man,  and  acknowledge  none  other  as  my  princi 
ple.  I  believe  that  none  other  is  correct ;  but  I 
am  not  prepared  to  say  as  the  gentleman  from 
Framingham  (Mr.  Train)  said,  that  I  came  into 
this  Convention  a  majority  man,  that  I  have  con 
tinued  here  a  majority  man,  and  that  I  will  go 
out  of  it  a  majority  man,  and  will  take  nothing 
else.  No,  Sir ;  I  am  prepared  to  maintain  here 
and  elsewhere  that  my  views  on  this  question  are 
correct;  but,  because  I  cannot  have  my  desire 
wholly  gratified,  I  shall  not  act  contrary  to  the 
general  will  of  this  body.  I  am  ready  to  meet  the 
gentleman  from  Framingham  half  way,  and  shake 
hands  with  him  over  a  compromise.  That  gen 
tleman  knows,  as  well  as  myself,  that  neither  of 
us  can  have  what  we  should  like  in  a  matter  of 
this  kind.  But,  what  shall  we  do  ?  Shall  he 


stand  up  here  and  say,  I  will  have  nothing  but 
a  plurality  system,  and  shall  I  say  I  will  accept 
nothing  but  the  majority  system  ?  I  acknowledge 
the  plurality  as  a  principle;  I  see  how  that  gen 
tleman  can  advocate  that  principle  according  to 
his  views  of  it;  but  yet,  I  acknowledge  the 
majority  as  a  still  better  principle.  Neither  of 
us  can  carry  out  our  principles  here,  however, 
and  the  question  arises,  what  shall  we  do  ?  I 
thought  the  other  day,  when  this  question  was 
up,  that  it  had  been  settled  finally,  complete 
ly,  so  far  as  the  action  of  the  Convention  was 
concerned,  and  that  I  then  surrendered  all  that 
the  general  good  required ;  though  when  I  did 
this,  I  by  no  means  surrendered  the  principle 
which  I  shall  ever  maintain.  It  was  for  the  sake 
of  compromise  only.  And  now  the  subject  has 
again  come  up  for  Cunsideration,  and  an  amend 
ment  has  been  offered,  purporting  to  be  what 
gentlemen  on  the  other  side  of  the  house  call 
nothing.  Again  I  am  called  upon  to  surrender 
something ;  I  am  called  upon  to  let  the  legisla 
ture  determine  whether  we  shall  have  a  plurality 
in  time  or  not ;  and  I  am  willing  to  concede  even 
that,  if  the  people  of  this  Commonwealth  so 
ordain.  If  thtft  be  their  will,  I  say  amen  to  it, 
and  still  I  retain  my  integrity  in  regard  to  the 
great  principle  that  the  majority  ought  to  rule. 
As  I  said  before — without  farther  extending  my 
remarks — if  the  gentleman  from  Framingham 
will  meet  me  half  way  in  a  compromise,  I  am 
willing  to  go  with  him  cordially  ;  but  I  trust  that 
the  gentlemen  of  this  Convention  who  are  so 
much  in  favor  of  the  plurality  system,  will  not 
urge  me  to  surrender  yet  another  step  by  asking 
my  concurrence  in  any  more  amendments  that 
may  be  proposed. 

Mr.  LORD,  of  Salem.  I  was  much  amused 
by  the  plain  spoken,  honest  speech  which  came 
from  the  gentleman  on  the  other  side  of  the 
house.  I  mean  the  gentleman  from  Lowell,  (Mr. 
Abbott,)  especially  when  he  said  that  the  lion's 
skin  was  not  one- quarter  big  enough  to  cover  up 
what  was  beneath  it.  He  did  not  say  right  out 
that  there  was  a  jackass  there.  That  was  not 
necessary.  They  have  endeavored  to  patch  up 
this  plurality  creature,  but  instead  of  covering  it 
with  the  lion's  skin,  as  they  intended,  their  ope 
rations  have  only  resulted  in  exposing  a  greater 
part  of  the  jackass  beneath. 

The  gentleman  from  North  Brookfield  has 
accepted  tins  proposition,  under  the  pretence  that 
he  was  willing  to  yield  his  individual  preference 
to  the  judgment  of  the  people.  Why  not  put 
into  your  Constitution  this  plurality  doctrine,  and 
see  whether  the  people  will  take  it  or  not  ?  When 
the  majority  are  talking  about  a  matter  which 


566 


ELECTIONS    BY  PLURALITY. 


[69th    day. 


Thursday,] 


LOUD  —  STEVENSON  —  BATES. 


[July  28th. 


they  do  not  desire  to  be  changed,  or  when  they 
wish  to  accomplish  some  end,  do  they  say  that  they 
will  give  the  power  to  the  legislature  to  do  it  ? 
No,  Sir ;  they  say  that  the  legislature  ought  not 
to  be  trusted ;  and  their  whole  action  has  been 
upon  this  basis,  that  the  legislature  are  not  fit  to 
be  trusted  with  the  rights  of  the  people.  You 
have  said  this  very  day,  in  an  amendment  which 
you  have  adopted,  that  the  legislature  shall  not  be 
trusted  upon  the  question  of  calling  another  Con 
vention,  but  that  the  people  themselves  shall  act 
directly  upon  it  ?  What  new  light  is  that  which 
has  broke  in  upon  the  gentleman,  that  he  is  so 
willing  to  allow  the  people  to  take  charge  of  this 
matter  of  plurality,  and  act  as  they  feel  disposed, 
by  means  of  the  legislature  ? 

Now,  Sir,  I  have  no  doubt  at  all  that  when  the 
enormity  of  this  is  exposed,  that  gentleman  will 
get  up  and  say  this  certainly  is  an  enormity,  but 
yet  it  is  n't  quite  so  bad  as  it  might  have  been. 
And  in  this  manner  they  will  answer  every 
objection  that  we  may  make.  If  we  say  you 
have  made  the  House  of  Representatives  as 
unequal  as  you  could  make  it,  they  will  reply, 
what  of  that,  have  n't  we  made  the  Senate  a  great 
deal  worse  ?  If  these  are  to  be  the  arguments 
employed  by  the  advocates  of  the  various  propo 
sitions  which  have  been  made,  I  must  confess 
they  are  fully  prepared  to  sustain  themselves  in 
any  controversy  that  may  arise.  But,  does  it 
satisfy  the  people,  to  say  that  though  we  have 
done  wrong,  we  might  have  done  a  great  deal 
worse  ?  Away  then,  with  this  sort  of  argument, 
and  let  us  begin  to  rectify  before  it  is  too  late  to 
do  so. 

Now,  Sir,  in  regard  to  this  proposition,  coming 
as  it  does  from  the  gentleman  from  Walpole,  I 
must  confess  it  is  much  beyond  anything  I  had 
ever  given  him  credit  for ;  he  has  mixed  up  more 
elements  even  than  there  were  at  first,  and  made 
this  more  of  a  mongrel  creature  than  it  ever  was 
before.  And  how  is  it  that  gentlemen  get  up  one 
after  the  other,  and  say  I  go  for  this  proposition 
because  I  have  been  persuaded  to  trade  off  such 
and  such  proportion  of  my  principle  in  return  for 
it.  I  think,  says  one,  that  the  majority  is  the 
correct  principle,  but  my  constituents  have  sent 
me  here  to  do  what  is  right,  but  my  conscience 
requires  me  to  stand  by  the  majority  of  the  Con 
vention.  Gentlemen  bow  with  great  submission 
to  the  people,  but  yet  are  unwilling  to  let  the 
people  act  upon  this  matter.  I  say,  give  the 
people  their  right  to  consider  and  decide  upon 
this  question  for  themselves ;  adopt  the  amend 
ment  which  my  friend  from  Framingham,  (Mr. 
Train,)  proposes,  and  say  that  there  shall  be  a 
plurality  unless  the  people  alter  it  by  their  legis 


lature.  Let  the  majority  and  plurality  principles, 
I  care  not  how,  be  so  presented  as  to  give  the 
sovereigns  the  privilege  of  choosing  between  the 
two  for  themselves.  But,  gentlemen  are  not  will 
ing  to  let  the  people  pass  upon  the  subject ;  the 
member  from  North  Brookfield,  (Mr.  Walker,) 
dares  not  let  the  plurality  system  go  before  them  ; 
he  will  not  let  them  decide  but  through  a  body 
that  does  not  represent  them.  Now,  I  submit  to 
that  gentleman,  whether  it  is  not  better  to  let  the 
people  act  upon  this  matter  for  themselves ;  is  he 
wiser  than  they,  or  does  he  know  their  wants 
better  than  they  do  themselves  ?  While  here,  if 
we  act  in  accordance  with  our  own  honest  con 
victions  as  to  what  is  right,  and  leave  to  our  coii- 
stiuents  to  pass  upon  our  doings,  in  the  end,  we 
shall  be  better  satisfied  with  ourselves,  and  with 
the  result  which  we  have  assisted  to  produce. 

Mr.  STEVENSON,  of  Boston.  I  wish  to 
remind  gentlemen  of  the  fact  that  if  we  pass  this 
resolve,  the  election  will  still  go  to  the  legislature, 
unless  a  majority  of  the  votes  be  cast  for  some 
one  or  other  of  the  candidates.  The  amendment 
proposes  to  confer  upon  the  legislature  the  power 
to  alter  the  Constitution  without  an  appeal  to  the 
people.  I  hope  it  will  not  prevail. 

Mr.  BATES,  of  Plymouth.  I  desire  simply  to 
call  the  attention  of  the  gentleman  from  Framing- 
ham,  (Mr.  Train,)  who  has  been  talking  about 
inconsistency,  to  one  fact  which  appears  to  have 
escaped  his  scrutiny.  He  has  read  from  the 
debates  of  this  Convention,  as  far  back  as  May 
27th,  to  show  what  the  opinions  of  certain  gen 
tlemen  were  at  that  date.  Now,  I  wish  to  refer 
him  to  two  or  three  other  passages  in  the  proceed 
ings  of  the  Convention  on  that  day,  which  he  did 
not  read.  The  gentleman  from  Boston,  (Mr. 
Hillard,)  on  that  day  made  the  following  propo 
sition  : — 

"  I  propose,"  said  Mr.  Hillard,  "  in  case  the 
amendment  of  the  gentleman  from  Plymouth 
(Mr.  Bates,)  should  not  be  adopted,  to  offer 
another  amendment.  I  make  this  statement 
now,  because  the  amendment  which  I  desire  to 
propose  may  influence  the  action  of  the  Conven 
tion  upon  the  particular  amendment  now  before 
them,  and  therefore  with  your  leave  and  that  of 
the  Committee,  I  will  state  that  at  the  proper 
time,  I  shall  move  to  amend  the  resolution  by 
striking  out  all  after  the  word  <  resolved,'  and 
insert  the  following  : — 

"  That  it  is  expedient  so  to  amend  the  Consti 
tution  as  to  give  to  the  legislature  the  power  of 
enacting  that  in  all  elections  by  the  people  of  offi 
cers  under  the  Constitution,  the  person  receiving 
the  highest  number  of  votes  shall  be  deemed  and 
declared  to  be  elected." 

This,  I  apprehend,  would  be  giving,  in  the 
broadest  possible  manner,  the  power  to  the  legis- 


69th    day.] 


ELECTIONS    BY    PLURALITY. 


567 


Thursday," 


CHURCHILL  —  TRAIN  —  BATES. 


[July  28th. 


lature  to  decide  that  in  all  elections  by  the  people 
a  plurality  should  determine  the  result.  This 
doctrine  the  gentleman  from  Framingham  this 
evening  repudiates,  and  has  had  much  to  say  in 
favor  of  consistency  upon  this  question.  Now, 
it  may  not  be  improper,  as  the  gentleman  is  so 
strongly  in  favor  of  consistency,  to  ascertain  what 
his  own  views  were  011  the  occasion  referred  to. 

In  the  report  of  the  proceedings  of  this  Con 
vention,  on  this  same  27th  of  May,  occurs  the 
following  language : — 

"  Mr.  TRAIN,  of  Framingham.  I  have  thus 
far  taken  no  part  in  this  debate,  nor  do  I  desire 
to  do  so  now.  J  simply  rise  for  the  purpose  of 
suggesting — which  I  shall  do  before  I  sit  down — 
an  amendment  to  the  amendment  of  the  gentle 
man  from  Plymouth." 

A  little  farther  on  in  this  same  speech,  and 
before  the  gentleman  sat  down,  he  thus  alludes  to 
his  proposed  amendment : — 

"  I  propose  that  they  shall  leave  it  to  the  legis 
lature.  Where  they  cannot  go  the  source,  let 
them  go  as  near  to  the  fountain  as  they  can ;  if 
we  cannot  get  the  people  to  pass  upon  the  ques 
tion,  we  will  leave  it  in  the  hands  of  the  legisla 
ture  ;  and  therefore  I  propose  an  amendment  to 
the  amendment,  to  this  effect :  that  all  civil  officers 
whose  election  shall  be  provided  for  in  the  Con 
stitution,  may  be  elected  by  a  majority  or  plural 
ity,  as  the  legislature  shall  hereafter  determine." 

Mr.  CHURCHILL,  of  Milton.  I  was  origi 
nally,  and  on  principle,  and  am  still,  in  favor  of  the 
majority  rule;  but,  Sir,  I  shall  vote  in  favor  of  the 
proposition  of  the  gentleman  from  "Walpole  ;  be  • 
cause  I  think  there  is  a  great  deal  of  force  in  the 
argument  which  has  been,  used  regarding  the  ex 
pense  and  inconvenience  attending  a  strict  ad 
herence  to  that  rule  hi  all  cases.  The  time  and 
expense  that  the  same  elections  entail  upon  the 
people,  are  arguments  of  so  much  force,  that 
they  cannot  fail  to  influence  those  of  us  who  stand 
on  convenience  before  matter  of  principle,  in  this 
respect. 

I  hardly  think  the  gentleman  from  Salem 
treated  the  gentleman  from  North  Brookfield 
with  entire  fairness,  when  he  said,  in  one  breath, 
that  he  is  unwilling,  or  rather  that  he  dare  not, 
trust  this  qiiestion  to  the  people,  and  in  the  next 
breath  taunts  him  with  trusting  part  of  it,  at  least, 
to  the  people,  Sir,  I  contend  that  this  proposi 
tion  does  trust  the  whole  question  to  the  people. 
It  allows  the  people  to  adopt  the  plurality  system 
out  and  out,  in  all  elections,  for  it  provides  ex 
pressly  that  several  of  the  officers,  senators  and 
others,  shall  be  chosen  upon  the  plurality  princi 
ple  ;  and  that  the  people,  through  their  legislature 
may,  if  they  see  fit,  ordain  that  all  the  other 


officers  may  also  be  chosen  by  plurality.  Thus,  the 
plurality  principle  is  within  the  reach  of  the  peo 
ple  ;  the  very  thing  they  have  been  contending  for 
here,  is  within  their  reach.  And  yet  we  behold 
the  most  strenuous  opposition  from  all  quarters, 
because  the  thing  does  not  come  in  that  peculiar 
shape  which  suits  their  views.  Sir,  I  maintain 
that,  on  principle,  we  should  have  stood  by  the 
majority  system  here,  as  we  should  by  the  dis 
trict  system  ;  but  as  it  is,  to  some  extent,  imprac 
ticable,  the  only  way  to  accomplish  any  reasona 
ble  result  is  to  compromise  on  some  such  basis  as 
is  proposed  here. 

Mr.  TRAIN.  The  Convention  has  had  a 
laugh  at  my  expense,  and  I  enjoyed  that  laugh ; 
for,  in  truth,  the  discovery  of  inconsistency  made 
by  the  gentleman  from  Plymouth,  is  rather  more 
fanciful  than  real.  When  the  discussion  to  which 
he  has  referred,  was  going  on,  the  controversy  was 
— what  it  should  be  here  to-night — whether  we 
should  adopt  the  majority  or  the  plurality  rule. 
I  put  it  to  the  Convention  then. — and  if  the  ques 
tion  were  now  the  same,  I  should  take  the  same 
ground — that  if  the  question  be  submitted  to 
the  people,  whether  they  will  have  plurality  or  ma 
jority,  it  should  not  be  left  to  the  legislature  to  de 
termine.  Well,  now  the  Convention  has  deter 
mined  that  they  will  submit  to  the  people  the 
question  whether  they  will  elect  one  portion  of 
their  officers  by  plurality  or  by  majority,  and  will 
leave  the  question,  so  far  as  relates  to  the  remain 
der,  to  the  legislature.  If  they  will  not  leave  the 
whole  matter  to  the  people,  without  reservation, 
then,  I  say,  leave  the  whole  to  the  legislature.  I 
maintain,  that  when  you  yield  the  principle,  you 
have  no  right  to  send  one  portion  to  the  people 
for  their  decision,  and  reserve  another  portion. 

Mr.  BATES,  of  Plymouth.  The  question  on 
the  occasion  which  has  been  referred  to,  was  pre 
cisely  what  the  question  is  here  to-night.  It  was 
proposed  that  certain  officers  should  be  elected  by 
a  majority,  until  otherwise  ordered  by  the  legisla 
ture.  That  was  the  purport  of  the  amendment 
proposed  by  the  gentleman  from  Boston.  The 
gentleman  from  Framingham  got  up  and  said 
he  gave  notice  that  he  should  move  an  amend 
ment,  which  was  the  very  same  as  the  amend 
ment  now  before  the  Convention,  only  it  went  far 
ther.  Now,  if  it  is  proposed  to  leave  the  election 
of  a  part  of  the  officers  in  the  hands  of  a  majority, 
unless  otherwise  directed  by  the  legislature,  I  ask 
if  the  principle  is  not  the  same  as  when  it  was 
proposed  to  have  all  officers  so  elected,  unless 
otherwise  determined  by  the  legislature  ?  I  pre 
sume  it  to  be  precisely  the  same.  There  is  no 
escape  for  the  gentleman ;  he  need  not  squirm,  or 
dodge.  He  comes  in  here,  and  argues  against  tne 


568 


ELECTIONS   BY  PLURALITY. 


[69th  day. 


Thursday,] 


TRAIN  —  HATHAWAY. 


[July  28th. 


amendment  before  the  Convention,  as  a  matter  of 
principle  ;  yet  I  have  shown  that  in  the  very  same 
page,  or  the  one  preceding  that  from  which  he 
has  quoted,  he  proposes  an  amendment  to  leave 
this  matter  to  be  regulated  by  the  legislature,  pre 
cisely  as  the  amendment  of  the  gentleman  from 
Walpole,  now  under  discussion,  proposes  to 
*Leave  it.  There  is  no  possible  difference  in  the 
two  cases ;  and  it  is  useless  for  the  gentleman  to 
attempt  an  escape  from  his  position,  uncomforta 
ble  as  it  is. 

Mr.  TRAIN.  My  friend  from  Plymouth  cer 
tainly  misapprehended  my  ideas  on  this  subject, 
or  else  I  cannot  read.  The  closing  sentence  is 
this  :— 

"  If  gentlemen  are  afraid  to  leave  this  matter 
to  the  people,  I  propose  that  they  shall  leave  it  to 
the  legislature.  Where  they  cannot  go  to  the 
source,  let  them  go  as  near  to  the  fountain  as  they 
can  :  if  we  cannot  get  the  people  to  pass  upon 
the  question,  we  will  leave  it  in.  the  hands  of  the 
legislature,  and,  therefore,  I  propose  an  amend 
ment  to  the  amendment  of  the  gentleman  from 
North  Brookfield,  to  this  effect :  That  all  civil 
officers  whose  election  shall  be  provided  for  in  the 
Constitution,  may  be  elected  by  a  majority  or  by 
a  plurality,  as  the  legislature  shall  hereafter  deter 
mine.  My  idea  is,  that  instead  of  leaving  a  por 
tion  of  the  officers  to  be  elected  by  the  legislature, 
as  suggested  by  the  member  for  North  Brooktield, 
to  leave  the  whole  to  the  legislature." 

I  said,  if  we  could  not  have  the  question  of 
plurality  submitted  to  the  people,  leave  it,  as  the 
next  best  thing,  to  the  legislature.  Now,  I  want 
to  have  the  Convention  remember  another  thing, 
that  my  proposition,  as  well  as  that  of  the  gentle 
man  from  Boston,  was  to  leave  to  the  legislature 
an  open  question.  I  would  prefer  to  leave  it  to 
the  people  to  say  whether  the  elections  should  be 
by  majority  or  plurality,  and  leave  to  the  legisla 
ture  to  alter  it  if  they  choose  to  do  it.  Where, 
then,  k-;  the  inconsistency  which  the  gentleman 
thinks  he  has  discovered  ? 

Mr.  HATHAWAY,  of  Freetown.  I  do  not 
rise,  at  this  late  hour,  for  the  purpose  of  making 
an  argument.  I  do  not  know  but  we  have  fallen 
upon  times  similar  to  those  we  read  of  in  the 
Good  Book,  when,  to  avoid  much  importunity, 
the  unjust  judge  granted  the  prayer  of  the  widow. 
There  is  no  question  that  has  been  so  much 
agitated  here  as  this  question  of  elections  by  plu 
rality,  since  this  Convention  met.  This  has  been 
the  foremost  of  all,  and  it  is  likely  to  be  the  last. 

There  have  been  many  matters  introduced  into 
the  debate  this  evening  that  seemed  to  me  to  have 
very  little  to  do  with  the  question.  Perhaps  it  is 
owing  to  the  obtuseness  of  my  perceptions  that  I 
do  not  see  the  force  of  the  arguments  that  have 


been  used.  It  has  been  said  that  we  have  tried 
the  experiment  in  reference  to  our  representation 
in  congress.  I  had  occasion  to  say,  some  time 
since,  that  that  was  a  matter  entirely  beyond  our 
reach. ;  one  with  which  neither  we  nor  the  people 
of  Massachusetts  had  anything  to  do.  It  is  a 
matter  that  is  settled  by  the  Constitution  of  the 
United  States,  which  directs  the  legislature  to 
prescribe  the  time,  place,  and  manner  of  holding 
elections  for  members  of  congress.  All  that  the 
people  have  to  do  with  it,  is  to  comply  with  the 
directions  given  by  the  legislature,  to  whom  the 
Constitution  of  the  United  States  has  given  this 
power.  We  have  nothing  to  do  in  reference  to 
putting  in  operation  that  part  of  the  machinery  of 
our  government.  That  is  already  settled. 

I  have  had  occasion  upon  this  question,  hereto 
fore,  to  say,  in  reference  to  a  proposition  that  had 
been  introduced  here,  that  I  did  not  understand 
quite  so  clearly  as  some  of  those  associated  with 
me  do,  or  pretend  to  do,  the  precise  nature  of  the 
proposition.  I  have  asked  several  times  for  the 
reading  of  such  propositions  as  were  offered  in 
the  shape  of  amendments.  Unfortunately,  some 
times,  I  have  not  been  accommodated.  And  I 
have  made  up  my  mind,  long  ago,  that  I  would 
not  ask  for  the  reading  of  any  proposition  in  fu 
ture,  but  I  meant  always  to  vote  on  the  safe  side, 
by  voting  against  any  proposition  that  I  did  not 
understand.  I  would  inquire  of  you,  Sir,  and  I 
put  it  to  every  member  of  this  Convention,  how 
shall  we  stand,  if  we  adopt  the  amendment 
of  the  gentleman  from  Walpole  ?  If  we  look  at 
the  proposition  as  it  originally  stood,  and  at  his 
proposition,  we  shall  find  a  very  great  discrep 
ancy — a  very  great  inconsistency.  The  gentle 
man's  proposition  is,  that  until  otherwise  pro 
vided,  the  legislature  may  enact  a  law  by  which 
these  officers  may  be  elected  by  plurality ;  but 
the  law  shall  not  go  into  operation  until  one  year 
from  the  date  of  its  enactment.  Then,  if  you 
look  at  the  latter  part  of  yoxir  constitutional  law, 
where  this  provision  comes  in,  you  will  find,  that 
in  case  the  individual  voted  for  does  not  have  a 
majority  of  all  the  votes  given,  he  shall — not 
may — he  shall  be  elected  by  a  majority  of  the 
legislature,  by  viva  voce  vote — I  mean  as  to  the 
whole  catalogue  of  officers  there  named.  Well, 
now,  what  sort  of  patch- work  is  this  ?  And  yet, 
gentlemen  would  have  us  adopt  this  at  midnight, 
and  force  it  upon  the  people  for  their  approval. 

But  I  have  another  objection,  and  it  has  been 
adverted  to  by  those  who  have  spoken  upon  this 
question.  It  is  this :  You  do  not  propose,  under 
this  amendment,  to  enact  an  organic  law  for  the 
people  to  pass  upon,  but  you  propose  to  enact  an 
organic  law  that  the  municipal  corporations  of 


69th  day.] 


ELECTIONS   BY  PLURALITY,   die. 


569 


Thursday,] 


UPTON  —  PERKINS  —  HUBBARD  —  TRAIN  —  LORD  —  BATES. 


[July  28th. 


this  Commonwealth  are  to  pass  upon.  And  thus 
a  majority  of  those  municipal  corporations,  so  far 
as  their  representation  is  concerned,  is  to  make 
your  Constitution. 

Mr.  UPTON,  of  Boston.  When  this  debate 
commenced,  I  made  a  suggestion,  in  good  faith, 
that  the  yeas  and  nays  should  not  be  called  on 
ordering  the  previous  question.  Now,  I  am  per 
fectly  willing  to  forego  any  remarks  I  might  de 
sire  to  make  upon  the  subject  under  discussion, 
if  gentlemen  will  allow  the  question  to  be  now 
taken  on  the  first  amendment.  There  must  be 
an  end  to  the  debate,  at  some  time  or  other,  and 
it  appears  to  me  we  had  better  close  it  now. 

Mr.  BIRD,  of  Walpole,  accepted  the  amend 
ment  of  the  gentleman  from  Plymouth,  as  a  mod 
ification  of  his  own,  and  made  a  farther  modifica 
tion  in  accordance  with  the  suggestion  of  the 
gentleman  from  Boston. 

Mr.  PERKINS.  It  appears  to  me,  that  this 
subject  has  been  pretty  well  argued,  and  that  it  is 
about  time  to  put  it  to  the  people,  and  let  us  see 
how  it  will  work.  We  have  got  rather  a  compli 
cated  proposition  before  us,  and  the  longer  it  is 
considered  and  debated,  the  more  complicated  it 
becomes.  I  have  always  thought,  until  this  eve 
ning,  that  I  would  vote  for  the  amended  Constitu 
tion.  I  do  not  say  that  I  will  not  now ;  but  let  me 
tell  gentlemen,  that  I  doubt  very  much  whether  it 
will  be  accepted  by  the  people.  They  will  hardly 
be  able  to  understand  what  it  means. 

Mr.  HUBBARD,  of  Boston.  I  wish  to  call  the 
attention  of  the  Convention  to  one  single  provision 
of  the  amendment,  which  seems  to  me  very  ob 
jectionable.  I  allude  to  the  amendment  of  my 
colleague  in  regard  to  the  repealing  provision. 
Power  is  given  to  the  legislature  to  adopt  the 
plurality  rule.  The  majority  rule  is  to  prevail, 
until  otherwise  provided.  Now,  my  impression 
is,  that  having  exercised  the  power  once,  they 
will  have  no  farther  control.  I  should  like  to 
have  it  withdrawn  from  the  control  of  the  legis 
lature.  I  therefore  move  that  that  part  be 
stricken  out. 

The  motion  was  not  agreed  to. 

The  question  being  on  the  amendment  proposed 
by  the  gentleman  from  Walpole,  as  modified, 

Mr.  WEEKS  asked  for  the  yeas  and  nays. 

They  were  not  ordered. 

The  amendment  was,  upon  a  division — ayes, 
77  ;  noes,  62— adopted. 

The  question  being  on  the  final  passage  of  the 
resolves,  as  amended, 

Mr.  TRAIN,  of  Framingham.  I  give  notice 
that  I  wish  to  offer  an  amendment,  but  I  do  not 
wish  to  offer  it  at  this  late  hour.  Let  it  go  over 
until  to-morrow  morning. 

39s 


Mr.  LORD,  of  Salem.  The  mover  of  the 
amendment  which  has  just  been  adopted,  has 
found  it  necessary  to  make  three  or  four  altera 
tions  in  his  amendment ;  I  therefore  suggest,  that 
it  had  better  not  be  finally  acted  upon  to-night, 
but  that  the  vote  be  taken  five  minutes  after  the 
subject  shall  be  taken  up  to-morrow. 

Mr.  BUTLER.  I  think  the  proposition  is  a 
reasonable  one,  and  if  no  one  else  makes  the  mo 
tion,  I  will  move  that  the  question  on  the  final 
passage  of  the  amended  resolves,  be  taken  at  ten 
o'clock,  on  Friday  morning. 

Mr.  DAVIS,  of  Plymouth.  I  hope  the  motion 
will  not  prevail.  It  has  been  the  understanding, 
that  if  the  debate  was  allowed  to  go  on,  the  ques 
tion  might  be  taken  to-night,  on  the  amendment, 
and  on  the  final  passage  of  the  resolves,  without 
the  yeas  and  nays,  and  many  gentlemen  have 
stayed  here  for  that  purpose. 

Mr.  TRAIN.  The  gentleman  seems  to  think 
we  are  under  an  obligation  to  vote  upon  the  final 
passage  of  these  resolves  to-night.  If  so,  I  for 
one,  am  willing  to  withdraw  all  opposition. 

Mr.  WHITNEY,  of  Conway.  I  think  the 
proposition  that  we  will  take  the  question  at  ten 
o'clock,  is  a  fair  one,  and  for  one,  I  am  decidedly 
in  favor  of  adjourning. 

Mr.  ELY,  of  Westfield,  moved  that  the  Conven 
tion  adjourn. 

The  motion  did  not  prevail. 

The  question  was  taken  on  the  final  passage  of 
the  resolves  respectively,  excepting  the  fourth, 
which  had  been  amended  by  the  adoption  of  the 
amendment  of  the  gentleman  from  Walpole,  and 
they  were  passed. 

Mr.  BUTLER  renewed  his  motion,  that  the 
question  be  taken  on  the  final  passage  of  the 
fourth  resolve,  as  amended,  this  (Friday)  morn 
ing  at  ten  o'clock. 

The  motion  was  agreed  to. 

Reports  from  a  Committee. 

Mr.  BATES,  of  Plymouth,  from  the  Commit 
tee  on  Reporting  and  Printing,  submitted  two 
Reports,  which,  without  being  read,  were  placed 
upon  the  Orders  of  the  Day. 

Mr.  OLIVER,  of  Lawrence,  moved,  that  the 
Convention  adjourn  until  half  past  eight  o'clock. 

Mr.  CHURCHILL  suggested  that  a  great  pro 
portion  of  the  members  would  not  be  apprized  of 
the  change  of  the  hour  of  meeting. 

Mr.  OLIVER  withdrew  his  motion,  and  moved 
that  the  Convention  adjourn. 

The  motion  was  agreed  to,  and  the  Convention, 
at  half  past  one  o'clock,  adjourned  until  nine 
o'clock,  A.  M. 


570 


HOUSE   OF   REPRESENTATIVES,   &c. 


[70th  day. 


Friday,] 


LIVERMORE  —  BATES  —  MORTON. 


[July  29th. 


FRIDAY,  July  29,  18-53. 

The  Convention  assembled  pursuant  to  ad 
journment,  and  was  called  to  order  by  the  Presi 
dent,  at  nine  o'clock. 

Prayer  by  the  Chaplain. 

The  journal  of  yesterday  was  read  by  the  Sec 
retary. 

Leave  of  Absence. 

The  PRESIDENT  read  a  communcation  from 
Mr.  Crowell,  of  Dennis,  asking  for  leave  of  ab 
sence,  for  the  remainder  of  the  session,  on  ac 
count  of  sickness  in  his  family. 

On  motion  by  Mr.  DAYIS,  of  Worcester, 
leave  was  granted. 

The  Pay  Roll. 

Mr.  LIVERMORE,  of  Cambridge,  from  the 
Committee  on  the  Pay  Roll,  reported  the  follow 
ing  order : — 

Ordered,  That  the  pay  accounts  of  members, 
for  attendance  and  travel,  be  made  up,  including 
Monday  next. 

Mr.  LIVERMORE.  I  believe  it  is  generally 
understood  that  this  Convention  can  adjourn  to 
morrow,  although  it  will,  of  course,  be  at  a  late 
hour,  and  not  in  season  to  enable  members  re 
siding  at  a  distance  to  reach  their  homes  before 
Monday  next.  It  is  possible  that  our  session 
may  be  protracted  so  as  to  include  a  part  of  the 
day  on  Monday.  It  is  expected,  however,  that 
we  can  adjourn  to-morrow  night.  But  it  must 
be  perfectly  understood,  by  all  the  members  of 
this  Convention,  that  some  time  is  necessary  for 
the  Committee  on  the  Pay  Roll  to  make  up  the 
roll,  which  will  embrace  some  four  hundred  and 
twenty  names.  I  have  offered  this  order  at  this 
time,  in  order  to  have  the  pay  roll  made  up  to 
morrow  in  season  to  have  a  warrant  drawn  upon 
the  treasury,  by  the  Governor  and  Council,  who, 
I  understand,  will  be  in  session  to-morrow  after 
noon,  for  that  purpose.  The  order  includes 
Monday  next,  because  the  members  will,  un 
doubtedly — most  of  them,  at  least — be  detained 
Jiere  over  Sunday,  and  cannot  reach  home  until 
Monday.  It  is  the  usual  custom,  I  believe,  in 
(he  legislature,  to  make  up  the  pay  roll  including 
Sunday,  when  they  adjourn  on  Saturday. 

The  question  being  on  the  adoption  of  the 
-order, 

Mr.  BATES,  of  Plymouth,  moved  to  amend 
the  same,  by  adding  thereto  the  following  words : 

And  no  member  shall  be  entitled  to  pay  be 
yond  that  time. 

The  amendment  was  agreed  to,  and  the  order 
as  amended,  was  adopted. 


Representation. 

The  Convention  proceeded  to  the  consideration 
of  the  Orders  of  the  Day,  the  first  item  being 
the  resolve  submitted  by  the  gentleman  from 
Taunton,  (Mr.  Morton,)  respecting  the  mode  of 
submitting  the  question  of  representation  to  the 
people. 

The  resolve  was  read,  as  follows  : — 

Resolved,  That  the  Committee  "  appointed  to 
reduce  such  amendments  as  have  been,  or  may 
be,  agreed  upon,  to  the  form  in  which  it  will  be 
proper  to  submit  the  same  to  the  people,  for  rati 
fication,"  be  instructed  so  to  prepare  the  amend 
ments  in  relation  to  the  House  of  Representa 
tives,  as  to  submit  to  the  people  the  following 
questions : — 

First.  Shall  the  twelfth  amendment  in  the 
present  Constitution  be  abrogated  ? 

Second.  Shall  the  system  of  representation  by 
towns,  in  the  form  accepted  by  the  Convention, 
be  ratified  and  adopted  as  a  substitute  for  the 
said  twelfth  amendment  ? 

Or,  shall  the  system  of  representation  by  dis 
tricts,  in  the  form  hereto  subjoined,  be  ratified 
and  adopted  as  a  substitute  for  the  twelfth  amend 
ment  aforesaid  ? 

And  if  a  majority  of  the  legal  voters  voting 
thereon,  shall  be  in  favor  of  abrogating  the  said 
twelfth  amendment,  then  the  one  of  the  two 
proposed  systems  of  representation  which  shall 
receive  the  greatest  number  of  votes,  shall  be 
deemed  and  taken  to  be  ratified,  and  shall  become 
a  part  of  the  Constitution,  in  lieu  of  the  twelfth 
amendment  of  the  present  Constitution  :  provided, 
that  if  the  two  proposed  systems  shall  receive  an 
equal  number  of  votes,  then  the  system  agreed 
upon  by  the  Convention,  shall  be  deemed  and 
taken  to  be  ratified,  and  shall  become  a  part  of 
the  Constitution,  as  above  stated. 

[Proposed  system  of  Representation  by  Districts,  before  re 
ferred  to.] 

The  House  of  Representatives  shall  consist  of 
two  hundred  and  sixty-  one  members.  Said  mem 
bers  shall  be  apportioned  among  the  several  coun 
ties,  as  nearly  as  possible,  according  to  the  number 
of  legal  voters  in  each. 

The  Senate,  at  its  first  session  after  the  ratifi 
cation  of  this  amendment,  and  at  its  first  session 
after  each  decennial  census,  shall  divide  each 
county  into  such  representative  districts,  com 
posed  of  contiguous  territory,  as  they  may  deem 
expedient,  so  that  the  basis  of  each  representative 
shall  be  the  same  number  of  legal  voters,  as 
nearly  as  possible,  without  the  division  of  towns, 
or  the  wards  of  cities  :  provided,  that  no  district 
shall  be  so  large  as  to  entitle  it  to  more  than  three 
representatives  ;  and  provided,  that  Nantucket  and 
Dukes  County,  shall  each  form  one  district,  and 
be  entitled  to  at  least  one  representative. 

Mr.  MORTON,  of  Taunton.  I  will  ask  the 
attention  of  the  Convention  for  a  very  short  time. 
They  may  be  sure  I  shall  not  detain  them  long — 
I  would  say  less  than  fifteen  minutes,  but  I  be- 


70th  day.] 


HOUSE   OF   REPRESENTATIVES. 


571 


Friday,] 


MORTON. 


[July  29th. 


lieve  it  would  be  safer  to  go  on  and  say  what  I 
have  to  say,  in  as  few  words  as  possible,  without 
making  any  promise.  It  is  impossible  under  the 
rule — and  I  do  not  object  to  it — to  go  into  any 
argument  upon  the  general  subject ;  and  I  will 
therefore  state  as  briefly  as  possible,  my  reasons 
for  presenting  the  resolve  before  the  Convention, 
and  leave  the  question  to  their  consideration  and 
decision,  without  going  into  any  discussion  of  the 
principal  matter. 

I  had  hoped  that  this  proposition  would  come 
up  under  rather  more  favorable  auspices ;  and  I 
must  confess,  that  at  the  present  time  there  is  but 
one  unpropitious  circumstance,  that  is,  the  late 
ness  in  the  session,  and  the  consequent  necessary 
impatience  of  members. 

I  think  there  is  much  in  the  conciliatory  ten 
dency  and  fairness  of  the  proposition  to  recom 
mend  it  to  the  favorable  consideration  and  the 
adoption  of  the  Convention.  I  must  hope  that, 
even  at  this  late  period  of  the  session,  gentlemen 
will  give  me  their  attention  upon  this  proposition 
for  ten  or  fifteen  minutes,  and  I  have  no  doubt 
they  will. 

Mr.  President :  This  resolve  applies  to  the  most 
interesting  and  important  subject  which  has  been 
before  the  Convention  during  its  session,  one 
which  has  been  most  fully  discussed,  maturely 
considered,  and  one  upon  which,  as  might  be  ex 
pected,  there  is  very  much  difference  of  opinion. 
The  various  projects  which  have  been  offered,  have 
been  thoroughly  investigated,  and,  I  presume, 
every  gentleman  has  made  up  his  mind  in  relation 
to  them.  One  project  is  founded  upon  town 
representation,  and  the  other  upon  representation 
by  districts.  The  advantages  and  disadvantages 
of  these  two  systems  have  been  fully  examined ; 
and  if  they  had  not,  I  have  no  time  to  discuss 
them  now. 

There  is  a  settled  difference  of  opinion  in  rela 
tion  to  these  systems,  among  the  members  of  the 
Convention.  A  portion  of  them — the  majority — 
are  in  favor  of  representation  by  towns  ;  and  a 
minority — a  respectable  minority,  in  numbers  at 
least — are  in  favor  of  representation  by  districts. 
There  is,  then,  these  settled  and  well-matured 
opinions,  differing  as  they  do,  between  these  two 
sections  of  the  Convention,  which  no  one  can 
expect  to  change.  But,  I  hope,  however,  and 
believe,  there  is  a  disposition  upon  each  side  to 
conciliate  and  yield  a  little,  for  the  purpose  of 
bringing  their  opposing  views  nearer  together. 
will  not  say  compromise,  for  it  is  a  word  I  dis 
like  ;  it  is  sometimes  used  for  proper  and  honest 
purposes,  and  then  it  is  well  enough ;  but  it  is  so 
often  employed  to  cover  up  log-rolling  intrigue 
and  fraud,  that  I  dislike  very  much  to  use  it  at 


all.  I  hope,  however,  there  is  a  spirit  of  concili 
ation  among  us  which  will  enable  us  to  meet 
upon  some  neutral  ground,  without  much  yield 
ing  of  opinion  upon  either  side. 

I  suppose  that  every  member  of  the  Convention 
s  willing  that  our  constituents  should  have  such 
a  mode  of  representation  as  they  like.  It  has 
been  said  that  we  here  represent  the  whole  people 
of  the  Commonwealth,  and  that  we  are,  therefore, 
virtually  an  assembly  of  the  whole  people.  I 
suppose  in  some  sense  that  may  be  true,  but  in 
others  it  is  not,  because  if  it  were,  our  decision 
upon  the  questions  before  us  would  be  final.  I 
maintain,  therefore,  that  no  decision  of  ours  has 
directly,  or  by  implication,  or  in  any  other  way, 
indicated  that  the  people  would  prefer  the  town 
system  to  the  district  system. 

Now,  I  propose,  by  these  resolves,  to  submit 
the  whole  question  directly  to  the  people.  I 
suppose  I  may  say,  for  both  sides,  that  the  mem 
bers  of  the  Convention  are  willing  that  the  people 
should  settle  the  question.  I  trust  there  is  no 
gentleman  present  who  would  be  disposed  to  say 
that  we  shall  arbitrarily  determine  this  question 
for  the  people.  I  suppose  they  are  willing  to  al 
low  the  people  to  express  their  wishes  upon  the 
subject,  and  that  a  majority  of  the  people  should 
decide  the  question  finally.  If  that  is  really  the 
desire  of  the  Convention — if  they  really  wish  the 
people  to  settle  the  question  what  system  of  rep 
resentation  they  shall  have,  I  have  now  presented 
a  scheme  by  which  that  wish  may  be  easily  and 
fairly  accomplished.  Here  is  now  an  opportunity 
by  which,  so  far  as  it  is  possible  to  accomplish  it, 
every  member  can  be  exactly  satisfied. 

I  am  not  tenacious  as  to  the  details  of  a  system 
of  representation,  if  it  provides  for  an  equal,  right 
eous  representation.  But  these  two  systems  have 
been  matured  as  far  as  we  have  been  able,  and  I 
now  desire  that  the  people  should  have  the  op 
portunity  of  judging  between  the  two,  and  of 
deciding  whether  they  will  have  the  district  sys 
tem  or  the  town  system.  If  this  is  not  a  reason 
able  proposition1 — if  it  is  not  one  that  will  com 
mend  itself  to  every  gentleman,  and  meet  the 
wishes  of  every  one,  1  certainly  have  mistaken 
their  reasonable  wishes,  and  the  desires  which 
all  have  earnestly  professed. 

It  really  seems  to  me,  that  if  gentlemen  wish, 
to  have  the  people  judge  of  the  relative  merits  of 
the  two  systems,  here  is  an  opportunity,  which 
presents  no  obstacle  in  the  way.  The  motion 
may  be  submitted  to  the  people,  and  they  can 
take  town  representation  or  district  representa 
tion,  just  as  they  choose. 

If  gentlemen  want  the  Convention  to  decide 
the  matter  finally,  and  to  deprive  the  people  of 


572 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


MORTON. 


[July  29th. 


the  opportunity  of  expressing  their  opinions  upon 
the  subject,  they  can  do  it  by  voting  down,  this 
proposition,  and  by  refusing  to  submit  the  ques 
tion  to  them.  If,  on  the  other  hand,  we  are  really 
willing  and  desirous  that  our  constituents  all  over 
the  Commonwealth  should  be  allowed  to  say  yes 
or  no  to  this  proposition,  why  certainly  we  have 
now  an  opportunity  to  do  it.  I  am  at  a  loss  to 
find  any  reasonable  objection  to  such  a  proposi 
tion,  and  therefore  I  know  of  no  argument  to 
combat  upon  this  subject. 

But  there  are  some  things  which  I  think  spe 
cially  commend  these  resolves  to  our  favorable 
consideration  and  adoption.  It  does  seem  to  me 
a  measure  of  conciliation  between  the  different 
sections  of  the  Convention.  It  presents  itself  in 
that  peculiar  form  that  both  the  minority  and  the 
majority  may  be  gratified.  It  is  an  instance,  very 
rarely  occurring,  in  which  both  sides  may  be  suc 
cessful.  The  minority  would  be  satisfied  with 
an  opportunity  of  presenting  their  scheme  to  the 
people,  and  as  the  action  of  the  Convention  can 
avail  nothing  of  itself,  the  majority  should  be  sat 
isfied  with  the  same  opportunity  of  presenting  to 
the  people  their  plan,  with  the  indorsement  of 
the  adoption  by  the  Convention.  If  the  majority 
are  willing  that  the  people  should  express  their 
minds  upon  the  merits  of  the  two  systems,  I  see 
no  possible  objection  that  they  can  have  to  passing 
the  resolves. 

But  there  are  other  considerations  which  are 
entitled  to  much  more  weight.  There  is  not  only 
a  difference  of  opinion  on  the  merits  of  the  differ 
ent  systems  between  the  different  sections  of  the 
Convention,  but  the  members  seem  to  differ 
widely,  very  widely,  as  to  the  relative  favor  with 
which  each  of  the  different  systems  is  regarded 
by  the  people  of  the  Commonwealth.  All  are,  I 
doubt  not,  honest  and  sincere  in  their  convictions  ; 
each  side  seems  to  be  fully  persuaded  and  entirely 
confident  that  the  people  are  with  them — that  the 
people  prefer  their  system.  I  have  no  doubt,  as 
I  remarked,  that  both  are  equally  honest.  In 
my  opinion — and  it  is  worth  but  little — if  this 
question  goes  to  the  people,  they  will  prefer  the 
district  system  for  the  sake  of  equality  of  repre 
sentation,  and  of  justice  and  fairness.  Other  gen 
tlemen  are  equally  confident  that  the  people  will 
prefer  town  representation.  Let  the  people  decide 
between  us.  This  is  all  we  ask. 

There  are  a  portion  of  the  members  of  this 
Convention  who  have  very  strong  objections  to 
town  representation ;  who  think  it  unreasonable, 
unequal,  and  unjust.  There  are  individuals  in 
and  out  of  this  Convention,  whether  they  are 
right  or  wrong  in  their  opinions,  who  think  it  so 
unrighteous  they  cannot  vote  for  a  Constitution 


containing  it.  If,  therefore,  the  Constitution  is 
submitted  to  the  people  without  this  proposition — 
if  they  are  compelled  to  vote  upon  only  one  system 
of  representation — I  submit  there  is  great  dan 
ger  that  they  will  vote  against  the  whole,  and 
that  all  our  labor  will  be  lost.  There  is  great 
danger  that  the  people  will  prefer  the  old  system 
to  the  new,  so  that  gentlemen  will  not  only  lose 
their  new  system  of  town  representation,  but  they 
will  also  fail  in  the  accomplishment  of  many  other 
objects  which  they  have  in  view,  and  which  the 
people  desire.  But,  on  the  contrary,  if  you  sub 
mit  these  alternative  propositions  to  the  people, 
you  will  gain  very  many  votes  for  the  whole 
work.  The  friends  of  each  system  would  suppose 
that  his  favorite  system  wrould  prevail,  and  there 
fore  would  vote  for  the  whole.  Many  who  prefer 
the  district  system  will  vote  for  the  whole,  for  the 
purpose  of  obtaining  their  object,  and  many 
others  who  prefer  the  town  system,  will  vote  for 
the  whole,  for  the  purpose  of  obtaining  their  sys 
tem  of  representation.  This,  therefore,  is  a  very 
strong  argument  in  favor  of  submitting  this  prop 
osition  to  the  people.  Deny  the  right  of  the 
people  to  select  for  themselves,  and  you  will 
arouse  a  spirit  which  will  reject  the  whole. 

There  are  one  or  two  other  facts  which  I  think 
will  recommend  this  proposition  very  strongly — 
and  I  believe  the  facts  to  which  I  am  about  to 
refer  are  well  known  to  the  Convention.  I  have 
not  made  the  computation  myself,  but  I  am  told 
that  it  is  susceptible  of  demonstration,  that  in  no 
one  instance  has  a  majority  of  the  people  of  this 
Commomvealth,  as  represented  in  this  Conven 
tion,  voted  in  favor  of  a  system  of  town  repre 
sentation.  Those  who  have  examined  the  subject 
— and  I  understand  it  has  been  explained  in  the 
Convention — have  ascertained  to  a  certainty  that 
whenever  this  matter  of  town  representation  has 
been  presented  in  this  Convention  and  voted 
upon,  in  no  one  instance  have  one-half,  or  any 
thing  near  one-half  of  the  people  of  the  Common 
wealth,  by  their  representatives  upon  this  floor, 
voted  for  it.  If  you  will  compute  the  number  of 
the  constituents,  upon  the  strongest  vote  given 
here  in  favor  of  town  representation,  the  constit 
uents  of  the  gentlemen  who  voted  for  that  system 
will  be  found  to  be  less,  by  more  than  fifty  thou 
sand,  than  one-half  the  people  of  the  Common 
wealth,  so  that  those  who  did  not,  by  their  repre 
sentatives,  vote  for  it,  exceeded  those  who  did,  by 
more  than  one  hundred  thousand  people. 

Now,  if  you  will  carry  that  computation  a  little 
farther,  and  see  how  many  voted,  through  their 
representatives,  in  favor  of  a  district  system,  you 
will  find  in  some  respects  a  similar  result,  though 
in  other  respects  you  will  find  a  wide  difference. 


70th   day.] 


HOUSE   OF   REPRESENTATIVES. 


573 


Friday,] 


MORTON  —  PHELPS. 


[July  29th. 


Although  on  no  occasion  has  one-half  of  the 
people  of  the  Commonwealth,  through  their  rep 
resentatives,  voted  for  the  district  system,  yet,  if 
you  look  at  the  number  of  the  constituents  of  the 
respective  parties,  you  will  find  that  those  who 
voted  for  the  district  system  represented  more 
than  thirty- five  thousand  people  more  than  those 
who  voted  against  it. 

Now,  under  these  circumstances,  ought  it  not 
— is  it  not  entirely  reasonable — is  it  not  entirely 
just,  that  this  thing  should  be  submitted  to  the 
people  to  say  whether  they  will  decide  in  favor  of 
those  who  advocate  the  town  system,  or  those 
who  advocate  the  district  system  ?  Will  the  mi 
nority,  because  they  have  by  unequal  representa 
tion  the  control  of  this  Convention,  exercise  the 
power  which  accident  has  given  them,  not  only  to 
dictate  to  the  majority  here,  but  to  unjustly  and 
unfairly  deprive  the  people  of  the  power  to  act  on 
the  system  of  the  majority,  and  compel  them  to 
take  the  system  of  the  minority  or  nothing  ?  I 
will  not  believe  until  I  see  it  done. 

These  are  some  of  the  reasons,  without  going 
into  the  general  merits  of  the  question,  why  I 
think  we  should  submit  this  question  to  the 
people.  There  are  some  otber  reasons,  however, 
which  might  be  presented.  We  have  had  a  pro 
tracted  session ;  we  have  had  discussions  upon  a 
great  variety  of  subjects  upon  which  there  has 
been  a  great  variety  of  opinion,  and  the  opinions 
entertained  by  gentlemen  upon  the  different  sides 
of  the  questions  that  have  been  before  us,  have 
been  adhered  to  pertinaciously  ;  but  it  has  given 
me  great  pleasure  to  notice  the  amenity  of  deport 
ment  and  debate  that  has  been  observed,  the 
suavity  of  manner  and  courtesy  which  has  pre 
vailed  between  the  members  of  the  Convention. 
I  think  we  may  be  proud  of  the  dignity  and  de 
corum  of  our  discussions,  and  the  conciliatory 
disposition  of  which  members  who  advocated — 
pertinaciously,  perhaps — their  different  opinions, 
have  uniformly  manifested  towards  each  other. 
I  am  happy  to  be  able  to  say,  that  during  the 
whole  of  our  proceedings  there  has  been  that  de 
corum,  that  gentlemanly  deportment,  that  parlia 
mentary  regard  for  rules  and  orders,  which  is  a 
prominent  characteristic  of  a  patriotic,  intelligent, 
and  high-minded  body.  I  am  told,  Mr.  Presi 
dent — I  am  glad  I  did  not  witness  it — that  upon 
one  occasion  the  debate  became  a  little  squally. 
I  believe  that  no  voyage,  however  successful  and 
prosperous,  and  however  happy  the  passengers 
and  seamen  may  have  been,  was  ever  brought  to 
a  close  without  some  clouds.  Indeed,  a  little 
rough  weather  is  quite  necessary  to  break  the 
monotony,  and  to  give  interest  to  the  voyage. 
I  am  told  that  upon  a  recent  occasion,  the  very  last 


evening,  there  appeared  some  threatening  clouds 
which  interrupted  the  composure,  and  disturbed, 
to  some  little  extent,  the  pleasant  intercourse 
which  had  heretofore  prevailed.  But  I  am  de 
lighted  to  know  that,  like  all  other  squalls,  it 
cleared  off,  and  was  succeeded  by  sunshine  and 
fair  weather,  the  more  pleasant  for  having  been 
interrupted.  I  hope  we  shall  be  able  to  carry  this 
out  till  the  close  of  our  labors,  and  that  we  shall 
have  nothing  but  the  kindest  feelings  towards 
each  other. 

Now,  in  relation  to  the  resolves  before  the  Con 
vention,  let  us  meet  the  subject  fairly  and  favor 
ably.  Let  us  submit  the  question  to  the  people. 
No  one  can  lose  anything  by  it,  unless  it  be  an 
unjust  advantage.  We  have  important  reforms 
Avhich  we  all  wish  the  people  to  adopt,  some  upon 
which  we  are  pretty  generally  agreed,  and  others 
upon  which  there  is  much  difference  of  opinion. 
But,  Sir  ,let  us  conciliate  upon  this  great  question  ; 
let  us  submit  this  to  the  people,  and  then,  I  trust, 
the  others  will  meet  a  favorable  reception.  So 
far  as  our  labors  have  terminated  for  good,  the 
people  will  ratify  them,  and  if  in  any  respect  they 
have  been  injudicious,  the  community  will  sift 
out  the  chaff  and  save  the  wheat.  At  any  rate,  I 
hope  we  shall  impress  upon  the  minds  of  the 
community  that  we  desire  to  recommend  to  their 
fuvorable  consideration,  the  labors  of  the  Conven 
tion. 

I  will  say,  in  conclusion,  that  I  have  very 
strong  fears  that  unless  upon  this  all-important 
subject,  in  which  we  all  feel  so  deep  an  interest, 
which  we  all  consider  so  vital  to  the  welfare  and 
increasing  prosperity  of  the  Commonwealth,  I 
say,  that  unless  we  concur  in  some  proposition  by 
which  the  subject  may  be  thrown  open  for  the 
consideration  and  decision  of  the  people,  I  fear 
our  whole  labors  may  be  lost.  Let  us  give  them, 
what  I  am  sure  we  all  desire,  a  system  of  repre 
sentation  that  shall  be  in  exact  conformity  with 
the  wishes  of  the  community.  [Here  the  hammer 
fell.]  I  have  watched  the  clock,  and  was  just 
going  to  add  that  I  was  very  glad  to  conclude 
what  I  had  to  say  without  the  interposition  of  the 
President's  hammer. 

Mr.  PHELPS,  of  Monroe.  Mr.  President: 
I  feel  a  degree  of  reluctance  to  occupy  the  time  of 
the  Convention  under  the  circumstances  in  which 
we  find  ourselves  this  morning.  After  the  able 
and  eloquent  speeches  which  we  have  had,  and 
the  instruction  we  have  received,  it  seems  almost 
a  work  of  supererogation  for  me  to  attempt  to  en 
lighten  this  Convention  ;  and  especially  do  I  feel 
as  though  I  could  expect  to  receive  but  little 
attention,  when  the  pay  roll  is  about  to  be  made 
up,  and  there  seems  to  be  considerable  interest  in 


574 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


PHELPS. 


[July  29th. 


that  matter.  But  if  I  could  gain  the  attention  of 
the  Convention  for  a  few  moments,  I  should  be 
very  glad  to  do  it,  inasmuch  as  I  represent  one  of 
the  small  towns,  which  has  a  deep  interest  in  the 
result  of  this  question  relating  to  the  basis  of  the 
House  of  Representatives — as  great,  perhaps,  as 
any  town  can  have.  Nevertheless,  I  made  up 
my  mind,  when  this  discussion  commenced,  that 
I  would  not  say  a  word  upon  the  subject.  And 
I  would  have  adhered  to  that  determination,  had 
it  not  been  for  certain  ideas  advanced  by  gentle 
men  on  both  sides  of  the  question,  and  especially 
the  idea  advanced  by  the  gentleman  who  repre 
sents  Wilbraham,  when  this  question  was  up  be 
fore.  I  am  sorry  that  I  do  not  see  that  gentleman 
in  his  seat  at  the  present  time.  He  advanced  an 
idea  which  has  gone  to  the  country,  and  gone  upon 
the  record,  giving  an  impression  upon  the  mem 
bers  from  the  small  towns  which  is  rather  un 
pleasant.  That  gentleman  said  that  if  the 
members  from  the  small  towns  did  not  come 
to  the  rescue  and  help  hold  up  the  hands  of 
Moses,  he  should  have  to  vote  for  the  district 
system.  That  statement  has  gone  upon  the 
record,  and  to  the  country, audit  implies  that  the 
small  towns  have  some  Moses  here  to  take  care  of 
their  interests,  or  else  their  interests  will  not  be 
taken  care  of.  I  do  not  believe  that  gentleman 
meant  what  he  said  ;  but  it  is  upon  record,  and  it 
will  have  the  same  effect,  as  it  goes  out  to  the 
country.  That  gentleman,  I  suppose,  argued  the 
question  of  town  representation  as  a  principle ; 
and  I  never  knew  that  gentleman  forsake  what 
he  considered  a  principle,  in  regard  to  any  matter 
whatever. 

Sir,  it  seemed  rather  hard,  after  that  gentleman 
had  become  as  it  were  a  sort  of  acknowledged 
leader  for  the  small  towns,  and  after  he  had 
acknowledged  our  right  in  the  disputed  conflict, 
and  led  us  on  to  victory,  and  the  enemy  began  to 
scatter  in  all  directions,  just  because  we  made  one 
false  step,  to  have  the  general  faco  about  and  say : 
"  Soldiers,  if  you  do  that  again,  I  will  throw  up 
my  commission,  and  go  over  to  the  enemy  and 
enlist  as  a  private  soldier." 

The  members  from  the  small  towns  have  occu 
pied  but  a  small  part  of  the  time  of  this  Conven 
tion,  comparatively  ;  and  if  any  apology  is  wanted, 
I  would  say  for  myself,  and  I  might  for  many 
others,  that  one  reason  why  the  members  from 
the  small  towns  have  not  said  more  in  this  Con 
vention,  is  because  speech- making  is  not  their 
trade  or  their  occupation.  They  came  here  with 
the  intention  of  voting  according  to  the  best  of 
their  judgment,  and  only  talking  when  it  was 
actually  necessary ;  to  hear  all  that  was  said  on 
all  sides,  and  making  up  their  minds  so  as  to  vote 


understandingly,  and  in  a  manner  to  meet  the 
views  of  their  constituents,  and  accomplish  the 
great  object  for  which  this  Convention  was  called. 

Another  reason  why  they  have  not  spent  the 
time  in  speaking  upon  many  questions,  is,  that 
there  have  been  plenty  of  advocates  among  all 
parties — gentleman  who  knew  how  to  talk,  who 
wanted  to  talk,  and  did  talk.  Having  plenty  of 
advocates,  we  thought  it  not  necessary  to  spend 
the  time  in  speech-making  upon  any  question 
whatever.  If  this  is  not  apology  enough,  I  would 
say,  for  one,  that  after  hearing  some  fifteen  or 
twenty  sixty-four  pounders,  one  after  another, 
fired  off  in  regular  succession,  which  had  been 
loaded  to  the  muzzle  and  rammed  down  with  the 
iron  ramrod  of  intellect,  by  men  of  great  ex 
perience—after  hearing  the  booming  of  those 
mighty  cannon,  I  could  not  expect  to  accomplish 
much  by  throwing  up  fire  crackers. 

After  the  chairman  of  the  Committee  who 
made  thus  Report  had  made  his  candid,  able,  and 
telling  argument  upon  this  question,  and  in  favor 
of  town  representation,  we  were  satisfied  to  rest 
the  matter  there  for  the  time  being.  But  that 
gentleman  was  soon  assailed  and  accused  of 
selfishness ;  figures  were  made  and  results  an 
nounced,  showing,  as  they  said,  great  injustice 
and  inequality.  Then,  Sir,  came  forward  the 
untiring,  energetic  members  from  Lowell,  and 
they  offered  to  sacrifice,  upon  the  altar  of  princi 
ple,  a  part  of  their  own  power,  to  preserve  town 
representation.  But  here  it  soon  became  evident 
that  there  must  be  a  yielding  on  both  sides.  We 
of  the  small  towns  were  asked  to  meet  them  on 
some  ground  of  compromise.  Yes,  Sir,  gentlemen 
from  both  sides  came  and  urged  the  members  from 
the  small  towns  to  yield  something,  and  give  up 
some  portion  of  their  representation,  and  enter  into 
what  was  called  a  compromise.  We  did  so  ;  and 
over  fifty  towns  consented  to  yield  one-half,  so  as  to 
be  represented  every  other  year.  Well,  Sir,  what 
thanks  did  we  get  for  that  ?  The  first  thing  they 
did  was  to  twit  us  of  surrendering  our  principle. 
Yes,  Sir,  they  tell  us  we  abandoned  our  princi 
ple  ;  and,  having  no  principle  to  stand  upon,  they 
very  politely  ask  us  to  come  over  to  the  district 
system.  After  each  of  us  had  consented  to  be 
come  half  a  man,  or  we  had  yielded  up  one-half 
of  our  representation,  we  supposed  we  might  ask 
something  from  the  other  side. 

The  next  thing  we  hear  from  them  is,  that  it 
takes  three  men  in  Boston  to  equal  one  in  the 
country ;  and  they  very  gravely  ask,  is  it  right 
that  one  man  in  the  country  should  equal  three 
in  the  city  ?  That  question  has  been  repeated 
here  time  and  again. 

I  would  now  ask  gentlemen  who  opposed  the 


70th  day.] 


HOUSE   OF  REPRESENTATIVES. 


575 


Friday,] 


PHELPS. 


[July  29th. 


calling  of  this  Convention,  if  they  were  satisfied 
with  the  existing  Constitution  ?  That  is  a  ques 
tion  which  I  wish  to  put  distinctly  to  gentlemen, 
whether  they  were  satisfied  with  the  present  Con 
stitution?  I  take  it  for  granted  they  were 
satisfied  ;  because,  if  they  were  not  satisfied,  why 
did  they  not  vote  for  calling  the  Convention  ? 

I  now  come  to  the  question  of  inequality,  and 
I  will  answer  that  question  by  asking  another. 
Is  it  right  for  one  man  in  the  city  of  Boston  to  be 
made  equal  to  two  hundred  and  twenty  men  in 
the  country  ?  I  wish  gentlemen  who  opposed 
calling  this  Convention,  to  understand  that  I 
consider  that  they  were  satisfied  with  the  existing 
Constitution  ;  and  now  I  ask  them  if  it  is  right, 
as  that  Constitution  provided,  that  one  man  in 
Boston  should  be  considered  equal  to  two  hun 
dred  and  twenty  in  the  country  r  For  that  is  the 
fact  under  the  present  Constitution.  My  proof  is 
this  :  Every  legal  voter  in  the  city  of  Boston  has 
a  right  to  vote  for  forty-four  representatives,  every 
year  casting  forty-four  votes.  Well,  Sir,  I  have 
the  right  to  cast  one  vote  once  in  five  years  for  a 
representative — so  that  they  can  vote  five  times 
forty-four  times  while  I  vote  once.  Now,  I  ask 
if  that  is  right  ?  We  have  not  heard  a  word  of 
complaint  on  their  part  on  account  of  its  not  being 
right,  though  it  is  beyond  all  dispute  a  fact  that 
one  man  in  Boston  equals  two  hundred  and 
twenty  in  some  of  the  small  towns. 

After  having  voted  down  proposition  after  prop 
osition  on  the  districting  system — and  the  last  time 
by  over  one  hundred  majority — then  the  gentle 
man  from  Taunton  proposes  to  put  in  his  old  re 
jected  claim,  a  claim  which  we  had  time  and  again 
declared  we  would  not  indorse.  With  all  due  re 
spect  to  the  gentleman  who  introduced  it,  I  con- 
eider  it  a  great  absurdity. 

Does  the  gentleman  wish  to  carry  out  the  prin 
ciple  ?  Then  why  does  he  select  this  particular 
and  take  no  other  ?  Why  take  up  a  proposition 
which  has  been  voted  down  by  so  large  a  major 
ity,  and  say  nothing  about  other  matters  which 
were  passed  with  a  very  close  vote  ?  Why  not 
send  out  the  whole  judiciary  question  in  all  its 
bearings,  and  let  the  people  say  whether  they  will 
have  the  judges  elected  or  appointed — whether 
they  will  have  the  tenure  of  their  office  five, 
seven,  ten,  or  fifteen  years,  or  for  life  ?  HOAV  do 
we  know  how  the  people  would  like  to  have  it  ? 
Is  he  afraid  to  trust  the  people  ?  If  not,  then  let 
them  have  their  choice.  Then  send  an  alternate 
proposition  concerning  the  Council,  and  let  the 
people  say  whether  they  will  have  them  elected 
or  appointed.  There  is  a  great  difference  of  opin 
ion  as  to  which  is  the  true  principle,  the  majority 
or  plurality.  Why  do  the  friends  of  plurality, 


who  have  talked  so  long  and  loud  upon  the  sub 
ject,  ask  leave  to  send  both  propositions  to  the 
people,  so  that  the  people  can  have  what  they 
want  ?  Why  not  say  to  the  people,  and  done 
with  it,  that  their  delegates  cannot  agree,  unani 
mously,  upon  anything ;  and  therefore  they,  the 
dear  people,  may  look  over  our  discussions  and 
vote  upon  all  the  propositions,  and  those  that 
receive  a  majority  of  votes  shall  become  part  of 
the  Constitution.  Sir,  the  people  sent  us  here 
for  no  such  purpose  as  this.  We  were  sent  here 
to  say  what  alterations  were  wanted,  to  discuss 
the  matter,  then  vote  upon  it,  and  whatever  the 
majority  voted  for,  send  to  the  people  ;  and  if  it 
suited  them  they  would  accept  it ;  if  not,  they 
would  reject  it.  Sir,  they  did  not  send  us  here 
to  get  up  a  proposition  for  districting  the  State, 
and  send  it  back  to  them,  saying  that  we  rejected 
it  in  Convention  by  a  very  large  vote,  and  we 
thought  it  a  miserable  concern ;  nevertheless,  we 
did  not  know  but  the  people  might  take  a  fancy 
to  it.  So  we  concluded  that  if  you  wanted  it, 
you  might  have  it.  Mr.  President,  I  for  one, 
cannot  think  the  people  will  thank  us  for  pelting 
them  with  rotten  eggs. 

Not  a  word  was  said  about  a  district  system, 
before  the  calling  of  this  Convention.  No,  Sir  ; 
but  the  argument  was  :  see  to  it,  you  of  the  small 
towns,  go  for  the  Convention,  that  you  may  not 
be  annihilated ;  now  is  your  last  chance  to  pre 
serve  town  representation.  That  was  the  argu 
ment.  Now,  where  are  those  gentlemen  who 
threw  the  documents  all  over  the  country,  calling 
upon  us  to  take  our  last  chance  and  be  saved  \ 
Sir,  I  trust  that  they  are  here,  and  ready  to  tell 
by  their  votes  what  they  have  told  with  their 
mouths.  I  trust,  Sir,  that  this  project  of  the 
gentleman  from  Taunton  will  be  rejected,  with. 
as  much  unanimity  as  the  others  have  been.  It 
is  high  time  that  we  said  less  and  did  more.  We 
have  already  remained  here  longer  than  it  was 
expected  we  should.  The  people  are  getting  im 
patient,  and  no  one  can  blame  them.  If  we  had 
discussed  nothing  but  what  was  reasonably  ex 
pected  we  could  carry,  and  had  confined  ourselves 
to  the  question  before  us,  we  might  have  been  at 
home  long  ago. 

But,  Sir,  not  only  the  fugitive  slave  law,  but  a 
variety  of  other  subjects  have  been  discussed,  that 
had  no  relation  to  our  duties  here.  Sir,  mem 
bers  from  the  small  towns  will  remember  with 
gratitude,  not  only  the  able  and  persevering  mem 
ber  for  Erving,  (Mr.  Griswold,)  but  also  the 
untiring  exertions  of  the  very  able  delegate  from 
the  city  of  Lowell,  (Mr.  Butler,)  and  the  mild, 
pleasant,  and  able  arguments  of  the  learned  mem 
ber  from  Worcester,  (Mr.  Earle,)  the  musical  and 


576 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


WHITNEY. 


[July  29th. 


earnest  arguments  of  the  gentleman  from  New 
Bedford,  (Mr.  French,)  and  many  others  whom 
it  is  not  necessary  to  indicate  by  name. 

Mr.  WHITNEY,  of  Boylston.  I  wish  to  say 
a  word  or  two  on  the  proposition  which  is  now 
submitted.  It  seems  to  me  to  be  a  very  extraor 
dinary  proposition.  It  amounts  to  this  simply  : 
that  inasmuch  as  the  large  towns  and  cities  have 
got  precisely  what  they  want,  they  turn  round 
and  ask  us  in  tbe  small  towns  to  accept  what  we 
do  not  want.  Why  cannot  gentlemen  be  satisfied 
with  having  their  own  way  in  the  cities  and  large 
towns  ?  If  you  are  districted  as  you  wish  to  be 
in  the  cities  and  large  towns,  why  do  you  wish  to 
have  the  small  towns  put  the  rope  around  their 
own  necks  and  be  drawn  up  to  what  they  do  not 
want  ?  It  seems  to  me  to  be  a  very  strange  prop 
osition  that  we  of  the  small  towns  are  to  come 
here  and  give  the  large  towns  what  they  want, 
and  then  put  the  rope  upon  our  necks  and  put  the 
other  end  in  their  own  hands,  and  let  them  hang 
us  up  to  kick.  That  is  the  whole  of  the  proposi 
tion.  I  think  the  cities  and  towns  should  be 
satisfied  if  they  have  got  all  they  want.  Cannot 
they  permit  that  Mordecai  shall  sit  at  the  king's 
gate  if  they  can  have  all  they  desire,  until  they 
strangle  him  upon  their  gallows  ?  I  think  we 
will  not  consent  to  it.  But  if  the  Convention, 
contrary  to  what  has  been  expected  all  along, 
should  permit  this  double  proposition  to  go  forth 
to  the  people,  I  wish  to  amend  it.  I  have  a  prop 
osition  or  two  which  I  wish  to  have  go  to  the 
people.  Now,  with  all  due  deference  to  the 
learning  and  judgment  of  the  delegate  from  Taun- 
ton,  I  must  be  permitted  to  say  that  I  think  the 
enfranchisement  of  one- half  the  people  of  the 
Commonwealth,  right  straight  out,  is  of  more 
consequence  than  a  little  inequality  which  may 
exist  now.  And  I  think  the  disfranchisement  of 
five  hundred,  either  in  the  city  or  country,  is  of 
more  importance  than  these  side  issues  where 
there  is  a  little  inequality. 

I  wish  to  say  one  word  on  the  subject  of  of 
ficial  oaths,  whether  they  shall  be  abolished.  I 
wish  that  question  to  go  out  among  the  questions 
which  are  to  go  to  the  people.  And,  in  the  sec 
ond  place,  I  wish  the  word  "  male  "  to  be  stricken 
from  the  qualification  for  voting,  in  the  Consti 
tution.  I  have  an  inkling  that  the  people  are  a 
little  ahead  of  the  Constitution  in  that  respect. 
They  are  satisfied  that  no  good  comes  from  swear 
ing,  and  that  no  evil  would  come  from  striking 
out  the  word  "  male."  I  wish  it  to  go  to  the 
people.  I  will  not  say  that  I  shall  be  satisfied 
with  their  decision,  because  I  will  not  be  satisfied 
with  anything  that  is  wrong,  whether  it  is  done 
by  a  million  or  by  one  man.  I  may  submit  to  it. 


I  am  not  satisfied  with  the  decision  that  eighteen 
millions  may  trample  on  the  rights  of  three  mil 
lions.  I  say  it  is  wicked  and  cowardly,  and  we 
have  no  right  to  do  it,  either  as  Democrats,  as 
Christians,  or  as  men. 

I  wish  to  say  one  word  as  to  the  limitation  of 
the  exercise  of  power  by  majorities.  There  is  a 
limitation  of  majorities.  They  may  not  do  every 
thing.  You  may  refuse  my  proposition  here,  but 
suppose  this  Convention  say  I  shall  be  hung 
on  the  Common,  have  they  a  right  to  do  it,  or 
have  all  the  men  in  Massachusetts  a  right  to  do 
it,  or  have  all  the  men  in  the  Union  a  right  to  do 
it  ?  I  say  no,  and  I  do  not  submit  to  it.  Sup 
pose  you  act  on  the  question  of  my  liberty. 
Without  my  being  convicted  of  any  crime,  have 
you  a  right  to  take  away  my  liberty  ?  I  say  no. 
If  every  man  in  Massachusetts  is  engaged  in 
doing  it,  would  that  make  it  right  ?  I  say  no ; 
and  if  the  whole  Union  engage  in  it,  I  still  say 
no.  I  feel  that  I  have  a  right  to  liberty  and  life, 
and  there  is  no  principle  in  democracy  or  religion, 
which  will  authorize  you  to  deprive  me  of  them. 
If  there  is  a  single  human  being  in  this  great 
family  of  nine  hundred  millions,  who  is  to  be 
deprived  of  liberty  without  being  convicted  of 
crime,  I  see  no  reason  why  I  should  not  be  the 
man.  Therefore,  I  do  not  consent  to  any  man's 
being  subjected,  without  being  convicted  of  crime, 
either  to  the  penalty  of  death,  or  to  the  penalty 
of  slavery.  There  is  a  great  disposition  in  this 
Convention,  it  seems  to  me,  to  puff  up  and  adore 
this  Union,  and  to  express  a  great  reverence  for 
it.  Permit  me  to  say,  Mr.  President,  that  I  have 
some  misgivings  upon  this  topic.  I  cannot  con 
sent  to  glorify  this  Union  while  it  refuses  to  give 
freedom  to  its  people.  I  say  it  is  cowardly  for 
nineteen  millions  of  Anglo  Saxons  to  tread  upon 
three  millions  of  negroes  and  mixed  races.  It  is 
un- democratic  and  un- Christian,  and  against  the 
Bible ;  and,  although  some  of  our  doctors  of 
divinity  have  caved  in,  and  have  carried  some  of 
our  old  friends  away  with  them,  by  proclaiming 
that  the  Bible  sanctions  slavery,  yet,  Sir,  I  choose, 
so  far  as  I  am  concerned,  to  interpret  the  Bible 
for  myself,  and  not  to  have  doctors  of  divinity 
interpret  it  for  me. 

Now  some  things  have  been  said,  in  this  Con 
vention,  with  reference  to  these  two  propositions 
which  I  bring  forward  here,  and  considerable 
liberty  has  been  taken,  as  I  understand  ;  for,  al 
though  I  was  not  here,  I  have  been  informed  that 
some  of  my  friends  have  been  assailed  in  a  man 
ner  which  was  not  altogether  becoming  to  the 
dignity  of  such  a  Convention  as  this.  A  great 
many  harsh  things  have  been  said  here,  against 
the  rights  of  women,  and  against  come-outers. 


70th  day.] 


ELECTIONS   BY   PLURALITY,  &c. 


577 


Friday,] 


WHITNEY  —  DAVIS  —  CHAPIN  —  WILSON  —  TRAIN. 


[July  29th. 


Sir,  I  have  a  great  reverence  for  come- outers. 
Abraham  came  out  from  his  father's  house,  and 
from  the  religion  of  his  fathers.  The  Puritans 
were  also  come-outers,  and  came  over  the  seas  to 
enjoy  their  religious  sentiments  unmolested.  I 
believe,  Sir,  that  if  the  truth  was  known,  we  are 
all  come-outers,  more  or  less,  but  some  of  our 
friends  are  older,  and  have  gone  to  seed  a  little. 
They  came  over  so  long  ago  that  they  have  for 
gotten  it,  and  have  gone  to  seed ;  and  perhaps  we 
shall  go  to  seed  too,  if  we  live  long  enough.  It 
seems  to  me,  that  if  gentlemen  have  nothing 
better  to  say  against  this  proposition,  than  to 
apply  the  term  "  Mr."  to  one  of  the  most  woman 
ly  women  in  this  Commonwealth,  one  who  is 
educated  and  refined,  and  who  has  graduated  at 
one  of  your  colleges ;  and  to  apply  the  term 
"  Miss  "  to  such  a  man  as  Wendell  Phillips,  they 
must  be  in  a  desperate  situation  for  want  of  ar 
guments  ;  and  we  are  driven  to  institute  a  com 
parison  between  the  blackguardism  and  wit  of 
the  fish  market  and  the  grog  saloons,  and  that 
which  is  introduced  here  by  a  distinguished  doc 
tor  of  divinity — we  are  driven  to  institute  a  com 
parison  to  see  which  is  the  most  dignified,  and 
which  is  to  be  regarded  as  the  most  worthy  of 
men  who  take  part  in  the  proceedings  of  this 
body. 

Mr.  DAVIS,  of  Fall  River.  I  rise  to  a  ques 
tion  of  order.  I  desire  to  know  what  the  ques 
tion  is,  and  if  the  gentleman  from  Boylston  is 
speaking  to  the  question  ? 

The  PRESIDENT.  The  gentleman  from  Boyls 
ton  will  be  good  enough  to  state  his  amendment. 

Mr.  WHITNEY.  I  propose  to  amend  the 
proposition  of  the  gentleman  from  Taunton,  by 
adding  to  it  the  following  questions :  "  Shall 
official  oaths  and  affirmations  be  abolished  ?  "  and 
"  Shall  the  term  male  be  stricken  from  the  Con 
stitution  ? " 

The  PRESIDENT.  The  gentleman  from 
Boylston  will  perceive  that  both  of  these  proposi 
tions  relate  to  a  subject  different  from  that  which 
is  under  consideration,  and  are  therefore  excluded 
by  the  rule.  He  can  introduce  them  in  a  separate 
resolve,  but  they  are  not  in  order  at  this  time. 

Mr.  CHAPIN,  of  Webster,  moved  the  previous 
question. 

Mr.  WILSON,  of  Natick.  I  hope  the  gentle 
man  will  withdraw  that  motion,  and  that  we  shall 
proceed  to  act  upon  the  special  assignment.  That 
can  be  taken  up  and  disposed  of  in  a  few  minutes. 

Mr.  CHAPIN.  I  had  concluded  from  the  two 
last  speeches  that  have  been  made,  that  it  was 
about  time  to  take  the  question.  I  have  no  ob 
jection  to  withdrawing  the  motion,  if  the  gentle 
man  from  Natick  desires  it. 


Mr.  WILSON.  I  now  move  to  lay  this  sub 
ject  on  the  table,  with  a  view  of  taking  up  the 
special  assignment,  being  the  resolves  upon  the 
subject  of  plurality. 

The  motion  to  lay  upon  the  table  was  agreed  to. 

The  Plurality  Question. 

On  motion  by  Mr.  WILSON,  the  Convention 
proceeded  to  consider  the  first  and  fcurth  resolves 
on  the  subject  of  plurality,  which  were  read,  as 
follows : — 

1.  Resolved,  That  it  is  expedient  to  provide  in 
the  Constitution  that  a  majority  of  all  the  votes 
given  shall  be  necessary  to  the  election  of  a  Gov 
ernor,  Lieutenant- Governor,  Secretary,  Treasurer, 
Auditor,  and  Attorney- General  of  the  Common 
wealth,  until  otherwise  provided  by  law  ;  but  no 
such  law,  providing  that  the  Governor,  Lieuten 
ant- Governor,  Secretary,  Treasurer,  Auditor, 
Attorney- General,  and  Representatives  to  the 
General  Court,  or  either  of  them,  shall  be  elected 
by  plurality,  instead  of  a  majority  of  votes  given 
in,  shall  take  effect  until  one  year  after  its  pas 
sage  ;  and  if  at  any  time  after  the  enactment  of 
any  such  law,  and  the  same  shall  have  taken 
effect,  such  law  shall  be  repealed,  such  repeal 
shall  not  become  a  law  until  one  year  after  the 
passage  of  the  repealing  act;  and,  in  default  of 
any  such  law,  if  at  any  election  of  either  of  the 
above  named  officers,  except  the  Representatives 
to  the  General  Court,  no  person  shall  have  a  ma 
jority  of  the  votes  given,  the  House  of  Represent 
atives  shall,  by  a  majority  of  viva  voce  votes,  elect 
two  out  of  three  persons  who  had  the  highest,  if 
so  many  shall  have  been  voted  for,  and  return  the 
persons  so  elected  to  the  Senate,  from  which  the 
Senate  shall,  by  viva  voce  vote,  elect  one  who  shall 
be  Governor,  or  other  officer  to  be  thus  elected. 

4.  Resolved,  That  in  the  election  of  all  city  or 
town  officers,  such  rule  of  election  shall  govern  as 
the  legislature  may  by  law  prescribe. 

The  question  being  on  the  final  passage  of  the 
resolves, 

Mr.  TRAIN  moved  to  amend  the  first  resolve, 
so  that  it  shall  read  as  follows  : — 

1.  Resolved,  That  it  is  expedient  to  provide  in 
the  Constitution  that  a  plurality  of  the  votes  given 
shall  be  necessary  to  the  election  of  a  Governor, 
Lieutenant- Govern  or,  Secretary,  Treasurer,  Audi 
tor,  and  Attorney-  General  of  the  Commonwealth, 
until  otherwise  provided  by  law  ;  but  no  such 
law,  providing  that  the  Governor,  Lieutenant- 
Governor,  Secretary,  Treasurer,  Auditor,  Attor 
ney-General,  and  Representatives  to  the  General 
Court,  or  either  of  them,  shall  be  elected  by  a  ma 
jority  of  votes  given  in,  shall  take  effect  until  one 
year  after  its  passage ;  and  if  at  any  time  after 
the  enactment  of  any  such  law,  and  the  same 
shall  have  taken  effect,  such  law  shall  be  repealed, 
such  repeal  shall  not  become  a  law  until  one  year 
after  the  passage  of  the  repealing  act ;  and  in  de 
fault  of  any  such  law,  if  at  any  election  of  either 


578                                   ELECTIONS   BY   PLURALITY. 

[70th   day. 

Friday,]                                                    B  IBD  —  YEAS  —  NAYS. 

[July  29th. 

of  the  above  named  officers,  except  the  Repre-     French,  Charles  A. 

Orne,  Benjamin  S. 

sentatives  to  the  General  Court,  no  person  shall 

French,  Rodney 

Osgood,  Charles 

have  a  plurality  of  the  votes  given,  the  House  of 

French,  Samuel 

Packer,  E.  Wing 

Representatives  shall,  by  a  plurality  of  viva  voce 

Gale,  Luther 

Paine,  Benjamin 

votes,  elect  two  out  of  three  persons  who  had  the 

Giles,  Charles  G. 

Paine,  Henry 

highest,  if  so  many  shall  have  been  voted  for, 

Gooch,  Daniel  W. 

Parris,  Jonathan 

and  return  the  persons  so  elected  to  the  Senate, 

Gooding,  Leonard 

Partridge,  John 

from  which  the  Senate  shall,  by  viva  voce  vote, 

Green,  Jabez 

Peabody,  Nathaniel 

elect  one  who  shall  be  Governor,  or  other  officer 

Griswold,  Josiah  W. 

Penmman,  John 

to  be  thus  elected. 

Griswold,  Whiting 

Perkins,  Noah  C. 

Hadley,  Samuel  P. 

Phelps,  Charles 

Mr.  BIRD,  of  Walpole.     I  believe  that  pre 

Hapgood,  Lyman  W. 

Phinney,  Silvanus  B. 

cisely  the  same  amendment  was  moved  yesterday 

Hapgood,  Seth 

Pool,  James  M. 

in  the   Convention,  and   it  was  rejected.     The 
proposition  was  made,  I  think,  by  the  gentleman 
from  Boston,  Mr.  Schouler. 

Haskins,  William 
Hawkes,  Stephen  E. 
Hayden,  Isaac 
Heath,  Ezra,  2d, 

Putnam,  John  A. 
Rantoul,  Robert 
Richards,  Luther 
Richardson,  Daniel 

The  PRESIDENT.    The  Chair  has  inquired 

Hewes,  James 

Richardson,  Nathan 

of  the  Secretary,  and  finds  no  record  of  such  a 

Hewes,  William  H. 

Richardson,  Samuel  H. 

motion.      The  Chair  supposes  that  this  precise 
question  has  not  been  presented. 
The  question  being  then  taken  on  the  motion 
of  Mr.  Train,  on  a  division,  there  were  —  ayes, 

Hobart,  Henry 
Holder,  Nathaniel 
Hood,  George 
Hooper,  Foster 
Howard,  Martin 

Ring,  Elkanah,  Jr. 
Rockwood,  Joseph  M. 
Rogers,  John 
Ross,  David  S. 
Sanderson,  Amasa 

120  ;  noes,  194—  so  it  was  not  agreed  to. 

Hunt,  Charles  E. 

Sanderson,  Chester 

The  question  then  recurring  on  the  final  pas 

Huntington,  Charles  P. 

Simmons,  Perez 

sage  of  the  resolves,  Mr.  BUTLER  asked  for  the 

Huntington,  George  H. 

Simonds,  John  W. 

yeas  and  nays,   and  they  were  ordered;   and, 
being  taken,  resulted  —  yeas,  184  ;  nays,  159—  as 

Hurlbut,  Moses  C. 
Hyde,  Benjamin  D. 
Jacobs,  John 

Sprague,  Melzar 
Spooner,  Samuel  W. 
Stevens,  Joseph  L.,  Jr. 

follows  :  — 

Johnson,  John 

Stevens,  William 

Kendall,  Isaac 

Stiles,  Gideon 

YEAS. 

Kimball,  Joseph 

Strong,  Alfred  L. 

Abbott,  Josiah  G.            Childs,  Josiah 
Adams,  Shubael  P.          Churchill,  J.  McKean 
Allen,  James  B.               Clark,  Henry 
Allis   Josiah                       dirk    SilaVi 

Knight,  Hiram 
Knight,  Jefferson 
Knowlton,  Charles  L. 
Knowlton,  William  H. 

Thayer,  Joseph 
Thayer,  Willard,  2d 
Tilton,  Abraham 
Turner,  David  P. 

**AA*O|  uuaidii                                  V^lclrK.,   Ottlall 

Alvord,  D.  W.                 Clarke,  Stillman 
Austin,  George                Cleverly,  William 
Baker,  Hillel                    Crane,  George  B. 
Barrett,  Marcus                Cressy,  Oliver  S. 
Bates,  Eliakirn  A.            Cross!  Joseph  W. 
Bates,  Moses,  Jr.              Cushman,  Henry  W. 
Beal,  John                         Cushman,  Thomas 
Bennett,  Zephaniah        Cutler,  Simeon  N. 
Bigelow,  Edward  B.       Dana,  Richard  H.,  Jr. 
Bird,  Francis  \V.            Davis,  Charles  G. 

Knox,  Albert 
Langdon,  Wilber  C. 
Lawrence,  Luther 
Lawton,  Job  G.,  Jr. 
Leland,  Alden 
Lincoln,  Abishai 
Little,  Otis 
Littlefield,  Tristram 
Loomis,  E.  Justin 
Marble,  William  P. 

Tyler,  William 
Underwood,  Orison 
Vinton,  George  A. 
Walker,  Amasa 
Ward,  Andrew  H. 
Warner,  Samuel,  Jr. 
Waters,  Asa  H. 
Weston,  Gershom  B. 
White,  George 
Whitney,  Daniel  8. 

Bliss,  Gad  O.                   Davis,  Isaac 

Marcy,  Laban 

Whitney,  James  S. 

Booth,  William  S.           Davis,  Robert  T. 
Boutwell,  Geo.  S.            Day,  Gilman 

Marvin,  Abijah  P. 
Merritt,  Simeon 

Wilbur,  Daniel 
Wilbur,  Joseph 

Boutwell,  Sewell             Deming,  Elijah  S. 
Bradford,  William  J.  A  Denton,  Augustus 
Breed,  Hiram  N.              Duncan,  Samuel 
Bronson,  Asa                    Dunham,  Bradish 
Brown,  Adolphus  F.       Durgin,  John  M. 
Brown,  Artemas              Eames,  Philip 
Brown,  Hammond           Earle,  John  M. 

Moore,  James  M. 
Morton,  Marcus,  Jr. 
Morton,  William  S. 
Nash,  Hiram 
Nayson,  Jonathan 
Nichols,  William 
Nute,  Andrew  T. 

Williams,  J.  B. 
Wilson,  Henry 
Winn,  Jonathan  B. 
Winslow,  Levi  M. 
Wood,  Charles  C. 
Wood,  Nathaniel 
Wood,  Otis 

Brownell,  Frederick        Easland,  Peter 

Ober,  Joseph  E. 

Wright,  Ezekiel 

Brownell,  Joseph            Edwards,  Elisha 

Bryant,  Patrick                Fay,  Sullivan 

NAYS. 

Burlingame,  Anson        Fellows,  James  K. 

Adams,  Benjamin  P. 

Atwood,  David  C. 

Butler,  Benjamin  F.        Fisk,  Lyman 

Aldrich,  P.  Emory 

Ayres,  Samuel 

Cady,  Henry                     Fiske,  Emery 

Allen,  Charles 

Ball,  George  S. 

Caruthers,  William         Foster,  Aaron 

Allen,  Joel  C. 

Bancroft,  Alpheus 

Case,  Isaac                       Foster,  Abram 

Allen,  Parsons 

Barrows,  Joseph 

Chapin,  Daniel  E.           Fowle,  Samuel 

Andrews,  Robert 

Bartlett,  Russel 

Chapin,  Henry                Freeman,  James  M. 

Aspinwall,  William 

Bartlett,  Sidney 

70th  day.] 

ELECTIONS   BY   PLURALITY.                                   579 

Friday,] 

NATS  —  ABSENT.                                                    [July  29th. 

Beebe,  James  M. 

Hunt,  William                     Wetmore,  Thomas           Williams,  Henry 

Bell,  Luther  V. 

Huntington,  Asahel 

Wheeler,  William  F.       Wilson,  Milo 

Bennett,  William,  Jr. 

Hurlburt,  Samuel  A. 

White,  Benjamin             Wilson,  Willard 

Bigelow,  Jacob 

James,  William 

Wilder,  Joel                     Woods,  Josiah  B. 

Bradbury,  Ebenczer 

Jenkins,  John 

Wilkinson,  Ezra 

Brewster,  Osmyn 

Kellogg,  Giles  C. 

Brinley,  Francis 

Kinsman,  Henry  W. 

ABSENT. 

Briggs,  George  N. 

Knight,  Joseph 

Abbott,  Alfred  A.           Kellogg,  Martin  R. 

Buck,  Asaliel 

Knowlton,  J.  S.  C. 

Alley,  John  B.                 Keyes,  Edward  L. 

Bullock,  Rufus 
Bumpus,  Cephas  C. 

Kuhn,  George,  H. 
Ladd,  Gardner  P. 

Appleton,  William          Kingman,  Joseph 
Ballard,  Alvah                 Ladd,  John  S. 

Chandler,  Amariah 

Lincoln,  Frederic  W.,  Jr. 

Banks,  Nathaniel  P.,  Jr.  Mason,  Charles 

Chapin,  Chester  W. 

Livermore,  Isaac 

Beach,  Erasmus  D.         Meader,  Reuben 

Clark,  Ransom 
Clarke,  Alpheus  B. 
Coggin,  Jacob 

Lord,  Otis  P. 
Lothrop,  Samuel  K. 
Loud,  Samuel  P. 

Bishop,  Henry  W.           Morton,  Elbridge  G. 
Blagden,  George  W.       Newman,  Charles 
Bliss,  Willam  C.              Norton,  Alfred 

Cole,  Lansing  J. 
Cole,  Sumner 
Conkey,  Ithamar 

Lowell,  John  A. 
Marvin,  Theophilus  R. 
Miller,  Seth,  Jr. 

Braman,  Milton  P.          Paige,  James  W. 
Brown,  Alpheus  R.         Parker,  Joel 
Brown,  Hiram  C.             Parker,  Samuel  D. 

Cook,  Charles  E. 

Mixter,  Samuel 

Bullen,  Amos  H.             Parsons,  Samuel  C. 

Cooledge,  Henry  F. 
Copeland,  Benjamin  F. 
Crittenden,  Simeon 
Crockett,  George  W. 

Monroe,  James  L. 
Morey,  George 
Morss,  Joseph  B. 
Morton,  Marcus 

Carter,  Timothy  W.         Parsons,  Thomas  A. 
Choate,  Rufus                  Payson,  Thomas  E. 
Cogswell,  Nathaniel        Peabody,  George 
Crowell,  Seth                   Perkins,  Jonathan  C. 

Crosby,  Leander 
Davis,  Ebenezer 
Davis,  John 

Noyes,  Daniel 
Oliver,  Henry  K. 
Orcutt,  Nathan 

Crownmshield,  F.  B.       Powers,  Peter 
Cummiiigs,  Joseph          Preston,  Jonathan 
Curtis,  Wilber                  Prince,  F.  O. 

Davis,  Solomon 
Dawes,  Henry  L. 
Dean,  Silas 

Park,  John  G. 
Parker,  Adolphus  G. 
Pease,  Jeremiah,  Jr. 

DeWitt,  Alexander         Putnam,  George 
Easton,  James,  2d             Sampson,  George  R. 
Eaton,  Calvin  D.              Sheldon,  Luther 

Dehon,  William 

Perkins,  Daniel  A. 

Edwards,  Samuel             Sherman,  Charles 

Denison,  Hiram  S. 
Doane,  James  C. 
Dorman,  Moses 

Perkins,  Jesse 
Pierce,  Henry 
Plunkett,  William  C. 

Ely,  Joseph  M.                 Stacy,  Eben  H. 
Eustis,  William  T.           Stevenson,  J.  Thomas 
Fitch,  Ezekiel  W.            Storrow,  Charles  S. 

Eaton,  Lilley 

Pomroy,  Jeremiah 

Graves,  John  W.              Stutson,  William 

Ely,  Homer 

Rawson,  Silas 

Greene,  William  B.         Sumner,  Charles 

Farwell,  A.  G. 

Read,  James 

Greenleaf,  Simon             Swain,  Alanson 

Fowler,  Samuel  P.          Heed,  Sampson 
French,  Charles  H.          Rice,  David 
Frcthingham,  Rich'd,  Jr.Rockwell,  Julius 
Gardner,  Henry  J.           Royce,  James  C. 
Gardner,  Johnson            Sargent,  John 
Gates,  Elbridge                 Schouler,  William 
Gilbert,  Wanton  C.          Sherril,  John 

Hall,  Charles  B.               Taber,  Isaac  C. 
Huskell,  George               Talbot,  Thomas 
Hillard,  George  S.           Taylor,  Ralph 
Hobbs,  Edwin                  Tower,  Ephraim 
Hubbard,  William  J.      Tyler,  John  S. 
Ide,  Abijah  M.,  Jr.          Warner,  Marshal 
Jackson    Samuel              "Wilkins,  John  H. 

Gilbert,  Washington 

Sikes,  Chester 

Jenks,  Samuel  H.            Wood,  William  H. 

Giles,  Joel 

Sleeper,  John  S. 

Gould,  Robert 

Smith,  Matthew 

Absent  and  not  voting,  76. 

Goulding,  Dalton 

Souther,  John 

Goulding,  Jason 

Stetson,  Caleb 

So  the  resolves  were  passed. 

Gray,  John  C. 

Stevens,  Charles  G. 

The  whole  series  is  as  follows  :  — 

Hale,  Artemas 

Stevens,  Granville 

Hale,  Nathan 

Sumner,  Increase 

1.  Resolved,  That  it  is  expedient  to  provide  in 

Hallett,  B.  F. 

Taft,  Arnold 

the  Constitution  that  a  majority  of  all  the  votes 

Hammond,  A.  B. 

Thomas,  John  W. 

given  shall  be  necessary  to  the  election  of  a  Gov 

Harmon,  Phineas 

Thompson,  Charles 

ernor,  Lieutenant-  Govern  or,  Secretary,  Treasurer, 

Hathaway,  Elnathan  P. 

Tileston,  Edmund  P. 

Auditor,  and  Attorney-  General  of  the  Common 

Hayward,  George 

Tilton,  Horatio  W. 

wealth,  until   otherwise  provided   by  law;   but 

Hazewell,  Charles  C. 

Train,  Charles  R. 

no  such  law  providing  that  the  Governor,  Lieu 

Heard,  Charles 

Turner,  David 

tenant-  Governor,   Secretary,  Treasurer,  Auditor, 

Henry,  Samuel 

Upham,  Charles  W. 

Attorney-  General,    and    Representatives  to    the 

Hersey,  Henry 

Upton,  George  B. 

General  Court,  or  either  of  them,  shall  be  elected 

Hey  wood,  Levi 

Viles,  Joel 

by  plurality,  instead  of  a  majority  of  votes  given 

Hinsdale,  William 

Walcott,  Samuel  B. 

in,  shall  take  effect  until  one  year  after  its  pas 

Hobart,  Aaron 

Wales,  Bradford  L. 

sage  ;  and  if  at  any  time  after  the  enactment  of 

Hopkinson,  Thomas 

Wallace,  Frederick  T.  . 

any  such  law,  and  the  same  shall  have  taken  effect, 

Houghton,  Samuel 

Wallis,  Freeland 

such  law  shall  be  repealed,  such  repeal  shall  not 

Howland,  Abraham  H. 

Walker,  Samuel 

become  a  law  until  one  year  after  the  passage  of 

Hoyt,  Henry  K. 

Weeks,  Cyrus 

the  repealing  act  ;  and  in  default  of  any  such 

580 


HOUSE   OF    REPRESENTATIVES. 


[70th  day. 


Friday,] 


MORTON  —  WILSON. 


[July  29th. 


law,  if  at  any  election  of  either  of  the  above 
named  officers,  except  the  Representatives  to  the 
General  Court,  110  person  shall  have  a  majority  of 
the  votes  given,  the  House  of  Representatives 
shall,  by  a  majority  of  viva  voce  votes,  elect  two 
out  of  three  persons  who  had  the  highest,  if  so 
many  shall  have  been  voted  for,  and  return  the 
persons  so  elected  to  the  Senate,  from  whom  the 
Senate  shall,  by  viva  voce  vote,  elect  one  who  shall 
be  Governor,  or  other  officer  thus  to  be  elected. 

2.  Resolved,  That  in  all  the  elections  of  Senators 
and  Councillors,  the  person  having  the  highest 
number  of  votes  shall  be  elected. 

3.  Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution  as  to  provide  that  a  majority  of  votes 
shall  be  necessary  for  the  election  of  Representa 
tives  to  the  General  Court,  until  otherwise  pro 
vided  by  law. 

4.  Resolved,  That  in  the  election  of   all  city  or 
town  officers,  such  rule  of  election  shall  govern  as 
the  legislature  may  by  law  prescribe. 

5.  Resolved,  That  in  the  election  of  all  county 
and  district  officers,  the  person  having  the  highest 
number  of  votes  shall  be  elected. 

6.  Resolved,  That  in  all  elections  where  the  per 
son  having  the  highest  number  of  votes  may  be 
elected,  and  there  is  a  failure  of  election  because 
two  persons  have  an  equal  number  of  votes,  subse 
quent  trials  may  be  had  at  such  times  as  may  be 
prescribed  by  the  legislature. 

Representation. 

On  motion  by  Mr.  MORTON,  of  Taunton, 
the  Convention  resumed  the  consideration  of  the 
resolves  submitted  by  him,  respecting  the  mode 
of  submitting  the  question  of  representation  to 
the  people. 

Mr.  WILSON,  of  Natick.  Mr.  President :  It 
seems  to  me  that  the  proposition  of  the  distin 
guished  gentleman  from  Taunton,  (Mr.  Morton,) 
to  submit  to  the  people  an  alternate  plan  for  the 
basis  of  the  House  of  Representatives,  will  have 
a  tendency  to  distract,  divide,  and  embarrass  the 
friends  of  the  amended  Constitution.  I  may  be 
mistaken,  my  apprehensions  may  be  groundless. 
I  admit  that  the  plan  may  be  clearly  compre 
hended,  fully  understood  by  the  people,  so  that 
the  friends  of  reform,  upon  whom  we  are  to  rely 
to  carry  through  the  amendments  which  the  Con 
vention  has  adopted,  may  not  be  at  cross  purposes 
during  the  canvass  ;  but  it  does  appear  to  me, 
that  it  will,  if  adopted,  lead  to  a  diversity  of  sen 
timents,  opinions,  and  actions  among  the  friends 
of  constitutional  reform.  Looking  at  the  propo 
sition — as  I  cannot  but  look  at  it  in  this  light — I 
cannot  give  my  humble  support  to  it.  On  the 
contrary,  I  feel  it  to  be  my  duty  to  do  all  I  can  do 
honorably  to  prevent  its  adoption  by  this  Con 
vention. 

After  days — weeks  of  debate — after  listening  to 
a  discussion  distinguished  for  its  profound  ability, 
the  Convention  has  expressed  its  deliberate  judg 


ment  upon  the  question.  The  Convention,  by  a 
majority  of  about  one  hundred,  has  decided  in 
favor  of  a  mixed  system,  based  upon  corporate 
rights  and  population.  That  system,  as  it  now 
stands  in  the  amended  Constitution,  is  the  delib 
erate  judgment  of  the  Convention.  It  will  go  out 
to  the  people  of  Massachusetts  as  the  sense  of  the 
Convention.  Unequal  as  it  is — unequal  as  any 
system  that  preserves  town  representation  must 
be — it  is  the  product  of  the  deliberations  of  the 
Convention,  and  it  will  go  out  to  the  people  with 
the  sanction  of  men  presumed  to  embody  and 
express  the  popular  will.  Yes,  Sir,  unequal  as  it 
is,  it  will  be  sustained  by  the  ideas,  habits,  associ 
ations,  and  prejudices  of  the  people.  For  more 
than  six  generations  the  people  of  this  old  Com 
monwealth  have  maintained  the  system  of  town 
representation,  under  some  modifications.  Gen 
tlemen  who  expect  the  people  to  relinquish  a 
system  endeared  to  them  by  the  associations  of 
two  centuries,  undervalue  the  force  of  old  habits, 
associations  and  ideas.  There  are,  it  cannot  be 
denied,  members  of  the  Convention,  representing 
large  constituencies,  who  do  not  prefer  the  plan 
adopted,  who  have  not  supported  that  plan,  and 
who  are  in  favor  of  a  district  system,  based  upon 
population  or  legal  voters. 

It  is  well  known,  Sir,  that  there  are  very  many 
members  of  the  Convention  who  are  in  favor  of  a 
district  system,  but  who  hesitate  to  vote  for  it, 
believing  that  the  people  are  not  yet  prepared  to 
abandon  town  representation,  and  to  adopt  a  dis 
trict  system.  These  members  have  voted  for  town 
representation,  thus  swelling  the  majority  for  the 
plan  adopted. 

There  are  several  members  who  doubt  whether 
the  Convention  has  decided  in  accordance  with 
the  wishes  of  the  people  or  not.  These  members 
are  divided  in  their  action.  Some  of  them  have 
given  reluctant  votes  for  the  plan  adopted  ;  others 
of  them  have  voted  for  a  district  system  through 
out.  These  members  are  united  in  the  wish  to 
take  the  sense  of  the  people,  if  it  is  practicable  to 
do  so,  without  endangering  the  whole  of  the  con 
stitutional  amendments. 

Now,  Sir,  I  am  willing  to  incorporate  into  the 
Constitution  a  provision  that  shall  give  the  people 
an  opportunity  to  pass  upon  the  question  here 
after,  whether  they  will  have  the  State  divided 
into  districts  for  the  choice  of  representatives  or 
not.  The  friends  of  town  representation — of  the 
system  which  is  now  determined  upon — have 
carried  here,  that  system,  by  an  immense  majority. 
If  this  Convention  reflects  the  popular  will — and 
gentlemen  think  it  does — I  am  sure  the  friends  of 
that  system  cannot  object  to  giving  the  people  an 
opportunity  to  vote  upon  the  district  system  when 


70th  day.] 


HOUSE   OF   REPRESENTATIVES. 


581 


Friday,] 


WILSON. 


[July  29th. 


that  system  is  perfected  and  presented  to  them  in 
detail. 

I  cannot  give  my  vote  for  the  proposition  now 
pending,  introduced  by  the  member  from  Taun- 
ton,  (Mr.  Morton,)  because  in  my  judgment  it 
•will  tend  to  complicate  affairs,  to  embarrass  and 
distract  the  people,  and  possibly  to  defeat  the  chief 
object  of  the  Convention.  I  am  willing  to  go  for 
a  plan  like  the  one  I  hold  in  my  hand.  I  will 
read  the  proposition  for  the  information  of  the 
Convention — which  I  shall  move  when  the  proper 
time  for  doing  so  shall  have  arrived — as  an  amend 
ment  to  the  proposition  offered  by  the  delegate 
from  Taunton.  It  is  as  follows  : — 

Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution  as  to  provide,  that  the  legislature 
which  shall  be  chosen  at  the  general  election  in 
November,  1855,  shall  be  required  to  divide  the 
State  into  forty  single  districts  for  the  choice  of 
Senators,  such  districts  to  be  of  contiguous  terri 
tory,  and  as  equal  in  the  number  of  qualified 
voters  contained  in  each  district  as  may  be  ;  and 
also  to  divide  the  State  into  single  or  double  dis 
tricts  for  the  choice  of  not  less  than  two  hundred 
and  forty  nor  more  than  three  hundred  and  twenty 
representatives,  such  districts  to  be  of  contiguous 
territory,  and  as  equal  in  the  number  of  qualified 
voters  contained  in  each  disirict  as  may  be,  with 
proper  provisions  for  redistricting  the  State  as 
aforesaid,  in  the  year  1866,  and  every  tenth  year 
thereafter,  and  with  all  other  provisions  necessary 
for  carrying  such  system  of  districts  into  opera 
tion  ;  and  to  submit  the  same  to  the  people  at  a 
general  election  to  be  held  in  the  year  1856  for 
their  ratification ;  and,  if  the  same  shall  be  rati 
fied  by  the  people,  it  shall  become  part  of  this 
Constitution,  in  place  of  the  provision  herein  con 
tained  for  the  apportioning  of  Senators  and  Ilep- 
resentatives. 

Now,  Sir,  this  is  not  an  alternative  proposition. 
It  is  simply  a  provision  for  the  future  amendment 
of  the  Constitution.  It  is  plain,  clear,  simple — 
easily  comprehended  by  all.  It  provides  that  the 
legislature,  which  will  be  the  second  legislature 
chosen  under  this  amended  Constitution,  in  the 
year  1855,  shall,  in  the  session  of  1856,  district 
the  State  into  forty  single  senatorial  districts, 
and  into  single  or  double  representative  districts, 
making  a  House  of  Representatives  of  not  less 
than  two  hundred  and  forty,  nor  more  than  three 
hundred  and  twenty  ;  and  to  submit  the  question 
to  the  people,  at  the  November  election  of  1856. 
The  people  will  then  have  tested  the  system 
agreed  upon  by  this  Convention.  It  will  have 
been  in  full  operation ;  they  will  have  had  it  for 
two  years ;  its  benefits,  if  benefits  it  have,  they  will 
have  enjoyed ;  and  its  evils,  if  evils  it  have,  they 
will  have  suffered  ;  and  they  will  be  able  to  say 
whether  they  are  in  favor  of  the  continuation  of 
that  system  or  not.  They  will,  at  the  same  time, 


have  presented  to  them  a  district  system,  based 
upon  legal  voters  for  the  Senate  and  House  of 
Representatives,  carried  into  full  detail,  so  that 
every  one  will  know  into  what  senatorial  or  rep 
resentative  district  he  goes.  Then  the  whole 
question  will  be  fairly  presented  to  the  people ; 
and  the  issue  will  be  between  the  system  then 
existing  and  the  district  system  presented  to  them 
in  detail,  full  and  complete,  with  provisions  for 
re- districting  the  State  in  1866,  and  every  tenth 
year  thereafter. 

Now,  Mr.  President,  this  proposition  is  simple, 
plain,  and  clear — easily  comprehended  by  all  men. 
There  is  nothing  in  it  calculated  to  complicate 
the  question  at  issue,  or  to  embarrass  the  friends 
of  constitutional  reform,  in  or  out  of  the  Conven 
tion.  The  Convention,  by  a  decisive  majority, 
has  adopted  the  system  of  town  representation,' 
modified  by  population.  That  system,  if  sanc 
tioned  by  the  people,  will  go  into  operation  in 
1854.  The  legislature  chosen  under  that  system 
will,  in  1856,  district  the  Commonwealth  for  sen 
ators  and  representatives,  based  on  legal  voters. 
The  friends  of  town  representation  can  vote  for 
the  Constitution  with  this  provision  in  it.  By  so 
doing,  they  secure  the  adoption  of  this  system — 
they  secure  its  benefits  to  the  people.  The  friends 
of  the  district  system  can  vote  for  the  Constitu 
tion  with  this  provision  in  it.  By  so  doing,  they 
secure,  three  years  hence,  the  privilege,  the  right, 
to  vote  for  a  district  system,  which  they  desire, 
and  which  they  believe  the  people  of  Massachu 
setts  also  desire. 

Yes,  Sir,  the  friends  of  both  systems,  if  they 
have  confidence  in  their  systems,  and  confidence 
in  the  people,  can  vote  for  the  Constitution  with 
both  systems  embodied  in  it.  If  the  people  want 
town  representation,  they  will  take  and  keep  it. 
If  they  want  the  district  system,  they  will,  in 
1856,  accept  it.  Adopt  the  amendment  I  pro 
pose — adopt  the  Constitution,  as  amended,  next 
autumn,  and  then  trust  the  two  systems  of  rep 
resentation  to  the  people,  and  abide  the  popular 
verdict.  This  is  all  any  one  can  desire,  who  is 
willing  to  trust  the  people  to  settle  the  question 
for  themselves. 

I  may  be  told,  Mr.  President,  that  the  adop 
tion  of  the  amendment  I  propose,  expresses  dis 
trust  of  the  system  agreed  upon.  I  do  not  think 
so.  It  is  a  fair  and  liberal  proposition.  The 
Convention  has  expressed  its  views  in  language 
not  equivocal.  The  majority  simply  say  to  the 
minority  :  "  We  are  for  town  representation,  you 
are  for  a  district  system.  We  are  confident  that 
the  people  are  for  town  representation ;  you  say 
they  are  for  the  district  system.  We  have  secured 
town  representation,  but  we  have  confidence  in 


582 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


WILSON. 


[July  29th. 


our  system  and  in  the  people ;  we  will  be  fair 
and  liberal.  We  will  vote  to  submit,  three  years 
hence,  a  detailed  district  system  to  the  people, 
and  we  will  cheerfully  abide  the  result." 

Sir,  there  is  no  distrust,  no  weakness  in  this. 
There  is  confidence  in  the  plan  adopted,  confi 
dence  in  the  judgment  of  the  people,  and  a  spirit 
of  liberality  and  magnanimity  in  it.  The  friends 
of  constitutional  reform  cannot  but  appreciate  the 
spirit  of  liberality  which  this  act  of  the  friends  of 
town  representation  manifests.  I  appeal  to  the 
advocates  of  town  representation  to  support  the 
amendment  I  have  proposed ;  and  I  call  upon  the 
friends  of  the  district  system  to  respond  to  the 
action  of  their  associates,  and  to  unite  in  placing 
this  provision  into  the  Constitution.  By  so  doing, 
they  will  secure  the  adoption  of  the  Constitution 
by  the  people,  and  thus  incorporate  into  the  fun 
damental  law,  the  reforms  which  have  received 
the  sanction  of  the  Convention. 

But  I  may  be  told,  Mr.  President,  that  nothing 
will  be  gained  by  the  adoption  of  the  plan  I  pro 
pose.  Gentlemen  who  entertain  this  idea  are 
mistaken,  altogether  mistaken.  We  have  pro 
vided  for  future  amendments  of  the  Constitu 
tion,  in  the  following  ways :  A  majority  of  the 
Senate,  and  two-thirds  of  the  House  of  Repre 
sentatives,  of  two  successive  legislatures,  may 
propose  specific  amendments  to  the  Constitution, 
for  the  ratification  of  the  people.  The  legisla 
ture  may  submit,  at  any  session,  to  the  people, 
the  question  of  calling  a  Convention.  The  peo 
ple,  in  1873,  and  every  twentieth  year  thereafter, 
shall  vote  upon  the  question  of  calling  a  Conven 
tion  ;  the  legislature  shall  submit  the  question  to 
the  people,  if  one- third  of  the  legal  voters  voting 
at  the  annual  election  shall  require  it.  These  are 
the  modes  provided  in  the  amended  Constitution 
for  future  amendments.  No  one  can  reasonably 
expect  that  the  people  will  at  present  vote  for 
another  Convention,  even  should  the  amended 
Constitution  fail  to  meet  the  just  expectations  of 
the  people.  No  one  can  reasonably  expect  that 
the  legislature,  constituted  as  the  House  is,  will 
frame  a  district  system,  to  be  submitted  to  the 
people.  He  must  be  a  sanguine  man  who  sup 
poses  that  two  successive  legislatures  will,  by  a 
majority  of  the  Senate  and  two-thirds  of  the 
House  of  Representatives,  frame  a  district  sys 
tem.  The  friends  of  the  district  system  cannot 
reasonably  hope  to  obtain  such  a  system  within  a 
few  years,  either  by  a  Constitutional  Convention 
or  by  the  action  of  the  legislature,  by  either  of 
the  provisions  for  future  amendments.  Now  the 
amendment  I  propose,  makes  it  the  duty  of  the 
legislature  chosen  in  1855,  to  divide  the  Com 
monwealth  into  senatorial  and  representative  dis 


tricts,  and  to  submit  the  plan  to  the  people  at 
the  general  election  in  185G,  for  their  ratification. 
This  duty,  the  legislature  of  1856  must  perform, 
or  it  must  fail  to  perform  its  constitutional  duties. 
This,  Sir,  is  what  is  secured  by  the  proposition  I 
intend  to  submit.  It  secures  all  that  the  friends 
of  the  district  system  can  reasonably  demand ; 
more  than  they  have  had  reason  to  anticipate  at 
the  hands  of  this  Convention,  after  the  adoption 
of  the  plan  agreed  upon  by  a  majority  of  more 
than  one  hundred. 

Gentlemen  will  say  that  the  legislature  of  1856 
will  not  district  the  State  fairly — that  the  district 
system  will  not  have  a  fair  chance  before  the  peo 
ple.  The  amendment  I  propose,  provides  that  the 
districts  shall  be  based  upon  legal  voters— as  equal 
in  number  in  each  district  as  may  be — and  each 
of  the  districts  to  be  of  contiguous  territory. 
The  system  must  necessarily  be  fair  and  equitable. 
The  Senate  is  based  upon  population — it  repre 
sents  the  popular  sentiments  in  the  fullest  man 
ner.  That  body  will  not  consent  to  an  unjust 
and  unequal  district  system,  even  if  the  House 
of  Representatives  should  be  disposed  to  adopt 
such  an  one.  I  have  the  fullest  confidence  that 
the  legislature  of  1856  will  fairly  and  faithfully 
discharge  and  perform  its  constitutional  obliga 
tions — that  it  will  frame  a  just  and  equitable  dis 
trict  system  for  the  ratification  of  the  people. 

But,  I  may  be  told,  Sir,  that  a  detailed  district 
system,  even  if  fairly  made,  will  not  receive  the 
support  of  the  people ;  that  such  a  system  goes 
to  the  people  under  peculiar  disadvantages  ;  that 
men  in  favor  of  a  district  system  may  not  like 
the  districts  adopted.  To  this  objection,  I  reply, 
that  the  friends  of  the  district  system  have  no 
right  to  ask  and  no  reason  to  expect,  that  the 
simple  proposition — "  Shall  the  State  be  divided 
into  districts  for  the  election  of  members  of  the 
House  of  Representatives  ?" — shall  ever  be  sub 
mitted  to  the  people.  The  town  representation 
plan  goes  to  the  people  in  detail — the  people  know 
where  they  are  to  go.  If  a  district  system  is  to 
be  submitted  to  the  people,  it  is  fair  and  just  that 
it  should  go  to  them  in  detail,  so  that  they  may 
know  into  what  districts  they  are  to  be  classed. 
The  people  ought  not  to  be  required  to  abandon 
town  representation  for  an  ideal  district  system. 
And,  I  venture  to  say,  that  no  legislature  will 
consent  to  submit  the  district  system  to  the  people, 
unless  that  system  is  perfected— so  framed  as  to 
give  the  people  a  fair  view  of  its  workings. 

If  the  advocates  of  the  district  system  are  not 
willing  to  allow  the  question  to  go  to  the  people 
in  a  detailed  form,  they  show  a  want  of  confi 
dence  in  the  system,  and  a  distrust  of  the  senti 
ments  of  the  people.  I  am  for  the  district  sys- 


70th  day.] 


HOUSE    OF   REPRESENTATIVES. 


583 


Friday,] 


WILSON  —  HOOPER. 


[July   29th. 


tern,  and  I  am  willing  to  submit  the  question  to 
the  people,  completed,  and  to  abide  the  popular 
verdict. 

It  cannot  be  denied,  Mr.  President,  that  there 
is  great  hostility  to  the  plan  adopted  by  the  Con 
vention.  Some  of  the  ablest  friends  of  the 
Convention — in  and  out  of  it — are  opposed  to  it. 
Some  of  these  gentlemen  will  acquiesce  in  the 
plan  agreed  upon,  and  will  do  all  in  their  power 
to  secure  the  ratification  of  the  amended  Consti 
tution,  for  the  sake  of  other  reforms  which  have 
been  adopted.  A  few  other  gentlemen  tell  us 
that  they  shall  not  vote  for  the  Constitution — that 
they  shall  do  all  in  their  power  to  defeat  it  before 
the  people.  Now,  Sir,  I  have  the  fullest  confi 
dence  in  the  people.  I  believe  that  they  will 
ratify  the  doings  of  the  Convention  by  a  decisive 
majority.  Upon  this  point  I  feel  the  confident 
assurance  of  victory.  But,  I  see  and  feel  that 
we  are  to  carry  it  by  great  efforts  and  labors — 
efforts  and  labors  we  know  how  to  make,  and 
which  we  shall  make. 

If  the  Constitution  goes  out  to  the  people  in  its 
present  form,  I  tell  its  friends  that  it  is  to  encoun 
ter  the  fiercest  opposition.  Powerful  interests  are 
combining  to  defeat  its  ratification.  Money  will 
be  poured  out  like  autumnal  rains  to  defeat  it. 
They  must  be  prepared  to  carry  it  by  main 
strength  before  the  people.  It  will  demand  im 
mense  efforts  to  repel  the  onslaughts  that  will  be 
made  upon  it,  and  to  carry  it  safely  through  the 
storms  of  denunciation  which  its  opponents  will 
hurl  upon  it.  The  presses  of  the  opposition  to 
the  Convention  have  opened  their  batteries  upon 
the  plan  adopted.  They  are  preparing  to  pour 
upon  the  friends  of  that  plan,  and  upon  the 
friends  of  constitutional  reform,  an  unremitting 
fire  to  be  continued  from  this  time  to  November 
next. 

Sir,  I  have  watched,  with  some  little  care  and 
interest,  the  course  of  the  presses  opposed  to  this 
Convention,  and  I  am  constrained  to  say,  that 
from  the  hour  of  the  meeting  of  the  Convention 
to  this  day,  the?e  presses  have  done  all  in  their 
power  to  misrepresent  the  acts  of  the  Convention, 
and  the  members  of  the  majority  of  the  Conven 
tion  ;  they  have  done  all  in  their  power  to  pre 
pare  the  minds  of  the  people  to  reject  the  doings 
of  the  Convention.  These  presses,  the  exponents 
of  the  party  whose  organs  they  are,  have  seized 
upon  the  inequalities  of  the  plan  adopted  as  the 
basis  of  the  House  of  Representatives,  with  the 
hope  that  they  may  defeat  the  amended  Constitu 
tion,  and  bury  its  friends  beneath  its  ruins. 

Sir,  the  adoption  of  the  proposition  I  intend  to 
submit  as  an  amendment  to  the  plan  proposed  by 
the  gentleman  from  Taunton,  (Mr.  Morton,)  will 


spike  these  batteries — silence  them,  and  break  the 
power  and  force  of  the  opposition  now  forming 
to  assail  the  amended  Constitution.  Sir,  I  have 
reflected  upon  this  proposition ;  I  have  slept  upon 
it ;  and  I  am  sure  its  adoption  will  crush  all  oppo 
sition,  and  carry  the  amended  Constitution  trium 
phantly  before  the  people.  Leaving  to  the  friends 
of  the  district  system  a  fair  opportunity  to  obtain 
it  three  years  hence— an  opportunity  which  they 
cannot  have  unless  such  a  provision  be  incorpo 
rated  into  the  Constitution — it  will  bring — it  must 
bring  to  the  support  of  the  amended  Constitution, 
friends  and  supporters  from  all  parties.  Yes,  Sir ; 
its  adoption  will  unite  all  the  friends  of  Constitu 
tional  Reform,  and  it  will  draw  thousands  from 
the  ranks  of  that  party  whose  opposition  to  this 
Constitutional  Convention  its  best  and  most  saga 
cious  men  feel  to  have  been  a  political  blunder. 

To  the  advocates  of  the  district  system  I  appeal 
to  support  this  amendment,  because  it  secures  to 
you  the  right  and  the  privilege  of  taking  the  sense 
of  the  people  upon  that  system  three  years  hence. 
To  the  friends  of  town  representation  I  appeal  to 
support  this  amendment,  because  it  secures  to  you 
the  adoption  and  fair  trial  for  two  years  of  your 
favorite  system  of  representation.  To  the  friends 
of  the  amended  Constitution  I  appeal,  to  vote  for 
this  amendment,  because  its  adoption  will  draw 
the  fire  of  the  batteries  of  the  opposition— break 
the  force  of  the  opposition  to  the  ratification  by 
the  people  of  the  work  of  the  Convention,  and 
carry  gloriously  through  the  reforms  which  we 
have  adopted  at  so  much  cost  of  toil,  time  and 
expense. 

Mr.  President :  I  give  notice  that  I  shall,  at  the 
proper  time,  submit  the  plan  I  have  read  to  the 
Convention.  I  have  read  it,  so  that  gentlemen  of 
the  Convention  may  understand  what  are  its 
principal  provisions. 

Mr.  HOOPER,  of  Fall  River.  I  am  glad  that 
the  gentleman  from  Natick,  (Mr.  Wilson,)  has 
come  forward  with  a  proposition  of  this  charac 
ter,  and  which  I  hope  his  friends  will  support. 
Although  I  much  prefer  the  proposition  of  the 
gentleman  from  Taunton,  (Mr.  Morton,)  and 
shall  do  what  I  can  to  support  it,  yet  I  am  wil 
ling,  if  I  cannot  get  that,  to  accept  even  this,  be 
cause  it  gives  me  some  ground  on  which  1  can 
stand.  I  believe,  that  if  the  Constitution  goes 
out  to  the  people  without  some  provision  of  this 
character,  it  is  destined  to  be  defeated.  I  am 
confident  of  it,  Sir,  for  I  hear  it  said,  over  and 
over  again,  every  day,  by  those  who  have  the 
means  of  knowing  something  of  the  views  and 
feelings  of  the  people,  that  the  friends  of  this 
Convention  cannot  be  brought  to  support  this 
Constitution,  without  the  adoption  of  a  plan  of 


584 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,' 


HOOPER. 


[July  29th. 


this  kind.  I  apprehend,  Sir,  that  the  plan  which 
has  been  adopted,  is  more  defective  than  it  is 
generally  supposed  to  be  ;  and.  Sir,  every  provis 
ion  for  its  future  amendment,  only  goes  to  per 
petuate  these  defects,  and  make  the  plan  even 
worse  for  the  future  than  it  is  for  the  present.  If 
its  operation  were  to  remain  precisely  as  applied 
to  the  existing  condition  of  things,  it  is  quite  pos 
sible  that  the  people  might  accept  it  and  let  it 
stand.  But,  Sir,  what  is  to  be  the  future  effect 
of  it  ?  Let  us  suppose  that  the  whole  increase  of 
the  population  of  this  State,  is  to  be  confined  to 
the  large  towns  and  cities  sending  more  than  one 
representative.  Let  us  suppose,  also,  that  within 
the  next  twenty  years  we  should  increase  in  pop 
ulation  to  three  millions — what  would  be  the 
result  ?  Simply  that  the  number  of  inhabitants 
required  to  elect  more  than  one  representative  in  a 
town  or  city,  will  be  enormously  increased,  while 
those  towns,  no  matter  how  large  their  popula 
tion,  that  are  now  entitled  to  send  more  than  one 
member  to  the  House  of  Representatives,  will 
still  only  have  the  power  of  sending  their  present 
number,  unless  their  individual  rate  of  increase 
shall  exceed  that  of  the  whole  State.  Under  the 
present  provision,  should  such  an  increase  take 
place  in  large  towns  only,  it  might  result  that 
less  than  one-fifth,  or  even  one-eighth  of  the 
people  of  the  Commonwealth  might  elect  the  ma 
jority  of  the  House  of  Representatives,  and  you 
propose  that  all  future  Conventions  shall  be  called 
and  constituted  on  the  same  unequal  basis. 
What,  then,  is  the  chance  of  ever  peaceably  get 
ting  an  equal  system,  unless  some  provision  of 
this  kind  shall  be  incorporated  into  the  Constitu 
tion  ? 

Sir,  I  am  surprised  to  see  gentlemen  undertake 
to  support  such  a  system  here ;  and  I  was  not 
less  surprised  to  hear  the  gentleman  from  Boyl- 
ston,  (Mr.  Whitney,)  who  professes  to  have  a  con 
science,  and  who  appears  to  be  very  conscientious 
and  honest  on  all  other  subjects,  supporting  the 
unequal  system  which  has  been  adopted.  Let 
me  put  this  matter  in  its  right  point  of  view. 
Suppose  that  the  political  franchise,  as  bequeathed 
to  us  by  our  fathers,  was  a  legacy  involving  a 
money  consideration  in  the  shape  of  an  annuity 
to  each  voter,  each  to  share  equally.  How  would 
you  divide  it?  By  giving  to  one  man  six  or 
eight  times  as  much  as  you  give  to  another  ?  I 
ask  if  that  would  be  regarded  as  right  or  honest, 
by  the  gentleman  from  Boylston,  or  if  any  man, 
under  such  circumstances,  could  be  found,  who 
would  claim  a  larger  portion  for  himself,  than  he 
would  concede  to  every  other  man,  as  his  just 
right  ?  I  do  not  believe  that  any  just  or  honest 
man  would  do  it. 


Now,  so  far  from  the  proposition  of  the  gentle 
man  from  Taunton  tending  to  complicate  this 
matter,  I  think  its  tendency  is  quite  the  reverse. 
What  is  the  proposition  ?  In  the  first  place, 
every  man  is  called  upon  to  say  whether  the  old 
system  shall  be  abrogated  or  not.  If  the  majori 
ty  vote  for  abrogating  the  old  system,  why  of 
course  it  will  be  done  away  with.  Then  every 
man  who  is  called  upon  to  say  whether  he  is  in 
favor  of  sustaining  or  abrogating  the  old  system, 
is  called  upon,  at  the  same  time,  to  vote  in  favor 
of  one  of  the  two  propositions  here  offered — either 
the  town  system  we  have  already  adopted,  or  the 
proposition  of  the  gentleman  from  Taunton. 
And,  Sir,  I  must  say  that  that  seems  to  me  to  be 
a  very  plain  proposition,  one  very  easily  under 
stood,  and  one  with  which  I  could  cheerfully  and 
confidently  go  before  my  constituents,  with  an 
expectation  of  success  ;  and,  with  such  a  provision, 
I  could  advocate  the  Constitution  in  every  other 
respect,  because  I  could  then  take  my  stand  in 
the  affirmative,  on  a  question  involving  a  matter 
of  fundamental  equality.  I  should,  therefore, 
much  prefer  the  proposition  of  the  gentleman 
from  Taunton,  to  the  old  system,  and  should 
consequently  vote  for  the  abrogation  of  that  sys 
tem,  as  would  every  other  man  who  should  prefer 
either  of  these  new  propositions  to  it,  and  the 
result  would  necessarily  be  the  abrogation  of  the 
old  system,  and  the  adoption  of  one  or  the  other 
of  these  new  propositions,  as  the  people  should 
prefer.  In  that  way  you  will  let  the  people  vote 
upon  the  matter  as  they  please.  And  why  should 
they  not  ? 

But  the  gentleman  from  Natick  says,  that  the 
system  we  have  adopted  has  been  adopted  by  an 
overwhelming  majority  of  the  Convention,  and 
that  the  Convention  reflects  the  sentiments  of  the 
people  of  the  Commonwealth.  Is  that  so  ?  Has 
that  gentleman  examined  the  yeas  and  nays  as 
they  have  been  taken  on  this  question,  and  ascer 
tained  how  many  of  the  people  are  represented 
by  that  majority  ?  Sir,  you  will  find  that  the 
majority  of  the  people  of  the  Commonwealth, 
who  are  represented  by  the  minority  on  this  ques 
tion,  on  this  floor,  have  voted  against  it ;  and  if 
these  representatives  have  represented  the  views 
of  their  constituents  correctly,  it  must  follow,  as 
inevitably  as  night  follows  day,  that  this  plan 
cannot  be  accepted  by  the  people  of  the  State. 
Sir,  the  representatives  of  nearly  three- fifths  of 
the  people  have  voted  against  it,  while  the  dele 
gates  of  only  about  two-fifths  have  voted  for  it. 
Sir,  that  fact  is  ominous  of  its  fate,  unless  it  shall 
be  accompanied  with  an  alternative  proposition, 
or  some  scheme  by  which  its  monstrous  inequali 
ty  can  be  remedied. 


70th  day.] 


HOUSE   OF   REPRESENTATIVES. 


585 


Friday,] 


ALVORD  —  ABBOTT. 


[July  29th. 


Now,  Sir,  let  us  have  a  system  upon  which  we 
can  unite.  I  prefer  the  plan  of  the  gentleman 
from  Taunton,  (Mr.  Morton,)  but  if  we  cannot 
have  that,  let  us  have  the  plan  of  the  gentleman 
from  Natick,  (Mr.  Wilson,)  as  a  ground  upon 
which  we  can  stand ;  and  we  can  say  to  the  peo 
ple,  if  you  do  not  like  this,  you  have  the  power 
to  change  it  two  years  hence,  and  the  power  of 
obtaining  something  like  an  equal  plan.  It  is 
true  that  bases  it  upon  legal  voters,  but  I  am 
•willing  to  put  both  House  and  Senate  upon  the 
basis  of  legal  voters,  if  we  cannot  have  them  upon 
the  principle  of  equality.  For  these  reasons,  I 
hope  this  Convention  will  have  the  good  sense  to 
secure  the  adoption  of  this  Constitution,  as  I 
think  they  will,  if  they  adopt  either  of  these 
plans,  but  without  which,  I  do  not  believe  the 
people  will  accept  of  it. 

Mr.  ALYORD,  for  Montague.  I  think  there 
are  two  fatal  objections  to  the  plan  proposed  by 
the  gentleman  from  Taunton,  (Mr.  Morton).  In 
the  first  place,  by  putting  forth  these  three  ques 
tions  to  be  acted  upon  by  the  people  at  the  same 
time,  and  in  the  manner  proposed  by  him,  his 
plan  will  practically  defeat  his  object.  Every 
man  who  prefers  the  existing  system  to  either  of 
those  proposed,  will,  of  course,  vote  upon  the  first 
question  in  the  negative.  Two  other  classes  also 
will  be  likely  to  vote  in  the  negative  upon  that 
question.  Gentlemen  who  prefer  the  system  pro 
posed  by  this  Convention,  to  the  present  existing 
system,  but  who  yet  fear  the  adoption  of  the  dis 
trict  system,  and  would  rather  continue  as  we  are 
than  adopt  that  system,  will  vote  "  no  "  upon  the 
first  question,  so  as  to  make  no  change,  because 
they  fear  that  the  effect  of  any  change  will  be  the 
adoption  of  the  district  system. 

On  the  other  hand,  gentlemen  who  desire  the 
district  system,  but  who  fear  the  adoption  of  the 
system  proposed  by  this  Convention,  will,  from, 
the  fear  of  that,  vote  "no"  upon  the  first  ques 
tion.  These  three  classes  together  will  be  likely 
to  make  a  majority  of  "  noes  "  on  the  first  ques 
tion,  thus  causing  the  defeat  of  both  plans. 

There  is  another  fatal  objection  to  the  plan 
proposed  by  the  gentleman  from  Taunton.  Your 
system  of  representation  in  the  Senate,  as  adopted 
by  this  Convention,  is  unfair,  unjust,  and  une 
qual.  That  system  of  representation  in  the  Sen 
ate  gives  to  one  voter  in  the  county  of  Suffolk 
nearly  three  times  the  weight  of  a  voter  in  the 
western  part  of  the  State.  Well,  Sir,  if  that  sys 
tem  in  relation  to  the  Senate  stands,  there  should 
be  somewhere  some  counterbalancing  advantage 
to  the  interior  sections  of  the  State.  The  interior 
finds  its  compensation,  now,  in  the  House  of 
Representatives.  But  by  the  plan  proposed  by 

40 3 


the  gentleman  from  Taunton,  if  adopted,  the  cities 
will  still  have  the  advantage  in  the  Senate,  and 
the  interior  of  the  State  will  have  no  compensat 
ing  advantage  in  the  House  of  Representatives. 

These  are  fatal  objections,  in  my  mind,  to  the 
plan  proposed  by  the  gentleman  from  Taunton. 
The  proposition  of  the  gentleman  from  Natick, 
obviates  both  of  those  objections.  I  stand  here, 
Mr.  President,  as  a  friend  of  the  system  of  repre 
sentation  which  has  been  adopted  by  this  Con 
vention.  I  have  voted  for  it  on  every  division, 
and  in  each  of  its  details ;  and  I  believe  it  will 
prove  in  its  practical  workings  a  fair,  just,  and 
equal  system,  reflecting  the  public  sentiment  of 
this  State,  as  fairly,  as  justly,  as  any  district  sys 
tem  which  the  wit  of  man  can  devise.  But,  Mr. 
President,  I  acknowledge  the  binding  force  of 
that  cardinal,  republican,  democratic  doctrine,  that 
the  people  have  the  right,  at  all  times,  to  amend, 
alter,  and  totally  change  their  organic  law  and 
frame  of  government.  If  the  majority  of  the 
people  of  tins  State  desire  the  district  system  ;  if  it 
be  true,  as  has  been  said  here,  that  that  majority 
wish  that  system  incorporated  into  the  organic 
law,  they  have  the  right  to  demand  it  at  the 
hands  of  this  Convention.  We  have  no  right  to 
refuse  it  to  them.  And  if  their  will  is  to  have  a 
system  of  districts,  we  cannot  long  withstand  that 
will,  even  if  we  desire  to  do  so.  In  a  government 
like  ours,  and  among  a  people  like  ours,  the  pop 
ular  will  soon  breaks  through  any  contrivance, 
however  ingenious,  to  restrain  it.  If  on  the  other 
hand  a  majority  of  the  people  do  not  desire  the 
adoption  of  the  district  system,  and  I,  in  common 
with  the  other  supporters  of  town  representation 
believe  that  they  do  not,  we,  the  friends  of  the 
representation  of  municipalities,  have  nothing  to 
fear,  and  can  lose  nothing,  by  adopting  the  prop 
osition  of  the  gentleman  from  Natick.  I  regard 
that  proposition  as  simply  a  contrivance  for  ascer 
taining  what  is  the  popular  will  upon  this  point. 
If  that  will  is  to  have  a  system  of  representation 
by  districts,  then  it  neither  can  nor  ought  to  be 
resisted.  If  that  will  is  to  have  a  system  of  rep 
resentation  by  municipalities,  then  we  lose  noth 
ing,  we  risk  nothing  by  putting  forth  this  propo 
sition  to  the  people.  In  either  view  it  is  wise  to 
adopt  it.  I  trust  that  the  resolutions  of  the  gen 
tleman  from  Taunton  will  be  rejected,  and  that 
the  plan  of  the  gentleman  from  Natick  will  be 
adopted. 

Mr.  ABBOTT,  of  Lowell.  To  the  proposition 
of  the  gentleman  from  Taunton,  there  is  one  ob 
jection,  which  in  my  mind,  is  conclusive.  The 
proposition  put  forth  by  a  majority  of  this  Conven 
tion,  and  adopted  now  into  the  proposed  Consti 
tution,  not  only  expresses  a  principle,  but  gives 


586 


HOUSE   OF    REPRESENTATIVES. 


[70th  day. 


Friday,] 


ABBOTT  —  SARGENT  —  DURGIN. 


[July  29th. 


the  details ;  it  gives  the  manner  of  carrying  it 
into  operation,  so  that  every  voter  in  this  Com 
monwealth,  -when  he  comes  to  vote  upon  that 
question,  can  see  precisely  how  it  is  going  to 
operate  upon  himself.  Now,  the  objection  I  have, 
and  have  had  throughout,  to  the  district  system, 
is  that  it  is  unfair  for  this  reason  :  that  those  in 
favor  of  the  district  system  merely  enunciate  a 
principle ;  simply  say,  that  the  Commonwealth 
shall  be  divided  into  districts,  upon  the  principle 
of  equality.  That  is  easy  enough  to  say,  and  every 
man  can  understand  the  principle.  But,  after 
you  have  enunciated  the  principle,  it  is  quite  a 
different  thing ;  and  not  so  easy  a  matter  to  carry 
that  principle  out  into  operation,  so  that  the  peo 
ple  shall  be  satisfied  with  the  scheme  carried  into 
operation.  In  the  one  case,  in  the  case  of  the 
basis  adopted  by  the  majority,  you  have  the  details, 
the  body,  the  blood  and  the  bones,  and  in  the 
other  case,  you  have  merely  the  spirit  without 
even  a  skeleton.  Every  man  will  see  that  the 
principle  is  right,  that  every  person  should  have 
a  political  equality  of  rights ;  but,  Sir,  the  diffi 
culty  is,  in  this  Commonwealth,  divided  into 
towns  as  we  are,  to  carry  that  into  practical  opera 
tion.  I  believe,  that  if  any  district  system  based 
upon  equality,  were  absolutely  reduced  by  this 
Convention  to  a  system,  and  your  districts  were 
made,  and,  as  made,  put  before  the  people,  it 
would  be  the  strongest  argument  used  in  favor  of 
the  system  which  we  have  adopted. 

Now,  Sir,  I  go  for  the  proposition  of  the  gen 
tleman  from  Natick,  for  this  reason :  if  the  people 
of  this  Commonwealth  do,  in  fact,  desire  the  dis 
trict  system,  I  am  quite  content  that  they  should 
try  the  other  system,  if  they  have  the  system  re 
duced  to  a  system.  If  they  have  the  districts 
marked  out  and  placed  before  them,  I  will  be 
willing  to  go  to  the  people  of  this  Commonwealth, 
at  any  time  within  ten  or  fifteen  years,  with 
confidence,  that  they  will  reject  any  district  sys 
tem,  whenever  that  system  shall  be  reduced  to 
practice,  so  that  every  man  can  see  in  what  posi 
tion  he  is  putting  himself  by  voting  for  it.  Every 
man  could  look  to  his  district  and  see  where  he 
•was.  Carry  that  into  practice,  and  there  will  be 
no  trouble  about  the  district  system.  Sir,  I  have 
great  confidence  in  the  system  which  we  have 
adopted.  I  believe  there  is  great  fairness  in  giv 
ing  to  the  people  of  this  Commonwealth,  a  ma 
jority  of  them,  not  a  plurality,  not  a  body  chosen 
on  our  system,  after  having  tried  our  system  for 
two  years,  to  say  whether  they  will  retain  it,  or 
•whether  they  will  have  a  district  system  when  it 
is  worked  out  in  practice.  But  I  do  object  to  the 
proposition  of  the  gentleman  from  Taunton,  which 
puts  a  mere  principle  to  the  people  of  this  Com 


monwealth,  and  which  does  not  put  to  them  the 
practical  workings  of  that  principle,  so  that  they 
can  see  for  themselves  for  what  they  vote. 

Mr.  SARGENT,  of  Cambridge.  The  gentleman 
from  Lowell,  (Mr.  Abbott,)  objects  to  the  propo 
sition  presented  by  the  gentleman  from  Taunton, 
from  the  fact  that  it  does  not  present  the  details  of 
the  system,  and  because,  as  he  says,  there  is  neither 
blood,  nor  bones,  in  the  system — aye,  not  even  a 
skeleton.  Now  he  has  voted  for  the  district  sys 
tem  for  senators  ;  he  has  put  that  before  the  peo 
ple;  and  I  ask  him  where  the  blood  and  the 
bones,  or  the  skeleton  of  that  system  is  ?  He 
there  puts  forth  a  principle,  just  as  we  propose  to 
put  it  forth  by  the  measure  presented  by  the  gen 
tleman  from  Taunton,  without  the  blood,  the 
bones,  or  the  skeleton.  But  he  objects  that  we 
put  the  representative  system  forth  upon  the  same 
basis.  Now,  I  say  to  that  gentleman  in  reply, 
if  he  is  not  afraid  of  his  senatorial  system,  if  he 
will  give  us  the  blood,  the  bones,  or  even  the 
skeleton  of  those  districts,  we  will  give  him  the 
blood,  and  the  bones,  of  our  representative  dis 
tricts,  and  go  with  them  before  the  people.  That 
is  what  we  wish  to  do. 

Now,  Sir,  the  gentleman  says  he  puts  this 
question  into  the  hands  of  the  majority  of  the 
people  of  the  Commonwealth  to  decide.  I  take 
a  different  view  of  the  subject ;  he  puts  it  into 
the  hands  of  the  legislature,  controlled  by  the 
friends  of  the  very  system  you  have  adopted  ;  a 
legislature  elected  under  a  system  by  which  one- 
third  part  of  the  people,  and  they  opposed  to  the 
system,  have  the  power  to  say  how  these  districts 
shall  be  formed,  and  they  can,  if  they  choose, 
form  them  in  such  a  way  that  not  ten  thousand 
men  in  the  Commonwealth  will  vote  for  them. 
You  propose  to  put  the  question  to  the  people  in 
that  way,  and  if  they  reject  it,  you  will  say  they 
are  not  in  favor  of  the  district  system.  I  say  give 
us  the  alternative,  and  if  the  gentleman  wants 
the  districts  drawn  out,  give  us  the  senatorial 
districts  upon  which  we  can  base  it,  and  we  will 
draw  it  out  and  put  it  to  the  people,  with  the 
blood  and  the  bones  in  it,  so  that  they  can  clearly 
comprehend  it,  and  we  will  cheerfully  abide  the 
result. 

Mr.  DURGIN,  from  Wilmington.  I  may  say 
I  am  deadly  opposed  to  the  district  system,  and, 
as  I  have  said  before  upon  this  subject,  I  do  not 
believe  that  the  people  of  this  Commonwealth 
desire  it.  If  I  really  thought  they  did  desire  it, 
I  should  go  for  it.  But,  Sir,  I  should  go  for  it 
on  the  same  principles  and  for  the  same  reasons 
that  God  gave  to  his  ancient  people  a  king.  He 
gave  them  Saul,  the  son  of  Cis,  who  ruled  them 
as  with  a  rod  of  iron,  until  they  had  a  king  to 


70th  day.] 


HOUSE   OF   REPRESENTATIVES. 


587 


Friday,] 


DURGIX  —  CHURCHILL  —  DAVIS. 


[July  29th. 


heir  heart's  content.  So  I  might  go  for  giving 
them  a  district  system.  But  it  is  my  opinion, 
that  though  the  people  might  want  a  district  sys 
tem,  yet  it  would  be  detrimental  to  the  highest 
and  lasting  interests  of  the  Commonwealth.  This 
is  my  serious,  solemn  conviction.  Now  I  want 
it  distinctly  understood,  that  if  I  go  for  the  pro 
position  of  the  gentleman  from  Natick,  it  will  not 
be  because  of  any  want  of  confidence  in  the  sys 
tem  adopted  by  this  Convention.  I  have  perfect 
confidence  that  the  people  will  adopt  it,  notwith 
standing  the  warm  argument  of  my  friend  from 
Tall  River,  (Mr.  Hooper).  He  was  the  warm 
friend  of  the  district  system,  and  that  accounts  for 
his  warmth  of  soul  upon  the  subject.  But  he 
sees,  not  with  my  glasses,  or  with  my  eyes,  but 
his  own.  The  district  system  will  be  attended 
with  insuperable  objections.  You  bring  many 
of  these  towns  together  with  diverse  interests,  and 
the  match  and  marriage  of  them  is  not  made  by 
themselves,  but  by  a  foreign  power.  You  bring 
these  towns  up,  and  say  you  want  to  unite  them 
in  wedlock.  But  they  say  we  cannot  submit  to 
that.  We  cannot  submit  to  being  united  to  such 
and  such  a  town,  and,  unless  we  have  the  power 
and  the  voice  to  determine  the  matter,  we  will  not 
submit  to  it. 

But  if  the  people  really  desire  it,  as  a  kind  of 
quietus,  I  don't  know,  after  all,  that  I  shall  say 
no  to  that  proposition,  although  my  confidence  in 
the  present  system  is  strong,  and  not  at  all  weak 
ened  by  any  fear  that  the  people  will  not  approve 
of  it.  For  the  last  fifteen  years  the  small  towns 
might  have  had  the  district  system  if  they  would. 
But  there  is  not  a  single  instance  in  which  they 
came  together. 

If  the  system  of  the  majority  be  adopted,  the 
small  towns  have  the  privilege  of  coming  together 
and  forming  districts,  and  some  of  the  towns  may, 
perhaps,  avail  themselves  of  the  privilege,  but  you 
will  not  find  a  majority,  if  any  of  them,  that  will 
unite.  I  think,  therefore,  it  is  safe ;  it  will  do 
no  good,  and  it  will  do  no  harm.  Gentlemen  are 
afraid  of  the  press.  Why,  Sir,  what  harm  can  a 
newspaper  article  do?  Anybody  can  write  a 
newspaper  article,  but  it  will  not  produce  any 
disastrous  effects  at  all.  I  will  not  for  a  moment 
entertain  the  least  degree  of  fear,  or  want  of  con 
fidence  in  the  system  that  has  already  been  adopt 
ed  in  this  Convention.  If  I  vote  for  the  amend 
ment  of  my  friend  from  Natick,  I  wish  it  to  be 
understood  that  I  vote  for  it,  not  because  I  have 
the  least  want  of  confidence  in  the  system  adopted 
by  the  majority,  but  for  the  sake  of  a  quietus,  to 
gratify  the  peculiar  feelings  of  some  of  the  mem 
bers  of  the  Convention,  and  perhaps  of  some  peo 
ple  out  of  the  Convention.  That  is  the  only  reason 


why  I  vote  for  the  amendment.  And,  Sir,  if  I 
vote  for  the  amendment,  it  will  be  for  this  addi 
tional  reason :  that  the  district  system  there  pro 
posed  is  clear  and  distinct,  and  the  people  voting 
on  it  will  act  understandingly — act  upon  some 
thing  not  imaginary,  but  something  tangible — 
something  comprehensible. 

Mr.  CIIUIICHILL,  of  Milton.  When  this 
subject  was  under  discussion,  sometime  since,  I 
was  in  favor  of  the  district  system.  I  am  still  in 
favor  of  that  system.  But,  Sir,  although  I  should 
prefer  to  have  the  plan  we  have  adopted  wholly 
changed,  or  materially  modified,  still,  as  it  is 
decidedly  preferable  to  the  old  system,  because  it 
districts  the  cities,  I  think  I  can  conscientiously 
support  it,  before  the  people,  with  most  of  the 
other  reforms  adopted  by  this  Convention.  Wheth 
er  the  proposition  of  the  gentleman  from  Natick, 
(Mr.  Wilson,)  is  accepted  or  not,  I  may  therefore 
support  the  system  adopted  by  the  Convention, 
by  my  vote  at  the  polls.  Still,  I  trust,  and  sin 
cerely  hope,  the  proposition  of  the  gentleman 
from  Natick  will  be  adopted.  While  it  does  not, 
necessarily,  imply  any  want  of  confidence  in  the 
system  which  the  Convention  has  seen  fit  to 
adopt,  I  believe  it  will  add  incalculable  strength 
to  the  cause  of  reform.  It  will  enlist  in  favor  of 
the  reforms  submitted  by  the  Convention,  the 
support  of  many  members  of  the  majority  in  this 
Convention  who  have  opposed  your  representa 
tive  system.  Sir,  I  believe,  as  has  been  stated 
by  the  gentleman  from  Lowell,  (Mr.  Butler,) 
there  may  be  some  doubt  whether  the  district 
system,  if  submitted  to  the  people,  would  be 
adopted  by  them.  But  I  believe  there  is  no  dan 
ger  or  difficulty  whatever,  in  submitting  the  al 
ternative,  and  I  ask  those  who  have  firmly  and 
successfully  stood  by  town  representation,  to  give 
their  friends  who  differ  from  them,  an  opportu 
nity  to  submit  the  district  system  to  the  people. 
Whether  the  people  are  in  favor  of  the  system 
which  has  been  adopted,  or  prefer  the  other,  can 
only  be  known  by  voting  in  favor  of  the  propo 
sition  of  the  gentleman  from  Natick,  which  sub 
mits  both  plans. 

Mr.  DAYIS,  of  Plymouth.  I  have  uniformly 
recorded  my  vote  against  the  proposition  which 
has  received  the  sanction  of  the  Convention. 
But  I  feel  it  incumbent  to  say  a  few  words  in 
regard  to  the  proposition  of  the  gentleman  from 
Taunton,  (Mr.  Morton,)  and  that  of  the  gentle 
man  from  Natick,  (Mr.  Wilson). 

I  consider  myself,  Mr.  President,  as  fully  and 
fairly  beaten  in  the  Convention,  upon  the  ques 
tion  of  representation.  So  far  as  my  own  views 
are  concerned,  I  have  not  been  convinced,  as  the 
gentleman  states  he  has,  of  the  fairness,  the  jus- 


588 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


DAVIS. 


[July  29th. 


tice,  and  the  equality  of  the  system  of  representa 
tion  which  has  been  adopted  here.  But  inas 
much  as  it  has  received  the  full,  and  apparently 
the  hearty  sanction  of  the  majority  of  the  Con 
vention,  I  think  it  is  not  for  us  who  are  in  the 
minority,  to  think  we  can  exact  terms  upon  which 
we  are  to  get  a  more  equal  system  of  representa 
tion.  We  all  agree  that  the  system  submitted 
by  the  gentleman  from  Natick  is  more  equal  than 
that  adopted  by  the  Convention ;  and  if  the  prop 
osition  of  the  gentleman  from  Taunton  is  voted 
down,  I  shall  vote  for  it.  It  is  not  for  us  to  dic 
tate  the  terms  upon  which  the  question  is  to  be 
submitted  to  the  people,  and  for  one,  I  am  wil 
ling  to  take  what  I  can  get.  I  think  it  my  duty, 
at  this  time,  to  go  for  what  the  majority  are  wil 
ling  to  give  us  upon  this  question. 

Now,  Sir,  for  one,  I  should  greatly  prefer  that 
a  proposition  should  be  submitted  to  the  people, 
at  this  time,  like,  or  something  like,  that  pro 
posed  by  the  gentleman  from  Taunton.  I  can 
see  no  real  objection  to  offering  it  as  an  alterna 
tive  proposition.  I  see  no  reason  why  it  should 
be  regarded  as  disastrous  to  the  proposition  pre 
sented  by  the  majority  ;  but  I  see  sufficient  reason 
for  it,  in  the  fact  that  it  would  present  an  answer 
to  the  argument  which  has  been  repeatedly  pre 
sented  here — which  was  conclusive  in  the  mind 
of  the  gentleman  for  Marshfield,  whose  speech, 
permit  me  to  say,  it  seemed  to  me,  was  stronger 
in  the  head  than  in  the  tail.  His  argument  was 
founded — if  I  understood  him  rightly — upon  the 
supposition  that  the  people  were  not  ready  for 
the  district  system.  Another  gentleman  took  the 
same  ground  in  his  argument.  They  are  in  favor 
of  the  district  system,  but  give  their  sanction  to 
the  system  proposed  by  the  majority,  upon  the 
ground  that  the  people  are  not  prepared  to  receive 
the  district  system.  The  same  argument  pre 
vailed  in  a  previous  Convention.  It  is  an  argu 
ment  that  has  thus  far  been  fatal  to  the  district 
system,  and  for  this  reason,  if  for  no  other,  I  am 
in  favor  of  the  proposition  of  the  gentleman  from 
Taunton,  for  the  purpose — if  I  may  be  allowed 
the  expression — of  clinching  the  nail,  and  of  giving 
the  people  one  opportunity  of  saying  for  them 
selves,  whether  they  are  ready  for  the  district 
system  or  not.  How  long  are  we  to  reform  the 
Constitution,  and  call  Constitutional  Conventions 
in  Massachusetts,  and  allow  the  argument— which, 
I  must  confess,  savors  rather  too  much  of  the  pol 
itician,  which  looks  a  little  too  much  like  being 
designed  to  tickle  the  ears  of  the  people — to  pre 
vail,  that  the  people  are  not  yet  prepared  to  receive 
the  district  system  ?  When  are  you  going  to  find 
out  whether  the  people  are  ready  or  not  ?  Now 
I  submit  that  here  is  an  opportunity  presented, 


in  the  proposition  of  the  gentleman  from  Taun 
ton,  for  solving  that  problem — of  ascertaining 
whether  the  people  are  ready  or  not,  without 
hazarding  the  other  reforms  which  you  propose 
— without  hazarding  the  adoption  of  the  Consti 
tution  as  a  whole.  If  you  do  not  distrust  the 
system  you  have  recommended,  why  not  give  the 
people  an  opportunity  of  saying  which  they  like 
best  ?  Why  allow  the  argument  to  be  adduced, 
year  after  year,  against  the  district  system,  that 
the  people  are  not  ready  to  receive  it,  without 
giving  them  an  opportunity  of  verifying  the  as 
sertion  ? 

It  is  for  that  reason,  that  I  prefer  we  should 
submit  at  this  time  alternative  propositions.  I  do 
not  believe  the  people  are  so  weak,  so  ignorant, 
or  so  confused,  that  they  cannot  read  and  under 
stand  two  propositions  at  the  same  time.  I  do 
not  believe,  either,  that  if  we  present  a  district 
system,  the  people  ask  to  have  the  districts  cut 
and  dried  beforehand.  I  believe  there  is  sense 
and  justice  enough  in  Massachusetts,  in  the  minds 
of  the  people,  to  say  whether  they  are  in  favor  of 
a  district  system,  each  district  to  be  comprised  of 
an  equal  number  of  voters  or  inhabitants,  as  the 
case  may  be,  without  waiting  to  see  whether  the 
line  will  cut  through  the  corner  of  this  town  or 
the  corner  of  that.  I  am  opposed  to  a  district 
system  that  shall  divide  the  small  towns  ;  but  I 
can  see  no  good  reason  why  the  general  proposi 
tion  of  a  district  system  should  not  be  submitted 
at  this  time  to  the  people,  as  an  alternative  prop 
osition. 

But,  Sir,  I  rose  merely  to  state  my  views  upon 
these  propositions,  and  not  to  go  into  any  argu 
ment  upon  them.  I  am  willing  to  vote  for  the 
proposition  of  the  gentleman  from  Natick,  believ 
ing  that  I  cannot  get  the  other  proposition.  I 
will  go  for  submitting  a  proposition  to  the  people 
for  a  district  system,  founded  upon  voters,  for  the 
purpose  of  allowing  the  people  the  opportu 
nity  of  once  expressing  their  minds  upon  this 
subject ;  and  and  I  do  not  see  how  they  are  to 
have  the  opportunity,  unless  we  accept  the  prop 
osition  of  the  gentleman  from  Natick.  If  it  is 
true,  as  gentlemen  agree,  that  the  people  are  not 
prepared  for  such  a  system,  I  am  in  favor  of  giv 
ing  them  an  opportunity  of  saying  to  their  fellow- 
citizens  and  the  world,  that  they  believe  a  repub 
lican  commonwealth  cannot  exist  here  in  New 
England,  founded  upon  an  equal  and  just  repre 
sentation  of  the  popular  sovereignty.  I  want 
them  to  have  the  opportunity  of  saying  they  be 
lieve  a  House  should  be  made  into  a  Senate,  and 
founded  upon  corporate  sovereignty,  and  that  the 
Senate  should  be  made  into  a  House,  the  strongest 
element  in  which  shall  be  the  city  of  Boston. 


70th  day.] 


HOUSE   OF   REPRESENTATIVES. 


589 


Friday,] 


SCHOULER. 


[July  29th. 


Since  the  debates  in  Committee  of  the  Whole 
upon  the  system  which  the  Convention  has  sanc 
tioned,  have  been  published— for  I  did  not  have 
the  pleasure  of  hearing  them — I  have  read  them, 
and  I  am  more  and  more  convinced  that  we  have 
adopted  a  system  of  representation,  by  which,  in 
principle,  we  have  turned  the  House  of  Repre 
sentatives  into  a  Senate,  and  made  the  county  of 
Franklin  and  the  western  counties  of  the  State, 
with  their  corporate  town  rights,  the  strongest 
element  of  power,  while  we  have  made  the  Sen 
ate  the  popular  branch,  and  we  have  made  the 
non- voters  of  the  city  of  Boston  the  strongest 
element  of  power  there.  Sir,  I  am  in  favor  of 
submitting  some  proposition  to  the  people  which 
shall  provide  for  more  equal  representation. 

Mr.  SCHOULER,  of  Boston.  The  proposi 
tion  of  the  gentleman  from  Taunton  (Mr.  Mor 
ton)  is  a  clean,  clear  proposition.  It  is  one  that 
every-body  understands.  It  brings  the  question, 
whether  you  will  adopt  a  district  system,  before 
the  people  some  two  years  sooner  than  under  the 
proposition  proposed  by  the  gentleman  from  Na- 
tick.  It  brings  it  before  them  at  a  time  when 
they  are  called  upon  to  consider  and  decide  other 
questions  of  fundamental  law,  and  therefore  there 
is  a  propriety  about  it.  It  is  connected  with  the 
adoption  of  the  Constitution  as  amended,  and 
will  come  before  the  people  at  a  time  when  their 
attention  is  called  to  the  subject.  I  am  surprised 
to  hear  the  gentleman  from  Fall  River  (Mr. 
Hooper)  give  up  this  proposition  without  a 
trial,  because  he  thinks  it  cannot  be  carried. 
Sir,  we  should  never  carry  anything,  in  this  or 
any  other  body,  if  the  friends  of  the  measure  give 
way  for  fear  they  shall  not.  Why  not  stand  up 
for  the  proposition  of  the  gentleman  from  Taun 
ton,  until  it  is  voted  down,  and  then  we  can  try 
something  else — perhaps  the  proposition  of  the 
gentleman  from  Natick.  But,  Sir,  I  wish  to  call 
the  attention  of  the  Convention  to  the  details  of 
that  proposition.  If  the  proposition  of  the  gen 
tleman  from  Taunton  is  voted  down — and  I  hope 
it  will  not  be — then  we  must  take  the  proposition 
of  the  gentleman  from  Natick,  or  nothing.  Now, 
Sir,  that  amendment  does  not  provide  for  submit 
ting  the  question  to  the  people,  in  1856,  fairly. 
It  is  to  be  submitted  in  a  way  that  will  be  sure 
to  kill  the  district  system,  if  anything  can,  be 
cause  there  never  was  any  measure  so  complicated 
as  the  details  of  a  district  system  must  necessarily 
be,  that  did  not  gain  enemies.  If  you  submit  the 
details  of  the  system  along  with  the  system  itself, 
I  care  not  with  how  much  fairness  the  districts 
may  be  apportioned,  some  towns  will  want  to  be 
in  another  district,  some  towns  will  complain  be 
cause  they  are  divided,  and  others  because  they 


are  not  divided ;  and  therefore,  they  will  vote 
down  the  whole  system.  It  will  not  be  submit 
ting  the  question,  whether  there  shall  be  a  district 
system,  fairly  to  the  people.  If  the  proposition 
of  the  gentleman  from  Taunton  is  voted  down,  I 
shall  then  submit  an  amendment  to  the  proposition 
of  the  gentleman  from  Natick,  to  strike  out  that 
portion  of  it  which  provides  for  submitting  the  de 
tails  of  the  district  system,  so  that  the  plain,  clear 
proposition  may  be  presented  to  the  people  in  1856 , 
whether  there  shall  be  a  district  system  for  the 
election  of  representatives  and  for  the  election  of 
senators,  founded  upon  legal  voters  or  upon  pop 
ulation,  as  the  case  may  be.  I  cannot  understand 
why  gentlemen  should  wish  to  legislate  in  the 
Constitution  upon  this  subject ;  for  it  is  legisla 
tion,  and  nothing  but  legislation.  What  we  want 
in  the  Constitution  is  principle,  and  not  the  de 
tails  of  legislation.  Sir,  I  tell  gentlemen  there  is 
something  behind  all  this.  These  details  are  put 
in  to  kill  the  proposition  itself  when  it  goes  out  to 
the  people.  It  is  only  presented  as  a  sort  of  de 
coy  duck,  to  draw  votes  for  the  system  the  ma 
jority  have  adopted. 

Sir,  I  can  see  no  argument  against  such  an 
amendment  as  I  have  indicated,  to  strike  out  the 
details  of  the  system  which  it  is  proposed  to  sub 
mit.  Let  us  have  the  plain  proposition  presented 
to  the  people  in  1856,  whether  they  will  have  a 
district  system,  or  not.  I  am  willing  to  take  the 
proposition  of  the  gentleman  from  Natick,  with 
that  amendment,  if  the  proposition  of  the  gentle 
man  from  Taunton  is  voted  down. 

But,  what  do  we  really  gain  by  such  a  propo 
sition  to  submit  the  question  to  the  people  in 
1856  ?  The  legislature  may,  at  its  next  session, 
if  it  chooses,  submit  the  question  to  be  voted  on 
by  the  people  in  1855.  They  have  the  power, 
under  the  Constitution,  to  submit  the  question  to 
the  people  at  any  time.  But,  if  the  proposition 
of  the  gentleman  from  Natick,  is  put  forth  as  a 
compromise,  and  if  the  gentlemen  of  this  Con 
vention  will  vote  to  strike  out  of  that  proposition 
its  detail,  so  that  the  people  may  have  the  oppor 
tunity  to  vote  yea  or  nay  upon  the  principles  of 
the  district  system,  without  being  encumbered  by 
the  details — by  the  division  of  towns,  for  and  by 
local  questions  as  to  the  formation  of  districts — I 
will  vote  to  incorporate  it  into  the  Constitution ; 
but,  unless  such  an  amendment  is  adopted,  I  shall 
vote  against  it,  because  it  is  all  a  sham,  and 
nothing  but  a  sham,  to  get  votes  for  the  Consti 
tution. 

I  would  rather  have  the  Constitution  remain  as 
it  is.  I  hope  those  gentlemen  who  are  in  favor  of 
a  district  system,  will  vote  in  favor  of  a  district 
system,  and  in  that  category  I  hope  to  find  the 


590 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


BlITLEll  —  SCHOULER. 


[July  29th. 


gentleman  from  Fall  River,  (Mr.  Hooper)  ;  and  if 
that  proposition  be  voted  down,  I  hope  the  propo 
sition  of  the  gentleman  from  Natick,  will  be 
either  amended  or  rejected. 

Mr.  BUTLER,  of  Lowell.  The  Convention 
having  adopted,  as  the  basis  of  representation, 
the  plan  which  I  had  simply  the  honor  of  select 
ing  from  the  various  plans  proposed,  not  claim 
ing  for  it  any  originality,  I  deem  it  not  out  of 
order,  nor  improper,  that  I  should  say  a  word 
upon  this  plan  which  is  now  proposed.  A  nd  I  wish 
to  say,  first  and  foremost,  that  my  judgment  con 
tinues  to  approve  of  the  plan  of  representation  by 
towns.  And,  in  any  event,  whatever  may  hap 
pen,  until  I  am  much  better  advised  than  at  pres 
ent,  I  shall  vote  for,  and  advocate  to  the  extent 
of  the  poor  ability  God  has  given  me,  town  rep 
resentation.  But,  Sir,  it  is  proposed  on  the  other 
hand,  that  there  should  be  a  system  of  district 
representation  left  to  the  people,  and  we  are 
sometimes  taunted  with  being  afraid  of  the 
people.  Now,  Sir,  I  am  not  afraid  of  submit 
ting  to  the  people  any  fair  proposition.  And  if 
I  considered  the  proposition  of  the  gentleman 
from  Taunton  a  fair  one — not  that  he  has  meant 
anything  wrong  by  it — but  if  I  considered  it  a 
fair  proposition,  as  opposed  to  town  representation, 
I  would  vote  to  have  it  go  to  the  people.  But  I 
do  not  so  consider  it ;  on  the  other  hand,  that  the 
plan- which  was  suggested  by  the  gentleman  from 
Natick,  has  the  elements  of  fairness  as  opposed  to 
town  representation,  and  I  am.  willing  to  try  the 
sense  of  the  people  upon  it,  if  the  Convention 
are  so  willing. 

I  will  give  my  reasons  for  the  distinction. 
Every  man  knows  the  disadvantages  of  town 
representation  ;  every  man  sees  the  boundary  of 
the  town  he  lives  in;  every  man  knows  exactly 
•where  the  town  lines  are  ;  he  has  it  all  mapped 
out  in  his  mind  and  laid  down,  fixed  and  deter 
mined.  But,  the  system  of  the  gentleman  from 
Taunton,  is  an  ideal  system,  a  theoretical  system 
which  is  made  on  paper  without  being  mapped 
out,  and  is  made,  when  voted  for,  in  the  mind  of 
every  voter,  as  his  own  interest  dictates.  Every 
man  who  favors  it,  says  I  am  in  favor  of  it ;  first, 
because  it  is  just,  and  I  am  in  favor  of  it  sec 
ondly,  because,  whatever  I  find  bad  in  town  rep 
resentation,  I  can  have  remedied  in  my  district. 
That  district  will  be  made  just  so  as  to  suit  me,  I 
shall  be  exactly  satisfied  and  contented  in  that 
district.  Each  man  makes  in  his  own  fancy,  a 
beau  ideal  district,  with  all  the  pleasantest  men  he 
can  think  of  around  him,  and  he  puts  himself  in 
the  centre  of  that  district  and  sees  himself  elected 
to  the  legislature  from  the  district,  and  so  hurras 
for  the  district  system.  This  happens  from  a  beau 


ideal ;  from  every  man  making  a  system  to  suit 
his  own  mind.  But,  when  a  district  system  is  sent 
out  to  the  people,  I  want  one  as  the  towns  are, 
mapped  out,  the  lines  running  here,  taking  in  this 
neighbor  and  leaving  that  one  out ;  bringing  in 
this  valley  and  that  mountain,  so  that  it  can  be 
seen  that  it  brings  this  set  of  men  and  that  set  of 
men  together.  Then  we  can  see  the  difference, 
and  see  what  there  is  of  it,  and  see  what  you 
mean.  And  I  can  tell  you  it  will  look  as  differ 
ent  to  men  after  they  see  its  beauties,  and  its  de 
fects,  as  they  are  made  apparent,  as  the  angel 
girl  some  men  court,  looks  different  from  the  slut 
tish  wife  they  find  they  have  married.  [Laugh 
ter.]  One  is  all  that  is  lovely,  and  good,  and 
beautiful ;  the  other  is  a  very  different  affair.  So 
let  me  tell  gentlemen  it  will  be  with  the  district 
system.  Leave  every  man  to  make  a  district  to 
his  own  mind,  and  he  will  make  a  splendid  dis 
trict,  having  everything  of  beauty  and  equality  in 
it.  But,  if  he  at  first  sees  the  lines  are  to  be 
run  here,  and  the  lines  run  there,  he  will  not  ac 
cept  it. 

I  was  neither  amazed  nor  surprised  when  our 
friends  from  Boston  wanted  to  district  their  city 
for  common  councilmen  ;  they  did  not  put  it  on 
population,  for  it  might  have  brought  Beacon 
Street  near  to  Ann  Street ;  they  took  a  basis 
which  has  been  taken  in  this  proposition,  founded 
upon  legal  voters.  I  do  not  desire  that  every  man 
shall  make  the  lines  to  suit  himself.  I  want 
Beacon  Street  to  see  that  she  is  in  juxtaposition 
with  Ann  Street,  and  then  see  if  Beacon  Street 
would  vote  for  the  district.  I  want  Fall  River 
and  Hull  put  in  juxtaposition,  and  see  if  they 
will  vote  for  such  a  district.  "When  this  is  done, 
I  am  ready  that  such  a  district  system  shall  go 
out  to  the  Commonwealth.  But  when  you  get 
the  ideal  beauty  and  the  theoretical  constitution 
which  the  French  theorists  made,  it  is  a  cheat 
and  a  humbug,  and  men  are  voting  for  what  they 
do  not  want. 

Mr.  SCHOULER.  May  I  ask  the  gentleman 
one  question  ? 

Mr.  BUTLER.  Yes,  if  you  will  be  quick,  as 
my  time  is  limited. 

Mr.  SCHOULER.  I  would  like  to  know  if 
the  district  system  for  senators  which  the  gentle 
man  voted  for,  is  an  ideal  system  ? 

Mr.  BUTLER.  O,  yes,  Sir ;  and  this  is  just 
the  difference  ;  and  I  will  give  you  a  comparison. 
The  senatorial  district  system  will  cut  the  Com 
monwealth  into  forty  districts.  It  will  make  the 
same  difference  that  there  is  between  cutting  up  a 
pig  into  four  quarters,  and  cutting  him  into 
sausage  meat.  [Laughter.]  I  understand  the 
senatorial  division  to  be  the  cutting  into  four 


70th  day.] 


HOUSE  OF   REPRESENTATIVES. 


591 


Friday,] 


SCHOULER BUTLBR GARDNER. 


[July  29th. 


quarters  ;  but  when  you  come  to  sausage  meat,  I 
wish  to  know  whether  I  shall  get  the  piece  I 
prefer.  That  is  the  difference,  and  that  is  the 
trouble  I  have  with  the  proposition  of  the  gentle 
man  from.  Taunton. 

Mr.  SCHOULER.  As  I  understand  the  dis 
tinction  which  the  gentleman  makes,  it  is  that  he 
prefers  the  whole  hog  rather  than  the  pieces. 

Mr.  BUTLER.  Precisely.  Then  I  would  not 
have  gentlemen  build  too  much  on  my  compari 
son  ;  I  made  it  for  the  gentleman  from  Boston. 
That  is  the  difference  I  make.  I  wish  to  know 
which  piece  I  am  to  have — whether  I  am  to  have 
the  snout  or  the  rib  ;  I  want  to  know  where  I  am 
to  come  in  for  a  share.  Then  I  can  know  how  to 
vote.  Every  man,  when  he  goes  for  the  propo 
sition  of  the  gentleman  from  Taunton,  expects  to 
get  the  middlings. 

The  reason  why  I  support  this  form  of  district 
system  is,  because  I  am  in  favor  of  town  repre 
sentation,  and  I  mean  to  fight  for  it  and  stand  by 
it  to  the  extent  of  my  strength.  But  I  do  not 
think  there  is  any  more  danger  of  the  adoption  of 
a  district  system,  where  we  know  the  lines,  than 
there  is  of  Cape  Cod  moving  up  to  Berkshire.  It 
is  an  old  maxim,  "egnotumpro  magnifico" — the 
unknown  is  taken  for  the  magnificent ;  "  distance 
lends  enchantment  to  the  view,"  and  want  of 
knowledge  has  much  the  same  effect.  I  want  to 
ask  Berkshire  when,  by  a  district  system,  it  is 
proposed  to  be  put  alongside  of  Cape  Cod — now, 
are  you  ready  for  that,  or  do  you  want  to  stay  by 
the  old  town  ?  Now,  as  I  have  said,  to  prevent 
that  result,  we  can  give  the  power  to  the  legisla 
ture  to  make  the  districts.  Or  we  may  make  the 
system,  and  it  will  be  so  bad  that  the  people  will 
not  accept  it.  I  would  be  willing  to  take  the  sys 
tem  published  by  the  able  and  intelligent  editor 
of  the  Advertiser,  in  his  paper,  as  the  district  sys 
tem.  I  should  be  willing  to  go  to  the  people 
to-day,  to  know  whether  they  would  accept  that 
system  or  the  town  system,  and  abide  the  an 
swer.  I  would  be  willing  to  have  that  put  to 
the  people  now ;  only  give  me  something 
practical,  something  tangible,  something  that  we 
may  see,  that  we  can  talk  about  and  can  point 
out.  I  grant  that  the  gentleman  from  Boston 
(Mr.  Schouler)  is  quite  right,  that  if  we  make  a 
district  system  so  that  you  can  see  the  corners,  it 
will  not  be  adopted.  I  know  it.  He  says  it  will 
bring  up  objections  to  it.  I  know  it.  I  wish 
to  see  those  objections  fairly  tested.  How  does 
the  gentleman  from  Natick  propose  to  do  it  ?  He 
proposes  to  leave  the  legislature  to  do  it.  If  we 
had  time  to  make  it,  we  could  do  it ;  but  we 
have  not,  and  we  say  we  will  leave  it  to  the  legis 
lature.  Let  no  man  say  you  will  have  unequal 


districts.  Your  population  basis  for  the  senate 
will  help  to  make  the  districts.  Then  make  the 
districts,  make  them  as  well  as  God  has  given  to 
human  ingenuity  to  devise,  and  I  do  not  care  ; 
they  will  fall  to  pieces  as  soon  as  flax,  which 
"  falls  asunder  at  the  touch  of  fire."  You  cannot 
make  them  so  well  but  that  they  will  crumble  to 
pieces.  But  when  you  can  allow  every  man  to 
fancy  a  district  as  a  beau  ideal  of  his  mind,  or  as  an 
illusion  of  a  dream,  he  will  make  Utopian  districts 
alone,  and  I  fear  to  put  that  to  the  people  as  a  de 
lusion  which  tends  to  lead  their  minds  away  from 
the  reality.  Therefore,  as  at  present  advised,  I 
must  vote  against  the  proposition  of  the  gentleman 
from  Taunton,  as  I  always  have  voted  against 
it. 

But,  on  the  other  hand,  to  show  that  I  am  not 
afraid  of  the  people ;  to  show  that  I  am  ready  to 
go  to  them  with  a  district  system  which  will  be 
tangible,  the  lines  of  which  we  can  know  and 
see,  as  town  lines  are  seen  and  known,  I  am 
ready  to  vote  for  the  plan  suggested  by  the  gen 
tleman  from  Natick,  to  wit :  Let  the  people  ask 
the  legislature  to  make  the  districts ;  and,  then, 
in  God's  name,  if  they  want  the  system,  let  them 
have  it ;  and,  if  they  do  not  want  it,  I  am  sure  I  do 
not  wish  to  have  them  adopt  it.  These  are  my  rea 
sons  for  voting  against  the  proposition  of  the  gen 
tleman  from  Taunton,  and  in  favor  of  that  of  the 
gentleman  from  Natick.  If  other  gentlemen  ap 
prove  them,  I  trust  they  will  go  with  me ;  if  not, 
I  shall  at  least  have  the  privilege  of  putting  my 
self  right  before  the  Convention. 

Mr.  GARDNER,  of  Boston.  The  cat  is  out 
of  the  bag.  Let  the  phonographic  reporters  of 
this  Convention  put  it  down  in  black  and  white  ; 
let  the  people  of  this  Comwonwealth  know  the 
statements  made  by  the  gentleman  from  Lowell. 
What  are  they  ?  He  is  afraid  to  trust  the  people. 
His  own  words.  He  is  afraid  to  let  the  people 
say  whether  they  will  have  single  districts  or 
not.  His  own  words.  He  is  afraid  the  Utopian 
scheme  may  be  carried.  His  own  words.  He  is 
afraid 

Mr.  BUTLER.     Mr.  President 

Mr.  GARDNER.  I  presume  the  gentleman 
will  withdraw  his  words. 

Mr.  BUTLER.  No,  Sir ;.  I  will  not  withdraw 
anything.  I  wish  only  to  have  that  stated  which 
I  did  say.  I  deny  that  I  said  what  he  has  stated. 
That  is  as  wide  a  mistake  as  he  made  before. 

Mr.  GARDNER.  The  gentleman  will  deny 
it.  But  he  is  afraid  to  have  this  question  go  out 
to  the  people,  for  fear  they  may  decide  to  have  the 
district  system ;  he  is  afraid  the  Utopian  delusion 
may  beguile  them ;  and  he  therefore  fears  a 
popular  majority  may  decide  in  favor  of  a  district 


592 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


GARDNER —  BATES. 


[July  29th. 


system,  if  the  amendment  proposed  by  the  gen 
tleman  from  Taunton  is  carried. 

Now,  what  is  he  afraid  of  ?  He  has  told  us 
that  too.  He  has,  very  fortunately,  kindly  told 
us,  what  he  is  not  afraid  of,  as  well  as  what  he 
does  fear.  Now,  what  is  it?  He  is  willing  to 
adopt  the  proposition  of  the  gentleman  from 
Natick  ;  he  is  willing  to  send  to  the  people  a  dis 
trict  system,  provided  it  is  cut  and  carved  before 
hand  ;  because,  says  the  gentleman  from  Lowell, 
I  know  that  will  not  be  adopted.  Now,  is  not 
this  plain  to  the  Convention  ?  Is  not  this  per 
fectly  absurd,  and  nonsense,  and  ridiculous,  to  en 
deavor  to  present  a  scheme  for  our  adoption,  which 
the  gentleman  rises  in  his  place  and  says  of  it,  I 
know  that  it  will  not  be  adopted.  Now,  I  put  it 
to  him ;  if  it  does  not  convince  him,  I  put  it  to 
other  members  of  the  Convention,  if  it  is  not 
the  height  of  absurdity  for  us  to  pretend  to  adopt 
the  scheme  of  the  gentleman  from  Natick,  which 
he  has  given  notice  of,  when  he  rises  and  says,  I 
know  it  will  not  be  adopted.  Sir,  he  has  con 
fessed,  not  in  language  but  in  fact,  his  intention 
to  throw  dust  in  the  eyes  of  the  people  ;  to  hold 
out  to  them  a  pretended  proposition,  with  the 
pretence  of  fairness,  which,  he  says,  he  knows 
they  will  never  adopt  ?  Now,  for  one,  I  despise 
any  such  proposition ;  I  disdain  and  spurn  the 
bribe ;  I  will  not  vote  for  anything  that  I  know 
the  people  will  never  sanction.  The  time  of  this 
Convention  is  too  precious ;  the  purpose  for  which 
we  were  sent  here  is  too  sacred  to  trine  in  such  a 
way  with  our  constituents. 

Now,  we  have  here  a  tangible  and  distinct 
proposition,  and  I  desire  that  the  feelings  and 
views  of  the  Convention  shall  be  fairly  and  freely 
expressed  upon  it.  It  is  simply,  in  a  few  short 
sentences,  the  opportunity  of  presenting  the  alter 
native  to  the  people  of  the  Commonwealth,  to 
allow  the  legislature  to  district  the  State  into 
equal  districts  for  the  choice  of  representatives,  in 
contradistinction  to  town  representation.  This, 
Sir,  is  fair,  is  honest ;  and  I  appeal  to  every  mem 
ber  of  this  Convention,  that  were  it  a  question 
between  man  and  man,  of  simple  every  day  hon 
esty  and  morality,  could  he  oppose  it  ?  But,  when 
we  come  here  under  our  sacred  oaths  of  office; 
when  we  come  here  as  representatives  of  the  Com 
monwealth  ;  when  we  are  their  exponents,  and 
when  their  feelings,  views,  and  wishes  are  doubted 
or  denied  here  ;  can  we  then,  as  honest,  and  fair, 
and  just  men,  refuse  to  submit  an  ultimate  de 
cision  to  that  great  tribunal  ?  We  shall  soon 
know  who,  here,  are  willing  to  trust  the  people. 
Aye,  more,  we  shall  know  who  are  willing  that 
the  people  shall  decide  which  system  they  prefer. 

This  is  a  question  which  is  separated  from  party 


politics ;  it  is  a  question  which  ought  not  and 
cannot,  be  justly  mixed  up  with  any  party  senti 
ment  whatever.  It  is  simply  a  question  whether 
the  people  who  sent  us  here  shall  prefer,  and  wish, 
and  require,  one  of  two  plain  propositions. 

Now,  Sir,  what  arguments  can  be  brought, 
what  reasons  can  be  given,  why  this  should  not 
be  sent  to  the  people  to  decide  ?  It  is  said  here, 
by  the  gentleman  from  Natick,  that  he  fears  this 
question  may  cause  confusion  at  the  polls.  I 
can  tell  him  that  the  people  of  this  Common 
wealth  value  too  highly  equal  representation ;  the 
people  of  this  Commonwealth  are  too  intelligent, 
and  they  know  too  well  the  value  of  equal  rep 
resentation,  to  allow  a  plain  abstract  question  of 
this  kind  to  cause  confusion  at  the  polls.  There 
are  too  many  churches  and  too  many  school- 
houses  in  this  Commonwealth,  if  not  in  Natick, 
to  permit  the  people  to  become  confused  by  a 
plain  proposition  of  this  kind.  I  would  as  soon 
suppose  a  gentleman  would  say  they  would  be 
confused  if  a  man  should  put  the  question  to  them 
whether  two  and  two  make  four,  as  that  they 
would  be  confused  by  a  proposition  of  this  kind. 
If  you  ask  the  people  whether  two  men  in 
Barnstable  should  equal  one  man  in  Franklin,  or 
whether  one  man  in  Franklin  should  outweigh 
seven  or  eight  men  in  Suffolk,  the  people  would 
be  confused,  and  cannot  give  an  honest,  mathe 
matical  answer  !  Is  that  the  sentiment,  is  that  the 
opinion  the  gentleman  from  Natick  entertains  of 
the  people  of  Massachusetts  ?  He  is  afraid  they 
will  be  disturbed  and  confused  by  a  question  so 
papable  as  that.  That  is  the  idea  at  which  he  is 
alarmed.  I  ask  this  Convention  if  they  go  with 
him  in  the  fear  ? 

Now,  I  should  like  to  have  gentlemen  rise 
and  state  what  possible  objection  there  can  be  to 
this  proposition,  except  the  alarming,  wonderful 
objection  which  the  gentleman  from  Lowell  has 
already  stated,  the  objection  that  he  is  afraid  lest 
the  people  will  adopt  this  proposition,  if  it  is  sent 
to  them.  If  that  is  the  argument,  I  hold  that  it 
is  conclusive  that  every  member  of  this  House 
should  send  the  proposition  to  the  people.  He 
begs  the  question,  or  rather  he  acknowledges  the 
necessity  of  the  question  ;  he  acknowledges  hat 
the  people  want  it ;  he  confesses  they  will  adopt 
it.  Therefore,  I  say  we  are  bound,  by  his  own 
showing,  to  send  it  to  them,  and  let  them  have 
the  opportunity  of  trial. 

Mr.  BATES,  of  Plymouth.  I  have  but  a  very 
few  words  to  say,  and  will  detain  the  Conventiou 
but  a  few  moments  in  this  stage  of  the  debate 
upon  the  question  now  before  us.  I  have  listened 
with  attention,  for  weeks,  to  the  discussions  upon 
the  question  of  representation,  without  having 


70th  day.] 


HOUSE    OF   REPRESENTATIVES. 


593 


Friday,] 


BATES. 


[July  29th. 


participated  in  that  debate.  When  I  have  heard 
gentlemen,  in  derogation  of  the  system  of  town 
representation  which  has  been  adopted  by  thia 
Convention,  so  repeatedly  make  the  assertion 
which  has  just  been  made  by  the  gentleman  from 
Boston,  (Mr.  Gardner,)  that  one  man  in  Frank 
lin  equals  five  or  six  in  Suffolk,  and  when  I  have 
known  at  the  same  time,  that  this  Convention, 
with  but  four  or  five  dissenting  votes,  has  formed 
a  district  system,  which  in  the  election  of  sena 
tors  and  councillors,  gives  to  Suffolk  County — a 
county  which  for  the  last  twenty  years  has  cast 
less  than  one-half  as  many  votes  in  proportion  to 
its  population,  as  the  county  of  Franklin — its 
full  representation  upon  a  population  basis,  I  have 
been  strongly  tempted  to  rise  in  my  place  and  say 
that  I  disdained  any  such  comparison,  but  I  have 
not  done  so.  I  came  here,  Sir,  a  friend  to  town 
representation,  as  a  question  of  principle,  nor 
have  I  yet  heard  any  arguments  which  have 
shaken  my  convictions  of  its  justice ;  and  when 
I  voted  for  a  district  system  for  senators  and 
councillors,  upon  a  basis  of  population,  I  did  so 
with  the  expectation,  if  not  with  the  understand 
ing,  that  there  was  to  be  an  equivalant  in  the 
establishment  of  a  basis  of  town  representation 
for  the  House  of  Representatives,  and  nothing  but 
such  an  expectation  would  have  induced  me  to 
cast  such  a  vote.  Now,  if  there  is  any  one  act 
of  mine  in  this  Convention  which  I  believe  my 
constituents  will  disapprove  of  more  than  any 
other,  it  is,  that  in  some  stages  of  the  question — 
though  not  on  the  final  passage — I  supported  a 
population  basis  of  representation  for  the  Senate. 
But,  Sir,  that  act  has  passed,  and  I  apprehend 
this  Convention  is  not  to  reconsider  or  reconstruct 
it.  Then  we  have  adopted  a  system  of  town 
representation  for  the  House  of  Representatives. 
I  am  not  of  that  class  of  individuals  who  are 
frightened  by  the  bugbear  stories  about  this  basis 
being  unjust  or  unpopular,  or  that  it  is  to  trans 
fer  our  whole  government  into  the  hands  of  a 
very  small  portion  of  the  people ;  and  least  of 
all,  am  I  alarmed  at  the  newspaper  paragraphs  in 
regard  to  it,  to  which  my  friend  from  Wilming 
ton,  (Mr.  Durgin,)  has  alluded. 

Now,  here  is  a  proposition  of  the  gentleman 
from  Taunton,  (Mr.  Morton,)  and  what  is  it  ? 
Why,  it  is  said  that  it  submits  to  the  people  a  dis 
trict  system.  What  is  the  fact  with  regard  to  it  ? 
The  moment  it  is  contemplated  to  complete  the 
system  before  it  is  submitted  to  the  people,  the 
gentleman  from  Boston,  (Mr.  Schouler,)  rises  in 
apparent  alarm,  and  says,  that  if  you  make  these 
districts  so  that  the  people  can  look  at  them,  they 
will  reject  the  proposition.  This,  to  my  mind,  is 
the  strongest  argument  which  can  be  adduced  to 


prove  that  the  people  do  not  want  a  district  sys 
tem.  Construct  the  districts  just  as  they  must  be 
constructed,  ultimately,  and  let  the  people  see 
their  boundaries,  their  advantages  and  their  dis 
advantages,  and  the  admission  of  the  most  ardent 
friends  of  the  system  is,  that  they  will  reject  it. 
But,  it  is  said,  put  it  to  the  people,  and  let  them 
"  go  it  blind,"  as  the  saying  is,  and  then  if  they 
do  not  like  the  districts,  when  they  are  subse 
quently  constructed,  they  cannot  help  themselves. 
And  yet,  these  are  the  men  who  claim  to  be  the 
exclusive  friends  of  the  people.  Now,  if  I  have 
to  put  anything  to  the  people  of  Massachusetts, 
I  would  put  to  them  something  which  is  tangible, 
something  which  can  be  seen  and  understood, 
and  then  if  the  people  want  it,  I  want  them  to 
have  it.  I  am  the  last  man  to  distrust  the  peo 
ple.  And,  when  this  proposition  comes  up  here, 
and  it  is  admitted  over  and  over  again  that  if  you 
put  the  system  in  detail  to  the  people,  they  will 
reject  it,  I  say  that  I  am  opposed  to  it,  here,  and 
elsewhere.  I  have  said  that  I  was  a  friend  of 
town  representation,  and  whatever  influence  I 
may  have,  if  I  have  any,  and  whatever  ability  I 
possess,  in  the  canvass  which  is  before  us,  shall 
be  exerted  in  support  of  that  system ;  because,  I 
believe  it  to  be  just,  and  that  it  will  most  effectu 
ally  preserve  the  glorious  institutions  of  our 
Commonwealth.  And,  I  desire  to  tender  my 
thanks  to  the  gentleman  from  Boston,  (Mr.  Hale,) 
for  having  submitted  to  the  public  in  detail,  the 
proposition  of  the  minority  of  the  Committee, 
which  has  been  rejected  by  this  Convention  ; 
because,  that  course  will  materially  aid  the 
friends  of  town  representation,  in  establishing  the 
justice  of  their  system  before  the  people. 

But,  Sir,  what  is  this  proposition  of  a  district 
system  ?  It  is  that  you  put  the  question  to  the 
people,  and  let  the  legislature  make  the  districts. 
Now,  if  the  legislature  must  make  the  districts, 
why  not  let  them  make  them  first  ?  What  is 
there  to  fear  ?  We  have  been  repeatedly  told  here 
that  we  fear  the  people.  Now,  I  would  ask 
whether  it  is  those  who  say  let  the  legislature 
make  the  districts,  and  then  let  the  people  say 
whether  they  want  the  districts  as  made,  or 
whether  it  is  those  who  say  if  you  want  a  dis 
trict  system,  we  will  make  the  districts  afterwards 
to  suit  themselves.  Which  is  it  ?  I  apprehend 
that  no  man  will  rise  and  say  that  it  is  the  class  of 
men  who  put  to  the  people  what  they  must  ulti 
mately  have,  that  they  may  see  for  what  they  vote, 
who  betray  this  distrust  of  the  people. 

Now,  Sir,  for  these  reasons,  I  am  totally  opposed 
to  putting  out  this  intangible  system  of  the  gen 
tleman  from  Taunton.  The  people  cannot  see  it, 
and  cannot  decide  whether  they  want  it  or  not. 


594 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


BATES  —  HALLETT. 


[July  29th. 


If  districts  are  to  be  made,  let  them  be  constructed 
first,  and  then  the  people  will  have  something 
which  is  tangible,  and  which  they  can  understand, 
and  if  they  want  it  they  are  competent  to  say  so, 
and  with  their  verdict,  I  shall  be  content.  I  had 
not  intended  to  support  any  alternate  proposition, 
but  the  gentleman  from  Natick  has  submitted  a 
plan  which  I  have  not  before  seen,  but  which,  as 
it  appears  at  first  blush,  or  upon  the  face  of  it,  I 
am  induced  to  support,  because  it  appears  to  be 
fair,  just  and  equal.  It  says  to  the  legislature 
elected  by  the  people  with  a  knowledge  of  their 
duties,  that  they  shall  make  these  districts  in  the 
best  manner  they  can,  and  in  1855  submit  them 
to  the  people,  and  if  those  districts  are  just,  and 
the  people  approve  of  them,  they  will  say  so  by 
their  votes.  I  shall  vote  for  that  proposition,  if  I 
have  an  opportunity  to  do  so,  because  it  carries 
justice  upon  the  face  of  it. 

But  there  is  another  strong  reason  why  I  shall 
vote  for  it.  At  the  same  time  it  presents  to  the 
people  of  Massachusetts  the  question  of  having 
forty  senatorial  districts  upon  the  basis  of  legal 
voters.  This  is  a  question  which  I  wish  the 
people  of  the  Commonwealth  to  have  an  opportu 
nity  to  pass  upon.  They  will  first  say  if  they 
will  have  a  senatorial  basis  upon  population, 
which  gives  to  fourteen  hundred  immigrants  who 
happen  to  land  in  Boston  on  the  day  previous  to 
taking  the  decennial  census,  as  much  representa 
tion  as  five  independent  towns  in  the  Common 
wealth,  by  giving  to  those  towns  a  partial  equiv 
alent  in  the  House,  and  at  the  same  time  it  gives 
them  an  opportunity  to  decide  between  this  and  a 
district  system  based  upon  the  legal  voters  of  the 
State.  Under  these  circumstances,  I  shall  support 
the  proposition  of  the  gentleman  from  Natick,  if  it 
comes  before  the  Convention.  I  am  opposed  to 
the  proposition  of  the  gentleman  from  Taunton, 
and  shall  vote  against  it.  For  these  reasons,  and 
these  only,  am  I  induced  to  vote  to  submit  an 
alternate  proposition  to  the  people,  inasmuch  as  it 
says  to  them,  you  see  what  it  is  ;  if  you  want  it, 
vote  for  it ;  if  you  do  not  want  it,  vote  against  it ; 
and  the  question  is  settled,  and  that,  too,  by  the 
only  tribunal  which  has  a  right  to  make  the  de 
cision,  and  whose  judgment  is  final. 

Mr.  HALLETT,  for  Wilbraham.  I  am  greatly 
obliged  to  the  Chair  for  the  privilege  of  the  floor. 
I  have  been  put  wrong  here  for  a  day  or  two,  and 
I  find  myself  placed  in  a  somewhat  indefinite 
position.  I  think  it  is  necessary  for  us  who  have 
advocated  town  representation,  to  look  back  and 
see  what  the  basis  upon  which  we  stand  is.  I 
have  been  advocating,  with  other  gentlemen,  the 
right  of  towns,  as  several  communities  and  muni 
cipal  corporations,  to  representation.  There  were 


gentlemen  who  contended  that  this  claim  of  the 
towns  was  not  right  or  well  founded,  and  that 
there  should  be  a  district  system  disregarding  all 
town  rights.  Now,  a  proposition  is  submitted  by 
the  gentleman  from  Natick,  which  gives  them  the 
opportunity  to  propose  to  the  people  just  what 
they  want,  if  they  honestly  expressed  what  they 
wanted.  Why  do  the  advocates  of  a  district  sys 
tem  now  oppose  this  fair  offer  ?  It  seems  to  me 
there  is  the  same  inconsistency  in  some  gentlemen 
in  regard  to  this  question,  which  I  noticed  when 
we  sought  to  compromise  on  the  plurality  ques 
tion.  I  and  others  wished  to  retain  the  majority 
system,  and  voted  for  the  majority  principle.  But 
the  moment  a  sufficient  number  to  make  a  ma 
jority  for  plurality,  of  those  gentlemen  who  had 
acted  with  us  voted  for  the  plurality  system,  those 
who  had  before  most  vehemently  insisted  on  a 
plurality,  came  right  round  and  voted  against  the 
plurality  system.  So  that  the  question  seemed 
not  to  be  acted  upon  from  principle,  but  as  to 
who  made  the  proposition,  and  how  it  would 
affect  parties.  Shall  we  take  such  a  view  of  sub 
jects  here  ?  It  is  neither  wise  nor  expedient  to  do 
so.  How  do  we  know  what  will  be  the  effect 
upon  parties  of  any  rule  we  lay  down,  that  will 
last  for  any  long  period  ? 

Having  explained  this  position,  in  which  I  am 
content  to  stand  on  the  record,  I  wish  to  answer 
the  inquiry  of  the  gentleman  from  Boston,  (Mr. 
Crowninshield,)  who  desires  to  know  what  rea 
sons  there  are  why  the  proposition  of  the  gentle 
man  from  Taunton  should  not  be  submitted,  as 
a  part  of  the  Constitution,  to  the  people.  I  can 
give  him  the  best  reason  in  the  world,  and  I  think 
a  perfectly  conclusive  reason  why  I  cannot  go 
for  that  proposition,  and  why  it  seems  to  me  no 
gentleman  should  go  for  it.  And  that  is,  because 
it  leaves  to  the  legislature  an  unrestricted  power 
to  make  the  Constitution  in  that  particular,  instead 
of  having  the  people  make  it,  or  pass  upon  it  after 
the  legislature  propose  it ;  and  I  deny  the  right 
or  the  power  of  the  legislature  to  make  any  part 
of  a  Constitution.  What  is  the  proposition? 
Why,  that  you  shall  give  to  the  legislature  the 
power  to  determine,  without  appeal  to  the  people, 
whether  the  whole  principle  of  representation  in 
Massachusetts,  which  has  stood  for  two  hundred 
years,  shall  be  entirely  changed  or  not.  I  would 
just  as  soon  give  to  the  legislature  the  power  to 
determine,  without  asking  the  people,  whether 
this  government  shall  be  a  republican  govern 
ment  or  a  monarchy.  That  is  the  objection  to 
the  proposition  of  the  gentleman  from  Taun 
ton  ;  because  he  proposes  that  we  shall  put  the 
question  to  the  people  in  the  abstract :  "  Will  you 
have  a  district  system,  or  not,  for  representatives  ? " 


70th  day.] 


HOUSE  OF   REPRESENTATIVES. 


595 


Friday,] 


HATHAWAY  —  HALLETT. 


[July  29th. 


And  if  the  people  should  say,  "  Why,  yes,  we 
will  have  a  district  system,"  what  do  they  answer? 
and  what  is  the  effect,  if  this  proposition  prevails  ? 
It  is  carrying  out  the  theory  of  certain  gentlemen 
who  propose  to  submit  to  the  people  the  question 
whether  they  will  have  a  Convention,  and  then, 
after  the  people  answer  "yes,"  leaving  the  whole 
power  with  the  legislature  to  make  that  Conven 
tion  what  they  please,  or  repeal  it  when  they 
please.  This  was  just  the  doctrine  on  which  the 
attorney- general  told  us  that  our  present  Conven 
tion  was  called  ;  but  we  repudiated  it  as  wholly 
unsound  doctrine. 

Mr.  HATHAWAY,  of  Freetown.  I  would 
inquire  if  we  are  not  in  the  same  position  with 
regard  to  the  Senate  r 

Mr.  HALLETT.  I  think  the  gentleman  was 
answered,  with  reference  to  that,  by  the  gentle 
man  from  Lowell,  (Mr.  Butler).  That  is  not  my 
point.  It  does  not  affect  town  rights  or  represen 
tation.  The  proposition  now  before  us,  of  the 
gentleman  from  Taunton,  (Mr.  Morton,)  gives  to 
the  legislature  the  whole  power,  at  its  mere  plea 
sure,  of  dividing,  and  cutting,  and  carving  this 
whole  Commonwealth  into  representative  districts, 
without  the  control,  or  consent,  or  subject  to  the 
veto  of  the  people  !  That  is  the  proposition. 
Therefore,  I  say  it  is  giving  to  the  legislature  the 
power  of  prescribing  what  the  limit  and  what  the 
basis  of  your  representation  shall  be  in  this  Com 
monwealth,  and  what  party  shall  be  in  the  ascen 
dency.  We  go  quite  far  enough  in  doing  that  to 
which  the  gentleman  from  Freetown  has  alluded, 
in  districting  for  Senators.  Yes,  Sir,  we  go  quite 
far  enough  in  leaving  the  legislature  to  make  forty 
senatorial  districts.  But  that  is  senatorial  repre 
sentation,  and  does  not  affect  town  rights.  Sena 
torial  representation  does  not  exist  as  a  locality, 
or  as  a  corporate  right  of  a  municipal  community. 
But  the  right  of  representation  in  towns  exists  as 
a  corporate  right  which  you  have  no  right  to 
destroy,  unless  by  the  representative  consent  of 
those  who  now  enjoy  it.  That  is  a  fundamental 
principle,  and  you  must  either  adhere  to  town 
representation  on  that  principle,  or  abandon  it. 
If  those  who  adhere  to  town  representation  as  a 
right,  cannot  stand  there,  they  cannot  stand  any 
where.  Now,  as  this  is  an  inherent  right  of  the 
original  organization  of  Massachusetts  represen 
tation,  and  as  towns  are  constituted  upon  corpo 
rate  or  community  representation,  I  say  you 
have  no  right  to  give  to  the  legislature  the  exclu 
sive  power  over  a  question  which  may,  in  their 
disposition  of  it,  destroy  that  right  without  the 
consent  of  the  people. 

That  is  a  fatal  and  inherent  objection  to  the 
proposition  of  the  gentleman  from  Taunton,  and 


it  is  inadmissible,  as  it  seems  to  me,  upon  any 
principle  on  which  we  stand  here  as  a  representa 
tive  body. 

On  the  other  hand,  the  provisional  proposition 
submitted  as  a  compromise  by  the  gentleman 
from  Natick,  is  in  conformity  with  the  rights  of 
the  towns,  and  the  rights  of  the  people  to  pass 
upon  a  distinct  question  of  district  representa 
tion. 

First,  it  provides  that  all  the  towns,  by  their 
representatives  in  the  House,  shall  have  the  right 
to  be  heard  in  preparing  the  details  of  the  system 
of  districting  the  State,  which  the  legislature  are 
required  to  submit  to  the  people.  Secondly,  it 
provides  that  the  whole  people  may  have  a  dis 
trict  system  of  representation  according  to  the 
plan  submitted  to  them,  whenever  the  aggregate 
majority  shall  consent  to  adopt  it.  That  will 
present  the  question  of  districting  to  the  people  in 
a  tangible  form,  and  they  will  decide  upon  it  by 
a  majority  of  the  whole  people,  including  all  the 
towns.  Now,  Sir,  it  is  conclusive,  that  if  gentle 
men  who  advocate  a  district  system  are  desirous 
of  having  the  question  fairly  put  to  the  people, 
not  in  the  abstract,  but  in  well-considered  detail, 
here  is  the  best,  surest,  and  fairest  plan  that  can 
be  devised  for  testing  the  question,  by  a  direct, 
distinct  vote  upon  it  of  the  whole  people  of  the 
Commonwealth,  in  which  vote  the  cities  and 
large  towns  will  have  all  the  benefit  of  their  num 
bers  in  determining  the  majority. 

The  plan  is  throughout  the  result  of  represent 
ative  and  popular  action.  In  the  first  place,  the 
system  of  exact  details  and  limits  must  be  prepared 
and  submitted  to  the  Senate  and  House,  who  have 
got  to  put  it  forth  to  the  people. 

Who  are  to  consent  to  it  ?  Why,  the  legisla 
ture,  who  will  be  the  representatives  of  all  the 
towns  in  one  branch  of  it,  and  without  whose  ac 
tion  this  cannot  be  done ;  and  if  it  is  done  by 
their  action  it  is  done  by  their  consent.  They,  as 
the  representatives  of  these  communities,  must 
agree  to  submit  a  district  proposition  to  the  peo 
ple,  which  is  to  divide  the  State  off  into  two  hun 
dred  and  forty  or  three  hundred  and  twenty 
representative  districts.  Then  you  have  the 
consent  of  the  representatives  of  the  towns  to  the 
form  of  proposition,  and,  consequently,  the  con 
sent  of  the  whole  constituency  that  such  a  propo 
sition  should  be  submitted  to  the  people.  If  the 
people  adopt  it,  they  adopt  the  proposition 
distinctly  and  definitely,  and  with  their  eyes 
open.  And  thus  this  plan,  passed  upon  by  the 
people  in  all  its  details,  and  not  in  the  abstract 
merely,  will  save  the  State  from  that  gerry 
mandering  system  which  would  be  the  result  of 
the  proposition  of  the  gentleman  from  Taunton. 


596 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


HALLETT  —  WHITNEY. 


[July  29th. 


Sir,  the  moment  you  put  it  into  the  power  of  the 
legislature  to  frame  and  adopt  a  system  of  districts 
for  representatives  without  going  to  the  people, 
from  that  moment  you  determine  the  political 
character  of  the  Commonwealth  by  the  political 
character  of  the  one  particular  legislature  which 
districts  the  State.  That  is  perfectly  clear.  Con 
tiguity  can  easily  be  evaded  in  order  to  give  a 
party  majority.  You  may  have  your  districts 
formed  of  contiguous  territory,  and  yet  you  can 
take  a  narrow  strip  of  land  in  this  or  that  town  or 
city  as  the  nucleus  of  a  district,  and  add  to  it  such 
other  portions,  according  to  the  political  com 
plexion  of  these  portions  to  be  added,  and  make 
a  district  of  any  politics  you  please.  Every 
body  knows  what  gerrymandering  can  do  to 
secure  the  control  to  a  minority  by  ingenious 
districting  of  sections  ;  and  this,  it  would  seem, 
is  one  of  the  most  corrupt  and  corrupting  powers 
the  legislature  can  have.  But  if  the  legislature 
know  that  the  people  have  the  power,  by  a  vote 
of  the  whole  Commonwealth,  to  repudiate  the 
project  which  they  may  put  out,  the  people  have 
a  reasonable  guarantee  that  the  system  will  be 
based  and  arranged  according  to  just  rules.  I  see 
no  inconsistency,  therefore,  in  meeting  those  who 
are  in  favor  of  the  district  system,  by  saying,  we 
will  put  into  the  Constitution,  not  an  alternative 
proposition  of  town  or  district  system,  which 
looks  as  if  we  did  not  know  what  we  were  about, 
but  an  alternative  power.  We  have  put  into  the 
Constitution  the  town  system  of  representation, 
and  recommended  to  the  people  to  take  that  if 
they  desire  it ;  and  then  we  may  say  by  this 
amendment,  if  you  desire,  through  the  power  of 
your  legislature,  to  make  a  change  to  a  district 
system,  here  is  the  form  to  give  the  legislature  the 
power  to  propose  it.  If  we  are  to  submit  the  dis 
trict  system  to  the  people,  we  ought  to  submit  it 
in  detail,  that  each  town  may  know  who  is  to  be 
its  neighbor.  This  is  not  the  place  to  do  it.  It 
consists  of  lines  and  boundaries  and  cities  and 
towns  and  villages  and  relative  population,  and 
various  other  matters  requiring  a  most  minute 
examination,  before  it  can  be  fairly  adjusted  and 
adopted.  I  say,  therefore,  if  there  is  an  honest 
purpose  to  test  the  question  before  the  people, 
whether  they  will  have  the  district  system  or  not, 
the  proposition  of  the  gentleman  from  Natick 
presents  it ;  while,  at  the  same  time,  it  is  con 
sistent  with  the  views  of  those  who  adhere  to  the 
principle  that  the  towns  shall  have  their  inherent 
corporate  rights  in  the  representative  hall,  and 
that  no  change  in  the  representative  system  should 
take  place  without  their  action  and  consent.  I 
hope,  therefore,  that  the  proposition  of  the  gentle 
man  from  Taunton  will  be  disposed  of  by  being 


rejected,  and  then  the  question  will  be  fairly  open 
to  this  compromise  proposition. 

Mr.  WHITNEY,  of  Conway.  At  this  late 
hour  of  the  session,  it  seems  to  me  that  it  is  but 
wasting  time  to  enter  again  into  the  discussion  of 
principles  which  lie  at  the  foundation  either  of 
the  town  or  district  systems  of  representation. 
Much  better  would  it  be,  both  for  ourselves  and 
our  constituents,  to  look  and  see  where  we  stand 
in  reference  to  this  great  question.  A  great  con 
flict  in  the  Convention,  from  the  commencement 
of  its  session  to  the  present  time,  has  been  had 
upon  this  question  of  representation  ;  and,  how 
ever  it  may  appear  to  other  gentlemen,  it  is 
obvious  to  me,  that  if  there  is  anything  estab 
lished  by  our  past  action,  if  we  have  arrived  at 
any  positive  and  determinate  result  in  this  Con 
vention,  we  have  arrived  at  the  result  embracing 
town  representation  as  a  principle,  which  is  to  go 
from  this  Convention  to  the  people,  and  that  the 
district  system  cannot  be  adopted  here. 

Now,  Sir,  I  admire  the  perseverance  of  the 
gentleman  from  Taunton,  (Mr.  Morton,)  and 
of  other  gentlemen  who  have  advocated  the  dis 
trict  system  here ;  but  I  do  not  believe  that  the 
gentleman  from  Taunton,  nor  any  other  gentle 
man  from  anywhere  else,  favoring  the  district 
system,  supposes  that  this  Convention,  after  our 
past  action,  and  after  the  long  discussions  we  have 
had,  and  the  repeated  calls  for  the  yeas  and  nays 
— I  say  I  do  not  believe  that  any  one  seriously 
supposes  that  this  Convention,  after  all  this,  is  to 
adopt  the  district  system,  and  submit  it  to  the 
people,  instead  of  the  system  of  town  representa 
tion  which  we  have  adopted. 

Well,  Sir,  that  being  an  established  fact — and  I 
appeal  to  gentlemen  on  this  floor  if  it  is  not  an 
established  fact — it  seems  to  me  to  be  an  endless 
waste  of  time  for  gentlemen  to  get  up  here  and 
argue  in  favor  of  the  district  system,  and  say  that 
we  are  afraid  to  trust  the  people.  Why,  Sir,  we 
have  prepared  a  system  which  we  propose  to  sub 
mit  to  the  people,  and  we  believe  that  the  people 
will  sustain  it.  Is  there  any  fear  manifested 
there?  Why,  Sir,  it  is  our  unbounded  confi 
dence  in  the  people  that  induces  us  to  offer  this 
proposition  to  them. 

But,  Sir,  there  are  other  gentlemen  who  stand 
up  here  and  say  that  we  are  deceived  in  our 
judgment  in  regard  to  the  wishes  of  the  people — 
that  the  people  do  not  desire  town  representation ; 
that  in  this  particular  we  labor  under  a  mistake. 
However  that  may  be,  I  regard  the  proposition  of 
the  gentleman  from  Taunton  as  involving  a  ques 
tion  which  has  been  settled  here  again  and  again 
as  a  question  to  be  rejected,  because  if  it  is 
adopted,  it  certainly  works  the  death  of  the  pro- 


70th  day.] 


HOUSE    OF   REPRESENTATIVES. 


597 


Friday,] 


WHITNEY. 


[July  29th. 


position  in  favor  of  town  representation  ;  because, 
as  the  gentleman  for  Montague  has  said,  the 
friends  of  the  existing  system,  who  are  opposed  to 
the  town  system,  and  the  friends  of  the  district 
system,  will  combine  against  the  town  system ; 
and,  on  the  other  hand,  the  friends  of  the  present 
system  who  are  opposed  to  the  district  system, 
•will  join  with  the  friends  of  the  town  system ; 
and  thus  you  will  kill  both  propositions.  It  does 
not  seem  to  be  wise  to  adopt  any  proposition 
which  may  have  such  a  tendency.  What,  then, 
is  it  proposed  to  do  ?  The  gentleman  from  Natick 
offers  a  proposition — a  proposition  which  I  must 
confess  I  have  never  seen  nor  heard  of  until 
this  morning ;  it  is  entirely  new  to  me — which 
strikes  me  as  having  the  elements  of  fairness  in  it, 
and  which  ought  to  command  the  support  of  the 
friends  of  the  district  system.  Here  it  is,  a  com 
plete  district  system  in  itself,  which  we  propose 
to  submit  to  the  people,  as  soon  as  we  have  had 
time  sufficiently  to  mature  it.  It  proposes  that 
the  legislature,  in  1855,  or  1856,  shall  submit  a 
system  of  districts  to  the  people,  based  upon  legal 
voters  ;  and  if  the  people  adopt  it,  that  is  to  be 
your  system,  and  it  is  to  supplant  your  system  of 
town  representation.  And  now,  I  ask  gentlemen, 
what  can  be  more  fair,  or  more  just  ?  The  legis 
lature  of  1854  must  prepare  a  district  system  in 
relation  to  the  Senate.  That  system  will  go  to 
the  people,  and  they  will  have  acted  upon  it  one 
year,  and  will  have  become  informed  in  regard 
to  its  operations ;  and  then  the  next  legislature — 
that  is,  the  legislature  of  1856,  elected  in  1855— 
is  to  prepare  a  district  system  of  representation 
for  the  House  of  Representatives.  They  are  to 
perfect  it  here  ;  and  it  is  not  to  be  supposed  that 
they  are  to  gerrymander  in  making  this  district 
system.  We  know  not,  Sir,  what  is  in  the  future 
in  reference  to  political  action  or  political  power ; 
no  man  knows  who  is  to  be  in  authority  in  the 
Commonwealth  of  Massachusetts  in  1856  ;  but 
the  legislature,  coming  fresh  from  the  people,  and 
representing  the  wishes  of  the  people,  will  pre 
pare  a  district  system  of  representation  for  the 
House  of  Representatives,  and  submit  it  to  the 
people ;  and  the  whole  people  are  to  pass  upon 
it ;  and  if  they  adopt  that  system  it  supplants 
your  system  of  town  representation  throughout 
Massachusetts. 

Now,  Sir,  all  this  talk  among  gentlemen,  of 
our  "fearing  to  trust  the  people,"  sounds  well 
enough,  but,  let  me  ask,  is  there  any  foundation 
for  it?  Is  there,  anywhere,  any  evidence  that 
the  men  who  support  the  proposition  of  the  gen 
tleman  from  Natick,  do,  in  the  least,  fear  to  trust 
the  people  in  this  matter  ?  So  far  from  that  being 
the  case,  we  make  it  imperative  for  the  legislature 


to  submit  a  district  system  to  the  people,  so  that 
they  may  have  a  fair  opportunity,  after  reasonable 
deliberation,  of  saying  whether  they  will  adopt 
it,  or  adhere  to  their  old  system  of  town  represen 
tation.  It  is  not  left,  like  some  other  matters, 
either  to  the  will  or  the  discretion  of  the  legisla 
ture,  but  is  imperative  upon  them,  if  this  Con 
stitution  is  adopted  by  the  people.  They  must 
submit  it  to  their  determination;  there  is  no 
alternative.  If  a  majority  of  the  voters  of  the 
State  adopt  the  system,  then  it  is,  unequivocally, 
your  system  for  the  future.  Is  there  any  distrust 
here  ?  I  must  confess  that  I  favor  the  town  sys 
tem  ;  and  I  favor  it  honestly,  because  I  honestly 
believe  that  the  people  of  Massachusetts  prefer 
that  system  to  any  other.  Other  gentlemen, 
however,  imagine  that  I  am  mistaken,  and  con 
tend  that  the  people  prefer  the  district  system. 
To  those  gentlemen  I  now  reply  :  "  Prepare  your 
district  system,  and  send  it  out  to  the  people,  and 
let  them  vote  upon  it,  man  for  man,  and  head  for 
head,  as  one  gentleman  said  in  an  early  stage  of 
the  consideration  of  this  subject ;  and,  if  the  voice 
of  the  majority  is  in  favor  of  such  system,  why, 
in  all  conscience,  let  them  have  it."  Is  that  not 
fair  ?  Why,  then,  do  we  hear  all  this  talk  about 
"  doubting  the  people  "  and  "  fearing  to  trust  the 
people  ? "  The  proposition  made  here  is  perfectly 
fair.  As  I  have  already  stated,  it  is  unquestion 
ably  a  settled  point  by  the  Convention,  that  the 
town  system  is  to  go  before  the  people  first.  No 
one  can  expect  anything  else  from  the  various 
expressions  of  opinion  we  have  had  here,  as  well 
as  the  votes  we  have  taken.  We  have  had  the 
yeas  and  nays  upon  it  hah0  a  dozen  times,  and  it 
is  now  too  late,  in  almost  the  last  hour  of  the  ses 
sion,  to  expect  that  any  other  course  of  action 
will  be  pursued  by  this  body. 

Sir,  I  shall  support  the  amendment  of  the  gen 
tleman  from  Natick.  It  is  due  to  him,  and  it  is 
also  due  to  myself,  to  say,  that  I  had  no  hand  in 
maturing  it ;  I  only  know  it  as  I  have  heard  it 
read  ;  but  it  strikes  me,  as  an  honest  man,  that  if 
we  wish  to  get  the  opinion  of  the  people,  fairly, 
and  honestly,  and  legally,  on  the  matter  of  town 
or  district  representation,  it  will  be  upon  this 
proposition.  If  there  be  any  evil  in  a  large 
House  of  Representatives,  the  people  will  have 
seen  the  evil,  and  can  then  set  themselves  to  work 
to  remedy  it.  They  will  have  witnessed  the  action 
of  the  new  Constitution  with  a  numerous  House 
of  Representatives,  and,  whatever  of  evil  there  ia 
in  the  system,  will  by  that  time,  have  been  dis 
covered  ;  and,  if  it  is  thought  best,  your  district 
system  can  then  be  tried.  I  trust,  however,  that 
at  this  late  hour,  after  the  repeated  decisions  of 
the  Convention  which  have  been  had  upon  this 


598 


HOUSE    OF  REPRESENTATIVES. 


[70th  day. 


Friday,] 


GARDNER  —  BANKS. 


[July  29th. 


matter,  that  gentlemen  will  not  change  their 
votes,  to  vote  in  favor  of  the  proposition  of  the 
gentleman  from  Taunton,  but  that  they  will  adopt 
the  system  proposed  by  the  gentleman  from  Na- 
tick.  I  do  not  know  whether  the  people  will 
accept  it  or  not ;  but  I  earnestly  hope,  if  any  such 
plan  is  to  be  tried,  that  that  may  be  the  plan. 
At  all  events,  that  is  the  plan  which  shall  have 
my  support. 

Mr.  GARDNER,  of  Seekonk.  On  an  early 
day  of  the  session,  I  submitted  a  proposition  in 
regard  to  the  basis  of  representation,  identical,  in 
some  respects,  to  the  one  which  has  been  adopted ; 
and  I  flatter  myself,  Mr.  President,  that  had  the 
Convention  adopted  my  proposition,  it  would 
have  been  more  acceptable  to  the  people  of  the 
Commonwealth  than  that  which  we  have  now 
embodied  in  the  Constitution.  Nevertheless,  I 
very  cordially  yielded  my  support  to  the  proposi 
tion  of  the  gentleman  from  Lowell,  (Mr.  Butler,) 
in  the  Convention,  and  I  shall  support  it  else 
where.  I  am  not  of  opinion,  Sir,  that  the  people 
of  the  Commonwealth  are  yet  prepared  for  the 
district  system ;  notwithstanding,  I  think  the  day 
will  soon  come  when  that  system  will  be  adopted. 
And,  farther,  although  I  regard  the  plan  we  have 
adopted,  as  being  undoubtedly  imperfect,  and 
believe  that  it  would  be  impossible  for  the  Con 
vention  to  adopt  a  system  which  would  not  involve 
imperfections  in  it,  still  I  shall  support  the  plan 
we  have  now  decided  upon ;  at  the  same  time,  I 
must  say  that  I  think  it  nothing  more  than  right 
and  fair,  that  the  people  of  the  Commonwealth 
should  have  an  alternate  system  presented  to 
them. 

There  are  many  difficulties  which  surround 
this  question.  It  will  be  attended  with  difficul 
ties,  if  presented  to  the  people.  I  can  see  no 
valid  reason  why  the  proposition  of  the  gentle 
man  from  Taunton  should  not  be  submitted  to 
the  people,  and  their  action  had  thereon.  There 
fore,  I  shall  cordially  give  my  support  to  the  prop 
osition  presented  by  the  learned  gentleman  from 
Taunton,  which  town,  I  have  the  honor,  in  part, 
to  represent.  But  should  that  proposition  fail  to 
command  a  majority  of  the  votes  of  this  Conven 
tion,  I  shall  then  as  cordially  give  my  support  to 
the  proposition  offered  by  the  gentleman  from 
Natick,  although  I  do  not  see  that  question  pre 
cisely  in  the  same  light  as  some  others  do.  Nev 
ertheless,  I  hope  the  Convention  will  not  con 
tinue  the  debate  upon  this  subject  any  longer, 
but  that  the  question  will  be  taken,  in  order  that 
the  Convention  may  be  brought  to  a  close  the 
present  week.  I  hope,  also,  that  the  proposition 
of  the  gentleman  from  Taunton  will  be  adopted. 

Mr.  BANKS,  of  Waltham.    I  desire  to  say 


but  a  word  or  two  upon  this  question.  I  have 
favored,  as  well  as  I  was  able,  the  system  of  rep 
resentation  adopted  by  this  Convention,  and  have 
but  little  doubt  that  the  proposition  will  be  adopt 
ed  by  the  people.  I  stand  upon  this  ground — 
that,  upon  the  theory  of  our  government,  the 
towns  have  an  absolute  right  of  representation, 
and  that  that  right  is,  in  some  degree,  coextensive 
with  their  existence,  as  part  of  the  government, 
and  necessary  to  the  maintenance  of  their  full 
powers.  Therefore,  I  have  no  hesitation  what 
ever,  in  regard  to  the  plan  accepted  by  the  Con 
vention,  nor  do  I  suppose  that,  by  pursuing  the 
course  indicated  by  the  gentleman  from  Taunton, 
(Mr.  Morton,)  or  that  of  the  gentleman  from 
Natick,  (Mr.  Wilson,)  we  depart  from  it.  But 
the  principle  of  town  representation  may  be 
abandoned,  by  the  people  of  the  Commonwealth. 
I  think,  in  time,  it  will  be  abandoned,  for  we  are 
constantly  departing  from  our  old  customs,  and 
adopting  new.  What  we  want  to  ascertain  at 
the  present  time  is,  what  is  the  will  of  the  peo 
ple  in  regard  to  this  question  of  representation  ; 
not  only  what  is  politic  and  just,  and  right,  but 
what  is  the  will  of  the  people ;  for,  after  all,  that 
is  the  power  which  controls  us.  There  is  no 
rampart  in  any  Constitution  which  we  can  form, 
that  will  stand  against  that  power.  We  cannot 
protect  ourselves  by  any  provision  in  this  instru 
ment.  Therefore,  at  the  same  time  that  I  stand 
upon  the  proposition  of  the  Convention,  I  am 
willing  to  submit  a  proposition  to  the  people,  in 
alternate  terms,  that  they  may  judge  which  of 
the  two  plans  they  prefer.  But  I  confess  I  have 
a  preference  in  regard  to  the  manner  of  this  sub 
mission.  I  would  gladly  assent  to  the  proposi 
tion  the  gentleman  from  Taunton  introduced, 
and  which  is  now  before  the  Convention,  but  that 
I  see  in  the  resolve,  what  seems  to  me,  two  de 
fects  ;  first,  as  to  the  manner  of  submission ;  and 
second,  as  to  the  time  of  submission ;  either  of 
which,  I  judge,  would  preclude  a  fair  considera 
tion  and  determination  of  the  question. 

Let  me  call  the  attention  of  the  gentleman  from 
Taunton  to  this  fact,  that  the  plan  of  representa 
tion  which  he  proposes  is  indefinite  in  its  charac 
ter,  is  ideal,  and  not  in  a  distinct  form  ;  therefore, 
when  the  question  of  district  representation  is 
placed  before  the  people,  every  man  prefigures 
for  himself  such  a  representation  as  he  would 
prefer,  and  every  town  gives  its  vote  for  just 
such  an  ideal  system  as  that  town  might  prefer. 
So  far,  it  is  very  well.  But  we  do  not  present 
the  question  of  town  representation  in  the  same 
way-  If  the  gentleman  from  Taunton  would 
present  the  question  of  the  district  system  in  this 
form,  "  will  you  agree  to  a  district  system  for  a 


70th  day.] 


HOUSE   OF   REPRESENTATIVES. 


599 


Friday,] 


BANKS  —  WILSON. 


[July  29th. 


House  of  Representatives  of  not  less  than  two 
hundred  and  sixty,  and  not  more  than  three  hun 
dred  and  twenty  members,  or  will  you  agree  to  a 
system  of  town  representation,"  that  would  be 
an  equal  presentation  of  the  two  systems,  and  it 
would  be  understood.  But  that  is  not  the  ques 
tion.  The  question  of  the  district  system  is  in 
definite,  and  it  may  assume  any  form  of  beauty  in 
which  interest  or  imagination  may  clothe  it.  But 
the  question  as  to  town  representation,  presented  at 
the  same  time,  if  the  proposition  of  the  gentleman 
from  Taunton  be  adopted,  is  not  thus  indefinite. 
In  every  part,  its  proportions  and  character  are 
rigidly  and  unalterably  defined.  The  question 
is,  shall  the  system  of  representation  by  towns 
stand,  "in  the  form  accepted  by  this  Convention?  " 
It  seems  to  me  that  it  does  not  present  the  two 
questions  upon  the  same  ground.  Nor  can  they 
be  determined  by  the  people  at  the  same  time, 
with  any  degree  of  consideration  and  justice.  I 
object,  therefore,  to  the  manner  of  presentation. 
Either  the  questions  should  be  distinct  and  defi 
nite,  and  the  towns  should  know  with  what 
other  towns  they  are  to  act  and  vote,  or  else  the 
system  of  town  representation  should  stand  sep 
arate  and  independent  of  its  embarrassing  details. 
So  far  I  object  to  the  manner  of  presentation. 

Then,  in  regard  to  the  question  of  time.  The  time 
appointed  for  the  submission  of  this  proposition  is 
unfortunate.  It  goes  out  to  the  people  with  a 
system  of  representation  to  which  we  have  agreed 
— whether  well  or  ill,  gentlemen  have  different 
opinions.  The  question  of  the  district  system 
goes  out  at  the  same  time,  upon  which  there  is 
the  same  division  of  opinion.  There  are  three 
questions  to  be  presented.  First,  shall  the  exist 
ing  system  stand  ?  second,  will  you  agree  to  the 
system  of  representation  by  towns,  as  adopted  by 
this  Convention  ?  or  shall  the  district  system  be 
established  ? 

Now,  as  has  been  said,  the  friends  of  the  dis 
trict  system  will  vote  against  the  representation 
of  towns,  as  accepted  by  this  Convention,  and  the 
friends  of  representation  of  towns,  as  accepted  by 
this  Convention,  will  vote  against  the  district  sys 
tem.  So  far,  it  is  well,  but  both  of  those  inter 
ests  will  be  likely  to  form  a  rampart  to  secure 
themselves  against  the  success  of  the  objectiona 
ble  plan,  by  voting  against  any  change  whatever. 
Such  will  be  a  probable  result,  at  least.  It  seems 
to  me  if  these  two  difficulties  could  be  obviated 
by  the  gentleman  from  Taunton,  his  proposition 
should  receive  a  general  concurrence  on  the  part 
of  the  Convention. 

As  to  the  proposition  of  the  gentleman  from 
Natick,  I  have  not  a  clear  conception,  but  my 
idea  is  this  :  it  postpones  the  presentation  of  the 


question  to  the  people  until  the  year  1856.  So 
far,  then,  as  my  objection  to  the  time  of  pre 
sentation  is  concerned,  that  is  removed.  In  the 
second  place,  it  instructs  the  legislature  of  that 
year,  peremptorily,  to  divide  the  Commonwealth 
into  representative  districts,  and  then  to  submit 
these  defined  and  allotted  districts  to  the  people. 
This,  I  think,  is  right.  If  the  people  of  the  town 
I  represent  are  called  upon  to  vote  upon  the  dis 
trict  system,  the  first  question  they  will  ask,  is, 
where  they  are  to  be  placed,  and  in  what  district  ? 
No  answrer  can  be  given,  under  the  proposition 
of  the  gentleman  from  Taunton.  But  under  the 
other  proposition,  which  proposes  that  the  dis 
tricts  shall  be  defined  by  the  legislature,  every 
voter  will  have  a  perfect  knowledge,  so  that  he 
can  determine  whether  he  prefers  the  proposed 
system,  or  that  which  will  exist,  if  the  Constitu 
tion  shall  be  ratified  by  the  people.  These  are 
my  grounds  of  objection  to  the  plan  of  the  gen 
tleman  from  Taunton.  I  may  have  erred,  some 
what,  in  my  judgment  of  the  proposition,  but  it 
seems  to  me  the  reasons  I  have  given  are  applicable. 
Mr.  WILSON,  of  Natick.  I  desire  to  say  but 
a  single  word  in  relation  to  this  matter,  and  I  will 
detain  the  Convention  but  a  few  minutes.  I 
wish  to  say  a  word  in  relation  to  the  motive 
which  prompted  me  to  bring  this  question  before 
the  Convention.  I  wished  to  do  it  for  the  pur 
pose  of  giving  the  friends  of  the  district  system  a 
fair  opportunity,  in  this  State,  to  present  that 
question  to  the  people.  We  have  assented  to  a 
different  system.  It  is  in  the  power  of  the  legis 
lature,  if  this  Constitution  shall  be  adopted,  any 
time  between  the  adoption  of  the  Constitution 
and  the  year  1873,  by  a  two-thirds  vote  in  the 
House  and  a  majority  in  the  Senate,  approved 
by  two  successive  legislatures,  to  submit  the  ques 
tion  to  the  people,  whether  they  will  have  the 
district  system  or  not.  But,  Sir,  does  any  man 
believe  that  a  House  of  Representatives,  consti 
tuted  as  it  will  be  by  this  Constitution,  will  ever 
submit  a  single  proposition  of  that  kind  to  the 
people  by  a  two-thirds  vote  ?  Does  my  friend 
from  Boston,  (Mr.  Schouler,)  dream  that  the  time 
will  ever  come,  when  a  two-thirds  vote  of  two 
successive  legislatures,  can  be  obtained  to  submit 
that  proposition  ?  I  do  not.  Now,  the  proposi 
tion  is  this  ;  it  compels  the  legislature  of  1855,  to 
submit  that  question  to  the  people,  and  it  com 
pels  them  to  make  the  details  plain.  Now,  my 
friend  from  Boston  objects  to  it  on  the  ground 
that  they  will  not  make  fair  districts.  Does  not 
he  know  that  the  Senate  is  based  upon  population, 
and  expresses  the  popular  will,  and  that  no  vote 
can  be  got  through  that  branch  of  the  legislature 
unless  it  is  fair  ? 


600 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


SCHOTTLER  —  WlLSON  —  HASKELL. 


[July   29th. 


Mr.  SCIIOULER.  The  gentlemen  who  un 
dertake  to  answer  the  views  which  I  presented,  do 
not  seem  to  understand  them.  I  say  this,  that 
the  legislature  presents  a  confused  question  to  the 
people.  For  instance,  you  may  take  and  put  to 
gether  a  number  of  towns,  and  perhaps  the  Whig 
party  will  say  that  this  will  be  a  Democratic  dis 
trict  if  I  vote  for  it ;  the  Free  Soil  party  will  say  it 
will  be  a  Whig  district ;  and  with  all  those  ques 
tions  coming  in,  you  never  can  get  the  people  to 
say  fairly  what  they  want,  whether  they  want  a 
district  system  or  not. 

Mr.  WILSON.  I  say  to  my  friend  from  Bos 
ton,  that  this  is  a  difficulty  inherent  in  the  dis 
trict  system,  and  it  is  a  fair  and  legitimate  ques 
tion  for  the  people  to  consider.  I  say,  there  is 
not  a  man  on  the  floor  of  this  Convention  who 
dreams  that  any  two  successive  legislatures,  upon 
the  basis  which  we  propose  to  place  it,  will,  by  a 
two-thirds  vote,  ever  put  out  a  simple  proposition 
for  a  district  system.  What  do  I  propose  in  this 
amendment  ?  It  is  that  the  legislature  of  1855 
shall  be  compelled,  by  a  simple  majority  of  the 
House  of  Representatives — nothing  more — and  a 
majority  of  the  Senate,  based  as  it  is  upon  the 
population  of  the  State,  to  make  up  a  district 
system — and  they  will  be  compelled  to  make  it  a 
fair  system — and  submit  it  to  the  people. 

The  gentleman  from  Boston,  (Mr.  Gardner,) 
upon  my  left,  referred  to  some  remarks  made  by 
me,  and  wished  to  know  if  I  had  not  confidence 
in  the  people  ?  I  say  I  have ;  and  one  reason  why 
I  have  confidence  in  the  people  of  Massachusetts 
is,  because  the  people  of  Massachusetts  do  not 
agree  with  him,  nor  with  his  opinion.  The  gen 
tleman  from  Boston  refers  to  the  intelligence  of 
the  people  of  the  Commonwealth,  out  of  Natick. 
Sir,  I  tell  him  that  no  man  in  this  Commonwealth 
is  verdant  enough,  unless  it  be  the  chairman  of  the 
Whig  Ward  and  County  Committee  in  the  city  of 
Boston,  to  suppose  that  the  legislature  of  Massachu 
setts  will  ever  agree  to  put  out  a  proposition  for  an 
amendment  of  the  Constitution,  without  going 
into  details.  Now,  I  submit  that  there  is  nothing 
in  this  proposition  which  is  not  fair,  liberal,  and 
honest;  and  which,  if  adopted,  will  give  the 
friends  of  the  district  system  all  they  ever  expect 
to  gain,  or  all  they  can  ever  ask,  and  that  is  a  fair 
opportunity  to  obtain  the  public  sentiment  of  the 
State.  With  that  view  I  have  made  it. 

I  think  I  shall  not  present  it  to  have  a  vote 
taken  upon  it,  until  a  vote  has  been  taken  upon 
the  proposition  of  the  gentleman  from  Taunton  ; 
and  if  that  be  voted  down,  I  shall  move  a  reconsid- 
e,ration,  for  the  purpose  of  putting  this  amend 
ment  into  it. 

Mr.  HASKELL,  of  Ipswich.    I  shall  trouble 


the  Convention  but  for  a  moment,  upon  the  re 
marks  of  the  gentleman  from  Natick,  that  this 
proposition  is  a  very  fair  one  to  the  friends  of  the 
district  system.  I  do  not  view  it  in  any  such  light ; 
and  I  ask  the  attention  of  the  Convention  while 
I  go  on  to  consider  it  upon  the  very  ground 
upon  which  the  gentleman  from  Natick  has  stated 
it.  He  proposes  that  the  Convention  shall  adopt, 
as  a  part  of  the  Constitution,  a  provision  which 
requires  that  the  legislature  in  1855,  and  every 
tenth  year  thereafter,  shall  submit  to  the  people  a 
proposition  whether  they  will  have  a  district  sys 
tem,  they  having  first  adopted  the  system  pro 
posed  by  this  Convention.  He  says,  it  is  a  fair 
proposition  to  require  of  the  legislature  a  division 
of  the  Commonwealth  into  districts ;  a  legislature, 
two-thirds  of  which,  the  gentleman  himself  says, 
two  or  three  times  over,  we  could  never  get  to 
agree.  Is  it  fair  to  the  friends  of  the  district  sys 
tem,  to  put  them  into  the  hands  of  a  legislature 
prejudged  against  the  system  ?  Are  they  to  frame 
a  system  against  their  will  and  choice  ?  Yet  this 
is  what  the  gentleman  from  Natick  claims  to  be 
a  fair  opportunity  for  the  friends  of  the  district 
system  to  get  the  system  based  upon  equal  popu 
lation. 

But  that  is  not  the  only  objection  to  it.  There 
is  a  great  deal  that  underlies  all  this,  more  than  I 
can  have  time  to  express  to  the  Convention  in  the 
short  time  allotted  to  me.  He  says  the  time  is 
fair.  Is  it  so  ?  When  the  whole  matter  is  con 
sidered  by  the  people  of  the  Commonwealth,  and 
they  are  called  upon  to  vote  upon  the  Constitu 
tion,  is  not  that  the  proper  time,  the  fair  time,  to 
submit  both  propositions  ?  I  claim  that  it  is,  and 
that  it  is  the  fairest  time.  But,  gentlemen,  why 
does  he  put  it  off  until  1855  ?  Because  that  is 
valuation  year,  and  then  every  small  town  will 
be  represented  here.  This  apportionment  of  the 
State  into  representative  districts  is  to  be  done 
valuation  year,  when  every  small  town,  however 
small,  has  a  voice  equal  to  a  town  of  four  thou 
sand  inhabitants.  Then  is  the  time  when  the 
legislature,  by  a  constitutional  enactment,  and 
against  their  will,  are  to  prepare  a  district  system, 
and  submit  it  to  the  people.  Will  the  Conven 
tion  for  one  moment  believe  that  the  legislature 
will  not  be  actuated  by  the  same  considerations 
which  actuate  men  in  other  conditions  of  life  ? 
Will  they  not  seek  to  avoid  a  fair  expression  of 
opinion  upon  the  part  of  the  people  in  framing 
that  system  ?  They  may  frame  it  very  honestly 
upon  its  face,  but  whether  one  party  or  the  other 
is  in  power  at  the  time,  they  will  be  very  likely  to 
frame  it  with  some  reference  to  the  interest  of  party. 

Sir,  there  are  gentlemen  here  who,  very  differ 
ently  from  what  I  expected,  have  come  forward 


70th  day.] 


HOUSE   OF   REPRESENTATIVES. 


601 


Friday,] 


HASKELL  —  WILSON  —  HATHAWAY. 


[July  29th. 


as  the  peculiar  friends  of  the  district  system. 
We  have  not  asked  it  of  them.  We  do  not  thank 
them  for  their  favors.  It  is  very  cool  indeed  for 
gentlemen  who  have  opposed  the  district  system 
during  the  whole  session,  now  to  come  over  and 
pretend  to  be  its  friends,  and  offer  to  give  the  peo 
ple  an  opportunity  to  adopt  it  in  two  or  three 
years.  Yet  they  put  it  in  such  a  shape  that  they 
think  the  people  will  be  sure  to  vote  against  it. 
The  gentleman  from  Natick  knows  the  people 
would  reject  such  a  system,  and  yet  he  asks  the 
friends  of  a  district  system  to  come  forward  and 
vote  to  require  the  legislature  to  submit  a  district 
system  which  they  know  will  be  rejected.  The 
gentleman  asks  us  to  father  the  bastard — if  I  may 
be  allowed  the  expression — of  his  own  begetting. 
But,  Sir,  I  do  not  believe  that  a  single  person  in 
the  Commonwealth  will  be  gulled  into  the  belief 
that  in  voting  for  such  a  proposition  as  the  gen 
tleman  from  Natick  proposes,  they  are  voting  for  a 
district  system. 

If  a  district  system  is  to  be  submitted  to  the 
people,  I  want  it  to  be  submitted  next  November, 
or  whenever  the  Constitution  is  to  be  submitted 
to  the  people.  Then  is  the  proper  time  for  the 
submission  of  an  alternative  proposition,  and  I 
am  willing  and  anxious  to  support  a  proposition 
for  submitting  a  fair  alternative  to  the  people  at 
that  time. 

Now,  Sir,  why  is  it  that  gentlemen  propose  to 
submit  such  a  proposition  in  the  course  of  two  or 
three  years  ?  We  have  not  asked  it  of  them.  I 
do  not  believe  there  is  a  man  in  favor  of  a  district 
system  who  would  vote  for  such  a  proposition. 
The  gentleman  from  Natick  stated  a  significant 
fact  in  connection  with  this  matter.  He  fears 
that  with  all  the  beneficial  reforms,  some  of  which 
I  should  like  to  see  carried  into  effect,  the  people 
will  not  adopt  the  Constitution,  and  this  is  thrown 
in  for  the  purpose  of  obtaining  votes  in  its  favor. 
Sir,  I  do  not  believe  the  votes  of  the  people  are 
to  be  obtained  by  any  such  manoeuvring. 

Mr.  WILSON,  of  Natick,  (interrupting).  I 
hope  the  gentleman  from  Ipswich,  (Mr.  Haskell,) 
does  not  mean  to  say  that  I  expressed  the  idea  or 
the  sentiment  that  there  was  any  danger  of  de 
feating  the  whole  doings  of  this  Convention.  I 
intimated  no  such  thing.  I  never  entertained  a 
doubt  that  the  labors  of  the  Convention  would  be 
accepted  by  the  people. 

Mr.  HASKELL.  The  gentleman  said  that 
with  this  proposition  incorporated  into  the  Con 
stitution,  they  could  carry  the  State.  And  sup 
pose  his  proposition  is  not  incorporated  into  the 
Constitution  ;  what  is  the  inference  ?  Why,  that 
lie  apprehended  they  could  not  carry  the  State. 
That  is  the  only  fair  inference. 

41s 


Now,  Sir,  I  ask,  what  advantage  can  there  be 
in  the  proposition  proposed  by  the  gentleman 
from  Natick?  I  submit  that  it  is  grafting  no 
more  than  we  have  already  provided  for.  We 
have  already  provided  a  means  by  which  the  prop 
osition  of  the  gentleman  from  Taunton  may  be 
submitted  to  the  people,  perhaps  in  less  time  than 
the  gentleman  from  Natick  proposes  to  have  his 
plan  submitted.  We  have  given  the  legislature 
the  power  to  submit  amendments  to  the  Consti 
tution  at  any  time  to  the  people,  and  they  may 
submit  the  proposition  of  the  gentleman  from 
Taunton — which  is  a  general  district  system. 
They  may  submit  that  proposition  at  the  very 
next  session,  if  they  choose,  and  thus  we  should 
get  the  sense  of  the  people  upon  that  system 
quicker  than  we  should  upon  the  proposition  the 
gentleman  from  Natick  proposes.  The  gentleman 
from  Natick  knows  very  well  that  his  proposition 
would  not  get  the  votes  of  the  friends  of  the  dis 
trict  system,  and  if  it  is  submitted  to  and  rejected 
by  the  people,  he  knows  that  it  will  be  easier  to 
defeat  a  clean  proposition,  like  that  offered  by  the 
gentleman  from  Taunton,  afterwards. 

But  there  is  another  thing  to  which  the  gentle 
man  for  Wilbraham,  (Mr.  Hallett,)  alluded.  He 
talked  of  the  departure  from  the  principle  of  town 
and  corporate  rights.  Why,  Sir,  if  there  ever  was 
such  a  principle,  you  have  given  it  up  long  ago. 
If  there  ever  was  such  a  principle,  you  departed 
from  it  when  you  provided  that  those  sixty-four 
towns,  containing  less  than  one  thousand  inhabi 
tants,  should  be  deprived  of  an  annual  represent 
ative.  How  can  the  principle  of  corporate  rights 
be  maintained  while  those  sixty-four  towns  are 
deprived  of  their  rights  according  to  that  princi 
ple  ?  Sir,  I  hope  the  friends  of  the  district  system 
will  not  accept  the  boon  presented  at  the  hands 
of  their  enemies,  and  presented  for  the  purpose  of 
obtaining  their  support  to  this  Constitution.  As 
far  as  I  am  concerned,  I  have  not  committed  my 
self  at  all  in  relation  to  that  subject.  "For  the 
last  ten  days  I  have  stood  non-committal  as  to 
the  matter  of  my  final  support  to  this  Constitu 
tion.  I  have  determined  that  I  would  keep  my 
self  aloof  from  all  compromises,  and  wait  the  pro 
gress  of  events.  I  should  be  glad  to  see  the  Con 
stitution  perfected  in  a  manner  that  would  com 
mend  it  to  my  judgment,  and  which  would 
command  my  support.  But  I  must  confess  that 
the  proposition  proffered  by  the  gentleman  from 
Natick,  does  not,  by  any  manner  of  means,  make 
up  for  the  unjust  system  of  representation  which 
the  Convention  have  adopted. 

Mr.  HATHAWAY,  of  Freetown.  I  have 
endeavored  a  number  of  times  to  get  the  floor,  for 
the  purpose  of  saying  something  upon  this  sub- 


602 


HOUSE   OF   REPRESENTATIVES. 


[70th   dar. 


Friday,] 


HATHAWAY. 


[July  29th. 


ject.  I  did  not  intend,  however,  when  this  prop 
osition  was  introduced,  to  have  said  a  single  word 
in  relation  to  it,  and  I  should  not  have  felt  called 
on  to  do  so  now,  but  for  the  strangeness  of  the 
course  which  it  seems  to  me  has  been  pursued. 
But,  I  cannot  allow  to  pass  unnoticed  some  of  the 
arguments  which  have  been  presented  here,  and 
I  regret  that  I  shall  not  have  time  in  the  fifteen 
minutes  allowed  me,  to  answer  half  the  objections 
which  have  been  raised  against  the  proposition  of 
the  gentleman  from  Taunton,  as  they  should  be 
answered.  The  honorable  President  of  this  Con 
vention,  (Mr.  Banks,)  objects  to  the  time  and 
manner  of  its  being  presented,  and  speaks  of  the 
corporate  rights  of  towns.  Let  rne  ask  that  gen 
tleman  whether  that  whole  matter  has  not  been 
given  up  by  those  who  claim  not  only  to  be  the 
friends,  but  the  exclusive  friends  of  the  towns  ? 
Is  not  the  whole  proposition,  the  whole  principle 
in  the  matter  given  up  ?  Have  not  they  yielded 
it  ?  What  has  become  of  the  vested  rights  of  the 
towns  of  which  the  gentleman  for  Wilbraham  has 
talked  so  much  ?  Where  are  the  vested  rights  of 
your  cities  ?  You  have  provided  that  one-third 
the  population  of  the  whole  Commonwealth  shall 
be  placed  in  districts.  I  repeat  it,  Sir,  where  are 
the  vested  rights  of  your  large  towns  and  cities  ? 
If  these  rights  the  gentleman  speaks  of  are  vested 
rights,  what  is  to  become  of  the  city  of  Boston 
and  her  rights  ?  But  is  this  doctrine  of  vested 
rights  true  ?  Sir,  just  analyze  this  proposition 
for  a  moment.  See  how  your  towns  are  formed. 
Where  do  they  get  their  charters  from,  but  from 
a  mere  act  of  the  legislature  ?  The  legislature 
time  and  again  has  cut  and  carved  the  towns  of 
the  Commonwealth  ever  since  those  towns  have 
had  an  existence.  Aye,  Sir,  and  the  gentleman 
from  Taunton  told  us  the  other  day  how  the  leg 
islature  at  one  time  took  it  into  their  heads,  in 
their  wisdom,  to  abolish  a  town  altogether. 
Where  were  the  vested  rights  of  that  town  then  ? 
Sir,  there  is  nothing  in  this  doctrine,  as  it  seems  to 
ine. 

The  honorable  President  of  the  Convention 
speaks  of  the  beautiful  form  and  consistency  of 
the  proposition  adopted  by  the  Convention  in 
reference  to  this  matter.  Now  I  want  to  know 
wherein  it  consists  ?  Is  it  because  it  provides  for 
districting  one-third  the  population  of  the  Com 
monwealth  ?  Surely,  the  gentleman  would  not 
say,  take  the  proposition  and  go  it  in  the  dark  so 
far  as  that  one-third  of  the  population  is  con 
cerned,  for  the  sake  of  accommodating  the  small 
towns.  Will  he  contend  that  the  small  towns 
have  vested  rights  and  that  the  large  ones  have 
not? 

But,  Sir,  this  argument  of  vested  rights  was 


well  answered  by  my  friend  over  the  way  from 
Cambridge,  (Mr.  Sargent).  Where  are  the  vested 
rights  of  the  counties  ?  Your  counties  have  had 
a  corporate  existence  ever  since  1780,  and  long 
before  that,  they  elected  their  magistrates,  yet  how 
are  their  vested  rights  regarded  ?  They  are  not 
respected  in  the  election  of  senators.  You  can 
trace  these  vested  rights  of  the  counties — if  there 
are  such  vested  rights  of  corporations — back  al 
most  to  the  settlement  of  the  country.  Where 
are  your  beautiful  forms  which  you  are  to  present 
to  your  constituency  and  to  the  country  in  this 
respect  ?  Where  is  that  beauty  of  form  which 
the  honorable  President  argued  you  were  going  to 
present  to  the  people  of  the  Commonwealth  for 
them  to  pass  upon  ?  I  cannot  find  it.  Let  me 
say  to  the  honorable  President  that  long,  long 
before  one-half  the  towns  of  the  Commonwealth 
were  in  existence,  the  counties  of  the  Common 
wealth  were  known  and  were  incorporated,  and 
hence,  when  you  come  to  talk  about  vested  rights, 
you  must  look  to  the  vested  rights  of  the  counties 
as  well  as  to  those  of  the  towns. 

Sir,  this  whole  matter  is  founded  upon  a  false 
theory.  The  premises  are  not  sound,  and  hence 
the  reasoning  in  relation  to  the  whole  matter, 
however  ingenious  it  may  be,  falls  to  the  ground. 

But  I  must  hasten  on  with  my  argument. 
The  majority  of  the  Convention  not  only  give  up 
the  principle  of  corporate  rights  as  far  as  the  cities 
are  concerned,  but  they  even  provide  that  the 
small  towns  may  be  districted.  Let  me  say,  as  I 
said  before,  the  principle  of  corporate  representa 
tion  is  gone,  and  that  of  districting,  is  plainly 
acknowledged.  Now,  Sir,  I  desire  to  give  the 
gentleman  from  Plymouth,  (Mr.  Davis,)  and  the 
gentleman  for  Montague,  (Mr.  Alvord,)  a  little 
attention  as  I  pass  along.  I  confess  it  comes  a 
little  ungraciously  from  that  quarter  to  throw 
back  upon  us  the  responsibility  of  adopting  the 
system  you  have  adopted  in  reference  to  senato 
rial  districts.  Sir,  I  thought  there  was  something 
strange  about  that  matter  when  it  was  before  us. 
I  recollect  very  well  the  position  I  assumed,  and 
the  position  occupied  by  the  gentleman  from 
Plymouth,  and  I  will  venture  to  say  the  same 
position  was  occupied  by  the  gentleman  for 
Montague,  though  I  cannot  speak  with  certainty. 
But  now  they  turn  round  and  throw  upon  us  the 
responsibility  of  what  they  themselves  have 
done. 

The  gentlemen  who  went  in  favor  of  districting 
your  Commonwealth  and  having  your  represent 
ation  based  upon  population,  now  turn  around 
and  throw  it  in  our  faces,  and  say :  "  You  have 
based  your  Senate  upon  population,  and  now 
comes  the  town  system."  Sir,  I  was  opposed  to 


70th  day.] 


HOUSE   OF   REPRESENTATIVES,  &c. 


603 


Friday,] 


HATHAWAY  —  DAVIS  —  FAY  —  GRISWOLD  —  BROWN. 


[July   29th. 


that.  The  gentleman  from  Salem,  the  other  day, 
said  to  them  :  "  Go  back  to  your  basis  of  legal  vo 
ters — you  are  welcome  to  it,  and  we  will  go  with 
you."  I  was  opposed  to  having  the  Senate  based 
upon  population,  and  now  they  turn  around  and 
throw  it  in  my  face,  and  say :  "You  have  got  a 
great  deal  more  than  you  deserved ;  the  county  of 
Suffolk  has  got  a  deal  more  when  based  upon  pop 
ulation,  than  she  would  have  if  the  basis  was  fixed 
upon  legal  voters."  This  is  the  very  ground  that 
they  put  it  on.  The  gentleman  from  Plymouth 
went  with  them,  and  I  thought  then  that  there  was 
something  singular  and  strange  about  it,  for  I 
laid  my  eye  upon  Plymouth,  although  I  do  not 
live  in  that  county,  for  she  was  part  and  parcel  of 
the  Old  Colony.  I  confess  I  had  some  sympathy 
for  her ;  and  the  gentleman  said  that  he  had  been 
rebuked  by  his  constitutents.  Sir,  I  think  he  de 
served  rebuke ;  for,  after  all,  sift  it  and  turn  it  as 
you  please,  what  does  it  amount  to  but  a  bargain? 
The  gentleman  says  that  it  was  expressly  under 
stood — I  take  his  own  language — it  was  expressly 
understood  that  he  should  go  in  favor  of  munici 
pal  corporations,  and  that  representation  in  the 
House  should  be  by  towns,  and  that  is  the  reason 
why  he  went  for  it.  That  explains  the  reason 
why  we  who  were  governed  by  principle  rather 
than  by  expediency,  were  deserted.  Now,  I  say, 
it  is  unjust,  after  gentlemen  have  told  us  what 
controlled  their  minds  in  the  matter,  to  turn 
around  and  say  to  us,  now  :  "Although  you  were 
opposed  to  this  system  of  representation,  based 
upon  population,  you  must  take  it,  because  those 
persons  who  were  friends  of  town  representation 
made  an  express  understanding  with  us  that  if 
the  representation  in  the  Senate  should  be  based 
upon  population,  we  should  go  for  representation 
based  upon  municipalities  in  the  House  of  Repre 
sentatives."  I  say  it  is  unjust. 

Mr.  DAVIS,  of  Plymouth.  I  rise,  Mr.  Presi 
dent,  to  correct  a  misapprehension  upon  the  part 
of  the  gentleman  with  regard  to  the  motives  by 
which  many  persons  were  governed  in  giving 
their  votes  upon  this  matter.  They  voted  for  the 
basis  of  the  Senate,  founded  upon  population, 
because  they  were  led  to  suppose  that  the  basis  of 
the  House  would  be  founded  upon  legal  voters. 

Mr.  HATHAWAY.  I  understood  the  gentle 
man  expressly  to  say,  that  he  voted  for  the  basis 
of  representation  founded  upon  population — I  am 
speaking  only  of  what  he  said,  for  I  do  not  know 
what  other  gentlemen  said— that  he  voted  for  this 
basis  of  representation  in  the  Senate,  with  the  ex 
press  understanding  that  town  representation  was 
to  be  preserved.  That  was  his  language,  for  I 
took  it  down  at  the  time.  Has  the  gentleman 
fulfilled  his  agreement  with  the  people  ?  Where 


are  your  cities  and  great  towns  ?  Are  they  not 
districted  ?  Has  his  agreement  been  carried  out  ? 
It  seems  to  me  that  he  has  "kept  the  word  of 
promise  to  the  ear,  but  broke  it  to  the  hope." 

[Here  the  hammer  fell.] 

On  motion  by  Mr.  FAY,  of  Southborough,  the 
Special  Assignment  was  then  laid  on  the  table. 

Leave  of  Absence. 

Mr.  FAY,  of  Southborough,  from  the  Com 
mittee  on  Leave  of  Absence,  submitted  a  report, 
recommending  that  leave  of  absence  be  granted  to 
the  following  members,  for  the  remainder  of  the 
session : — 

Messrs.  Marble,  of  Charlton ;  Hoyt,  of  Deer- 
field  ;  Knowlton,  of  Holden ;  Warner,  of  Stock- 
bridge  ;  Marcy,  of  Greenwich ;  Atwood,  of  East- 
ham  ;  Cady,  of  Monson ;  Tilton,  of  Chilmark  ; 
Allen,  of  Brimfield ;  Swain,  of  Nantucket ;  Eas- 
ton,  of  Nantucket ;  Turner,  of  South  Hadley ; 
and  Hapgood,  of  Athol. 

The  Report  having  been  read,  the  question  was 
stated  on  its  acceptance. 

Mr.  GRISWOLD,  for  Erving.  Mr.  President: 
There  are  a  great  many  names  there.  I  do  not 
know  but  that  there  may  be  a  sufficient  reason 
for  adopting  the  Report ;  but  really,  unless  it  is 
on  account  of  sickness,  it  seems  to  me  that  this 
leave  ought  not  to  be  granted  at  this  late  period 
of  the  session. 

Mr.  FAY.  I  will  state  that  five  on  the  list  are 
either  sick  themselves  or  have  sickness  in  their 
families,  which  renders  it  necessary  that  they 
should  be  absent ;  and  with  regard  to  some  of 
the  others,  their  business  is  very  pressing,  so  that 
it  would  be  a  great  hardship  to  refuse  them.  The 
Committee  have  examined  the  cases  thoroughly  ; 
and,  although  they  were  desirous  not  to  excuse 
any  one,  they  have  thought  it  proper  to  submit 
this  Report,  and  recommend  its  adoption. 

The  question  being  taken,  the  Report  was 
accepted. 

On  motion  by  Mr.  HATHAWAY,  the  Con 
vention  then  adjourned. 


AFTERNOON    SESSION. 

The  Convention  reassembled  at  three  o'clock, 
P.M. 

Termination  of  Debate. 

On  motion  by  Mr.  BROWN,  of  Medway,  it 
was  ordered,  that  debate  on  the  resolve  on  the 
mode  of  submitting  the  question  of  representa 
tion  to  the  people,  cease  at  four  o'clock  this  after 
noon,  and  that  the  question  be  then  taken. 


604 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


BUTLER  —  BRIGGS. 


[July  29th. 


Representation. 

On  motion  by  Mr.  BUTLER,  of  Lowell,  the 
Convention  proceeded  to  consider  the  Orders  of 
the  Day,  the  special  assignment  being  the  resolve 
on  the  mode  of  submitting  the  question  of  repre 
sentation  to  the  people ;  and  the  question  was 
stated  upon  ordering  the  resolve  to  a  second 
reading. 

Mr.  BRIGGS,  of  Pittsfield.  I  suppose,  Mr. 
President,  that  both  propositions  are  virtually 
before  the  Convention.  That  of  the  gentleman 
from  Taunton,  (Mr.  Morton,)  and  that  of  the 
gentleman  from  Natick,  (Mr.  Wilson).  I  shall 
vote  in  favor  of  the  proposition  of  the  gentleman 
Taunton  ;  and  I  shall  vote  for  it  for  the  reasons 
which  he  gave,  and  which  need  not  be  repeated 
in  detail.  Although  there  have  been  many 
speeches  in  opposition  to  it,  with  all  respect  to 
gentlemen  who  have  debated  the  question,  I 
must  be  permitted  to  say  that  I  do  not  think  they 
have  met  and  answered  his  arguments.  His  propo 
sition  is  to  submit  to  the  people  in  the  first  place, 
the  question  whether  they  will  retain  or  abolish 
the  twelfth  article  of  amendments  to  the  present 
Constitution.  If  they  abolish  that,  will  they 
have  a  system  of  representation  on  the  plan  which 
has  been  adopted  by  this  Convention,  called  the 
town  system,  or  will  they  have  a  district  system 
to  be  apportioned  and  marked  out  by  a  future 
Senate,  basing  the  representation  of  the  supposed 
districts  upon  the  legal  voters  of  the  Common 
wealth  ?  Now,  to  my  mind,  nothing  is  more 
clear,  nothing  is  more  plain,  nothing  is  more 
equal  and  just,  than  that  proposition.  Gentle 
men  who  have  spoken  upon  this  subject,  admit 
that  it  is  so,  upon  the  face  of  it ;  but  they  say  that 
you  cannot  carry  out  a  system  of  district  repre 
sentation  that  the  people  will  accept.  Sir,  if  the 
people  say  that  they  will  have  a  district  system  of 
representation,  and  direct  their  Senate  to  mark 
out  the  districts  upon  the  map  of  the  State,  it 
must  be  done,  and  it  will  be  done  by  that  Senate, 
in  the  most  perfect  and  fair  manner  that  it  can  be 
done,  because  there  will  be  no  other  motive  than  a 
just  one  to  govern  them.  I  know  that  the  gentle 
man  for  Wilbraham  held  up  the  terrors  of  gerry 
mandering  ;  but  I  think  that  gentleman  had  better 
not  talk  about  gerrymandering,  for  he  formerly 
belonged  to  that  party  who  more  than  forty  years 
ago  sealed  their  political  death  warrant  for  years, 
by  that  strange  and  monstrous  measure  by  which 
the  old  republican  party  divided  the  State  for  the 
choice  of  Senators.  Sir,  in  all  future  time  the 
sword  of  Damocles  will  hang  over  their  heads, 
glittering  with  alarm  and  terror  to  any  political 
legislature  that  shall  dare  to  imitate  that  bad 
example.  This  is  the  question  then  for  the  peo 


ple  of  Massachusetts  to  decide  :  Will  you  have  a 
system  of  district  representation,  based  upon 
legal  voters,  and  that  system  to  be  marked  out  by 
your  representatives?  That  is  the  question, 
nothing  more  nor  less ;  and  why  shall  we  not 
submit  this  question  ?  The  gentleman  from  Low 
ell  says — and  he  always  speaks  what  he  means, 
and  I  respect  him  for  it — he  says  that  you  must 
not  submit  this  question  to  the  people,  because  it 
is  so  delusive ;  it  has  an  exterior  of  fairness  and 
justice  which  he  says  cannot  be  be  carried  out, 
and  having  such  an  appearance  of  fairness  and 
justice,  he  is  afraid  that  the  people  will  be  deluded 
into  its  adoption.  Sir,  mark  that.  I  hope  the 
people  will  hear  that.  It  is  not  then  to  be  sub 
mitted  to  the  peop^,  because  they  may  be  deluded 
by  it.  Sir,  if  there  is  anytliing  fair,  honest,  and 
reasonable,  in  any  proposition,  it  seems  to  me  that 
this  proposition  bears  those  marks.  How  is  it 
with  the  proposition  of  my  friend  from  Natick  ? 
He  showed  it  to  me  yesterday ;  and  I  cast  my 
eyes  over  it  hastily,  and  said  that  I  did  not  see 
any  objection  in  it,  except  as  to  the  time  when  it 
should  go  into  operation.  But,  during  the  debate 
this  morning,  while  several  of  those  with  whom 
I  generally  act,  expressed  their  opposition  to  it, 
my  mind  was  balancing.  Indeed,  I  had  about 
made  up  my  mind,  if  the  question  was  put,  to 
vote  for  it,  until  1  heard  the  gentleman  from 
Lowell,  and  I  thank  him  for  his  speech.  I 
always  listen  to  that  gentleman  with  pleasure, 
for  if  I  do  not  agree  with  him,  he  speaks  in  a  bold 
and  fearless  manner  that  commands  my  attention. 
He  calls  things  by  their  proper  names — he  plants 
himself  upon  his  proposition,  and  defies  his  ene 
mies  ;  and  that  is  the  way  I  like  to  hear  a  question 
argued.  He  is  an  adversary  who  does  not  lie  in 
ambush,  though  he  is  sometimes  rather  rough. 
He  acts  openly.  He  uses  the  Damascus  blade, 
the  cleaver,  or  the  war-club,  as  best  suits  his  pur 
pose.  He  told  us,  in  the  first  place,  that  all  the 
strength  which  God  had  given  him  should  be  devot 
ed  to  the  preservation  of  town  representation.  He 
told  us,  also,  that  he  should  vote  for  the  propo 
sition  of  my  friend  from  Natick ;  and  why  ? 
Because  he  knew  that  any  proposition  which 
might  be  marked  out  on  the  map  by  a  future 
legislature,  would  not  be  accepted  by  the  people. 
And  how  does  he  know  that  ?  I  will  tell  you 
how  he  knows  it.  Before  the  legislature  are 
required  to  make  a  law  to  carry  out  this  provis 
ion,  the  system  of  representation  which  the 
majority  of  this  Convention — chosen  by  a  minor 
ity  of  the  people — have  adopted,  is  to  go  into 
operation;  that  system  of  town  representation 
which  chooses  a  majority  of  the  House  of  Rep 
resentatives  by  a  minority  of  the  people,  is  to 


70th  day.] 


HOUSE   OF   REPRESENTATIVES. 


Friday,] 


BRIGGS  —  UPTON. 


[July  29th. 


prevail  in  this  House  in  1855,  when  the  district 
system  is  to  be  marked  out  upon  the  map  of  the 
State.  Now,  Sir,  look  at  the  small  towns  upon 
this  floor,  and  look  at  the  votes  upon  this  floor 
for  the  respective  systems  of  town  and  district 
representation.  Sir,  I  respect  the  gentlemen  from 
these  small  towns ;  they  have  stood  up  here  like 
brave  men,  and  they  have  defended  their  little 
citadels  to  the  death.  Now,  if  you  have  a  House 
thus  constituted — four  hundred  and  thirty- five 
strong — to  lay  out  districts  upon  the  map  of 
Massachusetts,  to  see  whether  a  majority  of  the 
people  would  accept  it,  do  you  believe  that  after 
standing  up  here  and  defending  themselves  so 
manfully,  they  would  then  lay  their  heads  upon 
the  political  block,  and  suffer  their  cherished  town 
representation  to  be  blotted  out  forever  ?  No, 
Sir !  Men  do  not  gather  grapes  of  thorns,  or  figs 
of  thistles  ;  and  a  House  of  Representatives  based 
upon  town  representation,  will  never  agree  to  a 
proposition  and  submit  it  to  the  people,  that  they 
believe  the  people  will  accept,  to  disfranchise 
themselves.  Can  you  expect  it  of  them  as  men  ? 

But,  is  said  that  the  Senate  is  based  upon  popu 
lation.  So  it  is.  But  can  the  Senate  district  the 
State  ?  Suppose  the  Senate  send  a  district  sys 
tem  into  the  House  of  Representatives — such  a 
one  as  would  be  acceptable  to  the  people — do  you 
think  that  in  a  body  composed  of  representatives 
of  the  town  corporations,  a  majority  would  be 
found  who  would  accept  of  a  plan  that  would 
take  their  seats  from  under  them,  and  deprive 
them  of  their  representation  ?  No,  Sir  !  Let  me 
say  a  word  here  to  my  friends  from  the  small 
towns,  who  appear  from  indications  now  quite 
manifest,  to  be  willing  to  vote  for  the  proposition 
of  the  gentleman  from  Natick.  Where  is  my 
friend  from  Wilmington,  who  so  valiantly  stood 
up  here  and  defended  the  small  towns  ?  I  would 
like  to  ask  him,  and  I  wish  to  ask  the  other  gen 
tlemen  from  the  small  towns,  have  you  not  heard 
it  said  in  some  quarters — has  it  not  been  whis 
pered  in  your  ears,  that  you  may  vote  for  this 
proposition,  because  you  will  have  the  staff  in 
your  own  hands  when  the  State  comes  to  be 
districted  ?  And  that  whilst  you  vote  for  it  you . 
are  perfectly  safe. 

But,  what  reason  is  there  why  you  will  not  vote 
for  the  proposition  of  the  gentleman  from  Taun- 
ton  ?  Is  it  not  because  you  believe,  with  the  gen 
tleman  from  Lowell,  that  it  is  so  plausible  and 
delusive  that  the  people  may  be  deluded  into  ac 
cepting  it?  But,  I  put  it  to  your  candor,  when 
you  change  your  votes  and  go  for  the  district 
proposition,  is  it  not  upon  the  ground  that  you 
are  perfectly  safe  in  your  towns  ?  And,  why  are 
you  safe  ?  Because,  upon  the  declaration  of  the 


gentleman  from  Lowell,  no  system  of  district 
representation  will  be  submitted  to  the  people 
but  what  they  will  reject.  But,  is  that  dealing 
fairly  with  the  people  ?  "  Is  this  thy  kindness  to 
thy  friend?"  Do  you  propose  to  compromise 
matters  with  town  representation  in  that  way, 
by  sending  out  to  the  people  a  proposition  which 
you  believe,  from  the  bottom  of  your  hearts, 
never  will  be  accepted  by  them,  and  you  vote  for 
it  only  because  you  believe  that  they  will  not 
accept  it — or  in  the  language  of  the  gentleman  from 
Lowell,  a  proposition  which  you  know  they  will 
not  accept— while  you  keep  back  a  proposition 
which  you  fear  they  would  accept,  but  which,  if 
they  did,  would  deprive  your  town  of  its  repre 
sentation  ?  The  gentleman  for  Erving,  (Mr. 
Griswold,)  says  he  shall  vote  for  this  proposition, 
because  he  has  such  confidence  in  the  people,  that 
he  does  not  believe  they  will  accept  it.  I  believe, 
Mr.  President,  that  I  have  not  mistated  or  mis 
represented  anything  or  anybody ;  I  certainly 
would  not  do  it ;  and  therefore  having  stated  my 
views  upon  this  question,  as  they  have  presented 
themselves  to  my  mind,  and  having  neither  voice 
nor  strength  to  go  into  the  subject  more  elabor 
ately,  I  leave  this  question  to  the  fair  and  candid 
consideration  of  the  Convention. 

Mr.  UPTON,  of  Boston.  I  do  not  propose  to 
go  into  any  extended  discussion  upon  this  ques 
tion  ;  but  there  are  one  or  two  views  in  relation 
to  it,  which  I  think  have  not  been  submitted. 
The  question  before  this  body  is,  will  this  Con 
vention  send  out  an  alternative  proposition  to 
the  people  of  this  Commonwealth  ?  I  do  not 
propose  to  go  into  a  discussion  as  to  who  consti 
tutes  the  people ;  but  I  stand  upon  the  ground 
tbat  I  am  ready  to  vote  for  any  proposition  in 
this  Convention,  which  shall  put  two  questions 
to  the  people  of  this  Commonwealth,  in  order  to 
ascertain  precisely  what  their  views  are  upon  the 
question  of  representation.  I  am  in  favor  of  one 
of  two  propositions.  I  am  in  favor,  if  the  prop 
osition  is  to  go  to  the  people,  of  having  both 
propositions  go  together.  If  this  Convention  see 
fit  to  send  them  to  the  people  at  this  time,  very 
well ;  or  if  they  see  fit  to  delay  sending  any  prop 
osition  until  1855,  I  say  very  well — let  the  rep 
resentation  stand  upon  its  present  basis  until  1855, 
and  then  send  out  to  the  people  of  this  Common 
wealth  two  alternative  propositions  :  "  Gentle 
men,  people  of  the  Commonwealth,  do  you  prefer 
a  district  system  of  not  less  than  two  hundred 
and  forty  members  for  your  House  of  Represen 
tatives,  and  not  to  exceed  three  hundred  and 
fifty  members,  or  do  you  prefer  a  system  of 
town  representation  upon  that  same  basis  of 
numbers  ? "  I  am  ready  to  submit  these  questions 


606 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


UPTON. 


[July  29th. 


to  the  people,  because  I  believe  that  the  proposi 
tion  which  you  are  about  to  submit,  will  take 
away  from  the  people,  and  prevent  their  rightful 
expression  of  opinion  upon  the  subject. 

Now,  Sir,  there  is  another  form  in  which  I 
should  like  to  have  it  sent  out.  It  would  suit  me 
a  little  better,  if  the  gentleman  from  Taunton 
would  amend  his  motion,  by  striking  out  the 
word  "  Senate  "  in  the  last  paragraph,  and  sub 
stituting  the  word  "  Legislature,"  so  that  it  would 
read  as  follows  : — 

The  Legislature,  at  its  first  session  after  the 
ratification  of  this  amendment,  and  at  its  first 
session  after  each  decennial  census,  shall  divide 
each  County  into  such  Representative  Districts, 
composed  of  contiguous  territory,  as  they  may 
deem  expedient,  so  that  the  basis  of  each  Repre 
sentative  shall  be  the  same  number  of  legal 
voters,  as  nearly  as  possible,  without  the  division 
of  towns  or  the  wards  of  cities :  provided,  that 
no  District  shall  be  so  large  as  to  entitle  it  to  more 
than  three  Representatives ;  and  provided  that 
Nantucket  and  Dukes  County,  shall  each  form 
one  District,  and  be  entitled  to  at  least  one  Rep 
resentative. 

If  the  amendment  of  the  gentleman  from  Taun- 
ton,  is  adopted  by  the  people,  the  small  towns  in 
the  Commonwealth  will  have  the  power,  in  1854, 
to  present  the  district  question  to  the  people,  and 
they  may  present  it  in  any  form  they  please.  I 
repeat,  take  the  proposition  of  the  gentleman  from 
Taunton,  with  the  modification  which  I  have 
suggested,  and,  as  all  the  towns  will  be  represent 
ed  in  the  legislature,  let  the  people  take  the  ques 
tion  upon  the  two  propositions  ;  first,  the  present 
basis,  as  proposed  by  your  Convention ;  and, 
second,  the  district  basis,  to  be  framed  by  the  leg 
islature,  upon  the  proposition  of  the  gentleman 
from  Taunton.  I  am  ready  to  meet  the  question 
upon  this  principle.  I  say  that  either  of  these 
two  propositions  would  be  a  fair  proposition  to 
send  to  the  people.  I  do  not  propose  to  argue 
this  subject.  I  merely  desire  to  make  a  state 
ment,  in  order  that  it  may  go  upon  record,  as  the 
view  of  one  of  the  minority  in  this  Convention, 
of  an  individual  who  desires  the  rrosperity  of  the 
good  old  Commonwealth  of  Massachusetts,  and 
that  it  shall  not  be,  hereafter,  racked  by  internal 
dissensions  upon  this  question  of  the  basis  of 
representation.  I  can  tell  those  gentlemen  who 
represent  the  small  towns  upon  this  floor,  that 
however  they  may  talk  about  it,  if,  as  has  been 
foreshadowed  by  certain  members  of  this  House, 
the  great  Democratic  party  is  to  be  in  the  ascend 
ant,  then  I  tell  them,  that  their  only  security  is, 
to  have  the  party  to  which  I  belong,  and  which  is 
now  in  the  minority  in  this  Convention,  repre 
sented  in  the  various  cities  and  towns  in  this 


Commonwealth,  by  a  majority  in  the  legislature. 
Let  me  tell  gentlemen  who  represent  the  small 
towns  upon  this  floor,  that  once  let  rampant  de 
mocracy  be  triumphant  in  Boston  and  the  great 
cities,  and  the  basis  of  representation  would  not 
stand  one  hour,  which  you  now  submit  to  the 
people. 

There  is  another  question  which  has  been  al 
luded  to,  in  the  course  of  this  discussion,  and  that 
is,  the  question  of  vested  rights.  In  relation  to 
that  matter,  I  have  done  what  lies  in  my  power, 
to  preserve  town  representation,  as  far  as,  under 
existing  circumstances,  it  could  be  preserved  in 
this  Commonwealth.  The  gentleman  for  Wil 
braham  proposes  the  question  of  "  vested  rights," 
and  how  stands  that  question  in  this  Convention  ? 
We  have  tried,  over  and  over  again,  to  put  it  into 
your  Constitution,  that  this  question  of  vested 
rights,  so  far  as  the  towns  were  concerned,  should 
remain  intact — that  is,  that  these  towns  should 
not  be  cut  up.  How  has  this  question  been  met 
by  the  majority  of  this  Convention  ?  You  have 
denied  that  right.  You  have  said  that  it  shall 
not  go  into  your  fundamental  law.  Is  this  the 
way  you  respect  vested  rights,  to  divide  eighty- 
five  towns  in  this  Commonwealth,  so  as  to  increase 
their  representation  by  eighty-five,  upon  this 
floor  ?  And  then  you  talk  about  vested  rights  ! 
Sir,  it  is  but  a  mockery  and  a  dream.  There  is 
one  question  in  relation  to  vested  rights,  that  I 
should  like  to  ask  the  gentleman  for  Wilbraham  : 
If  all  the  people  of  the  Commonwealth  should 
gather,  en  masse,  and  they  should  say  how  their 
representation  should  be  based,  what  principle 
would  there  be  in  the  vested  right  of  town  cor 
porations  ?  If  I  understood  the  proposition  which 
the  gentleman  for  Wilbraham  made,  to  amend 
the  Constitution  in  regard  to  future  Conventions, 
the  whole  theory  of  vested  rights,  so  far  as  the 
towns  are  concerned,  was  completely  brushed 
away.  There  is  no  such  thing  as  vested  rights 
now,  except  in  theory.  The  gentleman  put  forth, 
in  that  proposition,  that  the  people  of  this  Com 
monwealth — not  the  town  corporations,  but  the 
people — had  the  right  not  only  to  change  their 
Constitution,  but  to  change  the  whole  basis  of 
representation.  Now  I  desire,  and  should  be 
most  happy  to  give  my  vote  for  any  proposition 
which  would  submit  to  the  people  the  questions 
which  I  have  named,  which  I  hold  to  be  the  only 
true  questions :  Will  the  people  of  this  Com 
monwealth  sustain  the  present  basis  of  represen 
tation — or  any  basis,  I  care  not  what  it  is — any 
basis  of  representation  which  the  legislature  may 
submit  to  them,  fixing  the  limit  of  the  House  of 
Representatives  r  Be  it  borne  in  mind,  this  is  a 
pretty  important  question.  When  the  honorable 


70th   day.] 


HOUSE   OF   REPRESENTATIVES. 


607 


Friday,] 


UPTON  —  GRISWOLD. 


[July  29th. 


President  addressed  the  Convention  this  morning, 
he  said  that  it  was  not  a  fair  question  to  submit 
to  the  people,  and  I  agree  with  him,  to  submit  to 
the  people  the  question,  whether  they  will  have 
a  House  of  Representatives  of  four  hundred  and 
forty  members,  as  it  now  is,  or  a  House  of  Rep 
resentatives  to  be  districted  by  the  legislature 
in  185G — of  two  hundred  and  sixty-one  mem 
bers.  I  want  the  people  to  pass  upon  the 
proposition  in  a  different  form,  and  I  am  ready  to 
submit  the  question  to  them,  stating  the  maxi 
mum  as  well  as  the  minimum  of  the  number  of 
members  :  "  How  shall  those  representatives  be 
chosen  ?  Shall  they  be  chosen  by  districts,  or 
shall  they  be  chosen  by  towns,  as  they  are  now 
chosen  ?  "  I  say  that  is  the  fair  question  to  sub 
mit  to  the  people,  and  it  presents  the  whole  ques 
tion.  I  should  say,  in  this  connection,  in  regard 
to  the  district  system,  as  I  have  once  before  re 
marked,  that  the  minority  here  represent  the 
majority  of  the  people  of  the  Commonwealth 
upon  this  subject.  I  hope  the  gentleman  from 
Taunton  will  modify  his  motion  as  I  have  sug 
gested.  I  am  perfectly  ready,  and  prefer,  if  the 
people  adopt  the  alternative  proposition  of  the 
gentleman  from  Taunton,  to  let  this  question  go 
to  the  legislature  instead  of  the  Senate.  I  stand 
here  upon  this  floor  as  a  friend,  so  far  as  I  can  be, 
to  the  towns,  and  I  am  ready,  so  far  as  the  basis 
is  concerned,  that  the  present  town  corporations, 
represented  in  the  House,  should  have  a  full  voice 
in  saying  precisely  how  the  question  of  districting 
should  be  carried  out. 

Mr.  GRISWOLD,  for  Erving.  I  believe  that 
my  position  upon  the  subject  of  representation 
is  pretty  well  understood  by  this  body  ;  but  a 
new  proposition  has  now  been  laid  before  them, 
and  I  am  not  a  little  surprised  at  the  manner  in 
which  this  proposition  has  been  assailed  from  cer 
tain  quarters.  It  is  proposed,  by  my  friend  from 
Natick,  as  I  understand  it,  after  the  present  Con 
stitution  which  we  propose  to  submit  to  the  people 
has  gone  into  effect,  and  its  practical  operations 
have  been  observed  and  experienced ;  it  is  pro 
posed  by  the  advocates  of  the  system  of  the 
gentleman  from  Natick,  then  to  submit  to  the  peo 
ple  of  the  Commonwealth  the  question,  whether 
they  prefer,  to  the  system  which  we  propose  to 
put  forth,  and  which  they  will  have  had  an  op 
portunity  to  examine,  a  district  system ;  not,  Sir, 
in  the  abstract;  not  in  every  imaginary  shape 
in  which  it  may  be  conjured  up  by  this  man, 
and  by  that  man ;  but  in  detail,  precisely  as  it 
is  to  go  into  operation,  so  that  every  voter  in 
this  Commonwealth  may  know  where  it  will  cut, 
and  what  the  districts  will  be. 

Now,  Sir,  I  think  I  should  not  have  started 


this  proposition  myself;  in  fact,  at  first,  I  had 
some  doubt  about  it ;  but  as  the  discussion  has 
progressed,  I  am  free  to  say,  that  my  doubts 
one  after  another  have  vanished ;  and  why  ?  I 
apprehend  that,  if  the  two  propositions  could  be 
properly  put  to  the  people  of  this  Commonwealth, 
and  be  properly  understood  in  their  practical 
operations  in  detail,  a  large  majority  would  be  in 
favor  of  town  representation.  Well,  Sir,  we  go 
forth  to  them  with  a  system  of  town  representa 
tion  somewhat  decimated,  but  as  perfect  as  we 
could  get  it,  which  we  think  is  substantially  cor 
rect,  and  with  it  we  putforth  another  proposition  ; 
and  the  people  of  the  Commonwealth  will  have 
an  opportunity,  if  they  adopt  this  system,  to  see 
its  operation.  It  is  said  that  the  House  will  be 
too  large — they  can  try  it.  It  is  said  to  be  un 
equal  in  its  representation  of  different  portions  of 
the  Commonwealth — they  will  have  an  opportu 
nity  to  test  that  matter.  In  short,  they  will  have 
an  opportunity,  if  this  system  which  we  put  forth 
is  adopted,  to  see  how  they  like  it,  and  how  it 
operates.  Now,  I  say,  as  a  friend  of  town  repre 
sentation,  that  after  that  system  has  been  put  into 
operation,  and  has  been  tested  by  the  people  of 
the  Commonwealth,  if  gentlemen  will  then  come 
forward  with  a  district  system  carried  out  into 
detail  so  that  we  can  see  precisely  how  it  is  to 
operate  in  every  town  and  city  in  the  Common 
wealth,  I  cannot  stand  up  here  and  say  that  I 
object  to  putting  such  a  proposition  before  the 
people  in  such  a  manner  as  that,  and  at  such  a 
time. 

And,  if  the  majority  of  the  people  of  the  Com 
monwealth — the  question  thus  fairly  and  properly 
put— after  the  first  system  has  been  tested  by 
practice,  should  say  that,  after  all,  your  system  of 
town  representation  in  unequal,  unjust,  and 
wrong,  all  things  considered,  it  is  not  in  my  mouth 
to  find  fault  with  that  verdict ;  yet  such  is  my 
confidence  that  no  such  system  as  this  district 
system  will  be  adopted  by  the  people  of  the  Com 
monwealth,  that  I  have  no  fears  whatever  in  re 
gard  to  giving  it  a  trial.  Why,  Sir,  take  the 
system  proposed  by  the  gentleman  from  North 
Brookfield,  (Mr.  Walker,) — and  that  was  a  pret 
ty  fair  system — or  the  system  proposed  by  the 
gentleman  from  Boston,  (Mr.  Hale,)  who  made 
the  Minority  Report,  and  I  apprehend  that,  out 
side  of  the  cities,  you  cannot  stand  for  a  m> 
ment  upon  either  of  these  plans,  because  I  believe 
that  the  towns  generally  dislike  to  be  united  in 
the  mode,  and  for  the  purposes  which  these  sys 
tems  proposed. 

But,  it  is  farther  said  here,  that  it  would  be 
unfair  for  a  legislature  elected  upon  the  basis  we 
now  provide,  to  perfect  this  system  of  represen- 


608 


HOUSE   OF   REPRESENTATIVES. 


[70th  day. 


Friday,] 


GKISWOLD —  HUBBARD. 


[July  29th, 


tation,  before  it  is  sent  out  to  the  people.  I  can 
not  see  how  it  can  be  unfair.  In  the  first  place, 
if  it  is  not  perfected  before  it  goes  out  to  the 
people,  and  the  people  should  adopt  a  system 
which  has  no  definite  details,  and  which  details 
only  can  be  provided  by  the  legislature,  it  must 
be  obvious  to  every-body,  that  the  legislature  will 
afterwards  have  to  perfect  the  system  in  regard  to 
these  details.  And,  if  this  must  necessarily  be 
done  by  the  legislature,  why  may  it  not  as  well 
be  done  before  the  system  is  sent  out,  as  after  it  is 
sent  out  ?  In  the  one  case,  the  people  would 
know  exactly  for  what  they  were  voting  ;  in  the 
other  they  would  be  voting  blindfold. 

But  it  is  farther  contended,  that  the  House  of 
Representatives  will  be  unequally  elected,  and 
that  they  will,  on  that  account,  be  very  likely  to 
send  out  an  unequal  system.  Without  going 
into  that  question,  admitting  even  for  a  moment 
that  it  were  so — this  system  must  be  passed  upon 
by  the  Senate,  elected  in  equal  districts,  and  may 
be  rejected  by  that  body  ;  or,  even  if  concurred 
in  by  them,  it  may  be  vetoed  by  the  governor  ; 
and  you  could  not  get  a  system  through  unless  it 
was  equal  and  fair— and  therefore  I  see  no  objec- 
to  it  so  far  as  that  matter  is  concerned.  There  is, 
therefore,  no  force  in  that  objection.  Again,  in  the 
popular  branch  of  the  legislature,  if  the  people 
are  not  represented  according  to  population,  this 
proposition  provides  that  the  system  shall  be  based 
\ipon  voters  equally,  so  that  it  is  not  in  the  power 
of  the  legislature  to  form  unequal  districts  ;  so 
that  I  see  no  force  whatever  in  the  objection  upon 
that  ground.  Sir,  I  will  go  farther.  The  Con 
vention  will  bear  me  witness  that  I  have  not 
taken  up  much  time  upon  this  question,  and 
although  I  might  now  claim  the  privilege  of 
answering  some  of  the  objections  which  have 
been  raised  to  the  system  we  have  adopted,  I 
will  not  do  so  ;  for  I  feel  that  this  matter  has  been 
agitated  to  such  an  extent  as  to  become  almost  a 
nausea  in  the  nostrils  of  the  Convention.  I  look 
upon  this  agitation  about  the  inequality  of  the 
proposed  town  system,  in  the  main,  as  humbug. 
I  believe  that  the  proposition  before  the  Conven 
tion  is  substantially  equal  in  its  provisions  ;  and 
that  one  part  of  the  Commonwealth  is  as  well  rep 
resented,  all  things  considered,  as  another.  I  do 
not  believe  that  there  has  been  a  disposition  on 
the  part  of  any  members  of  the  Convention  to 
give  an  undue  proportion  of  representation  to  one 
part  of  the  Commonwealth  at  the  expense  of 
another. 

Entertaining  these  views,  I  am  willing  to  vote 
for  the  proposition  of  the  gentleman  from  Natick. 
I  shall  be  unwilling  to  vote  for  that  of  the  gen 
tleman  from  Taunton,  for  several  reasons,  and 


among  the  first  and  foremost  of  them  is  the 
reason  that  I  would  not  mix  up  and  confuse  this 
question  of  representation  at  this  time.  The 
question  on  this  head  has  been  elaborately  dis 
cussed  by  others.  I  would  not  at  this  time  put 
forth  a  mere  abstract  proposition,  like  this  district 
system,  without  any  details.  It  would  be  unfair, 
and  would  operate  as  a  kind  of  drag-net,  by  which 
you  would  confuse  and  draw  together  the  voters  of 
the  State,  without  being  exactly  able  to  discrim 
inate  themselves  for  what  they  were  voting.  On 
the  other  hand,  if  the  proposition  of  the  gentleman 
from  Natick  is  given  out,  such  is  my  confidence 
in  the  town  system,  that  I  have  no  fears  of  the 
result ;  and  after  the  town  system  has  gone  into 
effect,  and  its  operations  have  been  seen,  then, 
although  a  friend  of  town  representation,  I  am 
willing  that  the  question  of  a  district  system 
should  be  submitted  to  the  people.  If  the  people 
want  it,  it  is  not  for  me  to  say  they  shall  not  have 
it,  although  I  am  an  advocate  of  the  town  system  ; 
and  I  do  not  see  how  gentlemen  here  who  have 
been  advocates  of  the  district  system,  and  who 
have  advocated  the  Minority  Report,  the  details  of 
which  have  been  perfected,  can  feel  that  they  are 
acting  with  consistency  in  opposing  the  amend 
ment  suggested  by  the  gentleman  from  Natick  ; 
as  all  they  can  now  do  is  to  submit  the  question 
of  a  district  system  to  the  people,  and  that  we  do 
by  incorporating  the  amendment  of  the  gentle 
man  from  Natick  (Mr.  Wilson)  into  the  Consti 
tution. 

Mr.  HUBBARD,  of  Boston.  I  did  not  intend 
to  trouble  the  Convention  again  with  any  remarks 
in  regard  to  any  matter  that  might  come  before  us 
for  consideration,  nor  do  I  expect  to  influence  the 
action  of  any  member  of  this  body  by  any  argu 
ment  which  I  may  address  to  it.  .But,  Sir,  when 
I  hear  gentlemen  advocate  a  measure  which,  in 
my  humble  judgment,  is  neither  more  nor  less  in 
its  character  and  results  than  a  deception — I  im 
pute  no  improper  motives  either  to  its  author  or 
to  those  who  favor  it — I  say,  when  in  its  opera 
tion  it  has  a  tendency  to  mislead  and  deceive  the 
people,  and  when  those  who  attempt  to  oppose 
this  measure  are  stigmatized  as  factious  and  in 
consistent,  I  cannot  sit  still,  without  at  least 
defending  my  own  action  in  regard  to  this  propo 
sition.  Sir,  it  has  been  said  that  those  members 
of  the  Convention  who  have  heretofore  been  found 
advocating  the  district  system,  are  grossly  incon 
sistent  in  refusing  to  support  the  proposition  of 
the  gentleman  from  Natick.  Sir,  when  we  see 
with  what  a  death  grasp  the  members  of  this  body 
representing  small  towns  have  clung  to  their  pre 
rogative  rights  which  they  now  enjoy,  and  when 
it  is  proposed  to  us  to  ask  these  same  towns  some 


70th  day.] 


HOUSE  OF   REPRESENTATIVES. 


609 


Friday,] 


HUBBARD  —  WILSON  —  DAVIS  —  FRENCH. 


[July  29th, 


two  or  three  years  hence,  when  they  are  more 
firmly  seated  in  power  than  they  now  are,  to  lessen 
that  grasp,  and  to  give  the  people  an  opportunity 
of  acting  upon  the  district  system — what  can  any 
reasonable  man,  who  is  friendly  to  the  district 
system,  hope  for  or  expect  ? 

We  are  told  that  it  will  be  imperative  upon  the 
legislature,  at  a  given  time,  to  submit  such  a  sys 
tem  to  the  people.  The  proposition,  Sir,  is  an 
absurdity.  To  say  that  a  legislature  consisting  of 
two  bodies  so  dissimilarly  organized  and  elected, 
when  called  upon  to  exercise  their  discretion  in 
regard  to  any  particular  measure — and  to  say 
what  is  fair  and  what  is  unfair,  what  equal  and 
what  unequal — are  to  be  compelled  to  agree  in 
regard  to  it,  involves  an  absurdity  which  never 
was  heard  of  in  all  parliamentary  history.  Sup 
pose  that  the  Senate  of  Massachusetts,  in  1856, 
should  devise  and  send  down  to  the  House  of 
Representatives  a  fair  system  of  district  represen 
tation,  what  power  on  earth  can  compel  that  House 
to  adopt  it,  unless  they  see  fit  ?  Or,  on  the  other 
hand,  let  a  system  be  originated  in  the  House, 
and  appear  just  and  fair — with  gerrymandering, 
perhaps,  in  all  its  features — and  be  sent  to  the 
Senate,  where  it  is  deemed  unjust  and  out 
rageous,  what  power  is  there  to  compel  the 
Senate  to  agree  with  the  House  ?  Sir,  if  you  put 
this  into  your  Constitution,  you  put  that  into  it 
which  it  is  morally  impossible  to  carry  out,  with 
a  legislature  such  as  you  will  have  upon  the  basis 
now  proposed  in  your  amended  Constitution. 

Sir,  there  is  nothing  about  this  proposition  in 
the  nature  of  a  compromise.  It  does  not  give 
the  friends  of  the  district  system  the  remotest 
chance  of  putting  such  a  system  before  the  people 
as  will  enable  them  to  give  a  fair  expression  of 
opinion  in  favor  of  the  district  system.  I  shall, 
therefore,  oppose  this  proposition  ;  and,  in  doing 
BO,  I  shall  regard  myself  as  acting  with  entire 
consistency  in  the  vote  I  now  give,  when  viewed 
in  relation  to  the  votes  I  have  heretofore  given 
when  the  district  system  was  under  considera 
tion. 

Mr.  WILSON,  of  Natick.  I  now  offer  my 
amendment. 

The  amendment  was  read,  as  reported  in  the 
early  part  of  the  day. 

Mr.  DAVIS,  of  Worcester.  I  do  not  propose 
to  trouble  the  Convention  longer  than  for  a  few 
moments.  I  am  very  glad  that  this  proposition 
has  been  offered  by  the  gentleman  from  Natick, 
because  I  can  vote  for  it  with  all  my  heart,  and 
because  I  believe  it  to  be  a  fair  proposition  to  put 
out  before  the  people  in  regard  to  a  district  sys 
tem  ;  and,  in  that  way  the  people  will  have  a  fair 
opportunity  of  deciding  whether  they  will  have  a 


district  system  or  a  town  system  of  representation. 
I  shall  go  for  the  amendment,  and  shall  oppose 
the  proposition  of  the  gentleman  from  Taunton, 
because  it  does  not  put  the  question  fairly  to  the 
people.  I  have  watched  this  discussion  closely, 
to  see  if  any  gentleman  could  make  out  its  fair 
ness  upon  this  matter.  I  cannot  conceive  it  to  be 
a  fair  proposition ;  and  I  have  not  yet  learned 
from  the  remarks  of  any  gentleman  here  that  the 
amendment  offered  by  the  gentleman  from  Natick 
is  not  entirely  fair. 

Another  objection  that  has  been  alluded  to,  is 
that  we  have  no  authority  to  send  out  such  a 
proposition  to  the  people.  If  you  turn  to  the 
third  section  of  the  charter  by  which  we  are  to  be 
governed  here,  you  will  find  that  authority  amply 
and  fully  laid  down  : — 

"  SECT.  3.  The  persons  so  elected  delegates 
shall  meet  in  Convention  in  the  State  House,  in 
Boston,  on  the  first  Wednesday  in  May,  in  the 
year  one  thousand  eight  hundred  and  fifty- three ; 
and  they  shall  be  the  judges  of  the  returns  and 
elections  of  their  own  members,  and  may  adjourn 
from  time  to  time  ;  and  one  hundred  of  the  per 
sons  elected  shall  constitute  a  quorum  for  the 
transaction  of  business  ;  and  they  shall  proceed, 
as  soon  as  may  be,  to  organize  themselves  in  Con 
vention,  by  choosing  a  president  and  such  other 
officers  as  they  may  deem  expedient,  and  by  es 
tablishing  proper  rules  of  proceeding  ;  and  when 
organized,  they  may  take  into  consideration  the  pro 
priety  and  expediency  of  revising  the  present  Con 
stitution  of  government  of  this  Commonwealth,  or 
the  propriety  and  expediency  of  making  any,  and  if 
any,  what  alterations  or  amendments,  in  the  pres 
ent  Constitution  of  government  of  this  Common 
wealth.  And  such  alterations  or  amendments, 
when  made  and  adopted  by  the  said  Convention, 
shall  be  submitted  to  the  people  for  their  ratifica 
tion  and  adoption,  in  such  manner  as  the  Con 
vention  shall  direct ;  and  if  ratified  by  the  people 
in  the  manner  directed  by  the"  said  Convention, 
the  Constitution  shall  be  deemed  and  taken  to  be 
altered  or  amended  accordingly ;  and  if  not  so 
ratified,  the  present  Constitution  shall  be  and  re 
main  the  Constitution  of  government  of  this 
Commonwealth." 

But  that  section  gives  us  no  authority  to  put  to 
the  people  any  proposition  in  the  manner  pro 
posed  by  the  gentleman  from  Taunton.  As 
presented  by  the  gentleman  from  Natick,  it  is 
perfectly  proper,  and,  therefore,  I  shall  vote  for 
that  amendment. 

Mr.  FRENCH,  of  New  Bedford.  I  simply 
rise  to  occupy  but  a  single  moment  in  expressing 
my  approbation  of  the  proposition  of  the  gentle 
man  from  Natick.  I  agree,  in  the  main,  with 
what  gentlemen  have  said  in  its  favor.  I  believe 
that  it  is  fair,  honorable,  and  equal ;  and  although 
I  went  for  the  system  that  has  been  adopted  by 


610 


HOUSE   OF  REPRESENTATIVES. 


[70th  day. 


Friday,] 


MORTON. 


[July  29th. 


the  Convention,  so  far,  I  am  perfectly  willing 
that  this  system  should  be  tried,  and  if  it  can  be 
put  to  the  people  in  the  manner  pointed  out  in 
that  amendment,  I  am  perfectly  satisfied  with  it, 
and  hope  that  the  people  will  adopt  it.  I  only 
wished  to  say  that  I  think  it  is  right  and  just, 
and  that  I  trust  it  will  be  adopted  by  the  Con 
vention. 

Mr.  MORTON,  of  Taunton.  I  have  been  re 
peatedly  appealed  to  in  regard  to  this  proposition, 
and  am  sorry  to  say  that  there  is  no  time  left  me 
to  explain  this  matter.  We  have  before  us  two 
propositions  in  regard  to  this  matter  of  represen 
tation — one  providing  that  towns  shall  send  mem 
bers  to  the  House  of  Representatives  in  a  certain 
manner,  and  the  other  that  they  shall  be  sent  by 
districts  in  a  certain  other  manner.  There  was,  I 
believe,  a  majority  of  eighty  in  favor  of  the  town 
system.  Those  who  represent  the  town  system 
represent  386,000  people,  while  those  who  voted 
for  the  district  system  represented  421,000  ;  and 
although — looking  to  the  unequal  representation 
here— the  town  system  got  a  majority  of  votes  in 
the  Convention,  the  real  majority  of  the  people, 
by  nearly  forty  thousand,  were  in  favor  of  the 
other  system. 

Under  these  circumstances,  I  was  anxious  that 
the  people  themselves  might  pass  upon  the  ques 
tion. 

It  has  been  said  that  this  proposition  has  been 
presented  unfairly,  and  upon  that  point  I  should 
be  glad  to  be  heard  for  a  few  moments,  because, 
when  I  drew  it  up,  I  certainly  drew  it  up  as 
fairly  as  I  knew  how  to  do  so.  I  found  it  neces 
sary  to  draw  it  up  in  general  terms,  because  this 
Convention  have  adopted  that  identical  mode  for 
the  Senate,  and  precisely  in  the  same  mode  in 
relation  to  the  elections  to  be  made  for  members 
of  the  House  of  Representatives,  by  at  least  one- 
third  of  the  people  of  the  Commonwealth. 
The  proposition  in  relation  to  the  Senate  and 
the  cities,  which  you  have  already  adopted, 
is  just  as  general  in  its  terms,  and  as  much 
without  details  as  mine ;  and  I  would  ask, 
whether  that  is  not  the  only  way  in  which  a 
matter  of  this  sort  can  be  put  into  the  Constitu 
tion  ?  I  defy  gentlemen  to  say,  reasonably,  that 
my  proposition  is  unfair,  or  to  find  a  Constitu 
tion  anywhere  in  the  United  States,  in  which  a 
matter  of  this  sort  is  otherwise  provided  for,  un 
less  it  be  temporarily,  because  your  population 
changes  from  time  to  time.  I  ask,  therefore,  un 
der  these  circumstances,  whether  there  is  any 
thing  unfair  in  this  ?  If  I  had  drawn  out  a 
chapter  of  a  dozen  pages,  there  would  have  been 
an  attack  upon  every  chapter  and  every  section. 
If  I  had  my  way,  I  would  do  just  exactly  as 


the  President  of  the  Convention,  (Mr.  Banks,) 
said  he  would  do — put  it  to  the  people  directly, 
to  say  whether  they  would  have  a  town  or  a  dis 
trict  system  of  representation.  That  was  just 
exactly  what  I  wanted  to  do,  but  I  was  obliged 
to  pay  some  respect  to  the  system  the  Convention 
had  adopted.  I  give  them  all  the  advantage 
which  belongs  to  their  position.  I  took  their 
system,  and  I  may  say  now,  I  am  willing  to  ex 
change,  and  put  it  all  together.  I  felt  bound  to 
take  the  system  as  they  adopted  it,  and  then  pre 
sent  my  system  as  I  thought  it  ought  to  be 
adopted  into  the  Constitution,  exactly  in  con 
formity  with  the  precedent  set  me  by  the  gentle 
men  on  the  opposite  side.  And,  Mr.  President, 
is  this  a  fair  mode  of  putting  the  question  to  the 
people  ?  It  has  been  said  that  it  is  unfair.  I  do 
not  believe  that  gentlemen  intended  to  impute 
any  wrongful  intention  upon  my  part,  but  in  its 
tendency,  they  say  it  is  unfair.  I  appeal  to  the 
whole  Convention,  if  it  could  be  drawn  up  in  a 
form  more  fair.  Now,  we  are  told — I  will  not 
say  by  a  majority  of  this  Convention,  but  by  a 
voice  which  is  as  near  the  voice  of  a  majority  as 
any  one  voice  in  this  House — that  if  this  goes 
out  in  this  form,  the  people  will  accept  it  with  a 
"hurrah."  And  are  we  going  to  say  that  we 
will  not  submit  it  to  the  people,  because  we  know 
they  will  adopt  it  with  a  hurrah  ?  If  the  people 
want  it,  let  them  have  it.  Are  they  to  make  a 
Constitution,  or  are  we  to  make  it  ?  I  say,  we 
are  to  submit  it  to  them.  And  why  will  they 
give  that  "  hurrah  ? "  I  am  sorry  that,  in  so 
many  of  our  acts,  in  so  large  a  number  of  them, 
we  stamp  upon  their  face  distrust  of  the  people. 
"Why,  Sir,  will  the  people  go  in  favor  of  this 
proposition  ?  Gentlemen  say,  simply  because  they 
cannot  understand  it.  Mr.  President,  the  gentle 
man  mightily  misunderstands  the  people,  if  he 
thinks  they  cannot  comprehend  the  whole  of  it. 
The  gentleman  thinks  they  yield  to  the  control  of 
their  imagination  and  fanc3r,  and  build  therein 
some  beautiful  district  system,  and  when  they 
vote,  they  vote  for  that.  Sir,  the  people  are  a 
practical  people,  and  they  can  and  will  under 
stand  it,  and  know  all  its  operation,  so  that  the 
supposition  that  they  go  for  it  because  they  do 
not  understand  it,  is  an  impeachment  of  their 
capacity. 

I  wish  to  say  a  word  in  relation  to  this  amend 
ment,  and  I  will  say  only  a  word.  How  does  it 
come  up  ?  From  the  friends  of  the  district  sys 
tem  ?  No ;  it  is  a  foundling,  and  an  illegiti 
mate,  to  the  friends  of  the  district  system ;  and 
not  only  that,  they  also  put  it  out  to  nurse  to  its 
enemies.  I  never  knew  before  of  a  case  where 
the  friends  of  the  offspring  did  not  have  the  care 


70th  day.]                     HOUSE   OF   REPRESENTATIVES. 

611 

Friday,]                                                         MOKTON  —  YEAS. 

[July  29th. 

of  it.     And  this  is  to  be  put  out  by  the  legisla 

Dean,  Silas 

Knowlton,  William  H. 

ture  constituted   by  a  minority.     One-third   of 

Deming,  Elijah  S. 

Knox,  Albert 

the  people  elect  the  legislature  which  is  to  have 
charge  of  this  system.    I  beg  gentlemen  to  look 

Denton,  Augustus 
DeWitt,  Alexander 
Duncan,  Samuel 

Ladd,  Gardner  P. 
Langdon,  Wilber  C. 
Leland,  Alden 

at  it.      Sir,   those  people  who   are  adverse    to 

Dunham,  Bradish 

Little,  Otis 

sustaining  town  representation,  would  have  the 

Durgin,  John  M. 

Loomis,  E.  Justin 

power  to  cut  up  every  town,  and  city,  and  ward, 

Eames,  Philip 

Marble,  William  P. 

in  the  whole  Commonwealth.     In  my  system, 

Earle,  John  M. 

Marcy,  Laban 

they  are  restrained  from  dividing  towns  and  wards. 
But  if  you  have  a  minority  body  that  wishes  to 

Easland,  Peter 
Easton,  James,  2d 
Edwards,  Elisha 

Mason,  Charles 
Merritt,  Simeon 
Monroe,  James  L. 

put  out  a  system  to  be  rejected,  they  have  noth 

Edwards,  Samuel 

Moore,  James  M. 

ing  to  do  but  to  cut  up  one  town  and  another, 

Ely,  Joseph  M. 

Morton,  Elbridge  G. 

all  over  the  Commonwealth,  and  put  that  to  the 

Fay,  Sullivan 

Morton,  Marcus,  Jr. 

people  as  their  system.     We  have  heard  of  gerry 
mandering,  and  the  gentleman  for  Wilbraham, 

Fellows,  James  K. 
Fisk,  Lyman 
Fiske,  Emery 

Morton,  William  S. 
Nash,  Hiram 
Nichols,  William 

(Mr.  Hallett,)  says  we  have  it  in  this  system,  if 

Foster,  Aaron 

Nute,  Andrew  T. 

adopted  at  all.     I  say  you  cannot  get  along  with 

Fowle,  Samuel 

Ober,  Joseph  E. 

out  suffering  the  legislature  to  make  the  districts, 
and  all  that  you  can  do  is,  to  guard  against  abuse 

Freeman,  James  M. 
French,  Charles  A. 
French,  Rodney 

Orne,  Benjamin  S. 
Osgood,  Charles 
Paine,  Benjamin 

as  well  as  you  can. 

French,  Samuel 

Paine,  Henry 

I  have  now  only  time  to  ask  for  the  yeas  and 

Frothingham,  R.,  Jr. 

Parris,  Jonathan 

nays  upon  the  amendment  of  the  gentleman  from 

Gale,  Luther 

Partridge,  John 

Natick. 

Gardner,  Johnson 

Peabody,  Nathaniel 

The  yeas  and  nays  were  ordered. 

Gates,  Elbridge 

Pease,  Jeremiah,  Jr. 

The  hour  of  four  o'clock  having  arrived,  at 
which  time  the  Convention  had  determined  to 

Gilbert,  Washington 
Giles,  Charles  G. 
Gooding,  Leonard 

Penniman,  John 
Perkins,  Jesse 
Phinney,  Silvanus  B. 

take  the  vote,  the  first  question  recurred  upon  the 

Goulding,  Dalton 

Pool,  James  M. 

adoption  of  the  resolution  of  Mr.  Wilson,  as  a 

Graves,  John  W. 

Powers,  Peter 

substitute  for  the  resolution  of  Mr.  Morton,  and 

Green,  Jabez 

Putnam,  John  A. 

the  roll  being  called  thereon,  there  were  —  yeas, 
209  ;  nays,  138—  as  follows  :  — 

Greene,  William  B. 
Griswold,  Josiah  W. 
Griswold,  Whiting 

Rawson,  Silas 
Richards,  Luther 
Richardson,  Samuel  H. 

Hadley,  Samuel  P. 

Rockwood,  Joseph  M. 

YEAS. 

Hallett,  B.  F. 

Rogers,  John 

Adams,  Shubael  P.         Brownell,  Joseph 

Hapgood,  Lyman  W. 

Royce,  James  C. 

Allen,  James  B.                Buck,  Asahel 

Hapgood,  Seth 

Sanderson,  Amasa 

Allen,  Joel  C.                   Burlingame,  Anson 

Harmon,  Phineas 

Sanderson,  Chester 

Allen,  Parsons                 Butler,  Benjamin  F. 

Haskins,  William 

Sikes,  Chester 

Alley,  John  B.                  Cady,  Henry 

Hayden,  Isaac 

Simmons,  Perez 

Allis,  Josiah                      Caruthers,  William 

Hazewell,  C.  C. 

Simonds,  John  W. 

Alvord,  D.  W.                 Case,  Isaac 

Heath,  Ezra,  2d 

Smith,  Matthew 

Austin,  George                 Chandler,  Amariah 

Hewes,  James 

Sprague,  Melzar 

Baker,  Hillel                     Chapin,  Chester  W. 

Hewes,  William  H. 

Spooner,  Samuel  W. 

Ball,  George  S.                 Chapin,  Daniel  E. 

Hobart,  Henry 

Stacy,  Eben  H. 

Barrett,  Marcus                Chapin,  Henry 

Hobbs,  Edwin 

Stevens,  Granville 

Bates,  Eliakim  A.            Childs,  Josiah 

Holder,  Nathaniel 

Stevens,  William 

Bates,  Moses,  Jr.              Churchill,  J.  McKean 

Hood,  George 

Strong,  Alfred  L. 

Beal,  John                         Clark,  Henry 

Howard,  Martin 

Sumner,  Increase 

Bennett,  Zephaniah         Clark,  Ransom 

Howland,  Abraham  H. 

Sumner,  Charles 

Bigelow,  Edward  B.        Clark,  Salah 

Hoyt,  Henry  K. 

Swain,  Alanson 

Bird,  Francis  W.              Clarke,  Alpheus  B. 

Hunt,  Charles  E. 

Taft,  Arnold 

Bishop,  Henry  W.           Cleverly,  William 

Huntington,  Charles  P. 

Thayer,  Willard,  2d 

Bliss,  Gad  O.                    Cole,  Sumner 

Huntington,  George  II. 

Thomas,  John  W. 

Boutwell,  George  S.        Crane,  George  B. 

Hurlbut,  Moses  C. 

Thompson,  Charles 

Boutwell,  Sewell              Cross,  Joseph  W. 

Johnson,  John 

Tilton,  Abraham 

Breed,  Hiram  N.              Cushman,  Henry  W. 

Kendall,  Isaac 

Tilton,  Horatio  W. 

Bronson,  Asa                    Cushman,  Thomas- 

Keyes,  Edward  L. 

Turner,  David 

Brown,  Adolphus  F.       Cutler,  Simeon  N. 

Kimball,  Joseph 

Turner,  David  P. 

Brown,  Alpheus  R.          Davis,  Charles  G. 

Kingman,  Joseph 

Tyler,  William 

Brown,  Artemas              Davis,  Ebeiiezer 

Knight,  Hiram 

Underwood,  Orison 

Brown,  Hammond           Davis,  Isaac 

Knight,  Jefferson 

Viles,  Joel 

Brown,  Hiram  C.             Davis,  Robert  T. 

Knight,  Joseph 

Yinton,  George  A. 

Brownell,  Frederick        Day,  Gilman                         Knowlton,  Charles  L. 

Wallace,  Frederick,  T. 

612 

HOUSE   OF   REPRESENTATIVES.                     [70th  day. 

Friday,] 

NAYS  —  ABSENT  —  EARLE  —  GRISWOLD.                                [July  29th. 

Wallis,  Freeland 

Williams,  J.  B.                     Stevenson,  J.  Thomas    Weeks,  Cyrus 

Walker,  Amasa 

Wilson,  Henry 

Stiles,  Gideon                  Wetmore,  Thomas 

Ward,  Andrew  H. 

Winn,  Jonathan  B. 

Talbot,  Thomas                Wheeler,  William  F. 

Warner,  Samuel,  Jr. 

Winslow,  Levi  M. 

Thayer,  Joseph                White,  Benjamin 

Waters,  Asa  H. 

Wood,  Nathaniel 

Tileston,  Edmund  P.      Wilbur,  Daniel 

Western,  Gershom  B. 

Wood,  Otis 

Train,  C.  R.                      Wilbur,  Joseph 

Whitney,  Daniel  S. 

Wright,  Ezekiel 

Tyler,  John  S.                 Wilder,  Joel 

Whitney,  James  S. 

Upham,  Charles  W.         Wilkinson,  Ezra 

Upton,  George  B.            Williams,  Henry 

NAYS. 

Walcott,  Samuel  B.        Wilson,  Milo 

Adams,  Benjamin  P. 
Aldrich,  P.  Emory 

Heywood,  Levi 
Hillard,  George  S. 

Wales,  Bradford  L.          Wood,  Charles  C. 
Walker,  Samuel,             Woods,  Josiah  B. 

Andrews,  Robert 

Hinsdale,  William 

ABSENT 

Aspinwall,  William 

Hobart,  Aaron 

Atwood,  David  C. 

Hooper,  Foster 

Abbott,  Alfred  A.           Knowlton,  J.  S.  C. 

Ayres,  Samuel 

Hopkinson,  Thomas 

Abbott,  Josiah  G.            Lawrence,  Luther 

Bancroft,  Alpheus 

Houghton,  Samuel 

Allen,  Charles                   Lincoln,  Abishai 

Barrows,  Joseph. 

Hubbard,  William  J. 

Appleton,  William          Lord,  Otis  P. 

Bartlett,  Sidney 

Hunt,  William 

Ballard,  Alvah                  Marvin,  Abijah  P. 

Beebe,  James  M. 

Hurlburt,  Samuel  A. 

Banks,  Nathaniel  P.,  Jr.  Marvin,  Theophilus  R. 

Bell,  Luther  V. 

Hyde,  Benjamin  D. 

Bartlett,  Russel               Meader,  Reuben 

Bennett,  William,  Jr. 

Jackson,  Samuel 

Beach,  Erasmus  D.         Morss,  Joseph  B. 

Bigelow,  Jacob 

James,  William 

Blagden,  George  W.        Nayson,  Jonathan 

Booth,  William  S. 

Jenkins,  John 

Bliss,  William  C.             Newman,  Charles 

Bradbury,  Ebenezer 

Jenks,  Samuel  II. 

Braman,  Milton  P.          Norton,  Alfred 

Bradford,  William  J.  A.  Kellogg,  Giles  C. 

Bullen,  Amos  H.              Oliver,  Henry  K. 

Brewster,  Osymn 

Kuhn,  George  H. 

Bumpus,  Cephas  C.        Packer,  E.  Wing 

Brinley,  Francis 

Ladd,  John  S. 

Carter,  Timothy  W.        Park,  John  G. 

Briggs,  George  N. 

Lawton,  Job  G.,  Jr. 

Clarke,  Stillman              Parker,  Samuel  D. 

Bryant,  Patrick 

Lincoln,  Frederic  W.,  Jr. 

Copeland,  Benjamin  F.  Parsons,  Samuel  C. 

Bullock,  Rufus 

Littlefield,  Tristram 

Cressy,  Oliver  S.              Parsons,  Thomas  A. 

Choate,  Rufus 

Livermore,  Isaac 

Crowell,  Seth                    Payson,  Thomas  E. 

Coggin,  Jacob 

Lothrop,  Samuel  K. 

Crowninshield,  F.  B.      Perkins,  Noah  C. 

Cogswell,  Nathaniel 

Loud,  Samuel  P. 

Cummings,  Joseph          Pierce,  Henry 

Cole,  Lansing  J. 

Lowell,  John  A. 

Curtis,  Wilber                  Preston,  Jonathan 

Conkey,  Ithamar 

Miller,  Seth,  Jr. 

Dana,  Richard  H.,  Jr.     Richardson,  Nathan 

Cook,  Charles  E. 

Mixter,  Samuel 

Dehon,  William               Rockwell,  Julius 

Cooledge,  Henry  F. 
Crittenden,  Simeon 

Morey,  George 
Morton,  Marcus 

Eaton,  Calvin  D.              Sampson,  George  R. 
Fitch,  Ezekiel  W.            Sheldon,  Luther 

Crockett,  George  W. 

Noyes,  Daniel 

Foster,  Abram                  Sherman,  Charles 

Crosby,  Leander 

Orcutt,  Nathan 

Gooch,  Daniel  W.            Storrow,  Charles  S. 

Davis,  John 

Paige,  James  W. 

Greenleaf,  Simon            Stutson,  William 

Davis,  Solomon 

Parker,  Adolphus  G. 

Hall,  Charles  B.               Taber,  Isaac  C. 

Dawes,  Henry  L. 

Parker,  Joel 

Haskell,  George               Taylor,  Ralph 

Denison,  Hiram  S. 

Peabody,  George 

Henry,  Samuel                Tower,  Ephraim 

Doane,  James  C. 

Perkins,  Daniel  A. 

Huntington,  Asahel        Warner,  Marshal 

Dorman,  Moses 

Perkins,  Jonathan  C. 

Ide,  Abijah  M.,  Jr.         White,  George 

Eaton,  Lilley 

Phelps,  Charles 

Jacobs,  John                     Wilkins,  John  H. 

Ely,  Homer 

Pluukett,  William  C. 

Kellogg,  Martin  R.          Wilson,  Willard 

Eustis,  William  T. 

Pomroy,  Jeremiah 

Kinsman,  Henry  W.       Wood,  William  H. 

Farwell,  A.  G. 

Prince,  F.  O. 

Fowler,  Samuel  P. 

Putnam,  George 

Absent,  and  not  voting,  72. 

French,  Charles  H. 

Rantoul,  Robert 

Gardner,  Henry  J. 

Read,  James 

So  the  substitute  was  adopted. 

Gilbert,  Wanton  C. 

Reed,  Sampson 

The  question  next  recurred  upon  ordering  the 

Giles,  Joel 
Gould,  Robert 
Goulding,  Jason 

Rice,  David 
Richardson,  Daniel 
Ring,  Elkanah,  Jr. 

resolve,  as  amended,  to  its  second  reading. 
Mr.  EARLE,  of  Worcester,  called  for  the  yeas 

Gray,  John  C. 

Ross,  David  S. 

and  nays  upon  that  question,  but  they  were  re 

Hale,  Artemas 

Sargent,  John 

fused,  by  a  vote  of  35  in  the  affirmative,  and  230 

Hale,  Nathan 

Schouler,  William 

in  the  negative. 

Hammond,  A.  B. 
Hathaway,  Elnathan  P. 
Hawkes,  Stephen  E. 
Hayward,  George 

Sherril,  John 
Sleeper,  John  S. 
Souther,  John 
Stetson,  Caleb 

The  question   was  then  taken  upon  ordering 
the  resolve,  as  amended,  to  a  second  reading,  and 
it  was  decided  in  the  affirmative—  ayes,  183  ;  noes, 

Heard,  Charles 

Stevens,  Charles  G. 

90. 

Hersey,  Henry 

Stevens,  Joseph  L.,  Jr. 

Mr.  GRISWOLD,  for  Erving.   I  move  that  the 

70th  day.] 


HOUSE   OF   REPRESENTATIVES,  &c. 


613 


Friday,] 


GARDNER  —  WILSON  —  PLUNKETT  —  EARLE  —  BUTLER. 


[July  29th. 


rule  requiring  the  resolve  to  take  its  second  read 
ing  to-morrow,  be  suspended,  and  that  the  resolve 
take  its  second  reading  at  this  time. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

The  resolve  was  then  read  a  second  time. 

The  question  next  recurring  upon  the  final 
passage  of  the  resolve, 

Mr.  GARDNER,  of  Boston.  I  move  to 
amend  the  resolve,  by  striking  out  "1855,"  and 
inserting  "1853." 

Members  of  this  Convention  will  see  at  once 
the  effect  of  that  amendment,  if  adopted.  It 
will  obviate  the  objection  which  the  gentleman 
from  Natick  makes,  to  having  the  matter  put  to 
the  people  in  such  a  way  that  there  will  be  con 
fusion  existing.  The  question  will  not  go  to  the 
people  this  fall,  but  the  legislature  to  be  chosen 
this  fall,  under  the  present  system  of  representa 
tion,  will  divide  the  State  into  representative  and 
senatorial  districts,  and  a  year  from  this  fall,  the 
people  will  be  called  upon  to  vote  upon  the  ques 
tion.  Now,  Sir,  I  presume  that  the  debates  of 
this  Convention  will  be"  spread  abroad  in  the 
community,  and  will  be  discussed  generally 
throughout  the  State,  and  before  they  grow  stale 
in  the  public  mind,  I  should  like  to  have  the  peo 
ple  vote  upon  these  two  propositions,  and  not 
have  it  put  off  until  after  the  next  decennial  cen 
sus  of  the  State.  And  why  not  have  it  now : 
Why  not  have  it  a  year  from  this  time  ?  I  can 
see  no  objection  to  it,  unless  this  is  an  objection, 
that  if  the  division  is  made  next  year,  it  will  be 
made  by  a  legislature  elected  on  the  present  basis 
of  representation.  If  it  is  deferred,  as  proposed 
by  the  resolution,  it  will  be  made  by  the  legislature, 
which  every-body  here  confesses,  is  elected  by  a 
miserable  minority  of  one-third  of  the  commu 
nity.  That,  Sir,  is  the  only  difference — a  divis 
ion  made  by  a  legislature  elected  by  one-third  of 
the  people,  or  a  division  made  by  a  legislature 
constituted  as  it  will  be  hereafter. 

The  question  does  not  require  argument,  or 
elaboration,  to  make  it  apparent  to  every  mind. 
Every  individual  here  grasps  the  idea,  and  I  am 
willing  to  leave  it  with  the  Convention  to  decide, 
whether  they  will  accept  the  amendment  or  not. 

Mr.  WILSON,  of  Natick.  Not  wishing  to 
consume  the  time  of  the  Convention,  I  simply 
say,  in  reply  to  the  remarks  of  the  gentleman 
from  Boston,  (Mr.  Gardner,)  that  the  Conven 
tion  have  already  decided  to  have  the  decennial 
census  taken  in  1855,  1865,  1875,  and  so  on, 
instead  of  the  years  1850,  1860,  &c.,  and  thus  my 
plan  comes  in,  in  exact  accordance  with  that. 

Mr.  GARDNER.  If  this  comes  in  in  1855, 
under  the  decennial  census,  why  does  he  make 


it  hereafter  in  1866,  1876,  &c.  ?  And  if  they 
come  in  in  1865,  how  will  they  get  at  the  decennial 
census  taken  the  same  year  ? 

Mr.  WILSON.  The  census  is  to  be  taken  in 
1855,  1865,  1875,  &c.  The  legislature  chosen  in 
the  autumn  of  1855  will  put  this  question  out  to 
the  people,  and  the  legislature  chosen  in  1855, 
will  arrange  the  districts,  which  the  people  will 
decide  upon  in  1856.  It  comes  in  precisely  with 
that  arrangement,  and  for  that  reason  it  was  so 
arranged. 

Mr.  PLUNKETT,  of  Adams.  I  ask  for  the 
yeas  and  nays  upon  the  amendment  of  the  gen 
tleman  from  Boston,  (Mr.  Gardner). 

The  yeas  and  nays  were  not  ordered,  one-fifth 
not  voting  therefor. 

Mr.  EARLE,  of  Worcester.  I  shall  detain 
the  Convention  but  for  a  moment,  and  that  will 
be  to  state  two  reasons,  and  two  only,  why  I 
should  not  be  in  favor  of  the  proposed  amend 
ment.  The  first  is,  that  if  the  districting  is  made 
according  to  the  amendment,  which  will  be  a 
work  of  great  labor,  and  occupy  the  attention  of 
the  legislature  for  some  time,  it  can  stand  but  for 
one  year,  because  the  census  is  to  be  taken  in 
1855,  and  the  legislature  elected  in  that  year 
would  be  required  to  make  a  new  apportionment 
under  the  new  census.  That  alone,  it  appears  to 
me,  is  a  sufficient  reason  why  the  amendment 
should  not  be  made. 

Another  reason  is,  that  in  the  legislature  to  be 
elected  in  1855,  the  whole  State  will  be  repre 
sented.  While  the  one  next  elected,  will  not  rep 
resent  the  whole  State,  because  some  towns  have 
already  exhausted  their  right  to  representation. 

The  question  was  then  taken  upon  the  amend 
ment  offered  by  Mr.  Gardner,  and  the  amendment 
was  not  agreed  to. 

The  question  again  recurring  upon  the  final 
passage  of  the  resolve,  as  amended,  was  put,  and 
decided  in  the  affirmative— ayes,  189 ;  noes,  82. 

So  the  resolve  was  passed. 

Sectarian  Schools. 

Mr.  WILSON.  I  move  that  the  Convention 
now  proceed  to  the  consideration  of  the  Orders 
of  the  Day. 

The  motion  was  agreed  to,  and  the  Convention 
proceeded  to  the  consideration  of  the  next  matter 
upon  the  Orders  of  the  Day,  which  was  the 
motion  of  the  gentleman  from  Quincy,  (Mr. 
White,)  to  reconsider  the  vote  by  which  the 
resolves  upon  the  subject  of  sectarian  schools 
were  passed. 

Mr.  BUTLER,  of  Lowell.  I  wish  to  say  one 
word  upon  this  subject,  and  that  is,  that  after  an 
examination  of  this  matter,  I  can  see  no  cause  for 


614 


SECTARIAN   SCHOOLS. 


[70th   day. 


Friday,] 


WHITE  —  PARKER  —  KEYES. 


[July  29th. 


an  alteration  of  the  Constitution  in  this  respect. 
"We  have  met  no  trouble,  seen  no  difficulty,  and 
there  has  been  nothing  sectarian  heretofore  in  the 
division  of  the  public  moneys.  I  hope  we  shall 
not  undertake  to  make  an  amendment  to  the 
Constitution,  which  has  not  been  called  for  from 
any  quarter.  I  trust  the  vote  will  be  recon 
sidered. 

Mr.  WHITE,  of  Quincy.  The  reason  why  I 
made  the  motion  to  reconsider,  was,  that  the 
resolve  was  taken  up  in  rather  a  thin  House,  and 
passed  without  much  consideration,  and  without 
any  debate.  As  it  contains  a  principle  unlike 
anything  in  the  present  Constitution,  I  think  it 
should  have  a  full  consideration.  I  ask  the  yeas 
and  nays  upon  the  motion  to  reconsider. 

The  yeas  and  nays  were  not  ordered,  one-fifth 
of  those  voting,  not  voting  in  the  affirmative. 

The  question  being  upon  a  reconsideration  of 
the  vote  by  which  the  resolve  was  passed,  the 
Secretary,  upon  the  request  of  Mr.  Plunkett,  read 
the  resolve,  as  follows  : — 

Resolved,  That  all  moneys  raised  by  taxation  in 
the  towns  and  cities  for  the  support  of  Public 
Schools,  and  all  moneys  which  may  be  appropri 
ated  by  the  State  for  the  support  of  Common 
Schools,  shall  be  applied  to  and  expended  in  no 
other  schools  than  those  which  are  conducted 
according  to  law,  under  the  order  and  superin 
tendence  of  the  authorities  of  the  town  or  city  in 
which  the  money  is  to  be  expended ;  and  such 
moneys  shall  never  be  appropriated  to  any  relig 
ious  sect  for  the  maintenance,  exclusively,  of  its 
own  schools. 

Mr.  PARKER,  of  Cambridge.  I  will  detain 
the  Convention  but  a  moment  at  this  time,  when 
members  appear  to  be  so  anxious  to  take  the 
question.  This  resolve  was  introduced  by  me 
some  days  since,  and  it  was  printed  for  the  infor 
mation  of  the  Convention.  It  was  proposed  as  a 
substitute  for  the  resolution  reported  by  a  com 
mittee,  on  account  of  some  objection  to  the 
phraseology  of  that  resolution,  and  with  the  view 
of  placing  this  matter  in  such  a  shape  that  no 
objection  could  be  taken  to  the  form  in  which  the 
measure  was  proposed.  I  moved  on  Wednesday 
of  this  week  to  take  the  documents  from  the  table, 
and  the  adoption  of  this  resolution  as  an  amend 
ment.  There  was,  to  be  sure,  at  that  time  a  thin 
House,  but  it  was  at  the  ordinary  hour  of  busi 
ness  and  after  other  business  had  been  transacted. 
There  was  no  springing  of  any  surprise  upon  any 
body,  because  I  had  previously,  in  the  course  of 
the  forenoon,  moved  to  lay  the  Orders  of  the  Day 
upon  the  table,  with  the  declared  purpose  of  tak 
ing  up  this  subject.  It  was  known,  therefore, 
that  it  was  a  matter  before  the  Convention,  and  it 


might  reasonably  have  been  inferred  that  an  at 
tempt  would  be  made  to  take  it  up  at  the  earliest 
convenient  time.  It  was  adopted  without  any 
division,  because  there  was  hardly  any  opposition 
to  it.  It  met  with  the  approbation  of  nearly  all 
the  members  of  the  Convention  present  at  the 
time. 

Now,  Sir,  I  have  heard  no  reason  why  this 
vote  should  be  reconsidered,  except  it  be  the 
opinion  of  the  gentleman  from  Lowell,  (Mr. 
Butler,)  that  it  is  not  necessary  to  take  any  action 
upon  the  subject.  If  that  stands  as  a  good  reason 
for  the  action  of  the  majority  of  this  Convention, 
this  vote  will  be  reconsidered,  of  course.  But 
unless  it  does.  I  trust  that  a  measure  so  important 
to  the  welfare  of  this  Commonwealth,  as  I  regard 
this  to  be,  will  be  suffered  to  stand  as  a  part  of 
the  constitutional  amendments  to  be  proposed  to 
the  people. 

Sir,  this  resolution  has  nothing  sectarian  in  its 
character.  It  proposes  simply  to  retain  and  secure 
your  common  schools  in  the  condition  in  which 
they  are  at  the  present  time,  beyond  all  perad- 
venture,  come  from  what  quarter  an  attempt  for 
change  may  come — and  I  care  not  from  what 
quarter  it  comes — and  to  secure  them  as  the  pride 
and  glory  of  the  State,  the  pride  and  glory  of  New 
England,  and  the  foundation  and  support  of  our 
popular  institutions.  If  the  members  of  the  Con 
vention  are  prepared  to  say  that  they  will  not 
sustain  a  proposition  to  that  effect,  they  will  sup 
port  this  motion  to  reconsider,  and  strike  out  the 
resolution  which  has  been  adopted. 

Mr.  KEYES,  for  Abington.  This  resolution 
has  been  already  adopted  by  the  Convention.  On 
reading  it  over,  I  find  it  contains  a  proposition 
that  will  always  be  held  sound  in  Massachusetts. 
I  trust  no  man,  here  or  elsewhere,  will  say  it  is  not 
just  and  proper.  The  inference  to  be  drawn  from 
it  is,  that  we  are  opposed  to  having  the  public 
money  which  is  raised  for  school  purposes,  ap 
plied  to  the  support  of  sectarian  schools.  I  will 
venture  to  say  that  every  man  in  Massachusetts 
is  in  'favor  of  it.  If  there  is  a  man  in  Massa 
chusetts  who  is  ooposed  to  it,  he  is  an  enemy  to 
Massachusetts,  an  enemy  to  the  school  system  of 
Massachusetts,  and  I  presume  there  is  no  such 
man. 

Now,  Sir,  there  has  not  been  a  single  reason 
given  in  favor  of  reconsideration.  If  there  is  any 
reason  that  can  be  given,  it  is  some  secret  reason 
that  men  dare  not  avow.  We  may  all  have  some 
idea  what  it  may  be.  I  do  not  believe,  however, 
there  is  any  foundation  for  the  apprehension  that 
seems  to  be  entertained  that  the  school  money 
will  be  devoted  to  sectarian  purposes.  The 
people  of  Massachusetts  are  opposed  to  granting 


70th  day.] 


SECTARIAN   SCHOOLS. 


615 


Friday,] 


BIRD  —  HALLETT. 


[July  29th. 


public  money  for  sectarian  schools ;  that  we  all 
know. 

Mr.  BIRD,  of  Walpole.  I  submit,  Sir,  with 
all  respect  for  the  gentleman  for  Abington,  that 
the  burden  of  proof  does  not  rest  upon  us  to 
show  that  this  ought  to  be  reconsidered,  but  upon 
those  who  oppose  the  reconsideration  to  show 
why  the  provision  should  stand  as  it  is,  and  for 
this  reason :  Gentlemen  know  very  well  that  this 
matter  has  never  been  discussed  in  this  House, 
and  the  reasons  have  never  been  assigned  why 
this  provision  should  go  into  the  Constitution. 
It  came  before  us,  was  laid  upon  the  table,  sev 
eral  attempts  were  made  to  take  it  from  the  table, 
and  the  Convention  uniformly  refused.  It  came 
up  finally  at  a  time  when  very  little  attention  was 
given  to  it,  and  very  little  consideration.  An 
amendment  was  proposed  by  the  gentleman  from 
Cambridge,  and  it  was  adopted,  with  very  few 
words  from  him,  nothing  like  an  argument,  by  a 
very  small  vote.  And  the  resolve  was  passed  to 
a  second  reading,  and  I  believe  the  rule  was  sus 
pended,  and  it  was  passed  instanter,  or  it  may 
have  gone  over  to  the  next  day.  At  all  events,  it 
was  passed  sub  silcnlio,  just  as  it  now  stands,  and 
I  submit,  that  reasons  have  not  yet  been  given 
why  a  change  of  this  kind  should  be  made  in  the 
Constitution. 

I  hope  the  motion  will  prevail,  and  that  it  will 
be  reconsidered,  even  if,  in  the  end,  we  do  not 
adopt  it.  I  want  the  reasons  shown,  that  I  may 
give  the  people  in  the  narrow  circle  in  which  I 
move,  the  reasons  why  we  should  adopt  this  pro 
vision.  I  confess  that,  as  at  present  advised,  I 
cannot  defend  it. 

I  do  not  like  the  resolve.  It  does  not  say  one 
word  about  giving  any  portion  of  the  money  of 
the  State  to  colleges  and  higher  seminaries  of 
learning.  Money  may  be  appropriated  to  secta 
rian  colleges,  notwithstanding  its  adoption  ;  and  I 
submit  that  from  our  action  here  it  may  be  in 
ferred  that  we  are  willing  that  the  public  money 
should  be  given  to  sectarian  academies  and  col 
leges.  I  am  not  willing  that  any  such  inference 
should  be  drawn  from  our  action  in  regard  to  this 
matter. 

And  there  is  another  objection.  Every-body 
knows  this  resolution  appears  to  be  aimed  at  one 
class  of  our  citizens,  one  denomination  of  religion. 
Nobody  has  intimated  any  apprehension  that 
money  would  be  used  for  the  benefit  of  Protest 
ant  sectarianism.  I  have  never  heard  that  ques 
tion  raised  in  the  State ;  but  the  question  has 
been  raised  in  the  State,  and  discussed,  in  relation 
to  the  support  of  Catholic  schools  ;  and  I  am  not 
willing,  as  one  of  the  friends  of  the  Constitution, 
that  it  should  be  embarrassed  by  any  such  provis 


ion.  It  is  too  important  a  question  to  be  passed 
over  in  this  manner,  without  any  reasons  given 
for  and  against  it ;  and  impatient  as  we  all  are  to 
finish  our  labors  here,  I  hope  the  Convention  will 
look  seriously  at  this  matter  before  they  assent  to 
its  being  made  a  part  of  the  organic  law. 

Mr.  HALLETT,  for  Wilbraham.  I  will  only 
advert  to  one  consideration,  why  I  am  opposed  to 
touching  this  matter  of  conscience  in  the  Consti 
tution.  I  believe  no  man  desires  to  establish  an 
ecclesiastical  tribunal ;  yet,  in  my  judgment,  this 
provision,  in  effect,  does  establish  such  a  tribunal ; 
and  why  ?  Because  it  declares  that  money  raised 
for  the  support  of  common  schools,  "shall  never  be 
appropriated  to  any  religious  sect^/br  the  exclusive 
maintenance  of  its  own  schools."  Now,  what  does 
that  mean  ?  What  is  a  religious  sect  ?  What  is 
a  maintenance  exclusively  of  the  schools  of  a  re 
ligious  sect  ?  Who  is  to  determine  whether  the 
town's  money  has  been  appropriated  to  any  relig 
ious  sect,  or  not  ?  Who  is  to  say  how  far  you 
may  go  in  maintaining  a  sectarian  school,  and 
still  not  do  it  exclusively?  Anything  less  than 
the  icJiole  is  not  exclusive.  Therefore,  you  may 
apply  your  money  to  a  sectarian  school  all  but. 
Any  exception  will  save  it.  Who  shall  settle 
this  ?  It  must  be  determined  by  some  court. 
Therefore,  your  supreme  court  is  to  become,  un 
der  this  clause,  an  ecclesiastical  court,  to  determine 
what  is  a  religious  sect,  and  what  is  the  exclusive 
maintenance  of  a  sectarian  school.  Then,  how 
far  are  you  to  go  in  this  matter  of  ecclesiastical 
definitions  ?  What  is  the  platform  ?  It  seems  to 
me  that  here  are  difficulties  of  construction  that 
you  cannot  aviod  or  surmount  otherwise  than  by 
giving  a  new  jurisdiction  to  the  supreme  court 
as  an  ecclesiastical  tribunal.  They  are  difficulties 
which  the  able  gentleman  who  introduced  this 
proposition,  will  find  at  the  very  outset,  and  in 
creasing  at  every  step. 

Now,  I  am  unwilling  to  incur  the  risk  of  rais 
ing  a  question  here  which  is  of  extreme  difficulty 
concerning  religious  opinions,  and  one  which 
touches  the  conscience.  What  is  there  wrong 
about  our  public  schools  at  present  ?  Are  they 
devoted  to  sectarian  purposes  ?  Is  your  money 
going  to  establish  sectarian  schools  ?  Nobody 
asserts  that  such  is  the  case ;  but  somebody 
imagines  that  such  a  state  of  things  may  arise  in 
the  future  ;  that  sectarian  schools  are  going  to  be 
established  ;  that  some  new  sect  may  outvote  the 
Protestants,  and  claim  the  school  fund.  I  have 
no  fears  on  that  score.  I  want  free  opinions,  and 
I  would  no  sooner  give  Protestants  than  Catholics 
the  power  to  control  religious  opinions  and  senti 
ments.  But  I  do  not  want,  if  I  can  avoid  it,  to 
put  a  firebrand  into  our  town  meetings,  by  raising 


616 


SECTARIAN   SCHOOLS. 


[70th  day. 


Friday,] 


HAT.LETT  —  WOOD. 


[July  29th. 


this  imaginary  issue,  which  will  never  come  if  we 
let  it  alone.  You  are  treading  upon  delicate 
ground,  when  you  undertake  to  interfere  with 
men's  consciences.  What  is  the  meaning  of 
that  proposition ?  We  propose  to  declare,  that 
no  part  of  the  money  that  is  raised  for  school  pur 
poses  shall  be  appropriated  to  any  other  purpose, 
except  to  its  legitimate  uses,  for  fear  we  may  do 
something  that  will  favor  sectarianism.  We  con 
tend  that  it  is  all  right  now,  but  we  are  afraid  of 
something  ahead.  Where  will  it  end?  Your 
town  meetings  will  be  thrown  into  confusion,  by 
contentions  about  the  religious  opinions  of  school 
teachers.  Men  will  get  together,  and  undertake, 
as  in  the  times  of  Gov.  Winthrop,  to  regulate 
men's  consciences.  It  will  be  as  difficult  to  settle 
a  schoolmaster  as  a  minister. 

Have  we  not  got  past  this  meddling  with 
conscience  ?  It  appears  we  have  not  entirely,  for 
this  Convention  has,  by  refusing  to  amend  the 
Bill  of  Rights,  relating  to  religious  opinions, 
solemnly  declared,  that  a  man  "  shall  be  molested 
for  his  opinions  and  sentiments  concerning  relig 
ion."  That  is  bad  enough.  And  that  is  far 
enough  to  go.  I  thought  it  too  far :  to  say  that 
in  this  good  Commonwealth  we  shall  undertake 
to  interfere  with  any  man's  religious  belief,  and 
that  no  man  shall  be  unmolested  who  is  so  un 
fortunate  as  conscientiously  to  be  without  any 
religious  belief.  Nevertheless,  I  submit  to  that 
decision  here,  and  will  patiently  wait  for  liberal 
progress,  in  the  hope  that  another  generation  will 
be  more  enlightened.  But,  pray,  let  us  have  no 
more  of  sectarianism  in  our  Constitution.  And 
let  us  have  no  interdiction,  or  intermeddling  in 
opinions  of  this  sort.  I  do  not  believe  the  learned 
gentleman  who  introduced  this  proposition,  in 
tends  any  such  thing,  as  to  exclude  a  particular 
religious  sect  from  our  public  schools.  I  know 
him  to  be  of  a  very  different  spirit ;  but  I  say, 
that  is  the  construction  I  put  upon  it.  And  ma  ay 
others  understand  it  in  the  same  way,  and  the 
very  doubt  it  raises,  is  r?ason  enough  to  reject  it. 
I  hope,  therefore,  that  we  shall  agree  to  the  recon 
sideration,  and  then  strike  the  provision  out 
altogether,  as  one  of  doubtful  meaning  and  ex 
pediency. 

Mr.  WOOD,  of  Fitchburg.  My  attention  has 
just  been  called  to  this  resolution,  and  that  brings 
to  my  recollection  some  little  question  regarding 
this  subject,  which  arose  in  my  own  town.  We 
have,  growing  up,  between  three  and  four  hun 
dred  Irish  children.  About  one  in  twenty  of 
these  go  to  our  common  schools.  Many  of  the 
intelligent  Irish  do  not  and  will  not  send  their 
children  to  our  schools.  I  had  a  conversation 
with  one  of  these,  a  man  who  desires  the  advance 


ment  of  learning  as  much  as  I  or  any  man  in  the 
State.  I  asked  him  why  he  would  not  send  to 
our  schools.  His  answer  was  :  "  I  will  not  send 
my  children  to  a  sectarian  school."  "A  secta 
rian  school  ? "  said  I.  "  Heavens  !  I  did  not 
know  that  our  schools  were  sectarian."  "  Well," 
said  he,  "that  is  just  the  way  with  you  here  in 
America,  and  with  religionists  all  over  the  world. 
Our  sect  is  no  sect ;  every-body  else  is  sectarian. 
Now,"  said  he,  "what  constitutes  a  sectarian 
school  ?  It  is  where  you  will  have  all  the  Pro 
testant  forms  of  worship  introduced.  You  will 
insist  on  having  prayers  according  to  the  Protest 
ant  forms.  You  introduce  your  Protestant  Bibles 
and  other  Protestant  books,  and  you  will  have 
none  other.  Now,  I  put  it  to  you,  would  you 
be  willing  to  send  your  children  to  be  instructed 
by  Roman  Catholic  priests ;  to  be  compelled  to 
read  their  Bible,  and  have  comments  upon  it?" 
I  said  "  No."  "Very  well,  then,  you  ought  not 
to  expect  us  to  do  it."  Now,  I  put  it  to  this 
Convention,  how  it  is  possible  to  raise  any  money 
by  taxes  to  be  expended  for  common  schools,  if  it 
cannot  be  expended  for  either  Protestant  or  Ro 
man  Catholic  schools  ? 

Now,  let  me  say  another  thing.  It  is  all  im 
portant  that  our  Irish  children  should  be  edu 
cated.  It  is  as  important  to  us  as  it  is  to  the  Irish 
themselves.  We  do  not  want  them  to  grow  up 
amongst  us,  ignorant  and  vicious,  first  to  rob  our 
hen-roosts,  and  afterwards  to  commit  more  serious 
offences.  It  is  all  important  that  they  should  be 
educated.  If  we  cannot  educate  them  in  such 
schools  as  we  have,  let  us  give  them  such  schools  as 
they  can  accept.  And  I  would  appropriate  money 
for  that  purpose.  Their  own  forms  are  dear  to  them, 
and  they  will  not  send  their  children  where  there 
is  danger  that  their  minds  will  be  perverted,  if  not 
converted.  Therefore,  although  I  want  no  money 
to  be  appropriated  to  sectarianism,  I  would  de 
vote  a  portion  of  the  money  that  is  designed  for 
common  school  purposes,  to  furnish  schools  for 
them.  As  for  compelling  them  to  attend  our 
schools,  I  would  do  no  such  thing.  I  would  let 
the  matter,  as  regards  that,  take  its  natural  course; 
there  should  be  no  compulsion  on  that  score.  We 
have  a  sufficient  sense  of  liberty— the  Irish  have 
themselves — to  know  that  there  should  be  no 
constraint  about  the  matter.  Formerly,  it  was 
said  that  they  would  do  nothing  contrary  to  the 
wishes  and  orders  of  their  priests,  that  they  be 
lieved  them  to  be  God's  vicegerents  on  earth; 
but  they  are  getting  over  that.  So  I  think  there 
need  be  no  alarm  in  regard  to  the  Roman  Catho 
lics  ;  for  I  cannot  help  thinking  that  this  has  a 
strong  squinting  against  them.  We  may  pro 
scribe  them,  put  a  clog  upon  them,  attempt  in 


70th  day.] 


SECTARIAN   SCHOOLS. 


617 


Friday,] 


LOTHROP  —  WOOD. 


[July  29th. 


every  way  to  render  them  a  degraded  race  ;  but 
be  assured  they  will  not  continue  to  be  a  degraded 
race  in  Massachusetts,  or  in  the  other  States  of 
the  Union ;  not  that  I  fear  them ;  but  let  us  treat 
them  liberally— give  them  a  fair  chance  to  come 
and  be  identified  with  us,  that  their  sympathies 
may  be  as  ours.  Pass  no  law,  especially  no  fun 
damental  law,  against  any  sect  in  religion.  I 
hope  the  vote  will  be  reconsidered. 

Mr.  LOTHROP,  of  Boston.  The  resolution 
which  it  is  proposed  shall  be  reconsidered,  was 
introduced  by  the  gentleman  from  Cambridge,  as 
an  amendment  to  the  Report  of  the  Committee 
on  the  Encouragement  of  Literature,  of  which  I 
had  the  honor  to  be  a  member.  The  attention  of 
the  Committee  was  called  to  the  subject,  by  an 
order  passed  in  Convention  and  referred  to  it. 
I  agree,  Sir,  with  the  remark  that  has  been  made 
by  two  gentlemen,  that  if  the  subject  had  not 
been  brought  up  at  all  it  would  have  been  better. 
Gentlemen  have  said  we  are  introducing  a  new 
thought,  principle,  or  suggestion,  into  the  Consti 
tution  ;  that  there  is  nothing  in  the  old  Constitu 
tion  about  it,  and  should  not  be  in  the  new  ;  that 
the  matter  would  be  left  safe  and  well,  without 
this  resolution.  Very  true.  There  is  nothing  in 
the  old  Constitution  relating  in  direct  and  express 
terms  to  the  subject ;  and  if  the  order  which  was 
the  basis  of  this  resolution  had  not  been  intro 
duced,  I  should  not  have  been  in  favor  of  making 
any  more  special  provisions  in  regard  to  sectarian 
ism  in  our  public  schools,  than  exist  in  the  pres 
ent  Constitution.  But,  inasmuch  as  the  subject 
has  been  brought  before  the  Convention,  and  re 
ported  upon,  and  that  report  adopted,  I  believe, 
now,  it  would  be  impolitic  and  injurious,  to  re 
consider,  and  strike  out  the  resolution  which  has 
been  passed.  It  would  be  equivalent  to  saying 
that  we  do  approve  of  sectarian  schools. 

As  has  been  stated  by  the  gentleman  from 
"Walpole,  the  matter  passed  without  much  con 
sideration,  was  carried  rapidly  through  its  several 
stages.  The  resolution  was  quietly  adopted  by  a 
large  vote,  with  scarcely  a  show  of  opposition. 
And,  for  this  very  reason,  it  seems  to  me  that  the 
task  rests  not  with  those  who  oppose,  but  with 
those  who  favor  the  reconsideration,  to  show  rea 
sons  why  it  should  be  reconsidered.  The  subject 
having  been  thus  brought  before  us,  and  acted 
upon,  I  believe  and  maintain  that,  in  the  present 
condition  and  prospects  of  the  community,  it  is 
highly  desirable  that  we  should  incorporate  into 
the  Constitution  the  fundamental  principle  laid 
down  in  the  resolution,  and  instead  of  promoting 
sectarianism,  or  making  it  necessary  to  establish  a 
board  to  ascertain  and  determine  what  sectarian 
ism  is,  it  will  have  the  effect  to  suppress  it.  I 

42' 


maintain  that  the  establishment  of  common 
schools,  in  which  the  great  mass  of  the  children 
of  the  community,  of  all  religious  denominations, 
are  educated  together,  is  the  only  way  in  which  we 
can  prevent  and  keep  down  the  spirit  of  sectarian 
ism.  I  ask  the  gentleman  from  Fitchburg,  if  he 
believes  that  his  policy  or  plan  will  tend  to  pre 
vent  sectarianism  ?  Sir,  it  is  the  plan  which  will 
tend,  of  all  others,  to  spread  sectarianism  through 
all  our  families,  down  to  the  youngest  children, 
and  educate  them  in  intense  religious  hatred  of  each 
other.  Sir,  I  want  all  our  children,  the  children  of 
our  Catholic  and  Protestant  population,  to  be  edu 
cated  together  in  our  public  schools.  And  if  gen 
tlemen  say  that  the  resolution  has  a  strong  leaning 
towards  the  Catholics,  and  is  intended  to  have 
special  reference  to  them,  I  am  not  disposed  to 
deny  that  it  admits  of  such  interpretation.  I  am 
ready  and  disposed  to  say  to  our  Catholic  fellow- 
citizens  :  "  You  may  come  here  and  meet  us  on 
the  broad  principles  of  civil  and  religious  liberty, 
but  if  you  cannot  meet  us  upon  this  common 
ground,  we  do  not  ask  you  to  come.  It  is  yoxir 
own  choice,  and  if  you  cannot  be  content  with 
the  general  privileges,  which  you  share  here  in 
common  with  all,  you  have  no  right  to  coir  plain. 
Here  are  our  public  schools,  they  are  free  to  all 
the  various  denominations,  Baptist,  Methodist, 
Episcopalian,  Congregationalist,  Trinitarian,  Uni 
tarian.  They  are  free  to  all,  Catholic  and  Protes 
tant.  We  all  send  our  children  to  these  schools,  we 
all  meet  together  in  town  meeting,  and  determine 
how  much  money  we  shall  raise  for  this  great 
purpose  of  education,  thus  common  to  all,  and 
that  money  is  expended  in  schools  in  which  the 
peculiarities  of  no  one  sect  are  insisted  upon  or 
interfered  with."  I  wish  all  children  to  be  edu 
cated,  not  as  members  of  religious  sects,  not  as 
belonging  to  one  religious  party  or  another,  but  to 
come  together  on  one  common  ground,  as  children 
of  the  State,  to  be  educated  together  in  mutual 
respect,  forbearance,  and  good  will,  so  far  as  differ 
ences  of  religious  opinion  are  concerned.  Sir,  our 
common  school  system  has  been,  and  is  now,  con 
ducted  upon  these  liberal  principles  ;  and,  I  say, 
it  is  this  school  system  that  has  done  as  much  as 
any  other  one  cause,  to  determine  the  character 
and  condition  of  the  people  of  Massachusetts. 

Mr.  WOOD.  Will  the  gentleman  allow  me 
to  ask  him  what  he  would  propose  to  do,  suppose 
any  religious  denomination  refuse  to  send  their 
children  to  your  schools  ? 

Mr.  LOTHROP.  I  will  answer  the  gentleman 
by  saying  that  if  we  establish  our  system  of  com 
mon  schools  upon  broad,  liberal  principles ;  if  we 
open  the  door  wide,  and  give  all  a  fair  and  equal 
chance  to  come,  we  may  rest  assured  that  the 


618 


SECTARIAN   SCHOOLS. 


[70th  day. 


Friday,] 


LOTHROP  —  CADY  —  FROTHINGHAM  —  CHAPIN. 


[July  29th. 


great  mass  of  the  community  will  avail  themselves 
of  the  privilege ;  and  if  any  do  not,  the  fault  will 
not  be  in  the  system,  but  in  the  narrowness  and 
bigotry  of  those  who  prefer  that  their  children 
should  grow  up  in  ignorance,  unless  they  can 
send  them  to  a  sectarian  school.  The  community 
will  have  done  all  that  it  can  be  asked  to  do. 

Mr.  CADY,  of  Monson.  If  I  am  rightly  in 
formed,  the  children  of  our  Irish  population  are 
obliged  to  attend  our  common  schools.  It  is  a 
penal  offence  for  them  not  to  attend. 

Mr.  LOTHROP.  I  shall  detain  the  Conven 
tion  but  a  few  moments  more.  I  cannot  but 
think  this  is  a  question  of  great  importance  ;  and 
our  action  upon  it  will  have  much  influence  upon 
the  future  character  of  Massachusetts.  Sir,  the 
subject  of  common  schools  has  been  a  subject  of 
much  difficulty  in  all  countries  in  the  world. 
Where  the  attempt  has  been  made  to  introduce 
a  system  of  public  education,  in  all  countries 
where  the  attempt  has  failed,  sectarianism,  in 
one  form  or  another,  has  been  the  cause.  Is 
not  sectarianism  the  very  thing  we  are  here  try 
ing  to  prevent,  so  far  as  our  common  schools  are 
concerned  ?  There  is  none  of  it  now  in  these 
schools  ;  and  the  only  way  in  which  you  can 
prevent  its  introduction  and  influence,  is  to  adopt 
the  principle  of  the  resolution  it  is  proposed  to 
reconsider.  It  is  only  upon  this  principle  that 
we  shall  be  able  to  conduct  oxir  common  schools 
successfully,  keep  them  free  from  sectarianism, 
and  make  them  one  of  the  great  fountains  of  life 
and  strength,  prosperity  and  power,  to  the  people 
of  this  Commonwealth.  It  is  very  well  known 
that  there  are  broad  general  religious  truths,  great 
fundamental  religious  ideas  and  principles,  upon 
which  all  can  unite,  and  where  these  alone — as  is 
the  case  in  our  common  schools — are  recognized, 
and  impressed  upon  the  minds  of  the  young,  there 
will  be,  there  can  be,  no  sectarianism ;  nothing  of 
such  a  character  as  that  a  Protestant  or  a  Catholic, 
or  a  person  of  any  religion  whatever,  would  be 
unwilling  to  have  his  children  attend  the  school. 
If  he  regards  the  best  interests  of  his  child  he  will 
send  him  to  such  a  school.  I  maintain  that  no 
Catholic,  no  Protestant,  no  person  of  any  denom 
ination,  can  go  into  any  of  our  public  schools  and 
say  that  there  is  anything  taught  there  that  he 
should  be  unwilling  that  his  child  should  learn  ; 
or  that  anything  is  done  to  change  or  interfere 
with  his  religious  opinions. 

I  hope  the  motion  for  reconsideration  will  not 
prevail ;  and  that,  as  the  matter  has  come  up  and 
has  been  acted  upon  once,  we  shall  abide  by  that 
action,  and  adhere  to  the  principle  which  is  con 
tained  in  the  resolution. 

Mr.  FPvOTIIINGHAM,   of  Charlestown.    I 


have  but  one  word  to  say  in  reference  to  this 
matter.  It  seems  to  me,  that  when  the  gentle 
man  from  Boston  remarked  that  it  had  been 
better  that  the  subject  had  not  been  introduced 
into  this  Convention,  he  yielded  the  whole  point. 
Now,  Sir,  as  that  gentleman  has  stated,  the  sub 
ject  was  before  the  Committee  of  which  I  have 
the  honor  to  be  a  member,  and  there,  Sir,  I  took 
the  ground  against  incorporating  anything  of  this 
sort  into  the  Constitution,  simply  because  it  was 
better  to  leave  well  enough  alone ;  simply  be 
cause  it  was  unnecessary ;  simply  because  our 
common  schools,  as  they  are  now,  are  open  to  all 
to  be  enjoyed  in  common,  as  free  as  the  air  we 
breathe  ;  and  I  say,  so  let  them  remain,  because 
the  matter  is  governed  by  the  unwritten  law  of 
public  opinion  of  Massachusetts,  and  as  well 
governed  thus  as  it  could  be  by  any  statute  law 
or  constitutional  law  that  could  be  enacted. 

Now,  it  seems  to  me,  that  our  Constitution, 
when  it  provides  that  all  denominations  shall  be 
placed  upon  a  footing  of  equality,  provides  for 
each  and  every  case  of  this  kind  that  can  arise  ; 
and  I  am  in  favor  of  the  reconsideration  and  re 
jection  of  this  resolution,  simply  and  solely  on  the 
ground  that  it  is  putting  unnecessary  matter  into 
the  Constitution. 

Mr.  CHAPIN,  of  Webster.  I  wish  to  say  a 
few  words  before  recording  my  vote  upon  this 
question,  in  order  that  I  may  stand  right  before 
the  community,  and  especially  before  posterity, 
for  I  regard  this  as  not  particularly  affecting  the 
present  generation,  but  as  prospective  in  its  oper 
ation.  I  believe  the  policy  of  this  Common 
wealth,  from  the  beginning  of  our  government  up 
to  the  present  time,  has  been,  to  have  but  one 
class  of  schools,  and  they  have  been  called  com 
mon  schools.  They  admit,  and  even  require  the 
attendance  of  all  children  between  certain  ages, 
in  the  Common  wealth.  They  are  common  schools, 
because  the  system  of  instruction  is  common  to 
them  all,  and  they  are  not  allowed  to  introduce 
sectarianism,  even  under  the  present  law  ;  and  I 
think  the  gentleman  from  Fitchburg  will  find  it 
difficult  to  establish,  from  the  law  as  it  now 
stands,  the  proposition  that  sectarianism  is  per 
mitted.  Sir,  a  man  is  not  allowed  to  go  into  our 
common  schools,  and  teach  the  doctrine  of  the 
Congregationalists,  the  Baptists,  or  any  other,  as 
a  creed ;  we  are,  therefore,  adopting  what  is  in 
exact  conformity  with  the  past  usage  of  the  Com 
monwealth.  And  I  think  it  is  perfectly  right  to 
do  so.  It  establishes  permanently,  for  the  time 
to  come,  that  which  is  approved  by  the  universal 
sentiment  of  Massachusetts. 

It  has  been  said,  there  is  no  occasion  or  neces 
sity  for  the  introduction  of  a  provision  of  this 


70th  day.] 


SECTARIAN   SCHOOLS. 


619 


Friday,] 


CHAPIN  —  COGSWELL  —  CHANDLER. 


[July  29th. 


kind  ;  that  no  efforts  have  been  made  to  establish 
sectarian  schools.  But  it  is  well  known,  that 
efforts  have  been  made  in  other  parts  of  the 
Union.  New  York  and  other  States  have  been 
afflicted  with  excitement  on  the  subject.  And  I 
think  it  would  be  well  to  consider  whether,  in 
this  State,  we  are  not  approaching  the  same  con 
dition,  and  whether  it  is  not  our  best  policy,  to 
guard  against  it  in  time.  I  can  see  a  reason  for  in 
corporating  such  a  provision,  in  the  very  excitement 
that  prevails  in  this  Convention  to-day.  There 
is  great  sensitiveness  manifested  here,  at  the  very 
mention  of  the  subject.  But  it  is  contended,  that 
the  introduction  of  this  provision  will  endanger 
the  adoption  by  the  people,  of  all  the  other 
amendments  that  we  propose  to  make  to  the  Con 
stitution.  I  do  not  believe  there  is  a  man  in 
Massachusetts,  save  one,  who  has  the  power  to 
establish  sectarianism  ;  I  do  not  believe  there  is  a 
gentleman  here,  who  thinks  it  right  to  do  so,  but 
there  are  gentlemen  here  who  believe  that  the 
introduction  of  this  provision  will  embarrass  the 
amended  Constitution,  if  not  defeat  it.  Well, 
Sir,  if  we  are  embarrassed  by  the  mere  offering  of 
the  proposition,  J  think  we  had  better  xmderstand 
it  now,  before  it  is  too  late  ;  and,  for  this  reason 
above  all  others,  I  shall  go  for  the  proposition 
embraced  in  the  resolution,  and  against  reconsid 
eration. 

Mr.  COGSWELL,  of  Yarmouth.  As  one  of 
the  Committee  from  whom  the  Report  on  this 
subject  was  made,  I  desire  to  state  one  or  two 
considerations  that  induced  the  Committee  to 
report  the  resolution,  the  subject  having  been 
referred  to  them  by  an  order  of  the  Convention. 
It  is  well  known,  Sir,  though  it  may  not  be 
known  to  all  the  members  of  this  Convention, 
that  the  different  religious  denominations  in  this 
State,  and  in  other  States,  have  had  this  subject 
under  consideration.  The  Presbyterian  Church, 
especially,  which  comprises  a  great  portion  of 
Massachusetts,  and  of  the  Western  and  Middle 
States,  have  agitated  the  question.  The  Commit 
tee  thought,  that  by  putting  an  article  of  this  kind 
into  the  Constitution,  it  would  put  an  end  to  all 
controversy  on  the  subject.  It  was  not  aimed  at 
any  particular  sect,  but  was  intended  to  cut  off 
all  sectional  and  denominational  disputes  on  the 
subject  of  the  distribution  of  the  money  raised 
for  the  support  of  schools,  whether  derived  from 
taxation  or  from  the  common  school  fund,  with 
the  view  of  devoting  it  to  the  support  of  denom 
inational  schools.  This  was  the  object  of  the 
resolution  reported  by  the  Committee.  The  great 
object  was,  to  preserve  our  common  schools  just 
as  they  are  now  managed,  for  all  coming  time. 
Massachusetts  claims  the  honor  of  having  been 


the  first  to  introduce  the  common  school  system, 
and  it  has  always  been  the  practice  to  instruct  all 
alike,  without  regard  to  differences  in  religious 
belief.  The  object  is,  to  leave  the  system  where 
it  now  is,  for  all  coming  time  ;  to  provide,  that 
money  to  be  raised  for  schools,  shall  never  be 
devoted  to  the  support  of  denominational  schools. 
We  have  now,  in  this  State,  a  fund  of  more  than 
a  million  of  dollars  for  common  school  purposes 
— it  will  soon  be  a  million  and  a  half.  Well, 
now,  I  think  nothing  would  be  more  disastrous 
than  the  application  of  this  money  to  sectarian 
uses.  It  would  be  striking  a  blow  at  our  civil 
institutions,  to  have  this  money  divided  among 
different  denominations  of  religion.  These  were 
the  reasons,  and  they  were  recognized  by  the 
Convention,  for  when  the  proposition  was  report 
ed,  no  objection  was  made  to  it.  It  was  thought 
to  be  highly  necessary  and  proper,  that  such  a 
constitutional  provision  should  be  enacted.  And 
now,  all  on  a  sudden,  gentlemen  turn  round  and 
oppose  it.  I  hope  that  it  will  not  be  reconsidered, 
but  that  it  will  be  made  a  part  of  the  amended 
Constitution.  We  may  then  reasonably  expect 
that  our  schools  will,  in  all  coming  time,  continue 
to  be  conducted  precisely  as  they  have  been  here 
tofore. 

Mr.  CHANDLER,  of  Greenfield.  When  this, 
motion  to  reconsider  was  made,  I  felt  a  great  de 
gree  of  indifference  about  it,  because  I  consid 
ered  that  all  the  provision  that  was  necessary  to 
be  made  in  relation  to  this  subject  had  been  made 
in  a  previous  resolution.  It  has,  however,  as 
sumed  an  importance  in  my  mind  since,  more  par 
ticularly,  from  the  great  misunderstanding  which 
appears  to  prevail  respecting  the  object  designed 
to  be  accomplished  by  it.  I  had  the  honor  to  be 
upon  the  Committee  to  whom  was  referred  an  or 
der  to  provide  for  the  raising  of  a  fund  for  a  par 
ticular  use, — to  be  appropriated  to  the  support  and 
maintenance  of  our  common  schools,  as  they  now 
exist,  in  accordance  with  the  system  which  has 
prevailed  from  the  beginning.  The  Committee 
agreed  upon  a  resolution  to  be  presented  to  tho 
Convention,  providing  for  the  raising  of  such  fund. 
Well,  if  we  consider  the  fund  raised,  what  is  to 
be  done  with  itr  The  order  under  which  the 
Committee  was  formed,  made  it  imperative  on 
the  Committee  to  raise  a  fund  for  common  schools, 
the  great  object  being  to  secure  the  application  of 
such  fund  to  the  purpose  contemplated,  viz. :  the 
support  and  maintenance  of  our  common  schools, 
as  they  are,  and  prevent  its  being  frittered  away, 
or  misapplied.  Well,  the  question  came  up,  is 
there  any  danger  to  be  apprehended  from  sectari 
anism  ?  Is  there  danger  that  any  efforts  will  be 
made  to  divert  any  part  of  this  fund  to  sectari- 


620 


SECTARIAN    SCHOOLS. 


[70th  day. 


Friday,] 


CHANDLER  —  WARD  —  BUTLER. 


[July  29th. 


an  uses  ?  That  appeared  to  be  the  idea.  That 
appeared  to  be  the  thing  to  be  guarded  against. 
It  seemed  to  be  supposed  that  various  denomi 
nations  in  different  parts  of  the  country  were 
endeavoring  to  get  possession  of  the  school  funds, 
for  the  use  of  their  own  peculiar  schools,  not 
only  the  Catholics,  but  others.  We  wished, 
therefore,  to  secure  the  fund  for  the  object  for 
which  it  was  provided,  that  is,  for  common  schools, 
generally,  without  designating  any  particular  sys 
tem.  Now,  if  we  take  the  position  that  a  part  of 
this  fund  may  be  given  to  one  denomination,  an 
other  may  come  in  and  claim  the  same  privilege, 
and  another,  and  another,  until  the  fund  is  com 
pletely  exhausted,  and  perverted  from  its  original 
design.  We  wish  to  avoid  this.  We  do  not 
require  the  Constitution  to  forbid  the  bestowal  of 
money  upon  any  college  in  the  State,  sectarian, 
or  otherwise,  but  the  money  thus  appropriated 
is  not  to  come  out  of  this  fund.  This  is  to  be 
regarded  as  sacred,  and  kept  exclusively  for  the 
particular  use  for  which  it  was  designed.  This 
is  all,  so  far  as  I  understand  it,  that  was  contem 
plated  by  the  Committee.  If  the  Convention  do 
not  approve  of  this  principle,  if  they  wish  to 
leave  the  door  open,  for  the  distribution  of  this 
fund  in  the  manner  I  have  indicated,  they  ought 
to  go  back  and  reconsider  the  vote  by  which  they 
accepted  of  the  proposition  which  provides  that 
that  fund  shall  be  devoted  to  a  particular  and 
specific  use. 

Mr.  WARD,  of  Newton.  Is  an  amendment 
now  in  order  ? 

The  PRESIDENT.  An  amendment  is  not 
now  in  order.  The  question  is  on  the  motion  to 
reconsider. 

Mr.  WARD.  I  should  like  to  have  an  oppor 
tunity  to  move  to  strike  out  the  two  last  lines  of 
the  resolution,  which  it  is  moved  to  reconsider. 
The  money  would  then  be  appropriated  accord 
ing  to  law,  and  in  no  other  way. 

Mr.  BUTLER,  of  Lowell.  I  have  no  wish, 
Sir,  to  take  up  time,  at  this  late  hour,  in  debate, 
and  it  was  this  reluctance  to  consume  the  time  un- 
aiecessarily,  which  induced  me,  when  I  addressed 
you  before,  to  confine  myself  to  a  very  few  words, 
simply  saying  that  I  hoped  this  matter  would  be 
reconsidered,  not  supposing  that  I  should  thereby 
•expose  myself  to  the  censure  of  the  gentleman 
from  Cambridge,  (Mr.  Parker,)  that  I  had  pre 
sumed  to  dictate  to  the  Convention  a  course  of 
action,  without  assigning  any  reasons  why  that 
course  should  be  adopted.  I  have,  thank  God, 
a  -reason  for  the  "  faith  that  is  in  me,"  and  I  wish 
to  say,  first,  that  I  look  upon  this  resolution  as 
the  most  sectarian  resolution  that  can  be  brought 
before  a  deliberative  assembly.  And  if  I  cannot 


convince  gentlemen  that  it  is  so,  I  will  give  up 
all  pretension  to  a  knowledge  of  the  principles  of 
men's  action  from  what  they  do. 

Now  for  the  history  of  this  matter.  An  order 
was  introduced  on  the  thirteenth  of  June  and  re 
ferred  to  the  Committee  on  the  Encouragement  of 
Literature,  of  which  my  friend  from  Pittsfield, 
(Mr.  Briggs,)  is  chairman,  and  I  am  sorry  he  is 
not  here  to  help  me  against  this  sectarian  attack 
upon  the  resolve  which  that  Committee  reported. 
The  order  instructed  the  Committee  to  inquire 
into  the  expediency  of  so  amending  the  Constitu 
tion,  that  the  school  fund  belonging  to  the  Com 
monwealth  shall  never  be  appropriated  or  applied 
to  the  support  of  any  sectarian  schools,  or  schools 
founded  upon  sectarian  principles. 

The  Committee  reported  a  resolve,  which,  is  as 
follows  : — 

Resolved,  That  it  is  expedient  so  to  amend  the 
Constitution  as  to  provide  that  no  public  money, 
in  this  Commonwealth,  whether  accruing  from 
funds,  or  raised  by  taxation,  shall  ever  be  appro 
priated  for  the  support  of  bectarian  or  denomina 
tional  schools. 

That  covered  all  schools,  Sir,  from  the  humble 
village  school  up  to  Harvard  University.  It  pre 
cluded  the  appropriation  of  money  to  the  support 
of  sectarian  or  denominational  schools,  of  what 
ever  grade,  or  class,  or  description.  It  precluded 
the  appropriation  of  money  to  be  expended  for  the 
benefit  of  Harvard  University,  because  that  is  a 
sectarian  school.  And  so  of  all  other  colleges. 
That  is  what  was  reported  by  the  Committee. 
Then,  without  a  word  of  explanation,  comes  this 
amendment  from  the  representative  of  Harvard 
College — the  guardian  of  the  interests  of  that  in 
stitution  in  this  Convention ;  drawn  with  all  the 
skill  of  a  lawyer,  and  a  very  good  lawyer  too  : — 

That  all  moneys  raised  by  taxation,  in  the 
towns  and  cities,  lor  the  support  of  public  schools, 
and  all  moneys  which  may  be  appropriated  by  the 
State  for  the  support  of  common  schools,  shall  be 
applied  to  and  expended  in  no  other  schools  than 
those  which  are  conducted  according  to  lawr,  under 
the  order  and  superintendence  of  the  authorities 
of  the  town  or  city  in  which  the  money  is  to  be 
expended ;  and  such  moneys  shall  never  be  ap 
propriated  to  any  religious  sect  ibr  the  mainte 
nance,  exclusively,  of  its  own  schools. 

Leaving  it  open  for  money  to  be  appropri 
ated  and  distributed  broadcast,  if  you  please, 
hither  and  yon — to  Harvard,  to  Williams,  and  to 
Amherst  College,  or  any  other  institution  of 
learning,  whether  sectarian  or  otherwise.  A 
carefully  and  technically  worded  resolution. 
What  do  we  want  with  such  a  provision  ?  In 
the  first  place,  the  school  shall  be  kept  according 


70th  day.] 


SECTARIAN   SCHOOLS. 


621 


Friday,] 


BUTLER  —  LOTHROP  —  JENKS. 


[July  29th. 


to  law.  That  is  the  first  item.  In  the  name  of 
all  that  is  good,  why  not  put  into  the  Constitution 
that  when  it  rains  it  shall  rain  ?  That  is  all  we 
have  got  here  until  we  come  to  the  sting  in  the 
tail,  which  is  this  :  "  shall  never  be  appropriated 
to  any  religious  sect  for  the  maintenance,  exclu 
sively,  of  its  own  schools." 

Now,  one  word  in  reference  to  the  remarks  of 
the  gentleman  from  Boston,  (Mr.  Lothrop,)  whom. 
I  commend  for  his  morality.  He  says  he  wants 
every  Catholic  child  to  go  to  our  common  schools  ; 
and  the  gentleman  from  Fitchburg,  (Mr.  Wood,) 
says  they  may  be  compelled  to  go. 

Mr.  LOTHROP.  I  am  quite  confident,  Sir, 
that  I  could  not  have  used  those  words— that  I 
wanted  every  Catholic  child  to  go  to  our  common 
schools.  I  said  I  wanted  all  our  Irish  population 
to  send  their  children  to  our  common  schools. 

Mr.  BUTLER.  I  am  bound  to  take  the  gen 
tleman's  recantation  ;  but,  Sir,  I  am  not  mistaken. 
The  gentleman  said — and  the  expression  was 
accompanied  with  a  very  emphatic  waive  of  the 
hand — I  want  all  Catholic  children  to  go  to  our 
schools. 

Mr.  LOTHROP.     I  could  not  have  said  that. 

Mr.  BUTLER.  My  recollection  is  perfect,  Sir, 
as  was  the  elocution  of  the  gentleman.  "  I  want 
all  Catholic  children,"  says  the  gentleman,  "  to 
go  to  our  Protestant  schools."  Those  are  the 
words.  I  called  the  attention  of  several  gentle 
men  to  them  at  the  time  they  were  uttered.  And 
I  appeal  to  the  reporter's  notes  whether  I  am  not 
correct.  Sir,  I  was  educated  in  our  common 
schools 

Mr.  LOTHROP.  I  rise  to  a  question  of  order. 
I  understood  the  gentleman  to  accede  to  my  re 
cantation,  as  he  chooses  to  call  it.  If  he  accedes  to 
that,  I  maintain  he  has  no  right  to  continue  to 
argue  as  if  I  had  used  the  language  which  he 
attributed  to  me.  I  maintain  that  I  did  not  use 
the  expression,  that  I  wished  Catholics  to  go  to 
Protestants  schools.  I  know  myself  too  well  to 
believe  that  I  could  have  said  any  such  thing. 
And,  if  the  gentleman  insists  on  fastening  it  upon 
me,  I  must  appeal  to  the  House.  If  the  gentle 
man  accepts  my  explanation,  he  must  not  go  on 
arguing  as  if  I  had  used  that  language. 

Mr.  BUTLER.  Again,  I  say,  I  yield  to  the 
gentleman's  repudiation  of  his  language,  if  he 
says  he  did  not  mean  it ;  but  if  he  says  he  did 
not  say  it,  I  repeat,  that  he  did  say  it.  I  thought 
it  was  said  in  heat,  and  without  due  considera 
tion. 

Mr.  JENKS,  of  Boston.  I  sat  much  nearer  to 
the  gentleman  from  Boston  (Mr.  Lothrop)  than 
the  gentleman  from  Lowell  did,  and  I  know  that 
he  did  not  make  use  of  the  word  Protestant. 


The  PRESIDENT.  This  is  not  strictly  a  ques 
tion  of  order.  It  is  a  mere  difference  of  opinion 
as  to  the  language  used  by  the  gentleman  from 
Boston. 

Mr.  BUTLER.  I  Mall  not  dwell  upon  it,  Sir. 
I  have  stated  the  language  that  was  used  by  the 
gentleman  ;  I  now  pass  from  that.  I  was  pro 
ceeding  to  say,  that  I  was  reared  in  Protestant 
schools  where  some  gentlemen  say  there  is  no 
sectarianism.  The  first  Class  Book  that  was  put 
into  my  hands  was  one  prepared  by  an  eminent 
Unitarian  clergyman  ;  and  in  that  I  read  senti 
ments  calculated  to  instil  into  the  mind  a  detesta 
tion  of  Catholics.  I  imbibed  such  detestation, 
and  when  I  first  saw  a  Catholic,  I  thought  I  was 
looking  upon  a  monster,  and  almost  expected  to 
see  the  cloven  foot.  Yet,  gentlemen  will  say  such 
teaching  is  not  sectarian. 

My  friend  on  the  left,  (Mr.  Chandler,)— and 
what  he  says  commends  itself  to  me  on  account 
of  his  mature  years  and  ripened  judgment, — says 
he  does  not  want  any  sectarianism  introduced 
into  our  schools,  on  one  side,  or  the  other.  He 
says  the  system  works  admirably  ;  that  it  is  an 
admirable  common  school  system.  Why  tinker 
with  it  then  ?  Why  meddle  with  it  at  all,  if  it 
works  so  well,  and  is  so  admirable  ?  Why,  my 
friend  says,  because  in  other  States  there  is  trouble. 
Let  those  States  take  care  of  themselves.  Why 
should  we  foresee  trouble,  and  create  it  by  an  at 
tempted  resistance  to  it.  The  moment  you  send 
out  this  declaration,  it  will  enter  into  all  your 
elections  everywhere,  as  an  element  of  agitation. 
If  you  strike  the  first  blow,  the  fight  is  begun. 
Let  him  that  is  without  sin  among  you  cast  the 
first  stone.  We  teach  Protestantism,  and  believe 
it  to  be  right,  and  we  glory  in  that  belief.  But 
is  that  any  reason  why  we  should  force  it  upon 
otir  neighbors  ?  Why  we  should  say  we  will  tax 
you  for  the  teaching  of  our  Protestantism  ?  Is 
it  any  less  proper  for  the  Universalists,  or  Bap 
tists  to  say,  there  is  no  sectarian  issue  in  their 
teaching.  Those  who  have  religious  creeds  dif 
fering  from  our  own,  worship  the  same  God,  bow 
before  the  same  altar,  read  from  the  same  Bible  ; 
but  differ  in  its  interpretation.  Now,  I  ask  gen 
tlemen,  if  they  are  ready  to  introduce  such  a  con 
troversy  into  the  politics  of  this  State  ?  For  one, 
I  wash  my  hands  of  it.  I  want  our  school  sys 
tem  to  remain  as  it  is. 

It  is  said  that  a  difficulty  has  arisen  in  other 
States.  Grant  it  as  much  as  you  please.  Why 
should  we  precipitate  it  here  ?  Why  should  we 
be  thus  tormented,  before  our  time  r  If  it  must 
come,  the  legislature  will  meet  it.  I  want  the 
reconsideration  for  the  reason  given  by  my  friend 
from  Newton,  (Mr.  Ward,)  in  order  to  strike  out 


622 


SECTARIAN   SCHOOLS. 


[70th  day. 


Friday,] 


BALL  —  WHITNEY. 


[July  29th. 


the  last  two  lines  of  the  resolution.  I  will  then 
vote  for  it,  although  it  will  be  something  like  the 
boy's  brandy  and  water  with  the  brandy  left  out. 
[A  laugh.]  It  will  then  be  :— 

Resolved,  That  all  moneys,  &c.,  for  the  support 
of  common  schools  shall  be  applied  to  and  ex 
pended  in  no  other  schools  than  those  which  are 
conducted  according  to  law." 

Well,  how  are  you  to  apply  it  in  any  other 
way  ?  All  I  have  to  say  of  it  is,  Parturient  monies 
et  nascitur  ridiculus  mus. 

Mr.  BALL,  of  Upton.  If  I  wanted  a  text 
upon  which  to  preach,  I  should  have  it  in  the 
proposition  before  you.  The  resolution  passed 
without  a  word  being  said  about  it.  Gentlemen 
were  all  perfectly  well  satisfied  that  it  contained 
the  principle  which  they  were  all  in  favor  of ; 
and  then  all  at  once,  just  at  the  close  of  the  ses 
sion,  they  start  up  and  say  that  the  great  mass  of 
the  citizens  of  Massachusetts  are  arrayed  against 
it,  and  that  they  will  vote  down  the  new  Consti 
tution  if  this  proposition  is  retained  in  it.  And  in 
the  name  of  all  that  is  good  and  sacred,  let  us — 
say  they — O !  let  us  withdraw  it,  that  our 
amended  Constitution  may  not  be  lost.  The 
gentleman  from  Lowell,  (Mr.  Butler,)  has  made 
a  strong  argument  against  withdrawing  the  pro 
vision.  He  says  that  when  he  went  to  the  public 
schools  he  was  taught  from  sectarian  books— that 
the  books  used  were  clearly  and  decidedly  secta 
rian.  If  this  be  so,  it  is  highly  necessary  that 
measures  should  be  taken  to  free  those  schools 
from  sectarianism.  I  am  ready,  on  his  own  show 
ing,  to  vote  against  the  reconsideration.  Is  not 
this  new  movement  like  something  we  have  had 
before  in  this  State,  one  of  the  compromises  made 
for  the  purpose  of  damning  to  eternal  infamy  a 
party  that  is  dreaded  ?  Will  gentlemen  withdraw 
from  the  position  they  took,  because  they  fear  the 
Catholics  ?  Sir,  I  am  known  to  all  the  Catholics  of 
my  town,  and  I  will  venture  to  say,  that  in  voting 
to  retain  this  provision,  I  shall  not  be  regarded  by 
them  as  being  sectarian.  If  our  schools  have  any 
thing  that  is  sectarian,  let  us  remove  it,  let  us 
correct  the  evil  as  speedily  as  possible.  If  we 
have  done  wrong  in  the  past,  is  it  any  reason 
why  we  should  continue  to  do  wrong  ?  If  we 
have  sectarian  books  in  our  schools  now,  is  that 
a  reason  why  we  should  continue  to  use  such  ? 
No,  Sir ;  if  we  would  all  meet  upon  common 
ground,  let  us  incorporate  this  provision  in  the 
Constitution,  and  keep  it  there.  A  compromise 
to  be  made  at  this  last  moment !  A  compromise, 
for  what  ?  For  fear  the  people  of  Massachusetts 
should  become  sectarian  ?  For  fear  of  the  Catho 
lics  ?  Great  God !  We  have  nothing  to  fear 
from  the  Catholics.  They  are  more  our  friends 


than  our  enemies.  Open  your  doors  wide  to  all, 
and  banish  sectarianism  from  your  schools,  and 
Catholics  will  become  Protestants  through  the 
influence  of  these  schools.  For  these  reasons,  I 
trust  the  provision  will  be  retained.  I  trust  the 
Convention  is  not  ready  to  withdraw  from  the 
position  it  has  taken,  a  position  that  was  fair,  and 
honest,  and  proper  at  the  time  it  was  taken,  and 
so  regarded  by  every  one. 

Mr.  WHITNEY,  of  Conway.  It  seems  to 
me,  Sir,  that  this  debate  must  satisfy  every  gentle 
man,  that  in  placing  such  an  amendment  as  this 
in  the  Constitution,  we  are  treading  upon  delicate 
ground.  It  appears  to  me  that  when  we  look 
around  over  the  good  old  Commonwealth  of 
Massachusetts,  and  see  how  harmoniously  and 
successfully  our  common  school  system  is  ope 
rating,  and  when  we  consider  that  no  attempt  has 
ever  been  made  to  introduce  sectarianism,  we 
cannot  fail  to  be  convinced  that  the  introduction 
of  such  a  provision  as  this  into  the  Constitution, 
must  be  productive  of  injurious  consequences, 
and  that  it  would  be  far  better  to  leave  the  article 
in  relation  to  our  common  schools  as  it  now 
stands,  and  leave  all  religious  sects  to  stand  upon 
the  same  footing,  without  any  subordination  of 
one  to  another,  and  without  any  preference  of  one 
over  another  in  the  matter  of  education  in  the 
schools  of  the  State.  It  seems  to  me  it  would  be 
far  better,  as  has  been  well  said  by  the  gentleman 
from  Charlestown,  to  let  well  enough  alone. 
The  introduction  of  this  provision  into  the  Con 
stitution,  I  submit,  may  give  rise  to  agitations 
which  will  seriously  disturb  your  common  schools 
throughout  Massachusetts.  How  is  it  in  jour 
little  towns  now  ?  Your  school  committees  are, 
to  a  great  extent,  composed  of  the  clergymen  of 
various  religious  sects,  Baptists,  Presbyterians, 
and  even  Catholics,  and  no  complaint  that  I  am 
aware  of  is  made.  Well,  now,  insert  such  a  pro 
vision  ;  and  may  it  not  be  said  by  persons  disposed 
to  seek  objections,  you  are  making  an  unequal 
appropriation  or  supervision  so  far  as  sects  are 
concerned,  of  your  school  fund  ?  You  are  en 
deavoring  to  prevent  the  appropriation  of  the 
fund  to  a  school  that  is  sectarian,  and  yet  you 
have  upon  your  school  committees  men  who  are 
sectarian.  How  are  you  going  to  make  answer 
under  these  constitutional  provisions  ?  In  my 
opinion,  you  will  produce  much  trouble  and  con 
fusion  in  your  common  schools  throughout  the 
Commonwealth.  And  I  can  see  110  reason  to 
apprehend  that  the  money  to  be  appropriated  for 
common  school  purposes  from  any  quarter,  is  to 
be  applied  for  sectarian  purposes.  The  public 
sentiment  is  more  and  more  doing  away  with 
sectarian  bias,  as  connected  with  public  schools. 


70th  day.] 


SECTARIAN   SCHOOLS. 


623 


Friday,] 


WHITNEY  —  CROWNINSHIELD  —  THOMAS  —  PARKER. 


[July  29th. 


Why  agitate  this  question?  It  will  only  be 
bringing  about  the  very  result  which  we  wish  to 
avoid.  I  think,  as  I  have  said,  that  we  are  well 
enough  at  present,  and  that  we  had  better  let  well 
enough  alone.  It  will  be  impossible  to  find  men 
who  are  outside  or  beyond  the  power  of  sectarian 
bias,  to  some  extent,  for  your  school  committees  ; 
but  public  sentiment  is  such,  that  you  will  find 
no  improper  application  of  sectarian  influences  in 
your  common  schools. 

It  has  been  remarked  that  the  Committee  would 
not  have  introduced  this  question,  but  inasmuch 
as  it  had  been  introduced,  it  was  a  reason  why 
we  should  go  farther  on.  Why,  Sir,  if  it  was 
unwise  to  introduce  it  here,  it  certainly  would  be 
still  more  unwise  to  incorporate  it  into  your  Con 
stitution.  As  the  gentleman  from  Lowell,  (Mr. 
Butler,)  remarked,  why  declare  in  your  Consti 
tution  a  universally  acknowledged  principle.  I  see 
no  reason  except  for  the  purpose  of  exciting  agi 
tation  upon  this  question ;  why  not  then  recon 
sider  this  motion  ?  Agitation  will  be  most  likely 
to  result  from  a  proposition  of  this  character,  and 
the  effect  of  such  agitation,  would,  in  the  end,  be 
most  disastrous.  I  hope  the  motion  to  reconsider 
will  prevail. 

Mr.  CROWNINSIIIELD,  of  Boston.  I  shall 
not  detain  the  Convention  many  minutes.  I  have 
only  this  to  say,  that  I  can  assure  gentlemen,  their 
Catholic  friends  are  not  so  weak  as  to  be  caught 
by  such  chaff  as  this.  Sir,  as  I  understand  this 
question,  the  provision  has  gone  through  the  usual 
stages,  and  has  been  finally  passed,  and  now  gen 
tlemen  wake  up  and  move  a  reconsideration,  be 
cause  they  are  afraid  of  the  effect  it  may  have 
upon  the  Catholic  population  of  the  Common 
wealth.  Sir,  gentlemen  have  sat  in  their  seats 
while  this  provision  passed  through  all  its  stages 
to  its  final  passage,  and  no  voice  was  raised 
against  it.  And  now,  on  the  very  last  day,  or 
last  but  one  of  the  session,  lo !  a  violent  indig 
nation  is  gotten  up  against  the  resolution,  and  it 
is  insisted  that  it  must  be  expunged.  Now,  Sir, 
I  happen  to  know  something  about  the  feeling  of 
the  Catholics  in  regard  to  this  Convention,  and  I 
tell  gentlemen  the  Catholics  are  not  to  be  led 
away  by  any  such  proceeding  as  this.  The  Cath 
olics  understand  it.  They  know  the  object  of  it, 
and  they  know  the  purpose  for  which  the  reso 
lution  was  originally  passed.  They  know,  too, 
that  the  great  question  of  representation  has  been 
passed  so  as  to  disfranchise  them.  And  if  gen 
tlemen  suppose  that  such  a  movement  as  this  is 
to  conciliate  them,  let  me  tell  them  they  are  mis 
taken. 

Mr.  THOMAS,  of  Weymouth,  moved  the  pre 
vious  question. 


Mr.  PARKER,  of  Cambridge.  I  hops  the 
gentleman  from  Weymouth  will  withdraw  the 
motion  for  the  previous  question,  to  enable  me 
to  make  some  reply,  not  only  to  the  arguments 
which  have  been  offered,  but  to  the  personal  at 
tack  which  has  been  made  upon  me  by  the  gen 
tleman — I  mean  by  the  member  from  Lowell. 

Mr.  THOMAS,  of  Weymouth.  If  the  gentle 
man  will  renew  it,  at  the  close  of  his  remarks,  I 
will  consent. 

Mr.  PARKER.     I  will  do  so. 

Mr.  BATES,  of  Plymouth.  I  believe  the  gen 
tleman  from  Cambridge  has  already  spoken  upon 
this  question. 

Mr.  PARKER.  I  have,  Sir,  and  have  the 
floor  again,  by  the  recognition  of  the  President. 

Mr.  BATES.  I  believe  the  gentleman  has 
spoken  his  fifteen  minutes. 

Mr.  PARKER.  The  gentleman  is  mistaken. 
I  did  not  occupy  over  half  that  time. 

The  PRESIDENT.  The  gentleman  from  Cam 
bridge  has  spoken  once,  but  he  has  not  occupied 
his  full  time. 

Mr.  PARKER.  Mr.  President :  I  have  known 
something  of  the  gentleman — of  the  member  from 
Lowell — for  some  time,  and  I  have  heard  consid 
erable  of  him,  first  and  last,  and  perhaps  I  ought 
not  to  be  surprised  at  anything  coming  from  him, 
and  yet  I  am.  I  am  truly  surprised  at  the  per 
sonal  attack  which  he  has  allowed  himself  to 
make  upon  me,  upon  the  floor  of  the  Convention 
to-day,  as  I  had  said  nothing  to  provoke  such  an 
attack  from  that  gentleman,  or  rather,  from  that 
member.  It  is  true,  I  had  some  agency  in  intro 
ducing  this  resolution — a  resolution  which  has 
passed  without  a  division — so  unanimous  was  the 
feeling  in  favor  of  it.  A  motion  for  reconsidera 
tion  was  made,  and  the  gentleman — the  member 
from  Lowell — Sir,  I  have  been  in  the  habit  of 
calling  him  the  gentleman  from  Lowell,  and  will 
continue  so  to  do — took  the  floor,  and  expressed 
his  personal  wish,  without  reason  or  argument  to 
support  it,  that  this  matter  should  be  reconsid 
ered,  as  if  his  personal  wish  was  sufficient  to  de 
termine  the  action  of  the  Convention,  and  induce 
them  to  undo  all  that  they  had  done  ;  and  upon 
this  it  seemed  as  if  the  question  was  about  to  be 
taken.  It  was  in  reference  to  that;  because  I 
had  no  argument  to  answer,  and  because  it  was 
for  those  who  favored  the  reconsideration,  to  offer 
some  reasons  why  the  action  of  the  Convention 
should  be  changed,  that  I  said,  in  substance,  that 
if  that  gentleman's  mere  wishes  were  to  deter 
mine  the  action  of  the  Convention,  it  was  wrell 
that  it  should  be  understood.  I  supposed  there 
was  some  reason  that  might  be  offered.  We  have 
now  been  favored  with  a  reason.  And  I  desire 


624 


SECTARIAN   SCHOOLS. 


[70th  day. 


Friday,] 


PARKER  —  WOOD. 


[July  29th, 


to  make  a  few  remarks  in  reply ;  but  I  must  be 
permitted  again  to  say,  I  am  astonished  that  the 
gentleman  from  Lowell  should  have  forgotten  all 
courtesy,  and  have  been  guilty  of  the  indecorum 
of  speaking  of  me  as  the  representative  of  Har 
vard  University.  Sir,  it  was  an  indecorum  that 
I  should  hardly  have  expected,  even  from  him. 
Sir,  I  am  not  the  representative  of  Harvard  Col 
lege.  I  have  no  such  relations  with  that  institu 
tion  as  will  justify  any  one  in  speaking  of  me  as 
its  representative.  Nor  have  I  used  an  argument 
that  would  authorize  anybody  to  speak  of  me  in 
that  way.  It  is  true,  that  I  am  connected  with 
one  of  the  professioiial  schools  in  that  institution  ; 
but  so  far  as  that  is  concerned,  the  gentleman 
might  as  well  be  characterized  as  a  representative 
cf  a  law  office  in  the  city  of  Lowell. 

The  PRESIDENT.  The  Chair  desires  to  say 
that  he  did  not  understand  the  gentleman  from 
Lowell  as  speaking  of  the  gentleman  from  Cam 
bridge  as  the  representative  of  Harvard  College. 

Mr.  P  ARKEIl.  Sir,  he  spoke  of  me  as  repre 
senting  Harvard  College,  and  he  imputed  motives 
with  reference  to  that  institution  as  the  governing 
motives  with  me  in  offering  this  resolution,  and 
as  the  inducement  for  its  introduction.  That  was 
the  burden  of  his  speech — that  it  was  clearly  to 
be  seen  what  were  the  influences  which  induced 
the  gentleman  from  Cambridge  to  act  in  this  mat 
ter.  Now,  I  trust  I  need  not  disclaim,  before  the 
members  of  this  Convention,  any  such  motives. 
I  trust  my  conduct  on  this  floor  has  commended 
me  so  far  to  gentlemen  here,  that  they  do  not 
need  my  disclaimer  of  being  actuated  by  any  other 
motives  than  those  of  a  member  desirous  of  doing 
his  duty.  But  enough  of  that.  The  gentleman 
from  Walpole  (Mr.  Bird)  suggested  that  there 
had  been  no  reason  oft'ered  why  this  measure 
should  be  adopted  by  the  Convention.  Sir,  as  I 
said  before,  I  supposed  it  was  for  the  friends  of 
the  reconsideration  to  show  why  the  action  of  the 
Convention  should  be  changed.  I  was  ready, 
however,  with  reasons,  and  have  been  attempting 
to  gain  the  floor  for  the  purpose  of  stating  them  ; 
but  the  rules  of  the  Convention  gave  it  to  others, 
because  I  had  spoken  once. 

Sir,  we  have  heard  reasons  assigned  from 
various  quarters,  but  an  additional  fact  or  two 
may  be  stated.  One  gentleman,  a  member,  has  " 
informed  me,  since  the  commencement  of  the 
session,  that  his  parish  clergyman,  an  Episco 
palian,  a  very  Avorthy  man,  declared  to  him  that 
they  must  have  parish  schools.  Another  gentle 
man  in  the  Convention  has  stated  that  he  heard  a 
very  worthy  Congregationalist  clergyman  declare 
that  it  was  necessary  for  his  denomination  to  have 
such  schools.  Sir,  it  is  not  the  Catholics  alone 


who  are  looking  to  the  school  fund  as  a  means  of 
sustaining  their  peculiar  tenets.  Nor  does  this 
resolution,  in  its  terms,  have  any  reference  to 
them  at  all ;  but  they  have  been  introduced,  and 
the  statements  which  have  been  made  only  add 
another  to  the  evidences  to  show  that  it  is  neces 
sary  that  something  should  be  done  here.  Sir, 
nothing  more  is  necessary  to  show  the  necessity 
for  a  constitutional  provision,  than  to  refer  to  the 
arguments  of  the  gentleman  from  Fitchburg,  and 
the  gentleman  from  Conway,  and  others.  The 
gentleman  for  Wilbraham  says  he  does  not  want 
to  put  a  firebrand  into  the  town  meetings.  Sir, 
the  object  of  this  resolution  is  to  extinguish 
the  firebrand.  The  gentleman  from  Fitchburg 
admits  that  there  is  no  law  for  it,  but  he  proposes 
to  appropriate  a  part  of  this  money  to  sectarian 
purposes.  He  avows  it  here. 

Mr.  WOOD.     No,  Sir.    The  gentleman  is  mis 
taken. 

Mr.  PARKER.     Not  sectarian  ;  but  he  pro 
poses  to  give  the  Catholics  their  share. 

Mr.  WOOD.  For  the  purposes  of  education. 
Mr.  PARKER.  Yes;  for  the  purposes  of 
education,  according  to  their  peculiar  notions. 
Now,  that  very  circumstance,  and  the  excitement 
which  is  found  to  exist  upon  this  subject  in  this 
Convention,  shows  conclusively  why  we  should 
act  upon  it,  and  extinguish  the  firebrand,  so  that 
it  shall  not  be  possible  to  rekindle  it  and  make  it 
the  means  of  a  conflagration  which  may  destroy 
your  common  schools.  They  are  in  danger,  un 
doubtedly. 

The  gentleman  for  Wilbraham  finds  it  difficult 
to  understand  the  resolution.  He  cannot  under 
stand  the  meaning  of  the  word  "  sect."  Sir,  that 
gentleman  does  not  ordinarily  find  any  difficulty 
in  ascertaining  the  meaning  of  anything  which  he 
wishes  to  understand.  But  he  can  ask  for  defi 
nitions  when  a  proposition  docs  not  suit  him.  It 
was  but  the  other  day  that  he  wanted  a  definition 
of  the  word  "  blasphemy,"  and  when  he  had  got 
that,  he  wanted  a  definition  of  "  contumeliously ; " 
and  now  he  wants  a  definition  of  the  word  "sect." 
Sir,  if  the  gentleman  cannot  understand  it,  let  him 
put  it  to  a  jury  as  a  part  of  the  law  and  the  fact, 
and  it  will  readily  be  settled  for  him.  [A  laugh.] 
Sir,  the  reasons  that  are  given  for  the  recon 
sideration,  are  altogether  contradictory. 

One  gentleman  is  for  doing  nothing,  because, 
he  says,  it  is  altogether  unnecessary  ;  because 
there  is  no  agitation,  and  will  be  none.  Another 
is  opposed  to  the  resolution  because  it  will  cause 
a  serious  agitation  ;  because  the  very  mention  of 
it  here  produces  excitement.  Well,  Sir,  if  this 
subject  is  to  be  a  source  of  agitation  in  case  we 
act  upon  it,  will  it  be  less  a  source  of  agitation  if 


70th  day.] 


SECTARIAN   SCHOOLS. 


625 


Friday,] 


PARKER  —  BUTLER. 


[July  29th. 


you  omit  this  provision  from  the  Constitution  ?  I 
appeal  to  gentlemen  to  judge  for  themselves.  It 
requires  no  spirit  of  prophecy  to  say,  that  from 
one  quarter  or  another — I  make  no  invidious  dis 
tinction — the  objection  will  come,  that  your  com 
mon  schools  have  not  sufficient  of  the  religious 
element  in  them,  or  that  other  sects  are  endeavor 
ing  to  infuse  into  the  minds  of  the  scholars  the 
doctrines  and  tenets  of  their  particular  faith ;  and 
the  consequence  may  be  a  division  of  the  school 
moneys,  and  the  subversion  of  our  glorious  sys 
tem  for  the  education  of  all  through  the  agency 
of  free  and  common  schools,  because  you  have 
not  a  constitutional  provision  to  prevent  agitation 
on  the  subject. 

Sir,  a  word  more  respecting  the  origin  of  this 
resolution.  The  subject  came  up  in  the  ordinary 
action  of  the  Convention,  through  a  motion  to 
refer  it,  and  the  Report  of  a  Committee.  Prior  to 
that  Report,  and  before  I  was  aware  that  any  mo 
tion  had  been  made,  I  had  drawn  a  resolution 
with  a  view  of  offering  it.  When  objection  was 
made  to  the  resolution  reported  by  the  Commit 
tee,  I  showed  the  one  I  had  drawn  to  the  gentle 
man  from  Natick,  (Mr.  Wilson,)  who,  it  will  be 
recollected,  expressed  his  approbation  of  it  to  the 
Convention,  and  his  desire  that  I  would  offer  it, 
which,  however,  I  could  not  do  at  that  time,  be 
cause  an  amendment  was  then  pending ;  but  it 
was  read  for  the  information  of  the  Convention. 
Before  there  was  any  opportunity  to  move  it,  the 
Report  and  resolution  of  the  Committee  were  laid 
upon  the  table.  An  attempt,  by  the  chairman  of 
the  Committee,  (Mr.  Briggs,)  to  have  the  Report 
taken  up,  failed  ;  after  which,  having  slightly 
altered  the  phraseology  of  the  resolution  which 
I  had  read,  and  at  the  suggestion  of  a  gentle 
man  from  Boston,  (Mr.  Blagden,)  added  the  last 
clause — all  which,  in  my  view,  in  no  way  changes 
its  effect — I  introduced  it,  and  it  was  printed.  I 
have  not  time  to  state  the  farther  history  of  it, 
nor  is  it  necessary.  It  has  already  been  stated. 

The  gentleman  from  Lowell  says  the  proposi 
tion  is  sectarian  in  its  purposes.  Let  him  read  it, 
and  see  if  it  is  or  not. 

[Here  the  President's  hammer  announced  the 
expiration  of  the  time  allotted  for  a  speech.] 

Mr.  PARKER.  I  renew  the  motion  for  the 
previous  question. 

Mr.  BUTLER,  of  Lowell.  Will  the  gentle 
man  allow  me  to  say  a  word  by  way  of  personal 
explanation. 

Mr.  PARKER.  I  cannot  withdraw  the  mo 
tion,  because  I  promised  the  gentleman  from 
Weymouth  that  I  would  renew  it  at  the  close  of 
my  remarks. 

Mr.  BUTLER.     I  shall  be  obliged,  then,  to 


ask  permission  of  the  Convention  to  say  a  few 
words. 

Mr.  THOMAS,  of  Weymouth.  I  consent  that 
the  motion  for  the  previous  question  shall  be 
withdrawn. 

Mr.  PARKER.    Then  I  withdraw  it. 

Mr.  BUTLER.  I  shall  not  trespass  long  upon 
the  time  of  the  Convention.  Though  I  may  have 
felt  it  to  be  a  duty  to  speak  frequently,  yet  it  can 
not  be  said  that  I  have  troubled  the  Convention 
with  long  speeches. 

The  gentleman  from  Cambridge,  Sir,  seems  to 
have  worked  himself  into  a  considerable  degree 
of  indignation  upon  this  question,  because  he 
seemed  to  think  that  I  had  commented  too  freely 
upon  his  personal  action  in  this  matter.  I  refer 
red  to  it  so  far  as  to  say  that  the  resolution  had 
been  drawn  with  all  the  skill  of  an  astute  lawyer, 
in  a  manner  to  do  no  discredit  to  the  legal  adviser 
of  the  institution  with  which  he  is  c  ^nnected  at 
Cambridge.  And  I  now  call  the  attention  of  the 
Convention  to  the  fact,  that,  although  he  stood 
upon  the  floor  for  fifteen  minutes,  he  has  not  dis 
claimed  the  fact,  and  has  not  disproved  a  word 
that  I  have  said.  He  has  not  attempted  to  show 
that  his  resolution  is  intended  to  prevent  sec 
tarianism.  How,  then,  does  it  appear  that  I  have 
imputed  wrong  motives  to  the  gentleman  ?  I  say, 
again,  that,  in  my  judgment,  this  is  a  Harvard 
College  resolution. 

The  PRESIDENT.  The  Chair  is  of  the 
opinion  that  it  is  not  in  order  for  the  gentleman 
to  characterize  the  resolution  in  that  manner. 

Mr.  PARKER.  I  rise  for  the  purpose  of 
making  a  disclaimer. 

The  PRESIDENT.  Does  the  gentleman  from 
Lowell  yield  the  floor  ? 

Mr.  BUTLER.  The  gentleman  refused  to 
withdraw  the  previous  question  to  permit  me  to 
speak,  and  I  do  not  feel  at  liberty  now  to  yield 
my  right. 

Mr.  PARKER.  If  a  disclaimer  is  necessary,  I 
desire  to  say,  that  so  far  as  I  recollect,  I  never  ex 
changed  a  word  with  any  one  connected  with 
Harvard  College,  on  the  subject  of  the  resolution 
which  I  introduced,  except  a  student  in  the  Law 
School,  for  a  moment,  who  spoke  of  the  impor 
tance  of  the  subject,  and  my  associate  professor  in 
that  department,  to  whom  I  believe  I  mentioned 
that  I  intended  to  introduce  one.  No  suggestion 
was  made  to  me  respecting  my  introducing,  or 
supporting  anything  of  the  kind.  I  acted  solely 
upon  my  own  personal  view  of  the  matter,  and 
Harvard  College,  or  the  interests  of  Harvard  Col 
lege,  were  not  in  my  thoughts  in  connection  with 
it. 

The  PRESIDENT.    The  Chair  desires  to  say 


626 


SECTARIAN   SCHOOLS,   &c. 


[70th  day. 


Friday,] 


BUTLER  —  WHITE  —  HALLETT  —  WILSON  —  DANA. 


[July  29th. 


in  regard  to  the  interpretation  to  be  given  to  the 
resolution,  gentlemen  may  put  such  construction 
upon  it  as  they  please,  but  they  are  not  at  liberty 
to  arraign  the  motives  of  the  mover. 

Mr.  BUTLER.  I  never  arraign  the  motives  of 
any  man  without  cause. 

Now,  Sir,  a  word  in  reference  to  the  gentleman 
from  Boston,  (Mr.  Crowninshield,)  who  has  let 
the  cat  out  of  the  bag  completely.  He  says  if 
gentlemen  expect  to  get  Catholic  votes  by  such  a 
movement  as  this,  they  are  mistaken.  Out  of  the 
abundance  of  the  heart  the  mouth  speaketh.  He 
says,  if  you  think  to  save  the  Constitution  in  this 
way  you  will  be  disappointed,  that  the  Catholics 
will  be  against  you  nevertheless.  The  resolution 
was  characterized  by  the  gentleman  as  an  intended 
attack  on  the  Catholic  population,  and,  says  he, 
they  are  not  to  be  deceived  by  such  a  bait  as  this. 
Now  it  is  very  evident  what  is  at  the  bottom  of 
all  this,  when  we  hear  gentlemen  threatening  to 
procure  votes  against  the  Constitution.  Let  gen 
tlemen  not  misunderstand  its  significance. 

Mr.  PERKINS,  of  Maiden,  moved  the  previous 
question. 

Mr.  WHITE,  of  Quincy.  I  hope  the  previous 
question  will  not  be  sustained.  The  gentleman 
from  Boston  has  made  remarks  concerning  the 
reconsideration,  which,  it  seems  to  me,  ought  to 
be  replied  to  and  corrected.  I  made  the  motion 
to  reconsider,  and  should  like  to  have  an  oppor 
tunity  to  explain  the  circumstances  which  led 
me  to  make  that  motion. 

The  previous  question  was  seconded,  and  the 
main  question  ordered  to  be  now  put. 

The  question  being  on  the  motion  to  reconsider, 
a  division  was  called  for. 

Mr.  HALLETT,  for  Wilbraham,  demanded  the 
yeas  and  nays. 

The  PRESIDENT.  The  yeas  and  nays  have 
been  refused. 

Mr.  HALLETT.  Are  we  not  entitled  to  have 
the  yeas  and  nays  as  a  verification  of  the  vote  ? 

The  PRESIDENT.  The  motion  for  the  yeas 
and  nays  having  been  rejected,  it  is  not  compe 
tent  to  renew  the  same  motion. 

Mr.  HALLETT.  I  rise  to  a  point  of  order.  I 
understand  the  Chair  to  say  that  the  yeas  and 
nays  have,  at  some  stage  of  this  question,  been 
called,  and  have  been  refused. 

The  PRESIDENT.     Such  is  the  case. 

Mr.  HALLETT.  According  to  a  former  rul 
ing  of  the  Chair,  as  I  understand,  there  are  two 
purposes  to  which  the  yeas  and  nays  apply.  One 
is,  to  ascertain  the  sentiment  of  the  House  upon  a 
given  question,  and  the  other  is,  as  a  verification 
of  the  vote  upon  a  question.  The  question  has 
now  been  put  upon  the  motion  to  reconsider. 


While  the  House  was  dividing,  and  before  the 
President  declared  what  the  vote  was,  I  rose  and 
asked  for  the  yeas  and  nays  as  a  verification  of 
the  vote.  The  Convention  certainly  have  this 
right.  It  is  an  entirely  distinct  purpose  from  that 
for  which  they  were  originally  called.  I  ask  if 
such  has  not  been  the  decision  of  the  Chair  ? 

The  PRESIDENT.  The  Chair  has  made  no 
such  decision.  There  is  but  one  purpose,  that  is, 
to  determine  the  result.  The  difficulty  is,  the 
yeas  and  nays  have  been  moved  and  refused. 

Mr.  HALLETT.  If  the  Chair  holds  it  is  not 
in  order  to  call  for  the  yeas  and  nays  at  this  time, 
it  is  a  very  different  ruling  from  that  which  the 
Chair  has  made  on  a  former  occasion. 

The  PRESIDENT.  The  Chair  has  never  ruled 
as  the  gentleman  states. 

Mr.  BUTLER.  I  move  a  reconsideration  of 
the  vote  by  which  the  yeas  and  nays  were  refused. 

The  PRESIDENT.  It  is  too  late  for  such  a 
motion. 

The  question  was  then  taken  on  the  motion  to 
reconsider  the  vote  by  which  the  resolve  on  the 
subject  of  sectarian  schools  was  passed,  and  upon 
a  division,  there  were — ayes,  87  ;  noes,  183. 

So  the  motion  to  reconsider  did  not  prevail. 

Imprisonment  for  Debt. 

The  PRESIDENT.  The  next  matter  on  the 
Orders  of  the  Day  is  the  motion  to  reconsider  the 
vote  by  which  the  resolve  on  the  subject  of  im 
prisonment  for  debt  was  passed. 

Mr.  BUTLER,  of  Lowell.  I  wish  to  make  an 
inquiry.  I  believe  this  resolve  was  never  before 
the  Committee  of  the  Whole. 

Mr.  WILSON,  of  Natick.  I  understand  there 
is  a  Report  made  by  the  Judiciary  Committee,  on 
a  very  important  matter,  which  the  Committee 
on  Revision  need  to-night.  I  therefore  move 
that  the  Orders  of  the  Day  be  laid  upon  the  table. 

The  motion  was  agreed  to. 

Tenure  of  Office. 

On  motion  of  Mr.  DANA,  for  Manchester, 
the  Convention  took  up  for  consideration  the 
Report  from  the  Committee  on  the  Judiciary, 
respecting  the  tenure  of  office. 

The  Report  was  read,  as  follows  : — 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  28,  1853. 
The  Committee  on  the  Judiciary,  to  whom  was 
referred  the  order  of  July  26th,  1853,  have  con 
sidered  the  same,  and  report  the  accompanying 

resolves. 

MARCUS  MORTON,  Chairman. 

1.    Resolved,   That  persons  holding  office  by 


70th  day.] 


TENURE   OF   OFFICE. 


627 


Friday,] 


DANA  —  CHAPIN  —  TRAIN. 


[July  29th. 


election  or  appointment  under  the  present  Con 
stitution,  shall  continue  to  discharge  the  duties 
thereof  until  their  term  of  office  shall  expire,  or 
officers  authorized  to  perform  their  duties,  or  any 
part  thereof,  shall  be  elected  and  qualified,  pur 
suant  to  the  provisions  of  this  amended  Constitu 
tion  ;  when  all  powers  not  reserved  to  them  by 
the  provisions  of  this  amended  Constitution  shall 
cease :  provided,  however,  that  Justices  of  the 
Peace,  Justices  of  the  Peace  and  of  the  Quorum, 
and  Commissioners  of  Insolvency,  shall  be  author 
ized  to  finish  and  complete  all  proceedings  pend 
ing  before  them  at  the  time  when  their  powers 
and  duties  shall  cease,  or  be  altered  as  aforesaid. 

2.  Resolved,  That  the  legislature  shall  provide, 
from  time  to  time,  the  mode  in  which  commis 
sions  or  certificates  of  election  shall  be  issued  to  all 
officers  elected  pursuant  to  the  Constitution,  ex 
cept  in  case  where  provison  shall  be  made  therein. 

3.  Resolved,  That  the  Governor,  by  and  with 
the  consent  of  the  Council,  may  at  any  time  for 
cause  shown,  remove  from  office,  Clerks  of  Courts, 
Commissioners  of  Insolvency,  Judges  and  Regis 
ters  of  Probate,  District- Attorneys,  Registers  of 
Deeds,  County  Treasurers,  County  Commission 
ers,  Sheriffs,  Trial  Justices,  and  Justices  of  Police 
Courts :  provided,  however,  a  copy  of  the  charges 
upon  which  said  removal  is  made,  shall  be  fur 
nished  to  the  party  to  be  removed,  and  a  reason 
able  opportunity  given  him  for  defence. 

4.  Resolved,  That  whenever  a   vacancy  shall 
occur  in  any  elective  office,  provided  for  in  this 
Constitution,  except  that  of  Governor,  Lieuten 
ant- Governor,   Councillor,    Senator,    member  of 
the  House  of  Representatives,   and   Town   and 
City  officers,  the  Governor  for  the  time  being,  by 
and  with  the  advice  and  consent  of  the  Council, 
may  appoint   some  suitable  person  to  fill  such 
vacancy,  until  the  next  annual  election,  when  the 
same  shall  be  filled  by  a  new  election,  in  the  man 
ner  to  be  provided   by  law :  provided,  however, 
Trial  Justices  shall  not  be  deemed  to  be  town  offi 
cers  for  this  purpose. 

5.  Resolved,  That  all  elections  provided  to  be 
had  under  this  amended  Constitution,  shall,  un 
less  otherwise  provided,  be  first  held  on  the  Tues 
day  next  after  the  first  Monday  of  November, 
A.  D.  1854. 

Mr.  DANA  moved  to  amend  the  third  resolu 
tion,  by  striking  out  the  proviso. 

Mr.  DANA.  I  wish  to  say,  Sir,  that  I  have 
submitted  this  amendment  to  two  gentlemen  of 
of  the  Judiciary  Committee,  and  they  approved 
of  it.  I  have  not  been  able  to  find  the  other 
members  of  the  Committee,  or  I  would  have  con 
sulted  them  also.  I  will  simply  state  to  the 
house  the  purport  of  the  proposition.  It  provides 
that  clerks  of  courts,  sheriffs,  &c.,  shall  be  elected 
for  three  years,  the  governor  having  the  power~  of 
removal,  "provided,  that  a  copy  of  the  charges 
upon  which  said  removal  is  made,  shall  be  fur 
nished  to  the  party  to  be  removed,  and  a  reason 
able  opportunity  given  him  for  defence." 

Now,  it  may  happen  that  a  sheriff  may  fall 


into  habits  of  intemperance  ;  or  in  times  of  civil 
commotion  he  may  have  gone  over  to  the  enemy ; 
he  may  be  guilty  of  treason  ;  yet  nobody  can 
touch  him.  The  clerk  of  a  court  may  become 
involved  in  some  fraudulent  transaction,  or  may 
commit  a  misdemeanor ;  he  may  become  treach 
erous,  and  refuse  to  deliver  up  papers.  Now,  I 
want  to  provide  that  the  governor  shall  have 
power  to  remove  these  officers  for  causes  such 
as  these.  The  difficulty,  as  the  matter  now 
stands,  would  be,  that  they  could  not  be  removed 
without  a  hearing,  an  examination  of  the 
charges  against  them,  and  such  formalities  as 
might  not  be  consistent  with  the  public  exigen 
cies.  It  is  simply  provided  in  this  amendment 
that  the  governor  shall  have  the  power,  if  the 
exigencies  of  the  case  require  it,  to  suspend  these 
officers,  and  make  a  temporary  appointment  to 
hold  only  until  an  examination  can  be  had,  and 
the  charges  verified  or  disproved.  That  is  the 
whole  of  it.  The  governor  must,  in  all  cases,  enter 
the  cause  of  removal  upon  the  record,  and  the 
party  must  be  heard,  and  he  cannot  be  removed 
without  the  consent  of  the  council.  And  it  must 
be  remembered  they  are  all  elective  officers. 
There  is  no  danger  of  the  governor  and  council 
abusing  the  power.  But  it  is  certain  that  such  a 
power  should  exist  somewhere,  especially  in  the 
case  of  sheriffs. 

Mr.  CHAPIN,  of  Worcester.  I  rise  to  say 
that  I  am  entirely  satisfied  with  the  amendment 
which  the  gentleman  has  proposed,  so  far  as  the 
matter  of  removal  is  concerned.  I  suppose  no 
governor  would  undertake  to  remove  an  elective 
officer  unless  for  sufficient  cause.  Therefore,  it 
seems  to  me  that  the  article  is  sufficiently  guarded 
in  the  amendment,  and  the  interests  of  the  Com 
monwealth  will  be  thereby  the  better  protected. 

Mr.  TRAIN,  of  Eramingham.  My  attention 
has  been  directed  to  this  matter  only  since  the 
gentleman  has  called  it  up ;  but  it  seems  to  me 
we  ought  to  define  the  causes  for  which  the  gov 
ernor  and  council  may  remove  an  officer.  As  it 
is,  the  governor,  with  the  advice  of  the  council, 
may  remove  an  officer  for  any  cause.  If  the 
governor  chooses  to  find  fault  with  me  for  being 
only  five  feet  and  a  half  in  height,  he  may  remove 
me  from  an  office  to  which  I  have  been  elected 
by  the  people.  Now,  I  do  not  believe  the  Con 
vention  desire  to  intrust  such  power  in  the  hands 
of  the  governor  and  council.  And  for  the  pur 
pose  of  reaching  such  cases,  there  is  a  provision 
in  the  Constitution  of  the  State  of  New  York, 
which  covers  the  whole  ground.  But  not  to 
detain  the  Convention,  I  will  move  to  strike  out 
the  words  "  cause  shown,"  and  insert  the  words 
"  disability,  incapacity,  or  malfeasance  in  office." 


628 


TENURE   OF   OFFICE. 


[70th  day. 


Friday,] 


HALLETT  —  BATES  —  HOPKINSON  —  BUTLER  —  BIRD. 


[July   29th. 


The  PRESIDENT.  The  gentleman's  amend 
ment  will  be  in  order  after  this  is  disposed  of. 
The  present  proposition  is  to  strike  from  the  third 
resolve  the  proviso  which  is  in  these  words : 
"  provided,  however,  a  copy  of  the  charges  upon 
which  said  removal  is  made,  shall  be  furnished  to 
the  party  to  be  removed,  and  a  reasonable  oppor 
tunity  given  him  for  defence." 

Mr.  HALLETT,  for  Wilbraham.  I  hope  the 
amendment  will  not  be  adopted.  I  think  the 
provision  goes  far  enough  as  it  is.  The  amend 
ment  would  give  a  most  extraordinary  power  to 
the  governor  and  council.  Give  them  the  power 
of  removal,  if  you  please,  but  this  gives  the  gov 
ernor  the  power,  whenever  he  chooses  to  charge 
a  man  with  disability,  to  immediately  suspend 
him  from  office ;  and  when  an  examination  is 
had,  if  it  be  had  at  all,  it  may  turn  out  that  the 
charge  is  utterly  groundless  and  malicious.  I 
question  very  much  the  propriety  of  placing  this 
power  in  the  hands  of  the  executive.  I  am  wil 
ling  that  the  governor  should  have  the  power  of 
appointment  to  fill  a  vacancy,  but  I  am  not  quite 
prepared  to  go  so  far  as  to  give  him  the  power  of 
removal,  in  the  case  of  an  elective  officer,  at  his 
mere  will  and  pleasure.  I  should  greatly  prefer 
the  amendment  of  the  gentleman  from  Framing- 
ham.  The  moment  an  officer  is  elected,  if  the 
governor  does  not  like  him,  he  has  only  to  make 
out  a  specification  of  charges  against  him,  and 
from  that  moment  the  officer  is  suspended  from 
the  discharge  of  the  duties  of  the  office  to  which 
he  has  been  elected ;  and  the  governor  then  fills 
the  office  with  a  man  of  his  own  choosing. 

Mr.  BATES,  of  Plymouth.  I  rise  for  the 
purpose  of  inquiring  whether  this  is  the  final 
stage  of  these  resolves  ? 

The  PRESIDENT.  It  is  not.  The  question 
will  be  on  ordering  the  resolves  to  a  second  read 
ing,  after  the  proposed  amendments  shall  have 
been  disposed  of. 

Mr.  HOPKINSON,  of  Boston.  The  matter 
presents  itself  to  my  mind  very  much  as  it  is 
viewed  by  the  gentleman  for  Wilbraham.  At 
present,  such  officers  could  not  be  removed, 
except  by  act  of  the  legislature,  to  be  adopted  by 
a  vote  of  two-thirds.  It  appears  to  me  we  should 
not  give  to  the  governor  and  council  a  power  so 
much  greater  than  the  legislature  has.  I  think 
there  ought  to  be  not  only  a  specification  of 
charges,  but  a  substantiation  of  them,  before  the 
power  of  removal  should  be  exercised.  The  man 
elected  to  an  office,  might  be  obnoxious  to  the 
governor  for  the  time  being ;  and,  to  get  rid  of 
him,  nothing  more  would  be  requisite  than  the 
mere  will  of  the  governor  and  council.  There 
should  be  some  such  restriction  as  is  contained  in 


the  Constitution  of  the  State  of  New  York.  It 
should  not  be  a  mere  matter  of  discretion  with 
the  governor,  whether  a  man  who  has  been 
elected,  shall  retain  his  office  or  not.  A  mere 
accusation,  it  seems  to  me,  is  not  a  sufficient 
reason  for  removing  a  man  from  office. 

Mr.  BUTLER,  of  Lowell.  I  merely  wish  to 
say,  that  if  gentlemen  will  look  at  this  matter  for 
a  moment  in  the  light  in  which  I  view  it,  I  think 
they  will  not  find  so  much  difficulty  as  they  seem 
to  apprehend.  I  think  they  will  see  that  there 
can  be  no  great  danger  of  this  power  being 
abused.  All  these  officers,  viz. :  clerks  of  courts, 
commissioners  of  insolvency,  judges  and  registers 
of  probate,  district- attorneys,  registers  of  deeds, 
county  treasurers,  county  commissioners,  sheriffs, 
trial  justices,  and  justices  of  police  courts,  are  to 
be  elected  triennially,  and  when  a  vacancy  occurs, 
an  election  to  fill  such  vacancy  will  take  place  at 
the  next  annual  election ;  so  that  the  power  of 
the  governor  to  make  a  temporary  appointment, 
would  only  extend  to  the  time  of  the  next  annual 
election,  perhaps  six.  or  nine  months  at  the  far 
thest.  There  would  be  but  little  gained  by  a 
temporary  appointment  for  a  period  so  limited  ; 
and  the  governor  would  scarcely  attempt  to  make 
use  of  the  power,  therefore,  for  political  purposes. 
It  would  hardly  pay.  Now,  take  the  case  of 

The  PRESIDENT.  The  attention  of  the 
Chair  is  called  to  the  fact,  that  the  resolves  have 
never  been  committed  to  the  Committee  of  the 
Whole.  It  will  be  necessary  that  they  be  so 
committed,  or  else  that  the  rule  be  suspended. 

Mr.  BIRD,  of  Walpole.  I  move  that  the  rule 
be  suspended. 

Mr.  HALLETT,  for  Wilbraham.  Are  you 
going  to  suspend  the  rule  to  pass  these  resolves  ? 

Mr.  BIRD.  No;  only  to  order  them  to  a 
second  reading. 

The  question  upon  the  motion  to  suspend  the 
rule  being  put,  a  division  was  asked  for,  and 
upon  a  count,  it  appeared  there  was  not  a  quorum 
voting. 

Mr.  CROWNINSHIELD,  of  Boston,  moved 
that  the  Convention  adjourn.  A  division  was 
called  for,  and  a  count  being  had,  there  were — 
ayes,  23  ;  noes,  76.  The  President  voted  in  the 
negative,  making  a  quorum  ;  and  the  Convention 
refused  to  adjourn. 

The  question  was  then  taken  on  the  motion  to 
suspend  the  rule,  and — by  ayes,  95  ;  noes,  6 — it 
was  decided  in  the  affirmative. 

The  question  recurred  on  the  amendment  moved 
by  the  gentleman  for  Manchester,  (Mr.  Dana). 

Mr.  HOPKINSON,  of  Boston.  I  rise  only 
for  the  purpose  of  making  a  suggestion  which 
may  serve  to  facilitate  our  proceeding.  It  is 


71st  day.] 


DEBATES   AND    PROCEEDINGS. 


629 


Saturday,] 


TRAIN  —  SCHOULBR  —  BIRD. 


[July  30th. 


this  :  As  this  matter  now  stands,  not  having  been 
considered  in  Committee  of  the  Whole,  we  are 
not  prepared  to  act  upon  it,  and  this  is  not  its 
final  stage.  I  therefore  suggest  that  the  amend 
ment  be  withdrawn  at  this  time,  and  that  the  re 
solves  be  passed  to  their  second  reading,  and 
to-morrow,  when  they  come  up,  we  shall  be  ready 
to  consider  the  amendment,  and  act  upon  it  as 
well  as  upon  the  final  passage  of  the  resolves. 

Mr.  DANA,  in  accordance  with  the  sugges 
tion  made  by  the  gentleman  from  Boston,  with 
drew  his  amendment,  and 

The  resolves  were  ordered  to  a  second  reading. 

Orders  of  the  Day. 

On  motion  of  Mr.  TRAIN,  of  Framingham, 
the  Convention  resumed  the  consideration  of  the 
Orders  of  the  Day.  The  next  item  on  the 
Orders  being  the  motion  to  reconsider  the  vote  by 
which  the  resolve  was  passed  in  relation  to 

Imprisonment  for  Debt. 

Mr.  SCHOULER,  of  Boston,  moved  that  the 
motion  to  reconsider  be  laid  upon  the  table. 
The  motion  was  agreed  to. 

Debates  and    Proceedings. 

The  following  Reports  from  the  Committee  on 
Reporting  and  Printing  were  taken  up,  and,  under 
a  suspension  of  the  rules,  read  twice  and  con 
curred  in. 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  28,  1853. 
The  Committee  on  Reporting  and  Printing,  to 
whom  was  referred  the  business  of  superintend 
ing  the    Reporting  and  Publication  of  the  De 
bates  and  Proceedings  of  the  Convention,  ask  leave 
to  report  the  following  resolutions. 
For  the  Committee, 

M.  BATES,  JR.,  Chairman. 

Resolved,  That  the  chairman  of  the  Committee 
on  Reporting  and  Printing  be  authorized,  under 
the  direction  and  sanction  of  said  Committee,  to 
superintend  the  Reporting,  Indexing,  Printing 
and  Publication  of  the  Debates  and  Proceedings 
of  the  Convention,  until  the  same  are  completed, 
and  that  he  be  paid  therefor  the  sum  of  four  dol 
lars  per  day,  and  travel. 

Resolved,  That  said  Committee  be  authorized 
to  pay  to  the  Secretary  of  the  Commonwealth 
such  expenses,  not  exceeding  six  hundred  dollars, 
as  may  have  been  incurred  for  extra  services  per 
formed  by  order  of  this  Convention,  and  that  the 
Order  of  May  18th,  be  so  far  altered  as  that  said 
Committee  shall  have  the  direction  of  all  matters 
relative  to  the  sale  or  distribution  of  the  Reports 
and  Proceedings  of  this  Convention. 

Resolved,  That  a  copy  of  the  Debates  and  Pro 


ceedings  of  this  Convention,  when  completed,  be 
furnished  by  the  Committee  to  each  of  the  Re 
porters  to  the  Convention. 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  July  28,  1853. 
The  Committee  on  Reporting  and  Printing,  to 
whom  was  referred  the  order  of  July  21st  rel 
ative  to  appending  to  the  published  Debates, 
"  Poole's  Statistical  Viewof  the  Members,"  and  the 
"pay  for  the  travel  and  attendance  of  members," 
have  considered  the  same,  and  report,  that  it  ia 
inexpedient  for  the  Convention  to  take  any  action 
thereon. 

For  the  Committee, 

M.  BATES,  JR.,  Chairman. 

Journal  of  Committee  of  the  Whole. 

Mr.  BIRD,  of  "Walpole,  from  the  Committee  on 
the  Preservation  of  the  Records,  submitted  a  Re 
port,  authorizing  James  T.  Robinson,  Esq.,  one 
of  the  Secretaries  of  the  Convention,  to  make  up 
the  Journal  of  the  Proceedings  in  Committee  of 
the  Whole,  and  to  prepare  an  Index  for  the  same, 
at  the  same  rate  of  compensation  as  that  allowed 
for  the  Journal  of  the  Convention  and  Index  to 
the  same. 

The  Report  was  adopted. 

Suspension  of  a  Rule. 

Some  conversation  ensued,  respecting  an  in 
formality  in  the  proceedings  relating  to  the  resolve 
on  the  subject  of  imprisonment  for  debt,  which 
informality  was  subsequently  remedied  by  the 
suspension  of  the  rule  which  requires  all  proposi 
tions  for  amending  the  Constitution,  to  be  con 
sidered  in  Committee  of  the  Wnole,  before  they 
are  debated  and  finally  acted  upon  in  Convention, 
so  far  as  relates  to  that  particular  subject. 

On  motion  by  Mr.  WOOD,  of  Fitchburg,  the 
Convention  then,  at  half  past  seven  o'clock,  ad 
journed  until  to-morrow  at  nine  o'clock,  A.  M. 


SATURDAY,  July  30,  1853. 

The  Convention  assembled  pursuant  to  ad 
journment,  and  was  called  to  order  by  the  Presi 
dent,  at  nine  o'clock. 

Prayer  by  the  Chaplain. 

The  journal  of  yesterday  was  read. 

Superintendence  of  Printing  the  Debates. 
The  resolution  reported  from  the  Committee 
on  Reporting  and  Printing,  in  relation  to  the  su 
perintendence   of  the  printing  of  the  Debates, 
was  read  and  adopted. 


630 


TENURE   OF   OFFICE,  &c. 


[71st  day. 


Saturday,] 


WALKER  —  DANA. 


[July  30th. 


The  Amended  Constitution. 

On  motion  by  Mr.  WALKER,  of  North 
Brookfield,  it  was  ordered,  that  one  hundred 
thousand  copies  of  the  Amended  Constitution  be 
printed  for  distribution,  and  that  a  copy  of  the 
same  be  sent  to  every  family  in  the  Common 
wealth. 

On  motion  by  Mr.  DANA,  for  Manchester, 
the  Convention  proceeded  to  the  consideration  of 
the  Orders  of  the  Day,  the  first  item  being  the  re 
solves  reported  from  the  Committee  on  the  Judi 
ciary,  in  relation  to  the 

Tenure  of  Office, 

The  question  being  upon  their  final  passage. 
They  were  read,  as  follows : — 

1.  Resolved,    That  persons  holding  office   by 
election  or  appointment  under  the  present  Consti 
tution,    shall    continue   to   discharge   the   duties 
thereof  until  their  term  of  office  shall  expire,  or 
officers  authorized  to  perform  their  duties,  or  any 
part  thereof,  shall  be  elected  and  qualified,  pursu 
ant  to  the  provisions  of  this  amended  Constitu 
tion  ;  when  all  powers  not  reserved  to  them  by  the 
provisions   of  this   amended  Constitution    shall 
cease:    provided,   however,   that   Justices   of    the 
Peace,  Justices  of  the  Peace  and  of  the  Quorum, 
and  Commissioners  of  Insolvency,  shall  be  au 
thorized  to  finish  and  complete  all  proceedings 
pending  before  them  at  the  time,  when  their  pow 
ers  and  duties  shall  cease,  or  be  altered  as  afore 
said. 

2.  Resolved,  That  the  Legislature  shall  provide, 
from  time  to  time,  the  mode  in  which  commis 
sions  or  certificates  of  election  shall  be  issued  to 
all  officers  elected  pursuant  to  the  Constitution, 
except  in  case  where  provision  shall  be  made 
therein. 

3.  Resolved,  That  the   Governor,  by  and  with 
the  consent  of  the  Council,  may  at  any  time  for 
cause    shown,  remove    from    office,    Clerks   of 
Courts,  Commissioners  of  Insolvency,  Judges  and 
Registers  of  Probate,  District-Attorneys,  llegis- 
ters  of  Deeds,  County  Treasurers,  County  Com 
missioners,  Sheriffs,  Trial  Justices,  and  Justices  of 
Police  Courts :  provided,  however,  a  copy  of  the 
charges  upon  which  said  removal  is  made,  shall 
be  furnished  to  the  party  to  be  removed,  and  a 
reasonable  opportunity  given  him  for  defence. 

4.  Resolved,    That   whenever   a  vacancy  shall 
occur  in  any  elective  office  provided  for  in  this 
Constitution,  except  that  of  Governor,  Lieuten 
ant- Governor,  Councillor,   Senator,   member   of 
the  House  of  Representatives,  and  Town  and 
City  officers,  the  Governor  for  the  time  being,  by 
and  with  the  advice  and  consent  of  the  Council, 
may  appoint  some  suitable  person  to  fill  such  va 
cancy  until  the  next  annual  election,  when  the 
same  shall  be  filled  by  a  new  election,  in  the  man 
ner  to  be  provided  by  law  :  provided,  hoioever, 
Trial  Justices  shall  not  be  deemed  to  be  town 
officers  for  this  purpose. 

5.  Resolved,  That  all  elections  provided  to  be 


had  under  this  amended  Constitution  shall,  un 
less  otherwise  provided,  be  first  held  on  the  Tues 
day  next  after  the  first  Monday  of  November, 
A.  D.  1854. 

Mr.  DANA,  for  Manchester,  moved  to  amend 
the  third  resolve,  by  striking  out  all  after  the 
word  "  provided,"  and  inserting  the  following : — 

That  the  cause  be  entered  upon  the  records  of 
the  Council,  and  a  copy  thereof  be  furnished  to 
the  party  to  be  removed,  and  a  reasonable  oppor 
tunity  be  given  him  for  defence.  And  the  Gov 
ernor  may  at  any  time,  if  the  public  exigency 
demand  it,  either  before  or  after  such  entry  and 
notice,  suspend  any  of  said  officers,  and  appoint 
substitutes  who  shall  hold  office  until  the  final 
action  upon  the  question  of  removal. 

Mr.  DANA.  The  object  of  this  third  resolve 
is,  to  enable  the  governor  to  remove  and  appoint 
a  substitute  in  the  place  of  an  officer  who  shall 
become  insane,  or  otherwise  incompetent  to  dis 
charge  the  duties  of  the  office,  or  who  shall  be 
come  unfaithful  to  the  government  in  a  time  of 
emergency.  Formerly,  the  governor  had  the 
power  of  removal  in  all  cases,  and  of  making 
appointments,  but  you  have  incorporated  into  the 
new  Constitution  a  provision  by  which  all  these 
officers  mentioned  in  the  third  section,  are  to  be 
elected  by  the  people  for  three  years,  and  the 
governor  has  no  power  of  removal  or  suspension 
in  regard  to  them,  whatever.  Accordingly,  if  a 
sheriff  should  become  insane,  or  incompetent,  or 
unfaithful,  he  could  still  hold  his  office  for  three 
years,  in  defiance  of  the  Commonwealth,  and  to 
the  great  injury  of  the  public  interest.  Every 
one  must  agree  that  the  governor  should  have  the 
power  of  removal  in  such  cases ;  the  only  ques 
tion  is,  how  it  should  be  exercised.  The  Com 
mittee  originally  proposed  that  the  governor 
shoiild  remove  the  officer,  but  that  he  should  first 
specify  the  charges  against  him,  and  enter  them 
upon  the  records,  and  give  him  notice  thereof,  that 
he  might  have  an  opportunity  for  defence.  The 
amendment  proposes,  in  addition  to  that,  that  the 
governor  shall  have  power,  during  the  hearing  of 
the  charges,  to  suspend  the  officer,  and  make  a 
temporary  appointment  to  fill  his  place.  The 
case  may  easily  be  conceived,  of  a  sheriff,  or  a 
clerk  of  a  court,  or  other  incumbent  of  an  im 
portant  office,  becoming  insane  or  otherwise  in 
capacitated,  or  they  may  prove  unfaithful,  trai 
torous  in  time  of  insurrection,  or  invasion  ;  they 
may  have  gone  over  to  the  enemy,  and  yet,  if  the 
governor  has  not  this  power  of  removal  and  ap 
pointment  ad  interim,  the  business  of  the  office 
must  be  suspended  while  the  case  is  being  inves 
tigated,  and  all  that  time  there  would  be  no  sher 
iff,  or  no  clerk,  as  the  case  might  be.  It  is 


71st  day.] 


TENURE   OF   OFFICE. 


631 


Saturday,] 


DAVIS  —  DANA  —  TRAIN  —  LORD. 


[July  30th. 


absolutely  necessary  to  the  carrying  on  of  the 
government,  that  this  power  should  exist.  I 
have  consulted  with  the  members  of  the  Com 
mittee  on  the  Judiciary,  and  they  are  in  favor  of 
the  amendment,  as  are  also  the  Committee  on 
Revision.  I  hope  it  will  be  adopted  without  any 
objection. 

Mr.  DAVIS,  of  Worcester.  As  I  understand 
the  matter,  the  governor  will  have  the  power,  if 
this  amendment  be  adopted,  to  supersede  an  elec 
tion  by  the  people,  by  an  appointment  of  his  own, 
whenever  he  thinks  proper  to  do  so. 

Mr.  DANA.  If  the  gentleman  -will  permit 
me,  I  ought  to  have  said  also,  that  there  is  a 
provision  which  directs  that,  in  case  of  a  vacancy 
occurring  in  an  office  which  is  elective  for  the 
term  of  three  years,  it  shall  be  filled  by  an  elec 
tion  at  the  next  annual  election,  so  that  if  the 
governor  remove  an  officer,  and  appoint  another 
in  his  place,  such  appointment  can  only  hold 
good,  under  any  circumstances,  until  the  next 
annual  election.  Gentlemen  will  perceive,  then, 
that  the  governor  could  have  very  little  induce 
ment  for  making  a  removal  and  appointment  un 
less  the  cause  contemplated  by  the  Constitution 
actually  existed.  And  the  whole  matter  must 
become  a  matter  of  record.  The  governor,  then, 
would  not  be  very  likely  to  make  a  removal  with 
out  sufficient  cause,  when  all  the  circumstances 
must  become  a  matter  of  public  notoriety. 

Mr.  TRAIN,  of  Framingham.  If  I  rightly 
understood  the  effect  of  the  amendment  offered 
by  my  friend  over  the  way,  I  suppose  the  object 
sought  to  be  attained  is  one  which  every  one  will 
acknowledge  is  a  proper  one  to  be  accomplished. 
But  if  I  understand  the  effect  of  it,  as  offered  by 
the  gentleman  for  Manchester,  (Mr.  Dana,)  it 
will  be  to  place  it  in  the  power  of  the  executive, 
the  day  after  a  sheriff,  or  clerk  of  a  court  was 
elected  by  the  people,  to  suspend  one  of  these 
officers,  to  hold  him  suspended,  and  to  keep  the 
office  filled  by  his  own  appointment  during  the 
entire  three  years.  For  it  is  left  at  the  option  of 
the  governor  and  council  to  try  him  or  not,  as 
they  please.  Now,  suppose  the  clerk  of  a  court 
refuses  to  enter  up  a  judgment  to  suit  me,  and  I 
go  to  the  governor  and  file  a  charge  against  that 
clerk,  that  he  did  not  enter  up  a  judgment  as  I 
wanted  him  to.  Thereupon  he  is  suspended 'by 
the  governor  until  the  council  try  him,  and  they 
will  try  him  just  when  they  get  ready ;  but  in 
the  mean  time,  the  office  is  filled  by  the  governor. 
I  would  not  give  the  governor  any  such  power. 
I  think  if  there  is  a  vacancy  in  the  office  of  clerk 
of  a  court,  it  should  be  filled  by  the  court  itself, 
but  it  is  too  late  to  discuss  that  now. 
Mr.  DANA.  I  will  remark  that  I  wish  the 


Convention  had  provided  that  vacancies  occur 
ring  in  the  offices  of  the  clerks  of  the  courts, 
should  be  filled  by  the  courts  themselves.  But 
they  have  otherwise  provided. 

Mr.  LORD,  of  Salem.  I  desire  to  ask,  as  a 
matter  of  order,  whether  this  precise  resolution 
has  not  been  once  acted  upon  and  rejected,  by  the 
Convention  ? 

The  PRESIDENT.  The  Chair  thinks  not. 
It  is,  however,  too  late  to  raise  the  question  of 
order  now.  The  resolves  have  been  received, 
read  a  second  time,  and  the  question  is  on  their 
final  passage. 

Mr.  LORD.  I  do  know  how  that  may  be,  for 
I  was  not  present  a  portion  of  the  time  yesterday 
afternoon,  but  just  such  a  proposition  was  re 
ported  by  the  gentleman  from  Lenox,  (Mr.  Bish 
op,)  from  the  Committee  of  which  he  is  chairman. 
It  provided  that  the  governor  should  have  power 
to  remove  all  those  officers  which  are  mentioned 
in  the  resolve  now  before  us.  That  resolution 
was  rejected,  by  an  almost  unanimous  vote  of  the 
Convention,  and  I  submit  that  this  resolution 
could  not  regularly  have  been  introduced.  If, 
however,  it  has  passed  to  a  stage  where  the  point 
of  order  cannot  be  made  upon  it,  I  have  nothing 
to  say. 

Mr.  DANA,  for  Manchester.  I  will  remark 
to  the  gentleman  from  Salem,  that  this  is  quite  a 
different  provision  from  that  reported  by  the  gen 
tleman  from  Lenox,  (Mr.  Bishop).  That  gave 
to  the  governor  the  unqualified  power  of  re 
moval.  This  gives  the  governor,  by  and  with 
the  advice  of  the  council,  the  power  to  remove 
them  upon  certain  conditions. 

Mr.  LORD.  The  resolution  before  the  Con 
vention,  to  which  I  have  reference,  is  the  follow 
ing: — 

3.  Resolved,  That  the  Governor,  by  and  with 
the  consent  of  the  Council,  may  at  any  time, 
for  cause  shown,  remove  from  office,  Clerks  of 
Courts,  Commissioners  of  Insolvency,  Judges  and 
Registers  of  Probate,  District- Attorneys,  Regis 
ters  of  Deeds,  County  Treasurers,  County  Com 
missioners,  Sheriffs,  Trial  Justices,  and  Justices 
of  Police  Courts  :  provided,  however,  a  copy  of  the 
charges  upon  which  said  removal  is  made,  shall 
be  furnished  to  the  party  to  be  removed,  and  a 
reasonable  opportunity  given  him  for  defence. 

In  document  No.  104,  you  will  find  reported 
from  the  Committee  on  the  Secretary,  Treasurer, 
&c.,  the  following  : — 

2.  Resolved,  That  it  is  expedient  so  to  amend 
the  Constitution,  that  the  Governor  may  remove 
any  officer  in  the  former  resolves  of  this  Commit 
tee  mentioned,  within  the  term  for  which  he  shall 
have  been  elected,  giving  such  officer  a  copy  of 


632 


TENURE   OF   OFFICE. 


[71st  day. 


Saturday,] 


LORD  —  CHAPIN  —  DANA  —  MORTON. 


[July  30th. 


the  charges  against  him,  and  an  opportunity  of 
being  heard  in  his  defence. 

The  PRESIDENT.  The  resolves  are  not  the 
same.  The  gentleman  will  find  certain  officers 
mentioned  in  one  resolution  that  are  not  men 
tioned  in  the  other. 

Mr.  LORD.  Certain  officers  are  named  in  one 
of  the  resolves,  and  the  other  refers  to  former 
resolves,  where  the  same  officers  are  named. 

The  PRESIDENT.  The  Chair  is  of  the  opinion 
that  they  are  not  the  same  resolves,  and  that  they 
are  in  order. 

Mr.  CHAPIN,  of  Worcester.  The  resolve  to 
which  the  gentleman  from  Salem  refers,  con 
tained  iu  document  No.  104,  was  committed, 
along  with  others,  to  the  Select  Committee,  of 
which  the  gentleman  from  Boston,  (Mr.  Steven- 
Bon,)  was  chairman.  That  Committee  struck  it 
out  in  their  Report.  I  submit,  therefore,  that 
the  Convention  has  not  taken  any  action  upon  it, 
which,  by  the  rules  of  order,  would  prevent  it 
from  being  introduced  again. 

Mr.  LORD.  If  it  is  too  late  to  raise  the  point 
of  order,  of  course  I  have  nothing  to  say.  I 
however  desire  to  say  a  word  upon  the  amend 
ment  of  the  gentleman  for  Manchester,  (Mr. 
Dana).  If  I  understand  the  effect  of  that  amend 
ment,  it  is  this  :  Whenever  anybody  sees  fit  to 
make  a  charge  against  an  officer  they  do  not  like, 
and  who  is  of  different  politics  from  the  governor 
then  in  office,  they  thereupon  present  their  charge 
to  the  governor,  and  the  governor,  thereupon,  en 
ters  the  charge  upon  record,  suspends  that  officer, 
and  appoints  somebody  else  in  his  place.  I  want 
to  know  if  that  is  not  the  meaning  of  this  resolve  ? 
Has  not  the  governor  the  power — as  soon  as  one 
of  these  officers,  elected  by  the  people,  comes  into 
office,  if  anybody  sees  fit  to  object  to  him — to 
place  that  objection  upon  the  record,  and  then 
suspend  that  officer  just  as  long  as  he  pleases  ? 

A  MEMBER.     Only  in  cases  of  insanity. 

Mr.  LORD.  If  it  is  only  in  cases  of  insanity 
I  will  go  for  it.  Still,  there  is  a  class  of  un 
healthy  politicians  who  are  considered  insane, 
and  that  may  be  considered  good  reason,  perhaps, 
for  suspending  them. 

Now,  I  submit,  Mr,  President,  that  if  the  Con 
vention  understand  this  resolve,  or  this  amend 
ment,  they  will  not  pass  them.  It  is  not  neces 
sary  to  make  an  argument  against  them.  It  is 
only  necessary  for  the  Convention  to  understand 
their  effect,  to  reject  them.  But,  Sir,  I  will  not 
take  up  the  time  of  the  Convention  upon  the 
subject. 

Mr.  DANA.  I  wish  the  Convention  to  un 
derstand  this  matter.  The  governor  has  al 
ways  had  the  power  to  remove  these  officers  for 


cause  shown.  We  only  make  the  same  provision 
with  regard  to  sheriffs,  clerks  of  courts,  &c., 
which  has  been  made  before.  Indeed,  we  place 
restrictions  upon  the  power  of  removal,  which 
are  not  contained  in  the  present  Constitution. 

Mr.  LORD.  My  objection  is  not  that  there  is 
a  power  of  removal.  The  governor  has  heretofore 
had  an  unlimited  power  to  remove  the  officers  of 
his  own  appointment,  and,  I  think  it  is  perfectly 
proper  that  he  should  have  that  power  ;  but  row 
it  is  proposed  to  give  him  the  power  to  remove 
officers  appointed  by  the  people.  It  is  that  to 
which  I  object. 

Mr.  DANA.  Does  the  gentleman  say  the  gov 
ernor  ought  not  to  have  the  power  to  suspend 
these  officers  ? 

Mr.  LORD.  I  think  the  governor  ought  not 
to  have  power  to  remove  or  suspend  an  officer 
the  people  have  elected. 

Mr.  DANA.     But  suppose  he  is  insane  ? 

Mr.  LORD.     I  would  provide  a  remedy. 

Mr.  DANA.     What  is  it  ? 

Mr.  LORD.  I  would  not  leave  it  to  the  gov 
ernor  to  remove  him. 

Mr.  DANA.  I  do  not  think  the  objection 
holds  good  at  all.  The  governor  has  always  held 
that  power.  But  this  limits  it.  The  governor 
and  council  are  not  to  remove  except  for  cause 
shown,  and  that  cause  must  be  noted  upon  the 
records  of  the  council.  Notice  must  be  given  to 
the  party  himself,  and  he  has  the  right  to  be  heard 
in  his  own  defence.  Now,  I  put  it  to  the  good  sense 
of  gentlemen,  whether  it  is  at  all  probable  that 
the  governor  would  remove,  without  good  cause, 
an  officer  whom  the  people  had  chosen,  on  writ 
ten  charges,  with  published  proceedings  ?  The 
people  have  the  right  to  fill  the  vacancy  every 
year.  The  appointee  of  the  governor  can  hold 
only  until  the  next  general  election.  Now,  Sir, 
while  the  governor  must  give  notice  to  the  officer 
himself,  of  the  charges  against  him,  and  place  the 
same  upon  record,  I  ask  if  he  would  dare  to  re 
move  an  officer  the  people  have  chosen,  except  for 
good  cause  ?  But  if  gentlemen  are  much  afraid 
to  trust  the  governor,  I  am  perfectly  willing  the 
causes  for  which  he  shall  be  removed  shall  be 
specified  in  the  resolve. 

I  move,  therefore,  to  strike  out  in  the  second 
line  the  words  "  cause  shown,"  and  to  insert  the 
words,  "  incapacity,  misconduct,  or  malad 
ministration  in  office,"  so  that  the  clause  will 
read : — 

Resolved,  That  the  Governor,  by  and  with  the 
consent  of  the  Council,  may  at  any  time,  for  in 
capacity,  misconduct,  or  maladministration  in 
office,  remove  from  office,  £c. 

Mr.  MORTON,  of  Taunton.    The  Committee 


71st  day.] 


TENURE   OF   OFFICE. 


633 


Saturday,] 


MORTON  —  PARSONS. 


[July   30th. 


on  the  Judiciary  gave  some  considerable  atten 
tion  to  this  subject,  and  they  came  to  the  result 
which  is  stated  in  this  resolve.  It  may  be  open 
to  objections — perhaps  sound  ones,  certainly  it  is 
open  to  plausible  ones.  But,  I  think  it  must  be 
obvious  to  every  one,  that  some  provision  is 
necessary  to  provide  for  the  removal  of  these 
officers.  Here  are  a  large  number  of  officers 
chosen  by  the  people.  Some  of  them  may  become 
incompetent  to  perform  their  duties.  There  may 
be  cause  from  insanity.  There  may  be  cause 
from  absence  from  the  Commonwealth.  There 
may  be  cause  from  unfaithfulness  and  intentional 
violation  of  duty  ;  and  the  public  good  seems  to 
require  that  you  should  have  somebody  to  act  in 
this  matter.  It  seems  almost  a  matter  of  neces 
sity  that  some  of  these  officers  should  be  on  duty 
all  the  time.  For  instance,  if  the  clerk  of  }rour 
courts,  your  sheriff,  your  register  of  deeds,  or 
your  register  of  probate,  from  any  cause  become 
unable  to  perform  their  duties,  it  seems  almost 
indispensable  that  somebody  should  be  authorized 
to  displace  him,  and  to  appoint  some  one  else  to 
perform  his  duties.  And,  although  I  approve 
highly  of  the  vigilance  which  seems  to  be  shown 
in  guarding  the  power  you  confer  upon  indi 
viduals,  and  especially  in  cases  of  removal,  yet  I 
do  not  believe  that  in  cases  of  this  kind  there  is 
any  great  danger  of  abuse.  So  long  as  the  gover 
nor  himself  is  elected  by  the  people,  and  is  re 
quired  to  place  upon  record  the  causes  for  which 
he  removes  an  officer,  I  do  not  believe  there  is 
any  great  danger  of  his  removing,  without  suf 
ficient  cause,  officers  who  are  chosen  by  the 
people. 

I  do  not  believe  it  is  wise  to  define  precisely  the 
cause  or  the  act  for  which  an  officer  shall  be  remove  d. 
If  we  do,  we  shall  be  almost  sure  to  omit  certain 
causes  for  which  they  ought  to  be  removed,  and 
thereby  exclude  them.  I  think  we  ought  to  have 
the  matter  discretionary  as  much  as  possible.  I  do 
not  know  how  we  can  limit  or  classify  the  causes 
for  which  an  officer  shall  be  removed,  without 
involving  ourselves  in  difficulty.  The  learned 
and  astute  gentleman  for  Manchester,  (Mr.  Dana,) 
is  as  competent  as  any  one  to  make  such  a  classi 
fication  ;  and  he  has  provided,  among  other  things, 
incapacity,  as  a  cause  of  removal.  Now,  we  shall 
perhaps  never  have  an  election  where  one  party 
will  not  charge  the  candidate  of  the  other  party 
with  incapacity.  They  will  charge  that  he  is  incom 
petent  to  perform  his  duty,  and  upon  this  ground 
the  governor  would  have  the  power  to  turn  him 
out  of  office.  I  repeat,  I  like  vigilance  in  guarding 
the  power  which  you  confer  upon  individuals ; 
but,  it  seems  to  me,  if  you  undertake  to  limit  the 
causes  for  which  these  officers  may  be  turned  out 

43 3 


of  office,  you  will  not  make  the  power  any  more 
safe  from  abuse,  but,  on  the  contrary,  if  there  is 
danger,  you  make  it  more  dangerous. 

Mr.  PARSONS,  of  Lawrence.  There  is  a  por 
tion  of  the  amendment  to  which  I  am  entirely 
opposed,  since  we  have  made  a  portion  of  the 
officers  elective,  to  whom  this  resolution  is  to  ap 
ply.  I  have  no  great  objection  to  the  officers 
being  elected ;  but  since  this  Convention  has 
thought  proper,  by  a  large  majority,  to  make  cer 
tain  officers  elective  who  have  formerly  been  ap 
pointed  by  the  governor,  and  have  left  that  matter 
entirely  to  the  people,  I  think  it  would  ill  become 
us  to  put  in  that  amendment,  especially  that  part 
of  the  amendment  which  says  that  when  an 
officer  becomes  incompetent,  and  is  not  capacitated 
to  discharge  the  duties  for  which  he  was  elected, 
he  may  be  suspended.  I  say,  it  will  give  an  op 
portunity  throughout  this  State,  for  various 
political  parties  to  get  up  petitions  in  towns,  coun 
ties,  or  districts,  signed  by  hundreds,  to  be 
brought  before  the  governor  and  create  a  disturb 
ance,  and  interfere  with  the  rights  of  the  people. 
Now,  what  will  that  word  "incapacity"  mean. 
It  means  nothing  more  than  this  :  that  when  it 
becomes  necessary  to  send  a  petition  to  the  gov 
ernor,  it  will  be  argued  by  those  persons  who 
represent  the  petitioners,  that  that  person  is  in 
capable  ;  that  lie  is  incapable  in  a  thousand  dif 
ferent  ways,  not  from  being  insane,  or  from  mal 
feasance  in  office,  but  in  an  intellectual  view,  to 
perform  the  duties  for  \vhich  he  was  elected.  I 
say  the  governor  has  nothing  to  do  with  it ;  and, 
to  my  mind,  it  is  highly  improper  that  such  an 
amendment  should  be  passed,  for  we  have  in 
trusted  their  election  to  the  people,  who  are  to 
judge  whether  a  man  is  capable  to  perform  the 
duties  for  which  he  is  elected.  "Will  not  the  peo 
ple  know  the  man  for  whom  they  vote  ?  I  want 
to  know  if  they  are  not  the  best  judges.  Most 
assuredly  they  are  the  best  judges.  They  have 
the  sole  right  to  judge,  and  as  has  been  ar 
gued  for  weeks  past,  with  regard  to  vested 
rights  of  the  people,  I  will  say,  that  so  far  as  the 
vested  rights  of  the  people  are  concerned,  I  am 
not  one  of  the  sticklers  for  their  rights  in  Massa 
chusetts.  I  have  110  fear  with  regard  to  their 
rights.  I  have  always,  since  I  have  been  a  voter, 
especially  in  the  State  of  Massachusetts,  thought 
that  the  people  are  capable  of  taking  care  of  them 
selves,  and  of  their  own  rights,  and  that  they 
will  do  it.  But,  I  say,  we  are  not  the  judges 
whether  a  man  is  capable  of  performing  the  duties 
of  an  office  to  which  the  people  have  chosen  to 
elect  him.  I  hope  we  shall  not  make  a  farce  of 
this  matter,  since  we  have  said  that  it  is  not  prop 
er  to  give  to  the  people  the  right  to  elect  judicial 


634 


TENURE    OF    OFFICE. 


[71st  day. 


Saturday,] 


WALKER —  KEYES  —  BUTLER. 


[July  30th. 


officers.  This  proviso,  if  adopted,  will  only  make 
dissension  which  will  array  hostile  parties  against 
each  other,  by  filing  petitions  on  different  sides, 
and  they  can  bring  an  array  against  almost  any 
man. 

I  want  to  ask  the  reformers  in  this  Convention 
if  they  intend  to  oppose  our  taking  these  officers 
from  the  farmers,  when  we  come  to  elect  them  by 
the  people,  or  from  any  other  class  of  people  from 
whom  we  may  choose  to  take  them.  I  say  that 
petitions  may  be  sent  in  with  regard  to  district 
and  county  officers  which  may  require  weeks  in 
order  to  decide  whether  the  man  who  has  been 
elected  by  the  people  is  competent,  intellectually 
or  morally,  for  holding  the  office  to  which  he  has 
been  elected.  I  hope  the  resolution  will  not  pass. 
Mr.  WALKER,  of  North  Brookfield.  I  am 
sure  that  the  resolution,  as  it  has  been  amended, 
must  commend  itself  to  the  good  sense  of  the 
Convention.  It  is  very  evident  to  my  mind  that 
this  power  should  be  deposited  somewhere;  and 
in  placing  it  in  the  hands  of  the  governor,  with 
these  restrictions,  there  is  no  danger.  I  hope  it 
will  be  sustained.  It  is  very  evident  that  nothing 
would  be  more  unpopular  or  unwise,  than  for  a 
governor  to  remove  a  man  who  had  been  elected 
by  the  people  by  a  large  majority.  The  very  fact 
that  he  had  been  removed  would  insure  his  re 
election.  I  cannot  see  the  least  danger  to  be 
apprehended  in  intrusting  the  governor  with  this 
duty. 

Mr.  KEYES,  for  Abington.  It  may  appear  a 
little  immodest  that  I  should  imagine  that  I  could 
do  anything  to  extricate  ourselves  from  this  state 
of  confusion ;  but  if  the  gentleman  for  Manches 
ter  will  listen  to  me,  I  will  try.  I  will  start  in 
the  first  place,  by  saying,  that  I  think  that  the 
amendment  with  regard  to  cause  being  shown, 
&c.,  is  very  proper,  but  that  the  latter  part  of  the 
amendment  is  unnecessary.  I  am  in  favor  of 
having  a  power  of  removal  somewhere.  But  the 
reason  for  appointing  some  one  in  the  place  of  the 
person  removed,  I  think  unnecessary.  If  the 
crime  charged  against  an  officer  is  of  an  extraordi 
nary  character,  so  that  it  unfits  him  at  once  for 
the  discharge  of  the  duties  of  his  office,  the  gov 
ernor  and  council  can  discharge  him  at  once. 
Therefore  there  is  no  danger  in  having  this  stand 
as  it  does  now,  that  a  copy  of  the  charges  shall  be 
furnished  to  the  party,  so  as  to  give  a  reasonable 
opportunity  for  a  defence. 

Now  if  a  man  dies,  and  a  vacancy  occurs  in 
that  way,  it  is  provided  for  in  the  fourth  resolu 
tion.  The  time  to  be  occupied  in  deciding  a  case 
need  not  be  longer  than  in  the  case  of  filling  a 
vacancy  when  a  man  dies,  even  if  you  give  a  copy 
of  the  charges  and  allow  the  accused  to  appear. 


And  if  the  case  is  so  extraordinary,  and  the  person 
is  so  very  guilty  that  he  should  not  hold  his  office 
one  hour,  the  governor  and  council  can  settle  it 
in  an  hour ;  and  therefore  a  vacancy  will  then 
occur.  The  officer  being  removed,  there  is  a  pro 
vision  in  the  fourth  resolution  for  filling  that 
vacancy. 

Now  let  us  look  at  the  character  of  these  offices 
and  see  how  important  it  is  that  in  every  minute 
of  time  there  should  be  some  one  in  office.  Take 
the  office  of  sheriff  for  example.  Suppose  he  dies, 
or  is  taken  insane  suddenly ;  he  has  his  deputies 
to  perform  his  duties.  I  take  it  the  deputy  is 
simply  a  substitute  for  the  sheriff. 

Mr.  BUTLEll,  of  Lowell.  I  wish  to  suggest 
to  the  gentleman  for  Abington  to  consider  that 
the  moment  the  sheriff  dies,  the  deputies  all  die 
with  him.  It  is  just  as  soon  as  that. 

Mr.  KEYES.  That  does  not  affect  this  case  at 
all.  If  there  is  a  charge  of  maladministration, 
he  is  alive  then  and  his  deputies  are  living  with 
him,  and  the  duties  may  be  performed,  as  they 
are  in  many  cases,  by  the  deputies  themselves. 
The  idea  which  I  wish  to  convey  to  the  Conven 
tion  is,  that  the  time  required  to  appoint  a  new 
officer  is  just  the  same  as  to  try  him,  provided  the 
case  is  so  desperate  that  there  would  be  danger  to 
the  community  to  have  him  remain.  For  in 
stance,  the  council  can  be  summoned,  and  he 
must  appear  immediately  to  show  whether  it  is  a 
desperate  case  or  not,  and  if  it  is  an  extraordinary 
case  he  can  be  removed  at  once,  and  then  as  a 
vacancy  will  have  occurred,  that  vacancy  can  be 
filled  in  the  manner  provided  for  in  the  fourth 
resolution. 

So  in  the  case  of  a  register  of  deeds  ;  he  always 
has  his  assistants,  and  it  is  not  necessary  that  his 
own  hand  should  make  the  record  of  the  hour 
when  it  comes  to  his  office,  in  order  to  make  it 
legal.  Therefore  the  difficulty  is  no  greater  than 
if  a  man  were  dead.  It  seems  to  me,  therefore, 
that  all  the  power  may  be  given  to  the  governor 
and  council  that  need  to  be  given  for  the  removal, 
with  the  provision  which  is  now  here,  that  a  copy 
of  the  charges  shall  be  sent  to  the  officer  and  he 
may  be  allowed  to  appear  before  that  council. 
Because  he  may  hold  on  still,  and  the  prosecution 
can  go  on  ;  and  in  the  mean  time,  it  is  not  prob 
able  he  would  do  any  more  mischief;  and  if  the 
case  was  a  desperate  one  he  could  be  removed  at 
once,  and  the  vacancy  filled  according  to  the  pro 
vision  of  the  fourth  resolution. 

It  seems  to  me,  the  third  resolution  may  be  left 
to  stand  precisely  as  it  is,  except  with  regard  to 
the  amendment  proposed,  that  for  cause  shown, 
&c.  Then  you  have  all  the  safety  you  can  desire. 
There  should  be  some  place  of  power  somewhere, 


71st   day.] 


TERMS    OF  OFFICE,  &c. 


635 


Saturday,] 


DAVIS  —  HALE  —  HUNTINGTON  —  WHITNEY  —  MORTON. 


[July  30th. 


to  remove  an  officer,  and  there  is  no  place  for  it 
better  than  with  the  governor  and  council  them 
selves.  But  they  are  elected  annually,  and  they 
would  not  discharge  a  man  elected  by  the  people 
without  sufficient  cause.  Now,  to  do  away  with 
that  objection  of  putting  the  whole  power  into 
the  hands  of  the  governor  to  suspend  him  and 
appoint  a  new  one,  these  charges  against  an  officer 
can  be  preferred  against  him  and  a  copy  given, 
and  the  question  settled  as  soon  as  the  council 
can  be  called  together.  If  it  is  such  a  doubtful 
case  that  the  man  is  not  so  great  a  rascal,  then 
the  order  may  rest  there  for  a  while.  It  strikes 
me  that  this  will  avoid  all  difficulties,  and  that 
the  first  amendment  of  the  gentleman  for  Man 
chester  settles  the  whole  thing. 

The  question  was  then  taken  on  each  clause  of 
the  amendment  separately,  and  they  were  both 
adopted. 

The  question  was  then  taken  on  the  final  pas 
sage  of  the  resolves,  as  amended,  and  they  were 


Question  of  Order. 

Mr.  DAVIS,  of  Plymouth.  I  wish  to  inquire 
whether  it  will  be  in  order  to  offer  a  resolution 
now. 

The  PRESIDENT.  The  gentleman  can  sub 
mit  a  resolution  by  leave  of  the  Convention. 

Mr.  DAVIS.  There  was  an  order,  in  the  early 
part  of  the  session,  offered  by  the  gentleman  from 
Natick,  which  was  referred  to  the  Committee  on 
appointing  the  governor  by  the  legislature.  By 
some  mishap,  the  Committee  have  not  acted  upon 
it,  or  if  they  have  acted  it  has  not  been  put  into 
the  Orders  of  the  Day.  I  wish  to  offer  a  resolu 
tion  as  a  substitute  for  the  order  sent  the  Com 
mittee  by  the  gentleman  from  Natick. 

Resolved,  That  the  Constitution  be  so  amended 
as  to  provide  that  no  member  of  the  Senate  or 
the  House  of  Representatives,  who  shall  have 
taken  his  seat  therein,  shall,  during  the  year  for 
which  he  was  elected,  be  appointed  by  the  Gov 
ernor  to  any  office,  commission,  or  trust,  which 
shall  have  been  created,  or  the  emoluments  of 
which  shall  have  been  increased  by  the  Legisla- 
lature,  during  said  year. 

I  ask  leave  to  offer  this  resolution,  because  I 
suppose  it  will  not  create  any  debate,  and  so  far 
as  I  can  learn,  it  is  unanimously  the  opinion  of 
the  members  of  the  Committee  that  such  a  reso 
lution  should  be  inserted  in  the  Constitution. 
"VVe  have  a  provision  of  this  kind  in  the  Consti 
tution  of  the  United  States,  and  a  similar  pro 
vision  has  been  adopted  by  the  Convention  with 
regard  to  the  Council. 

Mr.  HALE,  of  Bridgewater.  Before  this  reso 
lution  is  received,  I  wish  to  state  that  that  order 


to  which  the  gentleman  has  referred,  was  con 
sidered  by  the  Committee,  and,  I  believe,  it  was 
almost  the  unanimous  opinion  of  the  Committee, 
that  no  action  was  necessary  on  the  part  of  the 
Convention.  I  believe  the  gentleman  from  Ply 
mouth  was  present  at  one  meeting  when  it  was 
considered  expedient  to  have  such  a  resolution ; 
but  at  a  subsequent  meeting,  when  he  was  not 
present,  it  was  decided  inexpedient. 

The  PRESIDENT.  If  the  Chair  understands 
the  gentleman  from  Plymouth  correctly,  this  sub 
ject  has  been  referred  to  a  Select  Committee  of  the 
Convention.  It  is  not,  therefore,  in  order.  The 
proper  order  will  be  for  the  gentleman  from  Ply 
mouth  to  make  a  motion  that  the  Committee  be 
instructed  to  report  at  a  given  time. 

Mr.  HUNTINGTON,  of  Northampton.  It 
seems  to  me  it  is  altogether  too  late  to  introduce  a 
proposition  of  that  character.  It  seems  that  the 
subject  has  been  reterred  to  a  Committee,  and  that 
there  is  a  division  of  opinion  in  that  Committee. 
Owing,  therefore,  to  the  lateness  of  the  session, 
and  the  probability  that  the  subject  must  create  a 
debate,  I  move  that  the  subject  be  laid  on  the 
table. 

Mr.  WHITNEY,  of  Boylston.  I  hope  that 
motion  will  prevail.  I  want  to  leave  a  little 
something  for  the  next  Constitutional  Convention 
to  do.  I  hope  that  we  shall  not  do  everything 
at  this  time. 

The  question  being  then  put  on  the  motion  to 
lay  upon  the  table,  it  was  agreed  to. 

Terms  of  Office. 

Mr.  MORTON,  of  Taunton.  I  wish  to  in 
quire  whether  the  resolves  from  the  Judiciary 
Committee  have  been  finally  passed.  I  have  been 
obliged  to  be  absent  for  a  few  moments. 

The  PRESIDENT.     They  have  been  passed. 

Mr.  MORTON.  Then,  Mr.  President,  I  feel 
it  to  be  my  duty  to  move  a  reconsideration  of  that 
vote,  for  a  special  purpose,  which  I  will  state ; 
and  if  the  purpose  which  I  am  about  to  state, 
meets  the  approbation  of  the  Convention,  they 
will  doubtless  reconsider  the  vote  by  which  the 
resolves  were  passed,  in  order  that  I  may  intro 
duce  a  certain  amendment,  which  I  will  read 
before  I  ask  action  on  the  motion  to  reconsider. 
It  is  not  for  the  purpose  of  rejecting  anything 
that  has  been  adopted,  or  modifying  anything,  but 
for  the  purpose  of  introducing  an  additional  re 
solve,  which  the  Committee  on  the  Judiciary  did 
not  feel  itself  authorized  to  do,  under  the  special 
commission  under  which  they  last  acted.  Gen 
tlemen  of  the  Convention  will  recollect,  that  we 
have  provided  for  the  election  of  a  great  number 
of  officers,  but  we  have  not  fixed  the  term  of 


636 


TERMS   OF   OFFICE. 


[71st  day. 


Saturday,] 


MORTON  —  HALE  —  BUTLER  —  STEVENSON  —  MOREY. 


[July  30th. 


those  offices.  "We  have  fixed  the  tenure,  but  we 
have  never  fixed  the  term  at  which  their  duties 
shall  commence.  At  present,  some  of  them  com 
mence  at  one  season  of  the  year,  and  some  at 
another.  Now  if  they  are  elected  in  November, 
it  seems  to  me  that  it  would  be  better  to  have 
them  commence  at  a  uniform  period  to  enter 
upon  their  duties.  As  it  is  now,  the  county 
commissioners  enter  upon  the  duties  of  their 
office  at  one  period,  the  registers  of  deeds  at 
another,  and  county  treasurers  at  still  another. 
The  Committee  have  deemed  it  expedient  to  have 
the  terms  of  all  the  offices  commence  at  the  same 
time.  If  this  meets  the  approbation  of  the  Con 
vention,  I  hope  they  will  reconsider  the  vote  by 
which  they  passed  the  resolves,  so  that  I  may 
have  an  opportunity  to  offer  an  additional  resolve, 
as  an  amendment,  which  I  will  now  read  : — 

Resolved,  That  the  terms  of  all  elective  officers 
provided  for  in  this  Constitution,  shall  commence 
on  the  first  Wednesday  in  January  next  after 
their  election. 

The  PRESIDENT.  If  there  be  no  objection, 
the  Chair  will  consider  the  question  on  the  final 
passage  of  the  resolves  as  not  having  been  put  to 
the  Convention.  The  Chair  understands  that  no 
objection  is  made.  The  question  will  therefore 
now  be  on  the  final  passage  of  the  resolves. 

Mr.  MORTON.  I  now  offer  the  amendment 
which  I  read  to  the  Convention. 

Mr.  HALE,  of  Bridgewater.  I  want  to  inquire 
of  the  gentleman  from  Taunton  how  that  would 
operate  in  the  case  of  a  vacancy  filled  by  an 
election  in  the  interim — whether  in  that  case 
the  term  would  have  to  commence  on  the  first 
"Wednesday  in  January  following.  Suppose  the 
vacancy  is  filled  in  May,  is  the  office  to  remain 
vacant  until  the  next  January  before  the  term 
will  commence  ? 

Mr.  MORTON.  The  amendment  was  written 
in  some  haste  ;  but  that  was  not  the  intention,  at 
any  rate.  If  there  is  any  oversight  in  the  form  of 
the  resolution,  the  Revising  Committee  will  put 
that  right. 

Mr.  BUTLER,  of  Lowell.  If  I  understand 
this  matter,  we  have  already  passed  a  resolution 
that  all  these  vacancies  shall  be  filled  at  the  annual 
election  in  November.  If  there  is  a  vacancy  oc 
curring  in  the  mean  time,  ad  interim,  the  governor 
appoints  some  one  ;  and  of  course  the  ad  interim 
appointee  would  hold  the  office  until  the  first 
Wednesday  in  the  January  succeeding,  when  the 
newly  elected  officer  would  assume  the  duties. 
There  is  no  filling  vacancies  in  May  by  elections, 
for  all  vacancies  are  to  be  filled  at  the  annual 
election  in  November,  in  order  to  prevent  the 
people  from  being  called  out  too  often. 


Mr.  STEVENSON,  of  Boston.  I  desire  to 
make  a  suggestion,  that  it  would  be  well  to  ex 
cept  representatives  to  the  general  court,  for  the 
reason  that  they  may  be  chosen  during  the  ses 
sion  of  the  legislature,  upon  precepts. 

Mr.  MORTON.  This  does  not  apply  to  vacan 
cies.  This  resolve  fixes  the  time  when  the  terms 
of  office  shall  commence.  It  says  that  the  terms 
of  all  elective  officers  shall  commence  on  the  first 
Wednesday  in  January  next  after  their  election, 
and  of  course  they  hold  their  offices  until  the  first 
Wednesday  in  the  January  following.  If  a 
vacancy  occurs  in  the  meantime,  there  is  a  pro 
vision  made  in  another  resolve  how  that  tempo 
rary  vacancy  shall  be  supplied  until  the  next 
election. 

Mr.  STEVENSON.  I  should  like  to  have  the 
resolve  read  again. 

The  resolve  was  accordingly  read. 

Mr.  STEVENSON.  The  language  of  the  re 
solve  is,  that  the  terms  of  all  elective  officers  pro 
vided  for  in  this  Constitution,  shall  commence  on 
the  first  Wednesday  in  January  next  after  their 
election.  Now,  suppose  a  member  of  the  general 
court  is  chosen  by  precept  in  April,  18-54,  the  first 
Wednesday  in  the  January  next  after  his  election 
will  be  the  first  Wednesday  in  January,  1855, 
and  another  election  will  then  have  intervened. 

Mr.  MORTON.  My  construction  of  the 
language  there  used,  which  I  admit  was  not  very 
carefully  considered,  was,  that  the  regular  term 
of  office  shall  commence  on  the  first  Wednesday 
in  January,  and  shall  continue  until  the  first 
Wednesday  in  the  next  January.  If  there  is  a 
vacancy,  it  does  not  affect  the  term  of  office  ;  in 
that  case,  the  term  of  office  would  be  occupied  by 
two  individuals,  or  it  may  be,  by  three  or  four. 
In  order  to  meet  the  difficulty  suggested  by  the 
gentleman  from  Boston,  I  will  modify  the  resolve, 
by  adding  after  the  word  "  Constitution,"  the 
words  "  except  members  of  the  legislature,"  so 
that  it  will  then  stand  as  follows  : — 

Resolved,  That  the  terms  of  all  elective  officers, 
provided  for  in  this  Constitution,  except  members 
of  the  legislature,  shall  commence  on  the  first 
Wednesday  in  January  next  after  their  election. 

Mr.  MOREY,  of  Boston.  I  will  inquire 
whether  this  applies  to  the  election  of  governor 
and  lieutenant-governor,  and  officers  which  are  in 
some  cases  to  be  chosen  by  the  legislature. 

Mr.  MORTON.  It  is  already  provided  that 
their  terms  shall  commence  on  the  first  Wednes 
day  in  January. 

Mr.  MOREY.  Oftentimes  it  is  the  case  that 
they  are  not  chosen  until  sometime  in  the  latter 
part  of  January. 


71st  day.] 


DISTRIBUTION   OF   DOCUMENTS,  &c. 


637 


Saturday,] 


OLIVER  —  HOOPER  —  MORTON  —  HALE  —  WALKER  —  BIRD. 


[July  30th. 


Mr.  OLIVER,  of  Lawrence.  I  wish  to  make 
an  inquiry  with  regard  to  that  amendment.  I 
understand  that  the  terms  of  all  officers  who  are 
to  be  elected  under  this  Constitution  are  to  com 
mence  on  the  first  Wednesday  in  January.  Sup 
pose  I  should  be  elected  a  military  hero  about  the 
first  of  September,  I  want  to  know  if  I  am  to  go 
without  my  commission  until  the  next  January  ? 
That  would  spoil  all  the  beauties  of  our  militia 
system. 

Mr.  HOOPER,  of  Fall  River.  I  would  sug 
gest  that  in  order  to  accommodate  the  gentleman 
from  Lawrence,  the  word  "civil"  be  inserted,  so 
as  to  leave  out  all  uncivil  officers.  [Laughter.] 

Mr.  OLIVER;  That  would  be  «  doing  the 
civil  thing,"  I  grant ;  but  I  hope  it  will  not  be 
considered  that  the  military  are  uncivil. 

Mr.  HOOPER.     Not  at  all. 

Mr.  MORTON.  Mr.  President :  We  have  la 
bored  so  long  here  in  trying  to  improve  our  Con 
stitution  and  to  make  it  perfectly  correct  in  every 
respect,  that  we  have  grown  amazingly  critical, 
and  I  shall  expect  that  everything  that  passes  the 
ordeal  here  will  bear  the  test  of  criticism  as  well 
as  of  legal  and  constitutional  propriety.  En 
deavoring  to  profit  by  the  suggestions  which  have 
been  made  to  me  from  various  quarters,  I  have 
made  a  little  modification  of  my  amendment, 
which  I  will  state  now,  and  I  hope  that  gentle 
men  will  be  so  kind  as  to  suggest  any  improve 
ments  that  it  may  require  before  I  offer  it  formally, 
and  after  they  have  exercised  their  critical  acumen 
upon  it,  I  will  substitute  it  for  my  other  proposi 
tion,  and  hope  that  no  objection  can  then  be  made 
to  it.  I  propose  to  strike  out  the  words,  "  except 
members  of  the  legislature,"  and  insert,  "  not 
otherwise  "  before  the  words  "  provided  for,"  so 
that  it  will  read  : — 

Resolved,  That  the  terms  of  all  elective  officers 
not  otherwise  provided  for  in  this  Constitution, 
shall  commence  on  the  first  Wednesday  in  Jan 
uary  next  after  their  election. 

If  that  does  not  cover  the  whole  ground,  I  should 
be  very  happy  to  learn  what  the  exceptions  are. 

Mr.  HALE,  of  Bridgewater.  I  hope  the  gen 
tleman  from  Taunton  will  not  suppose  that  I 
objected  to  his  amendment  for  the  purpose  of 
criticism ;  it  was  only  because  I  thought  there 
was  a  detect  in  it  that  ought  to  be  remedied.  I 
have  no  desire  to  criticise  the  reports  which  are 
presented  here  by  any  member  of  this  body. 

The  amendment,  as  modified,  was  agreed  to, 
and  the  resolves,  as  amended,  were  finally  passed. 

Distributing    the    New    Constitution — Reports  of 
Debates,  $c. 

Mr.  WALKER,  of   North  Brookfield.     An 


order  was  passed  this  morning  that  one  hundred 
thousand  copies  of  the  present  Constitution  of 
this  State,  together  with  the  new  Constitution  to 
be  submitted  to  the  people,  should  be  published 
in  the  same  manner  with  the  general  laws  and 
resolves,  and  distributed  to  every  family  in  the 
Commonwealth.  I  find  that  the  present  Consti 
tution  has  already  been  published  and  is  now  in 
process  of  being  distributed.  I  hope,  therefore, 
that  the  vote  by  which  this  order  was  passed  will 
be  reconsidered,  for  it  will  be  entirely  unneces 
sary  and  involve  a  waste  of  the  public  money  to 
have  the  present  Constitution  printed  again,  as  is 
proposed.  I  move  a  reconsideration  of  that 
vote. 

The  motion  was  agreed  to,  and  the  question 
recurred  on  the  adoption  of  the  order. 

Mr.  WALKER.  I  move  to  strike  out  the 
words,  "  the  present  Constitution  of  the  State, 
together  with." 

Mr.  HALE,  of  Bridgewater,  thought  that  it 
would  be  well  to  have  both  Constitutions  sent 
out  together,  so  that  the  people  could  have  a  better 
opportunity  to  compare  them. 

Mr.  TRAIN.  I  wish  to  inquire  of  my  friend 
from  North  Brookfield  if  he  proposes  that  one 
hundred  thousand  copies  shall  be  given  to  each 
family  in  the  Commonwealth. 

Mr.  WALKER.  That  is  not  the  language  of 
the  order. 

Mr.  TRAIN.  I  should  like  to  hear  it  read,  as 
he  proposes  to  amend  it. 

The  order  was  read,  as  follows  : — 

Resolved,  That  one  hxindred  thousand  copies  of 
the  new  Constitution  to  be  submitted  to  the  peo 
ple,  be  published  in  the  same  manner  as  the  gen 
eral  laws  and  resolves,  and  distributed  to  every 
family  in  the  Commonwealth. 

Mr.  BIRD.  I  should  like  to  know  whether 
the  gentleman  has  ascertained  that  there  are  ex 
actly  a  hundred  thousand  families  in  the  Com 
monwealth,  among  whom  these  are  to  be  distrib 
uted. 

Mr.  WALKER.  Year  before  last,  we  pub 
lished  ninety  thousand  copies  of  the  laws,  and 
last  year  we  published  one  hundred  and  sixty 
thousand  copies,  because  there  was  a  larger  de 
mand  than  usual,  as  they  filed  th'em  away  in  all 
the  lawyer's  offices,  where  there  was  a  great  call 
for  them.  I  supposed  one  hundred  thousand 
copies  would  be  sufficient. 

Mr.  BIRD,  of  Walpole.  I  beg  to  inform  the 
gentleman  from  North  Brookfield,  that  there  are 
two  more  families  in  my  neighborhood  this  year, 
than  there  were  last.  [A  laugh.] 

Mr.  WALKER.  Of  course,  the  number  of 
copies  can  be  increased  without  much  expense. 


638 


DISTRIBUTION   OF   DOCUMENTS. 


[71st  day. 


Saturday,] 


HALE  —  WALKER  —  BIRD  —  HOOPER  —  UNDERWOOD  —  MARYIX.          [July  30th. 


Mr.  HALE,  of  Bridgewater.  If  the  gentleman 
from  North  Brookfield  has  no  objection,  I  will 
offer  an  amendment  to  his  proposition — to  add 
the  following  words  :  "  And  one  copy  shall  be 
furnished  to  each  family  of  the  Commonwealth." 
I  think  that  will  put  the  matter  beyond  all  ques 
tion. 

Mr.  WALKER.  I  will  accept  the  amendment 
of  the  gentleman  from  North  Bridgewater,  though 
I  insist  that  it  is  not  necessary,  to  make  good 
grammar.  How  you  can  make  the  order  mean 
that  one  hundred  thousand  copies  are  to  be  sup 
plied  to  each  family  in  the  Commonwealth,  I  do 
not  know,  but  I  accept  the  amendment. 

The  order,  as  amended,  was  agreed  to. 

Mr.  WALKER.  I  will  venture  to  offer  an 
other  order.  It  is  as  follows  :— 

Ordered,  That  the  Committee  on  Reporting 
and  Printing  be  instructed  to  employ  some  suit 
able  person  to  receive  and  distribute  all  the  docu 
ments  ordered  by  the  Convention,  in  the  manner 
and  form  heretofore  directed. 

It  is  evident  that  this  must  be  done  by  some 
body,  and  it  is  equally  evident  that  it  cannot  be 
done  by  the  Secretary  of  State.  It  will  be  a  great 
labor  to  forward  all  these  documents,  and  some 
body  must  be  employed  to  do  it,  or  authorized  to 
employ  somebody  else. 

Mr.  BIRD,  of  Walpole.  I  do  not  see  any 
necessity  for  this  order.  If  I  understand  it,  it 
directs  the  Secretary  of  State,  or  somebody  else, 
no  matter  who,  to  attend  to  the  distributing  of 
documents  from  the  the  office  of  the  Secretary  of 
State.  I  suppose  that  it  provides  also  for  the 
copies  of  the  Reports  of  our  Debates  here  in  the 
hands  of  the  printers.  I  suppose  that  the  print 
ers  are  paid  to  do  that.  You  might  as  well  em 
ploy  somebody  to  forward  all  our  newspapers. 
The  gentleman  says  that  somebody  must  do  it. 
Let  the  members  do  it  themselves. 

Mr.  WALKER.  Direct  their  own  copies  of 
Reports,  and  newspapers,  themselves,  from  the 
office  of  the  printers  to  themselves  at  home  ! 

Mr.  BIRD.  We  were  each  allowed  twenty- 
one  newspapers  per  week — a  pretty  liberal  allow 
ance,  as  it  seemed  to  me.  Afterwards  an  order 
•was  passed  that  whoever  chose,  might  substitute 
for  their  newspapers  so  many  copies  of  the  Reports 
of  Debates.  These  newspapers  AVO  were  entitled 
to  during  the  session — but  I  take  it  that  we  shall 
take  these  Reports  till  the  whole  are  printed. 

Now,  the  State  pays  White  &  Potter  to  fur 
nish  these  documents  to  us  ;  and  it  is  no  more 
trouble  to  them  to  put  them  in  the  mail  or  hold 
them  in  their  office,  subject  to  our  order,  or  till 
we  call  for  them,  than  it  has  been  heretofore ;  and 
I  see  no  propriety  therefore,  in  taxing  the  State  to 


pay  for  the  distribution  of  these  documents.  I 
do  not  know  that  it  would  be  more  trouble  to  go 
to  White  £  Potter  and  acquaint  them  with  the 
manner  in  which  we  wished  these  Reports  sent  to 
us,  than  it  would  be  to  go  to  a  Committee.  The 
point  is  this  :  It  is  the  duty  of  White  &  Potter  to 
furnish  us  these  documents.  They  are  paid  for 
it,  and  I  hope  that  there  will  be  no  additional  ex 
pense  on  that  account. 

Mr.  HOOPER,  of  Fall  River.  So  far  as  I 
know  there  are  two  classes  of  these  Reports  to  be 
distributed — those  which  are  to  be  bound  in 
octavo  size,  and  those  which  are  unbound.  The 
Convention  ought  to  provide  some  mode  for  the 
distribution  of  these  as  well  as  the  journal. 
Those  which  have  been  taken  in  lieu  of  news 
papers,  the  members  will  take  care  of,  themselves. 
I  do  not  agree  with  the  remark  of  the  gentleman 
from  Walpole  that  the  order  would  only  entitle 
us  to  receive  these  Reports  during  the  continu 
ance  of  the  session,  for  the  reason  that  a  Pro 
spectus  was  sent  out  offering  the  whole  Reports 
for  a  certain  price — the  price  about  which  a  daily 
newspaper  Avould  cost — and  a  resolution  was  offered 
allowing  each  member  to  take  a  copy  of  these  Re 
ports  in  preference  to  a  copy  of  a  newspaper.  There 
is,  therefore,  no  additional  expense  to  the  State 
in  the  number  of  copies  of  these  Reports  that 
have  been  taken.  I  think  that  each  member 
should  arrange  with  White  &  Potter  in  the  man 
ner  they  have  contracted  for  ;  and  it  seems  to  me 
to  be  proper  that  those  copies  of  the  Reports  which 
are  to  be  bound  should  be  distributed  among  the 
members  acording  to  an  order  of  the  Convention. 
I  therefore  think,  that  the  order  of  the  gentleman 
from  North  Brookfield  is  a  proper  one,  and  should 
be  adopted. 

Mr.  UNDERWOOD,  of  Milford,  thought 
that  some  method  should  be  provided  by  which 
every  town  should  have  its  full  proportion  of 
these  Debates,  in  order  that  the  inhabitants  of  the 
State  might  see  what  the  Convention  had  beeii 
doing. 

Mr.  MARVIN,  of  Boston,  said  he  understood 
that  the  contract  with  White  &  Potter  was  for 
three  thousand  copies  of  these  Debates,  of  which, 
fifteen  hundred  copies  thus  far  had  been  delivered 
to  the  Convention,  and  fifteen  hundred  would  re 
main  to  be  distributed.  The  contract  did  not 
involve  the  distribution  of  the  remaining  fifteen 
hundred  copies. 

Mr.  WALKER,  of  North  Brookfield,  was 
clearly  of  opinion  that  somebody  should  have 
charge  of  this  business.  In  the  first  place,  there 
was  the  ordinary  Journal  of  Debates  which  was 
to  be  sent  to  each  member ;  then  there  was  the 
octavo  edition  of  the  Reports  to  be  distributed. 


71st  day.] 


DISTRIBUTION   OF   DOCUMENTS. 


639 


Saturday," 


EARLE  —  SCHOULER  —  MORTON  —  BIRD  —  LELAND. 


[July  30th. 


Then  there  were  a  hundred  thousand  copies  of 
the  Constitution  to  be  sent  out,  and  it  would  cer 
tainly  be  necessary  to  employ  somebody  to  do  all 
this.  He  considered  that  the  resolution  was 
indispensably  necessary. 

Mr.  EARLE,  of  Worcester,  was  of  opinion  that 
before  the  Convention  provided  for  the  distribu 
tion  of  these  documents,  some  measure  should  be 
taken  by  which  a  degree  of  justice  should  be  done 
to  members  in  relation  to  the  copies  of  the  Reports 
of  Debates.  He  understood,  that  according  to  a 
certain  order  passed  by  the  Convention,  every 
member  was  entitled  to  subscribe  for  certain 
copies  of  these  Reports — instead  of  so  many  news 
papers  to  which  he  would  otherwise  be  entitled. 
That  privilege  had  been  taken  advantage  of  to 
such  an  extent — some  members  not  taking  any 
newspapers,  and  consequently  taking  twenty- one 
copies  of  the  Reports — that  there  were  not  now 
copies  sufficient  to  supply  the  members.  After 
the  first  edition  was  exhausted,  there  were  about 
one  hundred  members  who  were  left  without  any 
copies  whatever.  So  that,  as  the  matter  now 
stood,  certain  members  who  had  taken  advantage 
of  this  order,  were  entitled  to  twenty- one  entire 
copies  of  this  work,  while  one  hundred  other 
members  who  were  entitled  to  the  same  number 
of  copies,  would  not  be  allowed  a  single  copy, 
because  the  edition  was  exhausted. 

He  had,  ho w  ever,  prepared  an  order  which 
would,  to  some  extent,  obviate  that  difficulty,  and 
would  entitle  such  members  as  had  not  been  sup 
plied  with  the  quarto  edition,  to  receive  three 
copies  of  the  octavo  edition.  Until  that  matter 
was  placed  right,  he  did  not  think  that  the  Con 
vention  ought  to  take  any  order  in  regard  to  the 
farther  distribution  of  these  Reports.  At  any 
rate,  he  did  not  think  that  the  State  ought  to  be 
put  to  the  expense  of  distributing  these  Reports, 
when  a  part  of  them  belonged  to  other  members. 
He  understood  that  the  messenger  had  taken  the 
names  of  those  gentlemen  who  had  ordered  each 
twenty- one  copies,  so  that  he  might  distribute 
them  according  to  their  several  orders.  But  it 
seemed  to  him,  (Mr.  Earle,)  that  if  the  Conven 
tion  had  not  already  given  the  messenger  author 
ity  to  do  this  work,  the  Convention  should  take 
the  matter  in  hand,  so  that  justice  might  be  done, 
and  that  each  member  might  receive  at  least,  two 
or  three  copies  of  the  octavo  edition. 

Mr.  SCHOULER,  of  Boston,  said  he  did  not 
know  how  this  difficulty  was  to  be  overcome. 
He  had  subscribed  for  ten  copies,  and  intended  to 
have  them,  having  promised  them  all  to  friends, 
except  one  copy  for  himself. 

Mr.  BIRD,  of  Walpole,  said  he  had  subscribed 
for  five  copies,  and  could  not  get  them. 


Mr.  MORTON,  of  Taunton,  had  subscribed 
for  three  copies,  and  could  not  get  one. 

Mr.  SCHOULER.  Perhaps  that  may  be  my 
case.  I  supposed  that  I  was  going  to  get  ten 
copies.  I  confess  I  do  not  see  how  we  can  arrange 
it,  very  well. 

Mr.  BIRD,  of  Walpole.  It  seems  to  me  that 
we  are  getting  along  pretty  fast  in  voting  money 
in  this  way,  and  I  want  to  suggest  that  the  better 
way  to  settle  all  these  questions  would  be  to  refer 
them  to  a  Special  Committee.  I  move  that  the 
order  now  pending  be  referred  to  a  Special  Com 
mittee.  I  think  it  not  improbable  that  such  a 
Committee,  could,  in  twenty  minutes,  report  some 
plan  which  would  satisfy  the  whole  Convention. 

The  motion  to  refer  the  matter  to  a  Special 
Committee  was  agreed  to. 

Mr.  EARLE,  of  Worcester.  I  will  now  offer 
the  order  which  I  had  prepared,  and  move  that  it 
be  referred  to  the  same  Committee.  This  is  the 
order : — 

Ordered,  That  such  members  of  the  Conven 
tion  as  elected  to  take  one  or  more  copies  of  the 
official  Reports  of  Debates,  &c.,  instead  of  news 
papers,  to  which  they  were  entitled  under  the 
orders  of  this  body,  but  who  are  unable  to  pro 
cure  the  same  in  consequence  of  the  deficiency  of 
the  number  provided,  be  entitled  to  receive  the 
same  number  of  copies  of  the  octavo  edition,  not 
to  exceed  three  copies  in  the  whole,  to  any  one 
member ;  and  the  Messenger  is  hereby  directed 
to  furnish  said  copies  in  addition  to  those  already 
ordered  to  be  furnished  to  the  Convention. 

Mr.  EARLE.  I  would  say  that  the  Convention 
have  already  ordered  fifteen  hundred  copies  of 
the  octavo  edition  to  be  printed.  The  expense  of 
printing  that,  is  no  more  than  that  of  the  quarto 
edition.  It  will  not,  in  any  contingency,  add 
anything  to  the  expenses  of  this  Convention,  be 
cause  they  are  already  ordered,  and  are  to  be  paid 
for  at  any  rate.  But  there  will  be  more  copies 
than  will  be  required  under  the  order  for  that 
edition,  and  those  copies  which  are  not  taken  by 
members  under  that  order,  will  be  left  to  be  dis 
tributed  years  hereafter  by  the  members  of  the 
Council,  to  themselves,  their  friends  and  others. 
By  this  resolve,  we  shall  do  some  measure 
of  justice,  though  not  a  full  measure  of  justice, 
to  those  who  were  not  the  first  to  enter  their 
names  for  copies,  and  at  the  same  time  we  do  no 
injustice  to  the  State  or  to  any  one  else.  I  move 
that  the  order  be  referred  to  the  Special  Commit 
tee  already  ordered. 

Mr.  LELAND,  of  Holliston.  I  wish  to  in 
quire  of  the  gentleman,  if  the  intention  of  his  re 
solve  is  that  those  who  have  not  received  three 
copies  heretofore,  shall  hereafter  have  them  ? 


640 


DISTRIBUTION   OF   DOCUMENTS. 


[71st  day. 


Saturday,] 


EARLE  —  LELAND  —  BATES  —  UPTON. 


[July  30th. 


Mr.  EARLE.  It  is  simply  to  supply  those 
members  with  copies  who  cannot  obtain  them 
under  the  order  for  the  octavo  edition.  The  whole 
of  that  edition,  in  consequence  of  some  members 
taking  so  large  a  number— from  ten  to  twenty- 
one  copies — has  been  exhausted,  and  there  are 
one  hundred  members  of  this  Convention  left 
without  any.  The  question  is,  whether  we  will 
supply  the  twenty-one  copies  to  the  three  hun 
dred  members,  and  leave  the  others  without  any  ? 

Mr.  LELAND.  The  difficulty  is,  that  this 
order  for  copies  of  the  Reports  was  passed  after 
the  order  was  passed  respecting  papers.  I  signed 
for  all  newspapers.  Am  I  to  have  my  papers 
continued,  and  have  the  Reports  too  ?  I  think 
the  members  should  all  be  allowed  three  copies 
of  the  Reports,  alike.  I  should  like  the  three 
copies,  if  possible. 

Mr.  EARLE.  I  understand  the  gentleman 
who  has  just  taken  his  seat  to  say,  then,  that 
those  members  who  subscribed  for  the  twenty- 
one  papers,  and  have  got  them,  shall  be  entitled 
also  to  just  as  many  copies  as  those  who  did  not 
subscribe  for  any  papers  at  all.  My  order  only 
goes  to  the  extent  of  supplying  three  copies  of  the 
Debates  to  those  entitled  to  twenty- one  papers, 
but  who  have  not  got  them. 

Mr.  BATES,  of  Plymouth.  The  simple  fact 
that  the  Convention  have  provided  for  the  dispo 
sition  of  the  whole  fifteen  hundred  copies  of  the 
octavo  edition,  sets  the  matter  at  rest;  and  110 
order  like  that  proposed  by  the  gentleman  from 
Worcester  can  be  of  any  effect,  unless  you  rescind 
the  action  of  the  Convention.  In  the  first  place, 
fifteen  hundred  copies  were  ordered  to  be  printed 
and  bound.  Each  member  was  to  be  supplied 
with  one,  and  each  town  with  one  copy,  and  the 
remaining  number  of  that  fifteen  hundred  were 
to  be  distributed  by  the  Secretary  of  State,  in  the 
same  manner  as  the  publications  of  the  State 
are  gratuitously  distributed.  Then,  the  Conven 
tion  have  voted  that  another  fifteen  hundred  shall 
be  printed  and  put  up  for  sale,  the  proceeds  of 
which  shall  be  applied  to  defray  the  expenses,  in 
part,  of  the  reporting  and  printing.  That  dis 
poses  of  that  three  thousand.  Now,  let  me  say, 
that  the  octavo  edition  is  to  cost  some  five  or  six 
dollars,  and  the  order  contemplates  that  each 
member  may  have  three  copies  of  those  Debates, 
in  lieu  of  so  many  weekly  newspapers.  I  hope 
the  proposition  will  be  sent  to  the  Special  Com 
mittee,  and  it  can  be  there  discussed. 

Mr.  UPTON,  of  Boston.  I  have  no  objection 
to  sending  the  matter  to  the  Special  Committee, 
but  it  seems  to  me  that  a  statement  ought  to  be 
made  to  the  Convention  of  the  facts  connected 
with  these  Reports.  The  Convention  have  passed 


a  vote  to  retain  fifteen  hundred  copies  for  distri 
bution.  But  how  is  it  to  be  made  ?  In  the  first 
place,  the  members  of  this  Convention  will  take 
four  hundred  and  twenty  copies ;  the  town  clerks 
will  take  three  hundred  and  thirty,  making  in  all 
seven  hundred  and  fifty,  and  there  are  less  than 
one  hundred  copies  more,  to  be  distributed  under 
ordinary  distribution.  So  there  will  be  left  some 
six  or  seven  hundred  copies,  for  which  no  pro 
vision  is  made. 

Now,  Sir,  this  Convention  passed  an  orde*, 
giving  to  members  of  the  Convention  liberty  to 
hand  their  orders  for  papers,  and  also  giving  them, 
the  liberty  to  take  one  copy  of  the  Debates,  in 
stead  of  a  paper.  Well,  Sir,  I  should  like  to  hav« 
some  copies  of  the  Debates.  At  the  proper  time, 
I  made  out  the  order,  and  handed  it  to  the  Secre 
tary,  and  I  was  informed  by  him  that  my  order 
could  not  be  filled,  that  the  Committee  on  Print 
ing,  or  somebody  else,  had  interfered.  I  did  not 
see  fit  to  bring  the  matter  before  the  Convention, 
but  I  saw  no  reason  or  right  why  I  should  not 
have  a  copy  or  two  of  the  Proceedings  of  this 
Convention.  Here  are  members  of  the  Conven 
tion  who  receive  twenty-one  copies,  while  I,  pur 
suing  the  same  course,  tinder  the  same  order, 
have  not  one  copy.  These  are  the  facts.  I  say 
the  members  of  the  Convention  who  have  not 
received  their  copies,  ought  to  be  entitled  to  one 
or  more.  I  shall  be  perfectly  satisfied  to  have  the 
resolution  provide  for  only  one  copy.  There  are 
a  sufficient  number  of  copies  of  the  octavo  edition 
to  comply  with  such  a  resolution,  and  I  think  it 
would  be  better  to  distribute  them  now,  to  those 
members  who  have  not  secured  a  copy,  than  to 
leave  them  in  the  Secretary's  office. 

Mr.  EARLE.  I  will  state  one  fact  to  the 
Convention,  which  I  should  like  to  have  well  un 
derstood  before  this  resolution  is  voted  upon. 
There  are  members  who  are  taking  from  ten  to 
twenty- one  copies  of  these  Reports.  If  they 
choose  to  say  that  they  will  give  them  up,  or  a 
portion  of  them,  then  there  would  be  copies 
enough  to  supply  each  member  with  his  propor 
tion,  while  the  other  members  would  not  tax 
the  State  a  cent  for  their  papers.  Now,  if  any 
arrangement  can  be  made  by  which  the  proper 
officer  can  be  authorized  to  distribute  to  each 
member  not  more  than  three  copies  of  this  Report, 
I  shall  be  satisfied  to  leave  it  so  ;  and  if  such  an 
order  should  pass,  I  am  willing  to  run  my  chance. 

Mr.  BATES.  I  desire,  as  chairman  of  the 
Committee  on  Printing,  to  say  a  single  word  in 
regard  to  the  remarks  of  the  gentleman  from 
Boston,  (Mr.  Upton).  I  submit  it  to  this  Con 
vention,  whose  fault  it  was,  that  these  members 
were  not  supplied.  The  Committee  reported,  that 


71st  day.] 


DISTRIBUTION    OF   DOCUMENTS. 


641 


Saturday,] 


WHITNEY  —  UPTON  —  HOOPER —  CHAPIN. 


[July  30th. 


in  their  opinion,  fifteen  hundred  copies  would  be 
sufficient.  Members  had  the  whole  matter  before 
them,  and  if  they  wished  to  order  more  numbers, 
that  was  the  time  to  have  done  it.  Some  have 
already  ordered  them,  and  others  have  left  the 
matter  open,  intending  to  order  them  at  the  close 
of  the  Convention.  The  result  is,  that  the  num 
bers  have  been  taken  up.  The  Committee,  find 
ing  that  there  was  not  a  sufficient  supply,  and 
ascertaining,  as  well  as  they  might,  early  in  the 
session,  what  number  would  be  wanted,  ordered 
a  reprint  of  the  first  edition,  making  it  up  to  two 
thousand  copies.  That,  apparently,  would  meet 
the  demand.  The  matter  was  submitted  to  the 
Convention,  and  now  it  is  said  that  certain  mem 
bers  cannot  get  copies.  "Well,  the  Committee's 
attention  has  never  been  called  to  the  subject,  and 
nobody  knows  it  until  the  end  of  the  session.  And 
now  it  is  proposed  to  go  back  and  reprint  the 
whole  matter,  at  an  expense  of  four  or  five  thou 
sand  dollars,  or  what  is  worse,  take  this  octavo 
edition,  and  turn  it  over  to  the  members  who 
have  neglected  to  supply  themselves  with  news 
papers. 

Mr.  WHITNEY,  of  Boylston.  I  think  at  the 
early  part  of  the  session  there  was  a  great  deal  of 
ignorance  among  the  members  as  to  the  value  of 
these  Reports,  and  members  did  not,  for  a  consid 
erable  time,  find  out  the  value  of  them.  Many 
did  not  subscribe  at  all  for  them,  who  would  have 
done  so  had  they  known  the  worth  of  them.  I 
subscribed  for  four  copies,  and  have  obtained 
them.  But  I  am  willing  to  yield  up  one  of  the 
four,  in  order  to  make  up  the  deficiency ;  and  I 
hope  the  Committee  will  be  commissioned  to  re 
ceive  voluntary  contributions  of  copies  from  those 
who  have  subscribed  for  them,  and  see  how  many 
they  can  raise  in  that  way.  I  subscribe  one  out 
of  my  four. 

The  PRESIDENT.  The  Chair  is  requested  to 
state  a  fact  in  reply  to  the  gentleman  from  Bos 
ton.  From  information  received  by  the  officers 
of  the  Convention,  he  is  informed  that  the  edition 
is  exhausted,  and  that  they  cannot  be  supplied 
unless  by  ordering  a  reprint. 

Mr.  UPTON,  of  Boston.  I  did  not  intend  to 
make  any  reflection  upon  the  Secretary  of  this 
body.  Very  far  from  that.  I  was  satisfied  with 
the  explanation  he  gave  me ;  but  I  do  not  see 
what  the  statement  of  the  chairman  of  the  Com 
mittee,  as  to  what  they  have  done,  has  to  do  with 
the  rights  of  us  individually.  But  as  this  matter 
is  to  go  to  the  Committee,  I  should  like  to  have 
those  gentlemen  who  have  subscribed  for  from  ten 
to  twenty  copies,  stand  up  and  vote,  that  those 
who  have  the  same  rights  as  themselves,  and  have 
no  copies,  should  not  be  entitled  to  them. 


Mr.  HOOPER,  of  Fall  River.  It  strikes  me 
that  gentlemen  have  nobody  to  complain  of  but 
themselves.  Turn  to  the  proceedings  of  the  sec 
ond  day  of  the  Convention,  when  the  subject  in 
relation  to  newspapers  was  first  brought  up.  I 
offered  the  following  resolve,  for  the  purpose  of 
notifying  members  that  they  could  obtain  these 
Reports  if  they  chose  : — 

Ordered,  That  members  be  authorized  to  select 
copies  of  the  Reports  of  the  transactions  of  this 
Convention,  in  lieu  of  an  equal  number  of  papers 
authorized  by  the  order  of  yesterday,  at  the  option 
of  the  members. 

The  next  day,  or  a  few  days  after,  another  order 
was  introduced,  making  a  copy  of  the  Reports 
equivalent  to  a  weekly  newspaper.  Here  was  an 
opportunity,  and  a  notice  to  each  member  to 
choose  which  they  pleased,  and  had  they  put  down 
their  names  for  the  copies  of  the  Debates,  a  suffi 
cient  number  would  have  been  ordered,  and  they 
would  have  received  them.  If  they  have  neg 
lected  it,  it  is  their  own  fault,  and  they  ought  not 
to  complain.  I  think  it  is  unjust  to  make  up  the 
deficiency  by  the  distribution  of  the  octavo  bound 
volume,  in  lieu  of  the  quarter  volume  unbound. 
I  understand  that  to  be  the  proposition.  I  should 
like  to  have  justice  done  in  this  matter.  Every 
member  is  sure  of  having  one  copy,  by  the  stand 
ing  order.  I  should  like  to  know  how  many 
members  have  given  orders,  during  the  early  part 
of  the  session,  which  have  not  been  supplied.  I 
hope  the  Committee  will  look  at  that  subject  and 
report  how  many  orders  have  been  given  which 
have  not  been  supplied.  But  I  do  not  think  it  is 
right,  that  men  who  have  neglected  the  matter 
until  this  time,  should  now  come  in  and  com 
plain,  when  the  whole  trouble  is  attributable  to 
their  own  negligence. 

Mr.  CHAPIN,  of  Webster.  I  think  it  will 
put  an  end  to  this  whole  discussion,  if  we  will 
add,  as  an  amendment  to  the  resolution  of  the 
gentleman  from  Worcester,  (Mr.  Earle,)  the 
words :  "  And  that  every  member  receiving  copies 
of  these  Debates  shall  be  required  to  read  them." 
[Laughter.] 

The  question  was  then  taken,  and  the  resolu 
tion  was  referred  to  the  Committee  already  or 
dered  to  be  appointed. 

The  PRESIDENT  appointed  the  Committee, 
consisting  of  the  following  gentlemen : — 
Messrs.    Walker,     of  Brookfield, 

Williams,  "    Taunton, 

Schouler,  "    Boston, 

White,        "    Quincy, 

Phinney,  for  Chatham, 

Parsons,    of  Lawrence, 

Bird,          "    Walpole. 


642 


RESOLUTION   OF   THANKS,  &c. 


[71st   day. 


Saturday,] 


STETSON  —  DAVIS  —  BRIGGS. 


[July  30th. 


Law  Martial. 

Mr.  STETSON,  of  Braintree,  moved  to  take 
from  the  table  the  resolve  of  the  Committee  on 
the  Bill  of  Rights,  on  the  subject  of  the  Law 
Martial. 

The  motion  was  not  agreed  to. 

Reconsideration. 

Mr.  STETSON  then  moved  to  take  from  the 
table  the  motion  of  Mr.  White,  of  Quincy,  to 
reconsider  the  vote  by  which  the  resolve  upon 
the  subject  of  the  House  of  Representatives  was 
passed. 

The  PRESIDENT  said  the  papers  were  in  the 
hands  of  the  Committee  on  Revision. 

After  an  interval  of  half  an  hour,  there  being 
no  business  before  the  Convention, 

Mr.  DAVIS,  of  Plymouth,  asked  if  it  would  be 
in  order  for  the  minority  of  a  Committee  to  make 
a  Report. 

The  PRESIDENT  replied  in  the  negative,  but 
said  the  minority  of  a  Committee  might  make  a 
statement  of  facts. 

Mr.  DAVIS.  Then  I  desire,  upon  the  part  of 
the  minority  of  the  Committee  of  which  I  am  a 
member,  to  make  a  statement  of  facts. 

The  PRESIDENT.  There  is  no  question  be 
fore  the  Convention.  A  Report  of  a  Committee 
must  be  in  writing;  but  the  minority  cannot 
report,  unless  their  Report  accompanies,  or  is 
preceded,  by  that  of  the  majority.  The  gentleman 
can  move  to  instruct  the  Committee  to  report,  if 
he  chooses. 

Mr.  DAVIS.  I  ask  the  leave  of  the  Conven 
tion,  to  make  a  Report  upon  the  part  of  the 
minority  of  a  Committee.  A  subject  has  been 
presented  to  them,  upon  which  the  majority  of 
the  Committee  have  not  seen  fit  to  report  at  all, 
and  the  Convention  have,  therefore,  had  no  op 
portunity  to  act  upon  it. 

The  PRESIDENT.  The  gentleman  must  see 
that  the  minority  of  a  Committee  cannot  report, 
unless  that  Report  accompanies  that  of  the  major 
ity.  The  gentleman,  as  a  member  of  that  Com 
mittee,  or  as  a  member  of  the  Convention,  may 
move  to  instruct  the  Committee  to  report,  or  he 
may  submit  a  proposition  ;  but  he  cannot  present 
a  Report  as  representing  the  minority  of  the  Com 
mittee. 

Mr.  DAVIS.  I  am  aware  that  it  is  not  strictly 
in  order  ;  but  I  thought  I  might  ask  the  leave  of 
the  Convention  to  present  that  Report.  In  the 
early  part  of  the  session,  a  resolve  was  passed  on 
the  motion  of  the  gentleman  from  Natick,  (Mr. 
Wilson,)  to  instruct  the  Committee  on  the  Frame 
of  Government,  to  inquire  into  the  expediency 
of  providing  in  the  Constitution,  that  no  member 


of  either  branch  of  the  legislature,  during  the 
term  for  which  he  was  elected,  should  be  appointed 
by  the  governor  to  any  office  in  the  Common 
wealth.  It  is  a  matter  about  which  I  presume 
there  can  be  no  difference  of  opinion  in  the  Con 
vention.  I  desire  now,  upon  the  part  of  the  minor 
ity  of  the  Committee,  to  make  a  Report  upon  that 
resolution. 

The  PRESIDENT.  The  Chair  has  already 
ruled  that  the  minority  of  the  Committee  cannot 
make  a  Report.  The  gentleman  had  the  right  to 
move  to  instruct  that  Committee  to  report,  and  he 
did  make  that  motion  upon  a  former  occasion, 
but  the  motion  was  not  agreed  to  by  the  Conven 
tion.  He  therefore  thinks  it  is  now  not  in  order 
to  make  any  motion  in  relation  to  the  subject. 

Mr.  DAVIS.  I  rise  to  a  question  of  order. 
The  order  introduced  by  the  gentleman  from  Na 
tick  covers  more  ground  than  the  Report  of  the 
minority  of  the  Committee,  which  I  propose  to 
present.  I  therefore  submit  that  it  is  not  the  same 
matter  which  the  Convention  refused  to  instruct 
the  Committee  to  report  upon. 

The  PRESIDENT.  If  the  order  covered  more 
ground  than  the  Report,  it  covered  the  same 
ground,  and  the  Chair  therefore  overrules  the 
point  of  order. 

[The  President  here  vacated  the  chair,  tempo 
rarily,  and  it  was  occupied  by  Mr.  Hillard,  of 
Boston.] 

Resolution  of  Thanks  to  the  President. 

Mr.  BRIGGS,  of  Pittsfield.  I  rise,  Sir,  to  per 
form  an  act  of  courtesy  usual  upon  such  occasions, 
to  the  presiding  officer  of  this  Convention.  I  am 
informed  that  the  parliamentary  usages  of  the 
body  which  for  more  than  half  a  century  has 
assembled  in  this  venerable  hall,  makes  it  proper 
for  me  to  do  it,  and  I  do  it  with  pleasure.  I  do 
it  at  this  time,  Sir,  because  it  will  be  necessary 
for  me  to  leave  town  this  afternoon.  The  other 
part  of  the  ceremony  will  be  done  upon  the  proper 
occasion. 

Mr.  President :  before  sending  this  resolution  to 
the  Chair,  allow  me  to  say,  that  the  work  which 
the  people  sent  us  here  to  do,  is  almost  completed. 
We  are  soon  to  return  to  that  honored  constitu 
ency  whose  servants  we  are,  to  render  an  account 
of  our  stewardship.  As  an  organized  body,  con 
stituted  for  a  specific  and  important  purpose,  we 
shall  soon  be  dissolved  into  our  original  element. 

"  Like  bubbles  on  the  sea  of  matter  borne, 
We  rise,  we  break,  and  to  that  sea  return." 

But,  Sir,  that  great  sea  of  humanity,  what  we 
call  the  people,  will  continue  to  heave  and  roll  its 
deep  waves  forever.  The  muse  of  history,  through 


71st  day.] 


RESOLUTION   OF   THANKS,   &c. 


643 


Saturday,] 


BRIGGS  —  UNDERWOOD  —  WILSON  —  BOUTWELL. 


[July  30th. 


the  medium  of  these  truthful  reporters,  has  written 
down  our  words.  These  faithful  secretaries  have 
recorded  our  acts,  and  the  recording  angel  has 
carried  to  the  court  of  Heaven,  and  placed  upon 
its  records,  the  motives  by  which  we  have  been 
actuated.  These  are  all  sealed  up  to  us,  for  the 
judgment  of  the  great  day.  Whether  right  or 
wrong,  they  now  belong  to  our  past  history,  and 
we  must  stand  by  them  in  future  judgment.  To 
those  who  have  been  associated  together  as  we 
have  been,  in  common  labors  and  responsibilities, 
the  moment  of  separation  is  one  of  intense  interest. 
After  weeks  and  months  of  daily  official  and  per 
sonal  intercourse,  we  look  into  each  others  faces, 
many  of  us,  for  the  last  time.  For  the  last  time 
we  have  felt  the  grasp  of  friendly  hands,  and  for 
the  last  time  heard  the  tones  of  pleasant  and 
cheering  voices. 

Now  it  is  that  the  excitements  and  agitations  of 
political  differences,  clashing  opinions,  and  stirring 
debates,  are  subdued  and  hushed,  and  the  kindlier 
and  better  feelings  of  our  nature  gently  swell  up 
and  take  possession  of  the  heart.  It  should  be  so 
— I  am  glad  it  is  so.  The  partisan  is  lost  in  the 
man — the  antagonist  disappears  and  we  look  upon 
a  brother. 

I  am  sure  these  generous  feelings  at  this  mo 
ment  animate  the  breasts  of  the  four  hundred 
delegates  now  before  me  listening  to  my  poor 
words.  I  hope  no  one  of  us  will  carry  from  this 
place  any  unfriendly  feelings  towards  any  other 
one.  It  gives  me  great  pleasure  to  say  that  I 
have  never  seen  a  session  of  a  large  deliberative 
assembly  pass  away  with  such  general  and  uniform 
courtesy,  decorum,  and  propriety  of  conduct,  as 
has  been  observed  in  this  body.  Without  extend 
ing  these  remarks,  permit  me  to  add  that  I  look 
upon  these  intelligent  and  manly  faces,  and  I 
fear  upon  many  for  the  last  time,  with  no  emo 
tions  but  those  of  regret,  respect,  and  good  will. 
I  shall  carry  away  with  me  no  ruffled  or  irritated 
feelings  towards  any  member  of  this  honored  as 
sembly.  The  interest  of  this  moment  of  separa 
tion,  to  my  own  mind,  is  deepened,  by  the  fact 
that  I  neither  wish  or  expect,  ever  again  to  be  a 
member  of  any  deliberative  body,  whilst  I  live. 

The  general  health  which  has  prevailed  amongst 
us,  is  a  subject  of  profoundest  gratitude  to  God. 
Of  the  four  hundred  and  twenty  delegates  elected 
to  this  Convention  on  the  seventh  of  March  last, 
there  has  been  but  one  death.  It  is  sad,  indeed, 
to  reflect,  that  "  AVC  are  not  all  here."  We  shall 
soon  return  to  our  homes,  and  greet  and  be  greeted 
by  the  voice  and  hand  of  affection  and  love.  But 
there  is  one  lonely  mansion  made  desolate  by  the 
death  of  one'of  our  honored  associates,  where  no 
such  greeting  will  be  had.  I  know  the  sympathy 


of  all  these  hearts  will  gather  round  that  mourn 
ful  home,  and  that  earnest  prayers  will  go  up  to 
the  God  of  the  widow  and  the  orphan,  that  his 
choicest  blessings  may  now  and  ever  be  poured 
out  upon  its  stricken  inmates. 

I  offer,  Mr.  President,  the  following  resolution, 
which  I  doubt  not  will  receive  the  hearty  and 
unanimous  concurrence  of  this  Convention  : — 

Resolved,  That  the  thanks  of  this  Convention 
be  given  to  N.  P.  BANKS,  Jr.,  for  the  dignified, 
fair,  and  able  manner  in  which  he  has  presided 
over  its  deliberations. 

The  resolution  was  unanimously  adopted. 

Mr.  UNDERWOOD,  of  Milford.  I  desire  to 
know  what  is  now  before  the  Convention  ? 

The  PRESIDENT.  [Mr.  Hillard,  of  Boston, 
being  in  the  Chair.]  The  Chair  is  unable  to  an 
swer  the  gentleman  at  this  moment.  The  Orders 
of  the  Day  have  all  been  disposed  of. 

Mr.  UNDERWOOD.  I  understand  it  is  not 
expected  that  the  Committee  on  Revision  will  be 
able  to  make  their  Report  before  three  o'clock 
this  afternoon.  Under  these  circumstances,  I 
would  suggest  that  we  take  a  recess  until  that 
time. 

Mr.  WILSON,  of  Natick.  I  think  the  Con 
vention  had  better  not  take  a  recess  for  the  pres 
ent.  I  understand  the  Committee  on  Revision 
may  possibly  report  in  the  course  of  fifteen  or 
twenty  minutes.  I  would  suggest  that  it  would 
be  better  to  wait  for  a  half  an  hour,  and  if  they 
do  not  report  by  that  time,  we  can  then  judge 
better  to  what  time  it  will  be  best  to  adjourn. 

Mr.  UNDERWOOD.  I  understand  that  Com 
mittee  will  not  be  ready  to  report  until  three 
o'clock,  but  if  there  is  any  business  which  can  be 
brought  before  the  Convention,  I  have  no  wish  to 
adjourn. 

Mr.  WILSON.  If  the  Committee  are  not  to 
report  until  that  time,  I  would  move  that  the 
Convention  take  a  recess  until  three  o'clock. 

Report  from  a  Committee. 

Mr.  BOUTWELL,  for  Berlin,  from  the  Com 
mittee  on  Revision,  submitted  a  Report,  asking 
that  the  Committee  be  discharged  from  the  far 
ther  consideration  of  a  resolve  referred  to  them, 
adopted  by  the  Convention  on  the  30th  of  May, 
on  the  mode  in  which  the  governor  shall  be 
chosen  by  the  legislature,  in  case  of  the  non- elec 
tion  of  that  officer  by  the  people. 

The  PRESIDENT.  The  question  is  on  dis 
charging  the  Committee. 

Mr.  BOUTWELL.  I  have  only  to  say  that 
the  Committee,  in  the  examination  of  the  resolu 
tions  passed  by  the  Convention,  found  a  resolu- 


644 


REPORT   FROM   A   COMMITTEE. 


[71st  day. 


Saturday,] 


LORD  —  PARKER  —  BOUTWELL. 


[July  30th. 


tion  like  that  just  read,  which  was  passed  on  the 
30th  of  May.  Resolutions  were  passed,  subse 
quently,  that  in  case  of  the  failure  of  the  people 
to  elect,  the  House  should  select  three  out  of  the 
number  of  persons  voted  for  having  the  highest 
number  of  votes,  if  so  many  persons  were  voted 
for,  whose  names  should  be  sent  to  the  Senate, 
and  from  these  names  the  Senate  should  select 
one.  There  being  an  apparent  conflict  between 
the  two  resolutions,  the  Committee  ask  to  be 
discharged. 

The  question  was  taken  on  the  acceptance  of 
the  Report,  and  it  was  accepted. 

Mr.  LORD.  I  desire  to  know  whether  it  is 
not  necessary  to  suspend  the  rules,  to  reconsider  a 
vote  by  which  that  resolve  was  adopted  ?  whether 
having  adopted  a  resolution,  it  is  competent  for 
a  mere  majority  to  reject  it  ?  J  think  that  it  is 
necessary,  in  order  to  prevent  that  resolution  from 
going  into  the  Constitution,  to  reconsider. 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  it  is  not  necessary,  but  that  the  action  of  the 
Convention  in  the  acceptance  of  the  Report  at 
this  time,  is  of  such  a  kind,  as  may  be  had  with 
out  a  motion  to  reconsider. 

Mr.  LORD.  The  Committee  on  Revision  are 
discharged  from  the  consideration  of  that  resolu 
tion,  but  has  not  that  resolution  been  passed  by 
this  Convention  ?  Have  we  not  voted  that  it  is 
expedient  to  amend  the  Constitution  in  that 
mode,  just  as  much  without  that  vote  to  discharge 
the  Committee  as  with  it  ?  Suppose  the  Com 
mittee  on  Revision  had  come  in,  and,  instead  of 
asking  to  be  discharged  from  the  farther  consid 
eration  of  the  resolution,  had  asked  to  be  dis 
charged  from  the  farther  consideration  of  the 
entire  subject,  and  they  are  discharged  r  Then 
where  are  the  amendments?  They  are  still 
adopted.  This  resolution  was  adopted.  That 
resolution  stands  adopted  as  the  resolution  of  the 
Convention.  Now  it  seems  to  me  entirely  clear, 
that  it  is  our  duty  to  reconsider  the  vote  by  which 
that  resolution  was  adopted  ;  and,  it  seems  to  me, 
also,  that  a  suspension  of  the  rules  is  required  to 
dispose  of  it.  Because,  otherwise,  a  bare  major 
ity  of  this  Convention  can  undo  all  that  has  been 
done,  notwithstanding  the  rule  shall  not  be  re 
considered.  I  do  not  understand  that  the  fact 
that  the  Committee  asks  to  be  discharged,  changes 
the  case  at  all,  because  it  is  just  as  competent  for 
a  majority  of  this  Convention  to  discharge,  upon 
a  motion  of  any  individual,  as  for  the  Committee 
to  Report  and  ask  to  be  discharged. 

Mr.  PARKER,  of  Cambridge.  It  appears  to 
me,  that  the  conclusion  of  the  gentleman  from 
Salem  must  be  regarded  as  correct :  that  the  action 
of  the  Convention  at  this  time,  has  merely  taken 


the  subject  from  the  hands  of  the  Committee,  so 
that  it  is  again  in  Convention.  But  the  question 
which  arises  in  my  mind,  is,  whether  the  subse 
quent  action  of  the  Convention,  passing  a  resolu 
tion  different  and  entirely  inconsistent  with  this, 
does  not  operate  as  an  abrogation  of  the  previous 
action,  in  such  a  manner  that  it  is  not  necessary 
to  take  farther  action  upon  the  subject.  It  would 
seem  as  though  that  would  operate  as  a  repeal, 
as  annulling  the  resolution  which  the  Committee 
are  now  discharged  from,  so  that  it  cannot  stand ; 
and,  therefore,  we  need  not  take  any  farther 
action. 

Mr.  LORD.  When  this  resolution  was  under 
consideration,  the  question  of  order  was  raised  ; 
that  it  was  not  in  order,  because  the  Convention 
had  acted  upon  the  subject-matter  of  it.  The 
President  of  the  Convention  then  decided,  that  it 
was  not  a  point  of  order  ;  that  it  was  not  in  con 
flict  with  that  rule;  that  it  was  a  question  of 
consistency  to  be  determined  by  the  Convention. 
We  have,  therefore,  determined  that  it  was  not 
inconsistent ;  because,  otherwise,  they  would  not 
have  adopted  it.  They  must  be  presumed  to 
have  decided  that  it  was  not  inconsistent.  If 
this  can  stand  in  that  mode,  then  a  bare  majority, 
on  a  motion  to  discharge  the  Revising  Committee 
from  the  consideration  of  any  amendment,  can 
defeat  an  amendment. 

The  PRESIDENT.  The  Chair  would  suggest 
to  the  gentleman  from  Salem,  that  there  is  no 
motion  before  the  Convention. 

Mr.  LORD.  I  move  that  the  rules  be  sus 
pended,  so  that  the  resolution  may  be  taken  up 
for  reconsideration,  with  a  view  to  its  rejection. 

Mr.  BOUTWELL.  I  think  it  that  is  too  late 
to  reconsider  a  vote  taken  on  the  thirtieth  of  May 
last. 

Mr.  LORD.  What  I  desire,  is,  to  move  a  sus 
pension  of  that  part  of  the  rule  which  limits  a 
motion  to  reconsider  to  the  next  day  after  the 
resolution  was  passed. 

Mr.  BOUTWELL.  I  suppose  that,  practically, 
whatever  course  we  take,  we  shall  come  to  the 
same  result :  that  a  majority  of  this  Convention 
will  decide  whether  the  resolution  shall  stand  or 
shall  not  stand.  I  see  no  other  result,  whether 
the  rule  be  suspended  or  not.  If  the  rule  be 
suspended,  and  a  motion  is  made  to  reconsider, 
that  question,  of  course,  can  be  decided  by  a  ma 
jority.  I  think  there  is  no  principle  involved  in 
this.  Here  is  an  apparent  conflict  between  the 
action  of  the  Convention  at  one  time,  and  its 
action  at  another.  I  think  that,  in  fairness,  we 
should  let  the  action  on  this  first  resolution,  sub 
side. 

Mr.  LORD.     I  think  that  in  all  fairness  we 


71st  day.] 


REPORT   FROM   A   COMMITTEE. 


645 


Saturday,] 


MORTON  —  HILLARD —  LORD  —  BRIGGS  —  BUTLER. 


[July  30th. 


should  stand  by  this  which  we  understood  to  be 
the  well  defined  view  of  the  Convention.  But  at 
the  same  time,  I  think  we  should  do  it  regularly. 
I  do  not  make  this  motion  to  have  it  defeat  the 
resolution,  but  because  I  wish  to  have  the  matter 
conducted  with  order,  regularity,  and  propriety. 
I  think  that  is  the  only  course,  and  I  made  the 
motion  myself,  because  I  wanted  to  show,  that, 
so  far  as  I  was  concerned,  having  raised  the 
question  myself,  I  had  a  disposition  to  have  the 
matter  settled  just  exactly  as  it  ought  to  be  set 
tled  with  propriety.  I  think  that,  in  order  to 
have  it  stand  right,  the  Convention  must  reject 
the  resolution.  And  to  reject  it,  we  must  recon 
sider,  and  to  reconsider,  it  is  necessary  to  suspend 
that  part  of  the  rule  which  limits  a  motion  to 
reconsider  to  the  next  day.  If  gentlemen  sustain 
the  motion  to  suspend,  then  it  is  in  the  power  of 
the  Convention  to  make  a  reconsideration,  and 
then  it  is  in  the  power  of  a  majority  to  do  as  they 
please  with  the  resolution. 

Mr.  MORTON,  of  Taunton.  I  see  no  occa 
sion  for  passing  this  vote  of  reconsideration,  look 
ing  back  for  so  great  a  length  of  time  as  this ; 
because  I  think  on  every  principle  of  law  and 
constitution,  the  thing  stands  perfectly  well.  Early 
in  the  session,  I  do  not  remember  the  date,  a 
resolve  passed  this  body  respecting  amendments 
to  the  Constitution,  so  that  if  there  was  a  failure 
to  elect  a  governor,  he  should  be  chosen  by  a 
joint  ballot  of  the  two  Houses.  Afterwards  there 
was  a  resolution  passed,  that  in  filling  a  vacancy, 
when  there  was  no  choice  by  the  people,  the 
House  should  select  three  from  the  number  of 
persons  having  the  highest  number  of  votes,  and 
out  of  them  the  Senate  should  select  one.  This 
was  the  deliberate  action  of  the  Convention.  It 
seems  to  me  the  whole  matter  is  perfectly  settled, 
because  it  is  entirely  apparent  that  the  second 
resolution  is  utterly  inconsistent  with  the  first ; 
they  cannot  both  stand.  One  or  the  other  is 
annihilated.  Which  is  it?  I  believe  that  the 
rule  is  well  settled  that  the  last  action  of  the  Con 
vention  shall  prevail,  and  that  any  subsequent 
action,  whether  of  law  or  constitution,  repeals  all 
laws  inconsistent  with  it.  The  adoption  of  the 
second  resolution  being  entirely  inconsistent 
with  the  first,  was  just  as  much  a  repeal  of  the 
first,  or  a  rescinding  of  it,  as  if  done  in  so  many 
words.  Therefore,  I  think  the  first,  having  been 
repealed,  there  is  nothing  to  reconsider,  that  all 
stands  perfectly  well ;  and  therefore  we  have  no 
need  to  pass  a  rule  allowing  to  move  a  reconsid 
eration. 

Mr.  HILLARD,  of  Boston.  It  wiU  be  ob 
served  that  the  adoption  of  the  resolutions  referred 
to  is  simply  an  expression  of  opinion  on  the  part 


of  the  Convention.  On  one  occasion,  the  Con 
vention  voted  that  it  was  expedient  to  amend  the 
Constitution  in  one  manner,  and  on  a  subsequent 
occasion  they  voted  that  it  was  inexpedient  to 
amend  the  Constitution  in  that  manner.  The 
Committee  to  whom  the  resolutions  were  referred, 
seeing  their  inconsistency  with  each  other,  ask  to 
be  discharged  from  the  consideration  of  that 
resolution  which  it  is  understood  it  is  wished 
should  not  prevail.  Now,  what  is  the  action  of 
the  Convention  to  be,  in  case  any  retrograde  steps 
are  to  be  taken  ?  We  must  first  reconsider  the 
vote  by  which  it  was  referred  to  the  Committee. 
Both  resolutions  are  in  their  hands,  unless  we 
accept  the  Report.  Therefore,  I  do  not  see  how  it 
is  now  in  the  power  of  the  Convention,  because, 
as  we  have  accepted  the  Report,  the  Convention 
has  no  power  over  it  until  we  reconsider  the  vote 
by  which  it  was  put  into  the  hands  of  the  Com 
mittee. 

Mr.  LORD.  The  Convention  has  discharged 
that  Committee,  as  I  understand. 

The  PRESIDENT.  The  papers  are  not  in  the 
possession  of  the  Convention  at  present.  The 
motion  to  reconsider  is  not  necessary. 

Mr.  LORD.  I  would  ask  if  it  would  be  com 
petent  for  a  bare  majority  to  discharge  a  Com 
mittee  from  any  other  branch  of  this  subject,  and 
thereby  defeat  the  amendment  which  has  been 
already  passed  ? 

The  PRESIDENT.  The  Chair  is  not  to  give 
opinions  in  advance,  but  will  rule  upon  cases  as 
they  occur. 

Mr.  WILSON,  of  Natick,  moved  that  the  Con 
vention  adjourn,  to  meet  at  three  o'clock  this 
afternoon. 

Mr.  BRIGGS.  I  hope  my  friend  will  with 
draw  that  motion  for  a  few  moments. 

Mr.  WILSON  withdrew  it. 

Mr.  BRIGGS.  I  wish  to  state  to  members  of 
the  Convention,  that  our  friend  the  Chaplain  has 
been  desirous,  during  the  session,  to  have  half  an 
hour  at  some  time,  to  speak  to  us  upon  the  sub 
ject  of  education,  in  its  various  forms.  There  is 
now  more  than  half  an  hour  before  the  earliest 
time  when  we  have  been  in  the  habit  of  adjourn 
ing  ;  and  I  would  respectfully  request  those  gen 
tlemen  who  have  not  duties  elsewhere  that  call 
them  away,  to  remain  after  the  adjournment,  and 
listen  to  what  he  has  to  say.  It  will  be  but  a 
short  address. 

Mr.  BUTLER.  There  is  now  no  other  busi 
ness  before  the  Convention  ;  and  knowing  that  it 
is  nearly  impossible  to  get  the  Report  of  the  Revis 
ing  Committee  here  at  an  hour  sufficiently  early 
to  enable  us  to  deal  with  it  tlu's  afternoon,  and 
that  therefore  it  will  be  necessary  for  us  to  have 


646 


PAY   ROLL,   &c. 


[71st  day. 


Saturday," 


LIVERMORE  —  LORD  —  WILSON. 


[July  30th. 


a  session  on  another  day,  I  move  that  when  the 
Convention  adjourns  to-day,  it  adjourn  to  meet  on 
Monday  morning  next,  at  ten  o'clock. 
The  motion  was  agreed  to. 

Pay  Roll. 

Mr.  LIVERMORE,  of  Cambridge.  I  wish  to 
make  a  statement  in  relation  to  the  pay  roll. 
The  pay  roll  is  now  made  up,  with  the  exception 
of  one  name,  and  the  governor  and  council  will 
be  in  session  at  one  o'clock  to-day.  The  gov 
ernor,  and  some  members  of  the  council,  have 
engagements  on  Monday,  and  will  not  be  able  to 
be  here  on  that  day  to  draw  warrants,  if  the  Con 
vention  should  adjourn  until  Monday  without 
having  a  session  this  afternoon.  The  pay  roll  is 
made  up,  and  ready  to  be  passed  upon,  and  the 
warrants  can  be  drawn  this  afternoon  if  we  have 
a  session ;  and  it  seems  to  me  that  it  will  be 
hardly  worth  while  to  have  the  governor  and  coun 
cil  come  together  again,  which  they  could  not  do 
before  Tuesday  or  Wednesday. 

Mr.  LORD,  of  Salem,  moved  that  the  Com 
mittee  on  the  Pay  Roll  be  instructed  to  make  up 
and  pay  the  account  of  Hon.  HENRY  WILSON,  at 
the  rate  of  three  dollars  per  pay  in  addition  to  the 
ordinary  compensation,  during  the  time  that  he 
acted  as  President  pro  tempore. 

Mr.  WILSO N.  I  thank  my  friend  from  Salem 
for  his  kindness  in  making  that  proposition,  but 
I  must  beg  leave  to  say  to  him  and  to  the  mem 
bers  of  the  Convention,  that  under  the  circum 
stances,  I  do  not  think  it  would  be  right  or  proper 
for  the  Convention  either  to  pass  this,  or  for  me 
to  take  it.  I  should  be  sorry  to  have  such  a  vote 
passed,  and  I  hope  that  my  friend  will  withdraw 
the  motion.  It  was  only  for  a  day  or  two  that  I 
was  in  the  chair  performing  those  duties  ;  if  it 
had  been  a  month  or  six  weeks,  it  would  have 
altered  the  case. 

The  question  being  put,  the  motion  was  agreed 
to. 

Mr.  BUTLER  then  moved  that  the  Convention 
adjourn. 

Mr.  WILSON.  As  the  governor  will  not  be 
here  on  Monday,  I  think  we  had  better  meet  this 
afternoon,  and  see  about  the  pay  roll. 

The  question  being  put,  on  the  motion  to  ad 
journ,  it  was  not  agreed  to. 

Reconsideration. 

Mr.  LIVERMORE.  I  move  to  reconsider  the 
vote  by  which  the  Convention  agreed  to  adjourn 
until  ten  o'clock  on  Monday. 

The  motion  was  agreed  to. 

The  question  then  recurred  on  the  motion  that 
when  the  Convention  adjourn,  it  be  to  meet  on 


Monday  at  ten  o'clock ;  and  it  was  not  agreed 
to. 

On  motion,  the  Convention  then  adjourned. 

AFTERNOON  SESSION. 

The  Convention  reassembled,  and  was  called  to 
order  by  the  President  at  three  o'clock,  P.  M. 

Mr.  WILSON,  of  Natick.  I  am  informed, 
Mr.  President,  that  it  will  be  impossible  for  the 
Committee  on  Revision  to  report  this  afternoon, 
and  it  will  be  useless  for  us  to  remain  here. 
They  will  be  able  to  report  on  Monday,  and  I 
therefore  hope  that  we  shall  adjourn  now,  and 
meet  at  ten  o'clock  on  Monday. 

Mr.  LIVERMORE,  of  Cambridge.  I  beg  leave 
to  state  to  the  Convention,  that  in  the  course  of  a 
few  minutes  the  pay  roll  will  be  made  up,  and 
the  Committee  on  the  Pay  Roll  will  be  ready  to 
make  their  Report.  The  pay  roll  has  been  made 
up,  in  pursuance  of  the  order  of  the  Convention, 
including  Monday  next,  and  the  governor  has 
summoned  the  council,  so  that  they  will  be  ready 
this  afternoon  to  draw  the  warrants  for  the  pay 
of  members.  The  governor  and  some  members 
of  the  council  have  engagements  on  Monday,  so 
that  they  will  not  be  able  to  draw  warrants  at 
that  time.  They  have  come  here  from  a  distance, 
some  of  them,  for  the  purpose  of  advising  the 
governor  in  relation  to  this  matter ;  and  it  appears 
to  me  that  the  warrants  can  be  drawn  to-day  as 
well  as  to  have  the  matter  deferred  until  next 
week.  The  Convention  have  voted  that  no 
member  shall  receive  any  pay  after  Monday 
next,  and  it  seems  to  me  to  be  wholly  useless  to 
postpone  action  upon  the  pay  roll  to  a  future 
time,  because  it  is  not  certain  that  the  governor 
and  council  will  be  in  session  again  for  a  number 
of  days ;  and  until  the  warrants  are  drawn,  the 
members  of  the  Convention  cannot  receive  their 
pay.  I  do  not  suppose  that  if  the  warrants  should 
be  drawn  this  afternoon,  the  members  would  be 
able  to  get  their  pay  before  Monday,  for  the  office 
of  the  Treasurer  usually  closes  at  an  early  hour 
in  the  afternoon.  I  presume  members  could  not 
receive  their  pay  and  leave  this  afternoon,  nor 
would  they  wish  to  leave  the  Convention  without 
a  quorum,  or  without  the  proper  number  of  mem 
bers  present  to  finish  up  the  business  of  the  ses 
sion  ;  but  it  seems  to  me  that  if  members  under 
stand  this,  they  will  not  vote  to  adjourn  until 
after  action  is  had  upon  the  pay  roll.  It  will  be 
but  a  very  short  time  before  the  Committee  will 
be  ready  to  make  their  Report  to  the  Convention. 

Mr.  WILSON.  I  move  that  when  the  Con 
vention  adjourns,  it  adjourn  to  meet  on  Monday 
next  at  ten  o'clock. 


72d  day.] 


PAY   ROLL,  &c. 


647 


Monday,] 


LXVBBMOBB  —  GRISWOLD  —  OLIVER  —  KETES  —  WALKER. 


[August  1st. 


The  question  being  taken,  the  motion  was 
agreed  to. 

After  a  few  moments,  no  business  being  pre 
sented,  Mr.  WILSON  moved  that  the  Convention 
adjourn. 

The  question  being  taken,  on  a  division,  there 
were — ayes,  94  ;  noes,  67 — so  the  motion  was 
agreed  to,  and  the  PRESIDENT  declared  the 
Convention  adjourned  until  Monday  morning  at 
ten  o'clock. 

Mr.  LIVERMORE.  Is  it  not  in  order  to  call 
for  the  yeas  and  nays  on  that  motion  ? 

The  PRESIDENT.  The  Convention  has  ad 
journed. 


MONDAY,  August  1,  1853. 
The  Convention  assembled  at  ten  o'clock,  A.  M. 
Prayer  by  the  Chaplain. 
The  journal  of  Saturday  was  read. 

Pay  Roll. 

Mr.  LIVERMORE,  of  Cambridge,  from  the 
Committee  on  the  Pay  Roll,  submitted  the  follow 
ing  Report : — 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  August  1,  1853. 
The  Committee  on  the  Pay  Roll,  in  compliance 
with  an  order  of  the  Convention,  directing  them 
to  make  up  the  pay  roll,  have  attended  to  that 
duty,  in  accordance  with  a  resolve  passed  on 
the  28th  day  of  June  last,  and  report  the  sum 
herewith,  amounting  to  $114,092,  and  also  re 
port  the  accompanying  order. 

For  the  Committee, 
ISAAC  LIVERMORE,  Chairman. 

Ordered,  That  the  Pay  Roll  of  the  Convention, 
as  reported  by  the  Committee,  in  accordance  with 
the  resolve  of  the  28th  of  June  last,  and  the  order 
of  July  29th,  be  transmitted  by  the  Secretary,  to 
the  Auditor  of  Accounts,  and  that  he  be  requested 
to  obtain  from  the  Governor  a  warrant  upon  the 
treasury  of  the  Commonwealth,  to  authorize  the 
payment  thereof,  and  notify  the  Convention  when 
the  warrant  has  been  drawn. 

Mr.  GRISWOLD,  for  Erving,  moved  that  the 
Report  be  laid  on  the  table. 
The  motion  was  agreed  to. 

Personal  Explanation. 

Mr.  OLIVER,  of  Lawrence.  I  ask  permission 
of  the  Convention  to  make  a  personal  explana 
tion.  In  the  early  part  of  the  session,  I  was 
under  the  impression  that  each  proposition  sub 
mitted  to  the  consideration  of  the  House,  would 
have  three  separate  readings  prior  to  the  final 


action  thereon,  and  that  there  would  be,  of  course, 
as  many  opportunities  for  discussion  and  amend 
ment.  In  this,  I  was  in  error,  and  laboring 
under  this  misapprehension,  I  gave  a  negative 
vote  in  a  case  in  which  it  was  not  my  intention 
so  to  do,  on  the  final  passage.  I  allude  to  the 
resolve  on  the  secret  ballot.  I  was  very  desirous 
of  pressing  the  same  amendments  which  I  offered 
when  it  was  under  consideration,  had  another 
opportunity  been  offered.  Voting  as  I  did,  I 
stand  upon  the  record  in  direct  opposition  to  my 
real  sentiments  and  intentions,  upon  the  general 
question.  I  therefore  make  this  explanation  of 
my  affirmative  intention,  that  I  may,  thereby, 
appear  in  the  proper  light. 

Protest  in  relation  to  Rights  of  Colored  Citizens* 
Mr.  KEYES,  for  Abington.  Mr.  President: 
A  paper  has  been  placed  in  my  hands,  purport 
ing  to  be  a  protest  against  the  action  of  this  Con 
vention,  with  the  request  that  I  would  present  it 
here,  and  move  that  it  be  placed  upon  the  records 
of  this  body,  if  it  is  in  order  to  make  that  motion. 
I  will  state,  in  a  few  words,  what  it  is.  It  is  a 
protest  from  a  number  of  colored  persons,  in  the 
name  and  behalf  of  the  colored  population  of 
Massachusetts,  who,  claiming  to  be  citizens  of 
Massachusetts,  under  our  laws,  have  been  perma 
nently  disqualified  from  holding  any  position  in 
the  militia ;  which  is,  in  fact,  declaring  that  they 
are  not  citizens.  They  have  stated  this  in  very 
respectful  language ;  and  I  will  read  the  reason 
why  they  want  this  petition  placed  upon  the 
records  of  the  Convention.  They  say :  "  We 
respectfully  ask  that  this  protest  may  be  placed 
upon  the  records  of  the  Convention,  and  pub 
lished  with  the  proceedings  of  the  Convention, 
that  the  stigma  may  not  rest  upon  our  memory, 
of  having  tamely  acquiesced  in  a  proscription 
equally  at  war  with  the  American  Constitution, 
with  the  Massachusetts  Bill  of  Rights,  and  the 
claims  of  human  nature."  I  therefore  ask,  in 
compliance  with  their  request,  that  the  protest 
may  be  read,  and  then  that  it  be  placed  upon  the 
records. 

The  protest  was  read. 

The  question  being  put  on  ordering  the  protest 
to  be  placed  upon  the  records  of  the  Convention, 
on  a  division,  there  were — ayes,  97 ;  noes,  66— so 
the  motion  was  agreed  to. 

Distribution  of  Documents. 

Mr.  WALKER,  of  North  Brookfield,  from  the 
Special  Committee,  to  whom  were  referred  two 
orders  of  the  Convention  of  July  30th,  in  rela 
tion  to  the  distribution  of  the  documents  of  the 
Convention,  reported  the  following  resolves : — 


648 


DISTRIBUTION   OF   DOCUMENTS,  &c. 


[72d  day. 


Monday,] 


EAKLE  —  BOUTWELL. 


[August  1st. 


1.  Resolved,  that  White  £  Potter  be  instructed 
to  deliver,  without  additional  charge,  the  remain 
ing  numbers  of  the  quarto  edition  of  the  Jour 
nal  of  Debates,  at  such  places  in  Boston,  as  the 
members  shall  respectively  order. 

2.  Resolved,  That  each  member  of  this  Conven 
tion  be  furnished  with  one  copy  of  the  Journal 
of  the  Debates,  of  the  octavo  edition,  additionally 
to  the  one  heretofore  ordered. 

3.  Resolved,  That  the  Messenger  be  directed  to 
deliver,  without  additional  cost,  the  copies  of  the 
Debates  aforesaid,  together  with  the  Journal  of 
the  Convention,  heretofore  ordered,  with  the  com 
pleted  file   of  the  documents  belonging  to   each 
member,  at  such  place  in  Boston,  as  the  members 
shall  respectively  order.     And  also  to  send,  in 
the  usual  manner,  the  copies  of  the  Journal  and 
Debates  to  the  towns,  cities,  and  public  bodies,  as 
ordered  by  the  Convention,  and  also  to  send  to 
each  town  or  city,  its  quota,  in  proportion  to  pop 
ulation,  of  copies  of  the  New  Constitution,  here 
tofore  ordered  to  be  published. 

Mr.  E  ARLE,  of  Worcester.  I  move  to  amend 
the  second  resolve,  by  adding  thereto  the  follow 
ing  words : — 

Provided,  That  no  member  shall  be  entitled  to 
more  than  three  copies,  including  those  received 
instead  of  newspapers. 

Mr.  EARLE.  This  Report,  I  presume,  was 
made  upon  an  order  which  was  submitted  by  me, 
and  referred  to  the  Committee,  on  Saturday,  the 
object  of  which,  was  simply  an  act  of  justice  to  that 
portion  of  the  members  of  the  Convention  who 
had  not  been  able  to  obtain  the  copies  to  which  they 
were  entitled  under  a  former  order ;  while  some 
members  have  received,  under  a  former  order,  as 
I  stated  on  that  occasion,  various  numbers,  from 
ten  to  twenty- one  copies.  Now,  this  resolve,  in 
stead  of  providing  for  those  who  have  not  been 
able  to  obtain  the  copies  to  which  they  were  en 
titled,  provides  that  those  who  have  received 
twenty-one  copies,  shall  have  three  copies  more, 
while  those  who  are  entitled  to  twenty- one  copies, 
and  cannot  get  them,  shall  have  but  three  copies 
in  all ;  and  this  is  the  justice  which  the  Commit 
tee  propose  in  that  resolve.  If  that  is  to  stand 
just  as  it  is  reported,  I  shall  vote  against  the 
whole.  I  was  entitled  to  six  copies,  under  the 
former  order,  and  other  members  were  entitled  to 
different  numbers,  which  they  have  not  been  able 
to  get.  It  makes  no  difference  to  me,  personally, 
whether  I  get  these  or  not.  I  am  entitled  to  one 
copy,  as  every  other  member  is,  under  another 
order,  and  that  will  satisfy  all  my  wants  ;  still,  I 
had  concluded  to  take  six  copies,  and  distribute 
them  among  some  of  my  friends ;  others  have 
got  theirs,  and  have  distributed  them.  My  ob 
ject  was  simply  to  remedy  the  defect,  and  give 
some  measure  of  justice  to  those  who  had  not 


taken  their  copies.  I  cannot  imagine  any  reason 
why  this  resolve  should  be  brought  in  as  it  is, 
giving  those  who  have  already  received  ten,  fif 
teen,  or  twenty  copies,  three  copies  more.  The 
other  day,  when  I  offered  that  order,  I  was  met 
at  once  by  the  exclamation,  from  various  quarters, 
that  it  never  would  do  to  give  three  copies  to 
members  who  were  entitled  to  eight  or  ten,  be 
cause  it  would  exhaust  the  treasury  of  the  State, 
and  besides  that,  it  would  exhaust  all  the  copies, 
so  that  future  governors  and  councillors  would 
have  no  copies  to  distribute  among  their  friends. 
Then,  they  could  do  no  such  thing  ;  but  now,  it 
is  proposed  not  only  to  give  two  or  three  copies 
to  those  who  are  justly  entitled  to  ten  or  twenty, 
but  in  addition  to  that,  to  give  those  who  have 
had  ten  or  twenty  copies  already,  just  as  many  as 
we  have.  We  do  not  ask  for  justice — we  do  not 
ask  for  what  we  are  entitled  to,  under  a  former 
vote,  to  put  us  on  an  equality  with  those  who 
have  already  got  theirs ;  but  if  we  cannot  have 
this  for  which  we  do  ask,  without  voting  an  ad 
ditional  number  to  those  who  have  already  had  fif 
teen  or  twenty,  I,  for  one,  will  give  up  what  I  am 
entitled  to,  and  be  content  with  the  single  copy 
that  I  shall  get  under  the  other  order. 

Mr.  BOUTWELL.  I  move  to  lay  this  Report 
upon  the  table,  in  order  that  we  may  have  an 
opportunity  to  consider  it  a  little,  and  in  the  mean 
time  proceed  to  the  more  important  and  pressing 
business  before  us. 

The  motion  was  agreed  to. 

Revised  Constitution. 

Mr.  BOUTWELL,  from  the  Committee  ap 
pointed  to  prepare  the  amendments  to  be  submit 
ted  to  the  people,  reported  a  series  of  resolves, 
accompanied  by  a  form  of  a  revised  Constitution. 

The  resolves  were  read,  as  follows  : — 

In  the  Convention  of  the  Delegates  of  the  people 
assembled  in  Boston,  on  the  first  Wednesday  of 
May,  in  the  year  1853,  for  the  purpose  of  re 
vising  and  amending  the  Constitution  of  this 
Commonwealth. 

Resolved,  That  the  revised  Constitution,  pro 
posed  by  said  Convention,  be  submitted  to  the 
people  of  the  Commonwealth  for  their  ratifica 
tion  and  adoption,  in  the  manner  following, 
viz. : — 

I.  The  Preamble  ;  A  Declaration  of  the 
Rights  of  the  Inhabitants  of  the  Commonwealth 
of  Massachusetts;  The  Frame  of  Government, 
with  its  Preamble  and  Chapters  numbered  One, 
Two,  Three,  Four,  Five,  Six,  Seven,  Eight,  Nine, 
Ten,  Eleven,  Twelve,  Thirteen,  and  Fourteen, 
entitled,  respectively — General  Court, — Senate, — 
House  of  Representatives, — Governor, — Lieuten 
ant- Governor — ,Council, — Secretary, — Treasurer, 
Auditor,  and  Attorney- General,— Judiciary  Pow- 


72d  day.] 


REVISED   CONSTITUTION. 


649 


Monday,] 


RESOLUTIONS. 


[August  1st. 


er, — Qualifications  of  Voters  and  Elections, — Oaths 
and  Subscriptions, — Militia, — The  University  at 
Cambridge,  the  School  Fund  and  the  Encourage 
ment  of  Literature, — Miscellaneous  Provisions, — 
Revisions  and  Amendments  of  the  Constitution 
— as  a  distinct  proposition,  numbered  "  One." 

If  this  proposition,  so  submitted,  shall  be  rati 
fied  and  adopted  by  a  majority  of  the  legal  voters 
of  the  Commonwealth,  present  and  voting  there 
on,  at  meetings  dully  called,  then  the  same  shall 
be  the  Constitution  of  the  Commonwealth  of 
Massachusetts. 

II.  The  provision  respecting  the  granting  of 
the  writ  of  Habeas  Corpus,    as    a    proposition, 
numbered  "  Two." 

If  this  proposition  shall  be  ratified  and  adopt 
ed,  it  shall  be  an  addition  to  the  provision  respect 
ing  the  Habeas  Corpus. 

III.  The   provision    respecting  the  rights  of 
juries  in  criminal  trials,  as  a  proposition,  num 
bered  «  Three." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  the  article  in  the  Declara 
tion  of  Rights,  respecting  the  rights  of  persons 
charged  with  crimes. 

IV.  The  provision  respecting  claims  against 
the  Commonwealth,  as  a  proposition,  numbered 
"  Four." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  Article  XI.,  of  the  Dec 
laration  of  Rights. 

V.  The   provision    respecting    imprisonment 
for  debt,  as  a  proposition,  numbered  "  Five." 

If  this  proposition  be  adopted,  it  shall  be  an 
addition  to  the  Article  in  the  Declaration  of 
Rights  respecting  excessive  bail  and  fines. 

VI.  The  provision  respecting  sectarian  schools, 
as  a  proposition,  numbered  "  Six." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  Article  IV.  of  Chapter 
XII.,  entitled,  "The  University  at  Cambridge, 
The  School  Fund,  and  the  Encouragement  of 
Literature."  If  proposition  numbered  "  One  " 
shall  not  be  adopted,  it  shall  be  added  as  an 
amendment  to  the  Constitution. 

VII.  The  provision   respecting  Corporations, 
as  a  proposition,  numbered  "  Seven." 

VIII.  The  provision  respecting    Banks    and 
Banking,  as  a  proposition,  numbered  "  Eight." 

If  the  propositions  numbered  "  Seven  "  and 
"  Eight  "  be  ratified  and  confirmed,  they  shall  be 
added  as  separate  articles,  or  if  either  of  them  be 
ratified  and  confirmed,  as  an  article  in  Chapter 
XIII.,  entitled,  "  Miscellaneous  Provisions." 

If  proposition  numbered  "  One  "  be  not  ratified 
and  confirmed,  they  shall  be  added  as  amend 
ments  to  the  Constitution. 

Resolved,  That  at  the  meetings  for  the  election 
of  Governor,  Senators,  and  Representatives  to  the 
General  Court,  to  be  holden  on  the  second  Mon 
day  of  November,  in  the  year  one  thousand  eight 
hundred  and  fifty-three,  the  qualified  voters  of 
the  several  towns  and  cities  shall  vote  by  ballot 
upon  each  of  the  propositions  aforesaid,  for  or 
against  the  same,  which  ballots  shall  be  inclosed 
within  a  sealed  envelope  according  to  the  pro 
visions  of  an  Act  of  this  Commonwealth,  passed 
443 


on  the  twenty-second  day  of  May,  in  the  year 
eighteen  hundred  and  fifty-one,  and  an  Act  passed 
the  twentieth  day  of  May,  in  the  year  eighteen 
hundred  and  fifty- two,  and  no  ballots  not  so  in 
closed  shall  be  received.  And  said  votes  shall  be 
received,  sorted,  counted,  declared,  and  recorded, 
in  open  meeting,  in  the  same  manner  as  is  by  law 
provided  in  reference  to  votes  for  governor,  and  a 
true  copy  of  the  record  of  said  votes,  attested  by 
the  selectmen  and  town  clerk  of  each  of  the  sev 
eral  towns,  and  the  mayor  and  aldermen  and  city 
clerk  of  each  of  the  several  cities,  shall  be  sealed 
up  by  said  selectmen  and  mayor  and  aldermen, 
and  directed  to  the  Secretary  of  the  Common 
wealth,  with  a  superscription  expressing  the  pur 
port  of  the  contents  thereof,  and  delivered  to  the 
sheriff  of  the  county  within  fifteen  days  after  said 
meetings,  to  be  by  him  transmitted  to  the  Secre 
tary's  office,  on  or  before  the  third  Monday  of 
December  next ;  or,  the  said  selectmen  and  mayor 
and  aldermen  shall  themselves  transmit  the  same 
to  the  Secretary's  office,  on  or  before  the  day  last 
aforesaid. 

Resolved,  That  the  Secretary  shall  deliver  said 
copies  so  transmitted  to  him,  to  a  Committee  of 
this  Convention  consisting  of 
who  shall  assemble  at  the  State  House  on  the 
third  Monday  of  December  next,  and  open  the 
same,  and  examine  and  count  the  votes,  so  re 
turned  ;  and  if  it  shall  appear  that  either  of  said 
propositions  has  been  adopted  by  a  majority  of 
votes,  then  the  proposition  so  adopted  shall  be 
come  and  be  either  the  whole  or  a  portion  of  the 
Constitution  of  this  Commonwealth,  as  herein 
before  provided,  and  the  said  Committee  shall 
promulgate  the  results  of  said  votes  upon  each  of 
said  propositions,  by  causing  the  same  to  be  pub 
lished  in  those  newspapers  in  which  the  laws  are 
now  published  ;  and  shall  also  notify  the  Gov 
ernor  and  Legislature,  as  soon  as  may  be,  of  the 
said  results  ;  and  the  Governor  shall  forthwith 
make  public  proclamation  of  the  fact  of  the 
adoption  of  either  or  all  of  said  propositions,  as 
the  whole  or  as  parts  of  the  Constitution  of  this 
Commonwealth. 

Resolved,  That  each  of  said  propositions  shall 
be  considered  as  a  whole  by  itself,  to  be  adopted 
in  the  whole,  or  rejected  in  the  whole.  And 
every  voter  may  vote  on  each  proposition  by  its 
appropriate  number,  without  specifying  in  his 
ballot  any  reference  to  the  subject  of  the  propo 
sition,  and  by  writing  opposite  to  the  number  of 
each  proposition  the  word  Yes  or  No, — but  the 
vote  on  all  of  the  propositions  shall  be  written  or 
printed  on  one  ballot,  in  siibstance  as  follows  : — 

Constitutional  Propositions. 
Proposition  No.  I.,        .         .        Yes  or  No. 
Proposition  No.  II.,  .         Yes  or  No. 

Proposition  No.  III.,    .         .         Yes  or  No. 
And  to  Proposition  No.  VIII.,      Yes  or  No. 

Resolved,  That  a  printed  copy  of  these  Resolu 
tions,  with  the  several  Constitutional  Propositions 
annexed,  shall  be  attested  by  the  Secretaries  of 
the  Convention,  and  transmitted  by  them,  as  soon 
as  may  be,  to  the  selectmen  of  each  town,  and 
the  mayor  and  aldermen  of  each  city,  in  the 


650 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


BOTJTWELL  —  LORD  —  SCHOULER  —  SARGENT. 


[August  1st. 


Commonwealth,  whose  duty  it  shall  be  to  insert 
a  proper  article  in  reference  to  the  voting  upon 
said  propositions,  in  the  warrant  calling  the  meet 
ings  aforesaid,  on  the  second  Monday  of  Novem 
ber  next. 

Mr.  BOUT  WELL,  for  Berlin.  It  will  be  of 
course  apparent  to  the  Convention,  that  two  main 
matters  are  before  us.  One  is,  to  perfect  the  ac 
tion  of  the  Committee,  and  to  take  the  judgment 
of  the  Convention  as  to  whether  the  Committee 
has  faithfully  and  impartially  incorporated  the 
views  of  the  Convention  into  the  various  propo 
sitions  ;  and  having  done  th'.t,  in  the  next  place, 
to  determine  the  mode  of  submitting  the  revised 
matter  to  the  people.  I  suppose,  from  the  intima 
tions  and  assurances  that  have  been  given  upon  all 
sides,  so  far  as  I  know,  that  it  is  the  desire  of  all 
that  the  Constitution  should  be,  so  far  as  it  can 
be  made,  a  perfect  instrument ;  we  all  agree  upon 
that,  whether  we  agree  to  the  propositions  con 
tained  in  the  Constitution,  or  not ;  therefore,  I 
believe  I  may  say,  that  it  is  the  desire  of  the  Com 
mittee  that  the  Convention  should  first  go  to  \vork 
to  perfect  what  is  here  presented,  and  that  the 
mode  of  submitting  it  to  the  people  should  be 
considered  as  a  subsequent  matter.  With  that 
view  in  my  own  mind,  and  trusting  that  it  may 
be  acceptable  to  the  Convention,  I  move  that  the 
first  resolve  be  so  divided  that  the  subject  matter 
of  proposition  number  one  be  first  considered, 
and  then  that  the  Convention  proceed  to  consider 
the  subsequent  propositions  in  their  order  re 
spectively. 

The  PRESIDENT.  The  Chair  desires  to  sub 
mit  a  preliminary  question  to  the  Convention. 
The  first  resolve  covers  in  its  terms  several  prop 
ositions  with  regard  to  the  form  of  the  Constitu 
tion  presented  by  the  Committee.  It  may  be 
desirable  that  the  Constitution  should  be  read  to 
the  Convention  ;  but  the  Chair  will  take  the 
judgment  of  the  Convention.  If  no  member  de 
sires  to  have  it  read,  the  reading  will  be  dispensed 
with. 

Mr.  BOUTWELL.  It  wouldseem  to  be  proper 
that  the  Secretary  of  the  Convention  should  read 
the  first  proposition  from  beginning  to  end,  and 
that  opportunity  should  be  given  for  the  Conven 
tion  to  pass  upon  each  article  of  each  chapter.  I 
hope  one  chapter  will  be  read  at  a  time,  and  each 
article  considered. 

The  PRESIDENT.  A  single  preliminary 
question  presents  itself  to  the  Chair.  Although 
the  Convention  have  provided  that  a  resolve  in 
volving  the  merits  of  the  Constitution,  should 
have  two  separate  readings,  the  Chair  supposes 
that  on  this  occasion  that  rule  may  be  dispensed 
with.  As  in  other  cases  where  no  objection  is 


made,  the  Chair  will  consider  that  the  rule  is 
suspended  by  general  consent,  and  will  put  the 
question  on  the  final  passage  of  the  resolves. 

Mr.  LORD,  of  Salem.  If  we  examine  this 
new  Constitution,  I  think  we  shall  find  cases 
where  the  Revising  Committee,  as  a  matter  of 
necessity,  doubtless,  have  altered  the  Constitution 
in  relation  to  matters  that  the  Convention  has 
never  passed  upon.  I  will  give,  as  an  illustration, 
the  removal  of  justices  of  the  peace  upon  the  ad 
dress  of  the  two  Houses  of  the  legislature.  This 
Convention  have  passed  upon  that  subject,  and 
they  have  provided  a  different  mode  for  the  re 
moval  than  by  means  of  address.  By  the  old 
Constitution  there  was  not  that  power  over  jus 
tices  of  the  peace,  and  yet  the  Revising  Committee 
have  given  that  power  ;  and  I  submit  that  that  is 
an  amendment  to  the  Constitution.  I  think  it 
will  turn  out  in  quite  a  variety  of  instances,  that  the 
Constitution  has  been  amended  by  the  Revising 
Committee  in  parts  which  have  not  been  acted 
on  by  the  Convention. 

The  PRESIDENT.  When  the  question  is 
raised  upon  any  point  of  that  kind  in  its  order, 
the  Chair  will  rule  upon  it. 

Mr.  LORD.  If  they  are  real  alterations  of 
the  Constitution,  they  certainly  require  two  read 
ings  under  the  rule ;  and  the  question  should  not 
now  be  upon  the  final  passage. 

The  PRESIDENT.  The  Chair  will  take  the 
direction  of  the  Convention  upon  this  question. 

Mr.  SCHOULER,  of  Boston.  I  desire  to  state, 
for  the  information  of  members,  that  those  parts 
of  the  old  Constitution  which  are  unchanged,  are 
printed  in  our  copies  "leaded;"  those  parts 
which  are  entirely  new  are  set  "  solid  ;"  while 
those  parts  of  old  sections  which  have  been 
changed  are  in  italics. 

Mr.  SARGENT,  of  Cambridge.  It  would 
seem  to  me  to  be  proper  that  the  Secretary  should 
read  the  resolves  that  have  been  passed  by  the 
Convention  in  connection  with  the  provisions 
reported  by  the  Revising  Committee,  in  order 
that  we  may  ascertain  whether  they  have  been 
correctly  incorporated. 

The  first  resolve  was  then  read,  and  the  ques 
tion  stated  upon  its  adoption. 

Mr.  BOUTWELL  requested  that  the  Preamble 
and  Declaration  of  Rights,  in  the  first  chapter, 
might  be  read. 

The  PRESIDENT.  The  details  of  each  chap 
ter  will  be  read  and  considered  separately,  before 
the  Convention  proceed  to  take  the  question  upon 
them. 

Mr.  LORD.  I  think,  before  that  is  done,  it 
will  be  most  convenient  to  know  upon  what 
principle  the  Committee  have  separated  several 


72d  day.] 


REVISED   CONSTITUTION. 


651 


Monday,] 


LORD  —  BOUTWELL. 


[August  1st. 


articles  and  placed  them  by  themselves  to  be  act 
ed  upon  separately,  while  the  bulk  is  to  be  acted 
upon  together.  If  there  is  any  principle  upon 
which  the  Committee  have  acted,  I  desire  to  have 
the  chairman  state  what  that  principle  is,  so  that 
if,  by  the  adoption  of  that  principle,  more  propo 
sitions  can  be  submitted  separately  than  the  Com 
mittee  have  reported,  I  think  they  should  be  so 
submitted.  If,  however,  they  have  adopted  a 
principle  which  includes  some  of  these  proposi 
tions  which  they  have  submitted  separately,  then 
such  propositions  should  be  included. 

What  I  desire  to  know  is,  upon  what  principle 
it  is  that  these  seven  particular  and  specific  prop 
ositions  are  taken  away  from  the  body  of  the 
Constitution,  and  placed  each  by  itself,  and  why 
the  Constitution,  otherwise,  is  put  to  the  people 
in  bulk  ?  Of  course,  Sir,  there  must  have  been 
a  reason  for  this,  and  that  I  want  to  get  at. 

The  PRESIDENT.  The  gentleman  will  allow 
the  Chair  to  suggest  that  it  would  first  be  better 
to  determine  whether  the  Constitution,  as  report 
ed  by  the  Committee,  should  be  read  or  not,  and 
after  that,  the  whole  question  opened  by  him  will 
be  before  the  Convention. 

Mr.  LORD.  I  was  about  to  wait,  but  it  was 
suggested  by  the  gentleman  for  Berlin  to  take  up 
the  different  parts  separately. 

The  PRESIDENT.  The  Chair  would  suggest 
that  the  question  being  submitted,  upon  the  re 
quest  of  the  gentleman  for  Berlin,  upon  the  first 
proposition,  that  will  be  considered  first.  But 
the  question  immediately  before  us  is,  whether 
the  Constitution  shall  be  read.  The  Secretary 
will  read  that  portion  of  the  revised  Constitution 
reported  by  the  Committee,  which  is  embraced  in 
so  much  of  their  Report  as  is  numbered  "  One." 

Mr.  BOUTWELL.  I  desire  that  it  shall  be 
read. 

The  Secretary  accordingly  proceeded  to  read, 
and  read  so  much  of  the  revised  Constitution  as  is 
contained  under  the  heads  "  Preamble,"  and  "  A 
Declaration  of  the  Rights  of  the  Inhabitants  of 
the  Commonwealth  of  Massachusetts,"  as  fol 
lows  : — 

PREAMBLE. 

The  end  of  the  institution,  maintenance,  and 
administration  of  government,  is  to  secure  the  ex 
istence  of  the  body  politic  ;  to  protect  it ;  and  to 
furnish  the  individuals  who  compose  it,  with  the 
power  of  enjoying,  in  safety  and  tranquillity,  their 
natural  rights  and  the  blessings  of  life  :  and  when 
ever  these  great  objects  are  not  obtained,  the  peo 
ple  have  a  right  to  alter  the  government,  and  to 
take  measures  necessary  for  their  safety,  pros 
perity  and  happiness. 

The  body  politic  is  formed  by  a  voluntary  asso 
ciation  of  individuals  ;  it  is  a  social  compact,  by 


which  the  whole  people  covenants  with  each 
citizen,  and  each  citizen  with  the  whole  people, 
that  all  shall  be  governed  by  certain  laws  for  the 
common  good.  It  is  the  duty  of  the  people, 
therefore,  in  framing  a  Constitution  of  govern 
ment,  to  provide  for  an  equitable  mode  of  making 
laws,  as  well  as  for  an  impartial  interpretation, 
and  a  faithful  execution  of  them,  that  every  man 
may,  at  all  times,  find  his  security  in  them. 

We,  therefore,  the  people  of  Massachusetts,  ac 
knowledging,  with  grateful  hearts,  the  goodness 
of  the  great  Legislator  of  the  universe,  in  affording 
us,  in  the  course  of  his  providence,  an  oppor 
tunity,  deliberately  and  peaceably,  without  fraud, 
violence,  or  surprise,  of  entering  into  an  original, 
explicit,  and  solemn  compact  with  each  other ; 
and  of  forming  a  new  Constitution  of  civil  gov 
ernment  for  ourselves  and  posterity ;  and  de 
voutly  imploring  his  direction  in  so  interesting  a 
design,  do  agree  upon,  ordain,  and  establish,  the 
following  Declaration  of  Rights  and  Frame  of 
Government,  as  the  CONSTITUTION  of  the  COMMON 
WEALTH  OF  MASSACHUSETTS. 

A  DECLARATION 

Of  the  Rights  of  the  Inhabitants  of  the  Common- 
wealth  of  Massachusetts. 

ARTICLE  1.  All  men  are  born  free  and  equal, 
and  have  certain  natural,  essential,  and  unaliena- 
ble  rights  ;  among  which  may  be  reckoned  the 
right  of  enjoying  and  defending  their  lives  and 
liberties ;  that  of  acquiring,  possessing,  and  pro 
tecting  property  ;  in  fine,  that  of  seeking  and  ob 
taining  their  safety  and  happiness. 

ART.  2.  It  is  the  right  as  well  as  the  duty  of 
all  men  in  society,  publicly,  and  at  stated  seasons, 
to  worship  the  SUPREME  BEING,  the  great  Creator 
and  Preserver  of  the  universe.  And  no  subject 
shall  be  hurt,  molested,  or  restrained,  in  his  per 
son,  liberty,  or  estate,  for  worshipping  God  in  the 
manner  and  season  most  agreeable  to  the  dictates 
of  his  own  conscience ;  or  for  his  religious  profes 
sion  or  sentiments ;  provided  he  doth  not  disturb 
the  public  peace,  or  obstruct  others  in  their  re 
ligious  worship. 

ART.  3.  As  the  public  worship  of  God,  and 
instructions  in  piety,  religion,  and  morality,  pro 
mote  the  happiness  and  prosperity  of  a  people, 
and  the  security  of  a  republican  government ; 
therefore,  the  several  religious  societies  of  this 
Commonwealth,  whether  corporate  or  unincor- 
porate,  at  any  meeting  legally  warned  and  holden 
for  that  purpose,  shall  ever  have  the  right  to  elect 
their  pastors  or  religious  teachers,  to  contract 
with  them  for  their  support,  to  raise  money  for 
erecting  and  repairing  houses  for  public  worship, 
for  the  maintenance  of  religious  instruction,  and 
for  the  payment  of  necessary  expenses  :  And  all 
persons  belonging  to  any  religious  society  shall  be 
taken  and  held  to  be  members,  until  they  shall 
file  with  the  clerk  of  such  society  a  written  notice 
declaring  the  dissolution  of  their  membership, 
and  thenceforth  shall  not  be  liable  for  any  grant 
or  contract  which  may  be  thereafter  made  or  en 
tered  into  by  such  society  :  And  all  religious  sects 
and  denominations,  demeaning  themselves  peace 
ably,  and  as  good  citizens  of  the  Commonwealth, 


652 


REVISED  CONSTITUTION. 


[72d  day. 


Monday, 


BILL  OP  RIGHTS. 


[August  1st. 


shall  be  equally  under  the  protection  of  the  law  ; 
and  no  subordination  of  any  one  sect  or  denomi 
nation  to  another  shall  ever  be  established  by  law. 

ART.  4.  The  people  of  this  Commonwealth 
have  the  sole  and  exclusive  right  of  governing 
themselves,  as  a  free,  sovereign,  and  independent 
State ;  and  do,  and  forever  hereafter  shall,  exer 
cise  and  enjoy  every  power,  jurisdiction,  and 
right,  which  is  not,  or  may  not  hereafter,  be  by 
them  expressly  delegated  to  the  United  States  of 
America,  in  Congress  assembled. 

ART.  o.  All  power  residing  originally  in  the 
people,  and  being  derived  from  them,  the  several 
magistrates  and  officers  of  government,  vested 
with  authority,  whether  legislative,  executive,  or 
judicial,  are  their  substitutes  and  agents,  and  are 
at  all  times  accountable  to  them. 

ART.  6.  No  man,  nor  corporation,  or  associa 
tion  of  men,  have  any  other  title  to  obtain  advan 
tages,  or  particular  and  exclusive  privileges,  dis 
tinct  from  those  of  the  community,  than  what 
arises  from  the  consideration  of  services  rendered 
to  the  public ;  and  this  title  being  in  nature 
neither  hereditary,  nor  transmissible  to  children, 
or  descendants,  or  relations  by  blood,  the  idea  of 
a  man  being  born  a  magistrate,  lawgiver,  or  judge, 
is  absurd  and  unnatural. 

ART.  7.  Government  is  instituted  for  the  com 
mon  good ;  for  the  protection,  safety,  prosperity, 
and  happiness  of  the  people ;  and  not  for  the 
profit,  honor,  or  private  interest  of  any  one  man, 
family,  or  class  of  men  :  Therefore  the  people 
alone  have  an  incontestable,  unalienable,  and 
indefeasible  right  to  institute  government ;  and 
to  reform,  alter,  or  totally  change  the  same,  when 
their  protection,  safety,  prosperity  and  happiness 
require  it. 

ART.  8.  In  order  to  prevent  those  who  are 
vested  with  authority  from  becoming  oppressors, 
the  people  have  a  right,  at  such  periods,  and  in 
such  manner,  as  they  shall  establish  by  their 
frame  of  government,  to  cause  their  public  offi 
cers  to  return  to  private  life  ;  and  to  fill  up  va 
cant  places  by  certain  and  regular  elections  and 
appointments. 

ART.  9.  All  elections  ought  to  be  free ;  and 
all  the  inhabitants  of  this  Commonwealth,  having 
such  qualifications  as  they  shall  establisb  by  their 
frame  of  government,  have  an  equal  right  to  elect 
officers,  and  to  be  elected,  for  public  employments. 

ART.  10.  Each  individual  of  the  society  has  a 
right  to  be  protected  by  it  in  the  enjoyment  of  his 
life,  liberty,  and  property,  according  to  standing 
laws.  He  is  obliged,  consequently,  to  contribute 
his  share  to  the  expense  of  this  protection ;  to 
give  his  personal  service,  or  an  equivalent,  when 
necessary :  but  no  part  of  the  property  of  any 
individual  can,  with  justice,  be  taken  from  him, 
or  applied  to  public  uses,  without  his  own  con 
sent,  or  that  of  the  representative  body  of  the 
people.  In  fine,  the  people  of  this  Common 
wealth  are  not  controllable  by  any  other  laws 
than  those  to  which  their  constitutional  represen 
tative  body  have  given  their  consent.  And  when 
ever  the  public  exigencies  require  that  the  property 
of  any  individual  should  be  appropriated  to  public 
uses,  he  shall  receive  a  reasonable  compensation 
therefor. 


ART.  11.  Every  subject  of  the  Commonwealth 
ought  to  find  a  certain  remedy,  by  having  recourse 
to  the  laws,  for  all  injuries  or  wrongs  which  he 
may  receive  in  bis  person,  property,  or  character. 
He  ought  to  obtain  right  and  justice  freely,  and 
without  being  obliged  to  purchase  it ;  completely, 
and  without  any  denial ;  promptly,  and  without 
delay  ;  conformably  to  the  laws. 

ART.  12.  The  privilege  and  benefit  of  the  writ 
of  habeas  corpus  shall  be  enjoyed,  in  this  Com 
monwealth,  in  the  most  free,  easy,  cheap,  expedi 
tious,  and  ample  manner ;  and  shall  not  be  sus 
pended  by  the  legislature,  except  upon  the  most 
urgent  and  pressing  occasions,  and  for  a  limited 
time  not  exceeding  twelve  months. 

ART.  13.  No  subject  shall  be  held  to  answer 
for  any  crimes  or  oifence,  until  the  same  is  fully 
and  plainly,  substantially  and  formally,  described 
to  him  ;  or  be  compelled  to  accuse,  or  furnish 
evidence  against  himself :  and  every  subject  shall 
have  a  right  to  produce  all  proofs,  that  may  be 
favorable  to  him  ;  to  meet  the  witnesses  against 
him  face  to  face,  and  to  be  fully  heard  in  his  de 
fence  by  himself,  or  his  counsel,  at  his  election ; 
and  no  subject  shall  be  arrested,  imprisoned,  de 
spoiled,  or  deprived  of  his  property,  immunities, 
or  privileges,  put  out  of  the  protection  of  the  law, 
exiled,  or  deprived  of  his  life,  liberty,  or  estate, 
but  by  the  judgment  of  his  peers,  or  the  law  of 
the  land.  And  the  legislature  shall  not  make  any 
law  that  shall  subject  any  person  to  a  capital  or 
infamous  punishment,  excepting  for  the  govern 
ment  of  the  army  and  navy,  without  trial  by  jury. 

ART.  14.  In  criminal  prosecxitions,  the  verifi 
cation  of  facts  in  the  vicinity  where  they  happen,  is 
one  of  the  greatest  securities  of  the  life,  liberty, 
and  property  of  the  citizen. 

ART.  Id.  Every  subject  has  a  right  to  be  se 
cure  from  all  unreasonable  searches  and  seizures 
of  his  person,  his  houses,  his  papers,  and  all  his 
possessions.  All  warrants,  therefore,  are  contrary 
to  this  right,  if  the  cause  or  foundation  of  them 
be  not  previously  supported  by  oath  or  affirma 
tion  ;  and  if  the  order  in  the  warrant  to  a  civil 
officer,  to  make  search  in  suspected  places,  or  to 
arrest  one  or  more  suspected  persons,  or  to  seize 
their  property,  be  not  accompanied  with  a  special 
designation  of  the  persons  or  objects  of  search, 
arrest,  or  seizure ;  and  no  warrant  ought  to  be 
issued  but  in  cases,  and  with  the  formalities,  pre 
scribed  by  the  laws. 

ART.  16.  In  all  controversies  concerning  prop 
erty,  and  in  all  suits  between  two  or  more  per 
sons,  except  in  cases  in  which  it  has  heretofore 
been  otherways  used  and  practised,  the  parties 
have  a  right  to  a  trial  by  jury;  and  tins  method 
of  procedure  shall  be  held  sacred,  unless,  in  causes 
arising  on  the  high  seas,  and  such  as  relate  to 
mariners'  wages,  the  Legislature  shall  hereafter 
find  it  necessary  to  alter  it. 

ART.  17.  The  liberty  of  the  press  is  essential 
to  the  security  of  freedom  in  a  state  :  it  ought 
not,  therefore,  to  be  restrained  in  this  Common 
wealth. 

ART.  18.  The  people  have  a  right  to  keep  and 
to  bear  arms  for  the  common  defence ;  and,  as  in 
time  of  peace,  armies  are  dangerous  to  liberty, 
they  ought  not  to  be  maintained  without  the  con- 


72d  day.] 


REVISED    CONSTITUTION. 


653 


Monday,] 


BOUTWELL. 


[August  1st. 


sent  of  the  Legislature  ;  and  the  military  power 
shall  always  be  held  in  an  exact  subordination  to 
the  civil  authority,  and  be  governed  by  it. 

ART.  19.  A  frequent  recurrence  to  the  funda 
mental  principles  of  the  Constitution,  and  a  con 
stant  adherence  to  those  of  piety,  justice,  mode 
ration,  temperance,  industry,  and  frugality,  are 
absolutely  necessary  to  preserve  the  advantages 
of  liberty,  and  to  maintain  a  free  government. 
The  people  ought,  consequently,  to  have  a  partic 
ular  attention  to  all  those  principles,  in  the  choice 
of  their  officers  and  representatives;  and  they 
have  a  right  to  require  of  their  lawgivers  and 
magistrates,  an  exact  and  constant  observance  of 
them,  in  the  formation  and  execution  of  the  laws 
necessary  for  the  good  administration  of  the  Com 
monwealth. 

ART.  20.  The  people  have  a  right,  in  an  orderly 
and  peaceable  manner,  to  assemble  to  consult 
upon  the  common  good ;  give  instructions  to 
their  representatives  ;  and  to  request  of  the  legis 
lative  body,  by  the  way  of  addresses,  petitions,  or 
remonstrances,  redress  of  the  wrongs  done  them, 
and  of  the  grievances  they  suffer. 

ART.  21.  The  power  of  suspending  the  laws, 
or  the  execution  of  the  laws,  ought  never  to  be 
exercised  but  by  the  Legislature,  or  by  authority 
derived  from  it,  to  be  exercised  in  such  particular 
cases  only  as  the  Legislature  shall  expressly  pro 
vide  for. 

ART.  22.  The  freedom  of  deliberation,  speech 
and  debate,  in  either  House  of  the  Legislature,  is 
so  essential  to  the  rights  of  the  people,  that  it 
cannot  be  the  foundation  of  any  accusation  or 
prosecution,  action  or  complaint,  in  any  other 
court  or  place  whatsoever. 

ART.  23.  The  Legislature  ought  frequently  to 
assemble  for  the  redress  of  grievances,  for  correct 
ing,  strengthening,  and  confirming  the  laws,  and 
for  making  new  laws,  as  the  common  good  may 
require. 

AUT.  24.  No  subsidy,  charge,  tax,  impost,  or 
duties,  ought  to  be  established,  fixed,  laid,  or 
levied,  under  any  pretext  whatsoever,  without  the 
consent  of  the  people,  or  their  representatives  in 
the  Legislature. 

ART.  25.  Laws  made  to  punish  for  actions 
done  before  the  existence  of  such  laws,  and  which 
have  not  been  declared  crimes  by  preceding  laws, 
are  unjust,  oppressive,  and  inconsistent  with  the 
fundamental  principles  of  a  free  government. 

ART.  26.  No  subject  ought,  in  any  case,  or  in 
any  time,  to  be  declared  guilty  of  treason  or  felony 
by  the  Legislature. 

ART.  27.  No  magistrate  or  court  of  law  shall 
demand  excessive  bail  or  sureties,  impose  exces 
sive  fines,  or  inflict  cruel  or  unusual  punishments. 

ART.  28.  In  time  of  peace,  no  soldier  ought  to 
be  quartered  in  any  house  without  the  consent  of 
the  owner ;  and  in  time  of  war,  such  quarters 
ought  not  to  be  made  but  by  the  civil  magistrate, 
in  a  manner  ordained  by  the  Legislature. 

ART.  29.  No  person  can  in  any  case  be  sub 
jected  to  law  martial,  or  to  any  penalties  or  pains, 
by  virtue  of  that  law,  except  those  employed  in 
the  army  or  navy,  and  except  the  militia  in 
actual  service,  but  by  authority  of  the  Legis 
lature. 


ART.  30.  It  is  essential  to  the  preservation  of 
the  rights  of  every  individual,  his  life,  liberty, 
property  and  character,  that  there  be  an  impartial 
interpretation  of  the  laws,  and  administration  of 
justice.  It  is  the  right  of  every  citizen  to  be  tried 
by  judges,  as  free,  impartial  and  independent,  as 
the  lot  of  humanity  will  admit.  It  is  therefore 
not  only  the  best  policy,  but  for  the  security  of 
the  rights  of  the  people,  and  of  every  citizen,  that 
the  Judges  of  the  Supreme  Judicial  Court  should 
hold  their  offices  by  tenures  established  by  the  Con 
stitution,  and  should  have  honorable  salaries  which 
shall  not  be  diminished  during  their  continuance  in 
office. 

ART.  31.  In  the  government  of  this  Common 
wealth,  the  legislative  department  shall  never 
exercise  the  executive  and  judicial  powers,  or 
either  of  them  :  the  executive  shall  never  exercise 
the  legislative  and  judicial  powers,  or  either  of 
them  :  the  judicial  shall  never  exercise  the  legis 
lative  and  executive  powers,  or  either  of  them : 
to  the  end  it  may  be  a  government  of  laws  and 
not  of  men. 

Mr.  BOUTWELL,  for  Berlin.  The  idea 
which  I  had  in  my  mind  when  I  introduced  the 
Report,  was  this :  that  by  general  consent,  we 
might  go  through  with  the  Report  of  the  Com 
mittee,  chapter  by  chapter,  and  perfect  it.  If 
there  are  errors  anywhere  in  the  Report  sub 
mitted  by  the  Committee,  they  should  be  corrected 
as  we  go  along  from  chapter  to  chapter,  waiting, 
after  the  reading  of  each  chapter,  for  such  sugges 
tions  as  gentlemen  shall  be  pleased  to  make,  the 
main  question,  all  the  while  being  upon  the 
adoption  of  the  proposition  numbered  "one."  I 
am  not  desirous  that  the  main  question  should  be 
put  until  a  fair  chance  shall  have  been  given  to 
every  gentleman  to  express  his  opinion  upon  each 
and  every  individual  thing  in  the  revised  Consti 
tution. 

Now,  in  regard  to  that  portion  which  the  Sec 
retary  has  read,  I  may  say  that  there  are  two 
changes  only,  in  the  Declaration  of  Rights.  Article 
twelve  of  the  Bill  of  Rights,  by  a  vote  of  the  Con 
vention,  found  in  Document  No.  28,  has  been 
transferred  from  the  sixth  chapter  of  the  present 
Constitution,  being  the  chapter  upon  oaths  and 
subscriptions,  and  made  to  constitute  article 
twelve  of  the  Bill  of  Rights,  in  precisely  the  same 
form. 

In  regard  to  the  thirtieth  article  of  the  Declara 
tion  of  Rights,  some  few  changes  have  been  made. 
Those  are  expressed  in  italics,  and  result  from  the 
change  in  the  tenure  of  the  judicial  office,  that 
being  now  during  good  behavior,  but  hereafter, 
by  the  tenure  established  by  this  Constitution,  if 
adopted  by  the  people,  it  will  be  ten  years. 
Another  change  relates  to  the  salaries  of  the  ju 
dicial  officers,  and  this  provides,  in  accordance 
with  the  vote  of  the  Convention,  that  they  should 


654 


REVISED    CONSTITUTION. 


[72d  day. 


Monday," 


SCHOULER HUBBARD  —  LoRD  —  BoUTWELL. 


[August  1st. 


have  honorable  salaries,  which  shall  not  be  dimin 
ished  during  their  continuance  in  office.  That 
change  is  placed  here  in  direct  conformity  to  the 
language  of  the  resolve  of  the  Convention,  which 
the  Committee  took  for  their  guide. 

So  far  as  I  know,  that  is  all  that  need  to  be 
said  at  present. 

Mr.  SCHOULER,  of  Boston.  I  move  an 
amendment  to  the  fifteenth  article  of  the  Bill  of 
Rights. 

The  PRESIDENT.  The  Chair  desires  to 
know  whether  there  is  a  general  consent  that  the 
Preamble  and  Bill  of  Rights,  which  have  been 
read,  shall  be  considered  by  themselves  ? 

Mr.  HUBBARD,  of  Boston.  I  rise,  Mr.  Pres 
ident,  to  object  to  that  course.  It  seems  to  me 
that  there  is  a  preliminary  question  which  should 
first  be  disposed  of.  If  the  Convention  determine 
or  shall  determine  to  put  each  proposition  to  the 
people  separate  and  distinct  from  each  other,  and 
by  itself,  then  this  work  of  revising  these  amend 
ments  of  the  Constitution,  becomes  wholly  super 
fluous.  I  suppose  the  question  of  the  gentleman 
from  Salem,  (Mr.  Lord,)  a  short  time  since, 
tended  to  the  presentation  of  that  preliminary 
question,  that  AVB  might  know  upon  what  princi 
ple  this  Report  has  been  made.  I  supposed  that 
after  the  Preamble  and  Declaration  of  Rights 
should  have  been  read,  we  should  have  had  some 
explanation  of  that  principle  from  some  member 
of  the  Committee  who  had  in  charge  this  work 
of  revising  and  putting  the  amendments  and  the 
Constitution  in  form. 

The  PRESIDENT.  The  Chair  desires  to  state 
that  there  is  no  rule  of  the  Convention  which 
justifies  the  Chair  in  stating  the  question  as  has 
been  proposed  by  the  gentleman  representing 
Berlin,  (Mr.  Boutwell).  The  question  is  upon 
so  much  of  the  Report  as  is  numbered  "  one," 
and  upon  so  much  of  the  Constitution  as  is  cov 
ered  by  that  part  of  the  Report. 

Mr.  HUBBARD.  I  object  to  the  subject  being 
considered  in  the  way  which  has  been  suggested 
by  the  gentleman  who  represents  Berlin,  until 
after  the  Convention  shall  have  decided  and  de 
termined  in  what  form  they  intend  to  send  the 
Constitution  out  to  the  people. 

The  PRESIDENT.  The  gentleman  from 
Boston  will  see  that,  after  entering  upon  the  de 
bate  of  this  first,  if  the  previous  question  should 
be  moved,  and  the  main  question  should  be  or 
dered  to  be  put,  there  will  be  no  opportunity  of 
perfecting  the  different  propositions,  covered  by 
the  other  resolves,  in  the  way  of  amendments. 
It  is  to  avoid  that  difficulty  that  the  Chair  sug 
gests  the  unanimous  consent  of  the  Convention 
to  the  consideration  of  the  Report  in  the  man 


ner  indicated  by  the  gentleman  representing  Ber 
lin. 

Mr.  LORD,  of  Salem.  The  resolve  numbered 
"  one"  covers  the  entire  Constitution,  unamended, 
as  well  as  amended. 

The  PRESIDENT.  The  Chair  understands 
that  the  first  resolve  covers  so  much  of  the  Con 
stitution  reported  by  the  Committee,  as  extends 
to  and  includes  the  article  upon  the  revision  and 
amendments  of  the  Constitution,  and  which  covers 
the  first  thirty- eight  pages  of  the  printed  Report. 

Mr.  BOUTWELL,  for  Berlin.  I  believe  it  is 
a  rule  of  this  Convention,  that  any  member  may 
call  for  a  division  of  the  question.  I  did  call  for 
that  division,  in  such  a  manner  that  the  question 
can  be  taken  upon  that  part  of  the  Report  which 
is  numbered  "  one."  But  the  gentleman  from 
Salem  is  debating  a  question  not  now  before  us. 

The  PRESIDENT.  The  first  question  is  upon 
agreeing  to  the  first  proposition  in  the  first  resolve. 

Mr.  LORD.  I  understand  the  Chair  to 
have  ruled  that  the  first  question  is  upon  the 
first  resolve,  and  that  if  the  previous  question 
should  now  be  moved,  the  question  would  have 
to  be  taken  upon  the  first  resolve  as  a  whole, 
which,  as  I  said  before,  embraces  nearly  the  whole 
Constitution  which  we  intend  to  put  forth  to  the 
people ;  all  except  some  seven  short,  distinct 
propositions,  which  this  Committee  recommend  to 
be  submitted  as  separate  questions,  but  which 
occupy  only  two  pages  out  of  the  forty  of  this 
printed  Report. 

The  PRESIDENT.  The  Chair  stated,  or  in 
tended  to  state,  that  the  question  is  upon  the  first 
proposition  of  the  first  resolve. 

Mr.  LORD.  That  being  so,  Sir,  I  like  the 
form  of  proceeding  suggested  by  the  gentleman 
representing  Berlin,  (Mr.  Boutwell,)  very  well, 
but  at  the  same  time  it  seems  to  me  that  as  a 
preliminary  question,  we  ought  to  find  out  in  the 
first  place  the  principle  upon  which  the  Report 
of  the  Committee  is  based,  to  see  whether  we  are 
willing  to  adopt  that  proposition,  and  whether  the 
Report  is  in  accordance  with  that  principle  which 
they  have  adopted  in  making  it.  We  ought  to 
be  informed  why  they  have  separated  from  the 
body  of  the  Constitution  these  seven  specific  sub 
jects,  which  form  the  end  of  their  Report,  to  be 
submitted  separately  to  the  people,  in  preference 
to  other  subjects  ?  Why  they  chose  to  report 
that  seven  particular  subjects,  rather  than  any 
seven  other,  should  be  separately  considered  by 
the  people  ?  Of  course  that  has  been  done  upon 
some  principle,  as  we  are  not  to  suppose  that  the 
Committee  acted  without  some  general  principle 
to  guide  them.  There  must  have  been  a  reason 
for  selecting  these  seven,  rather  than  seven  other, 


72d  day.] 


REVISED   CONSTITUTION. 


655 


Monday,] 


SCHOULEB  —  BOUTWELL. 


[August  1st. 


and  I  desire  to  know  what  that  reason  is.  If  the 
gentleman  will  tell  us  what  that  principle  of 
action  is,  it  may  be  one  which  will  commend 
itself  to  the  judgment  of  the  entire  Convention. 
It  may  be  also  that  in  laying  down  the  principle, 
the  Convention  will  discover  that  certain  of  the 
propositions  which  are  placed  in  the  body  of  the 
Constitution  by  the  Committee,  and  which  are 
not  in  the  present  Constitution,  ought  to  be  placed 
in  separate  articles,  and  submitted  separately  to 
the  people. 

The  PRESIDENT.  The  Chair  desires  to  know 
whether  there  is  any  objection  to  the  consideration 
of  the  Bill  of  Hights  by  way  of  amendments  ? 

There  was  no  objection. 

Mr.  SCHOULER,  of  Boston.  I  ask  whether 
it  is  in  order  to  move  to  insert  the  words  which 
are  contained  under  head  "four  "  of  the  Report 
of  the  Committee,  and  which  are  placed  there  to 
be  submitted  to  the  people  separately,  in  the  article 
of  the  Bill  of  Rights  to  which  it  refers,  viz. :  that 
concerning  excessive  bail  and  fines  ?  Whether  it 
is  not  competent  for,  and  in  the  power  of  the 
Convention  to  make  that  article  of  the  Bill  of 
Rights  complete,  and  send  it  out  to  the  people 
complete  ?  If  such  an  amendment  is  in  order,  I 
move  it. 

The  PRESIDENT.  The  Chair  thinks  the 
motion  is  not  in  order,  as  that  question  is  not 
before  the  Conveiifton.  The  question  is  upon  the 
Declaration  of  Rights. 

Mr.  SCHOULER.  My  wish  is,  to  amend  the 
Declaration  of  Rights,  by  making  the  subject  to 
which  I  have  referred  a  part  of  the  twenty- seventh 
article  of  the  Bill  of  Rights.  The  words  which  I 
propose  to  transfer  to  the  Bill  of  Rights  are  these, 
which  are  found  under  head  "four"  of  the  Re 
port  of  the  Committee  : — 

No  person  shall  be  imprisoned  for  any  debt 
hereafter  contracted,  unless  in  cases  of  fraud. 

The  PRESIDENT.  The  Chair  misappre 
hended  the  motion  of  the  gentleman.  The  motion 
is  in  order. 

Mr.  SCHOULER.    Then  I  make  that  motion. 

Mr.  BOUTWELL,  for  Berlin.  I  have  but  a 
very  few  words  to  say  in  reference  to  the  motion 
of  the  gentleman  from  Boston  (Mr.  Schouler). 
It  is,  of  course,  well  known  to  the  Convention, 
that  our  Constitution,  bearing  date  in  1780,  has 
been  subjected  to  many  important  amendments — 
some  thirteen  in  all — from  that  period  down  to 
this  time.  The  consequence  of  the  adoption  of 
these  amendments  is,  that  many  parts  which 
stand  in  the  Constitution,  and  are  printed  with  it, 
have  been  annulled.  Now,  then,  the  chief  object 
of  the  Committee  was  to  present  to  this  Conven 


tion,  and  to  the  people  of  the  Commonwealth  of 
Massachusetts,  a  systematic  form  of  government ; 
that  it  should  contain  the  principle  contained  in 
the  system  established  in  1780  ;  and  that,  more 
over,  it  should  be,  so  far  as  it  was  to  be  considered  as 
a  machine,  a  perfect  machine.  Having,  therefore, 
proceeded  with  that  view,  we  took  what  remained 
of  the  original  Constitution  of  1780,  what  remained 
of  the  amendments  adopted  since  1780,  and  such 
of  the  resolutions  which  have  been  adopted  by 
this  Convention  as  were  essential  to  the  har 
monious  operation  of  the  system  of  government 
which  we  proposed  to  establish.  We  considered 
that  one  great  object  to  be  obtained  by  this  Con 
vention,  was  to  give  to  the  people  of  this  Com 
monwealth  an  intelligible  and  systematic  organic 
law ;  and  therefore,  to  carry  out  that  purpose,  we 
have  been  obliged  to  depart  from  that  principle 
which  we  desired  in  the  outset  to  recognize  and 
act  upon,  and  that  was,  that  this  Convention 
should  allow  the  people  of  the  Commonwealth  to 
express  a  distinct  opinion  upon  every  separate 
proposition.  But  we  found  that  this  was  abso 
lutely  impossible.  We  stand  to-day  very  much 
in  the  condition  of  a  people  establishing  anew  a 
system  of  government.  Therefore,  then,  we  have 
placed  in  proposition  number  "  one,"  all  that 
portion  of  the  Constitution  of  1780  which  re 
mains,  the  subsequent  amendments,  and  so  much 
and  many  of  the  resolutions  adopted  by  this  Con 
vention  as  were  necessary  to  perfect  and  make 
harmonious  and  systematic  the  government  which 
we  propose  to  establish. 

Now,  then,  upon  the  principle  that  it  is  practi 
cable  to  allow  the  people  to  express  an  opinion 
separately,  upon  matters  not  essential  to  the  har 
mony  of  the  system  of  government,  we  have 
submitted  to  this  Convention,  and  upon  their 
judgment  they  are  to  submit  to  the  people,  cer 
tain  separate  propositions  upon  which  the  public 
sentiment  is  divided.  Those  propositions  may 
be  either  rejected  or  adopted,  without  disturbing, 
in  any  degree,  the  harmony  of  the  system  of  gov 
ernment  which  we  have  here  contained  in  propo 
sition  "  one." 

Now,  in  regard  to  this  proposition,  it  is  not 
necessary  to  the  working  of  the  government. 
We  have  passed  such  a  resolution.  It  may 
be  that  a  majority  of  the  people  of  the  Com 
monwealth  are  in  favor  of  it ;  but  they  have  a 
right  to  express  an  independent  opinion  upon  it, 
because  it  is  not  one  which  is  essential  to  the 
system  of  government  which  we  have  here. 
That,  I  think,  could  not  be  said  with  equal 
justice  of  any  provision  which  the  Committee 
have  incorporated  into  proposition  number 
"one." 


656 


REVISED   CONSTITUTION. 


[72d  day. 


Monday,] 


BOUTWELL  —  SCHOULER. 


[August  1st. 


Therefore,  acting  upon  that  rule,  we  decided  to 
present  to  the  Convention,  and  through  them  to 
the  people,  the  different  propositions  which  are 
contained  under  the  heads  marked  from  "  one  " 
to  "  eight,"  inclusive.  Number  "  one "  con 
taining  the  general  system  of  government,  and 
numbers  from  "two"  to  "eight,'  inclusive, 
containing  independent  propositions  which  may 
be  separately  submitted  to  the  people.  If  re 
jected,  the  system  of  government  is  not  disturbed ; 
if  adopted,  they  become  incorporated  into  the 
Constitution.  The  government  goes  on  either 
way. 

Therefore,  it  was  the  judgment  of  the  Com 
mittee  that,  under  the  circumstances,  it  was  a 
part  of  their  duty  to  submit  a  systematic  form  of 
government  to  the  people,  perfect  in  itself,  and 
then,  independent  questions,  which,  if  the  judg 
ment  of  the  people  shall  be  found  to  be  in  favor 
of  them,  will  become  a  part  of  the  Constitution  ; 
and  which,  if  lost,  will  cause  no  disturbance  of 
the  system.  It  is  upon  such  grounds  that  we 
have  made  the  Report. 

Mr.  SCHOULER,  of  Boston.  I  understand 
the  argument  of  the  gentleman  for  Berlin  to  be, 
that  these  seven  different  propositions  are  to  be 
left  out  of  the  Constitution,  and  are  to  be  given 
to  the  people  separately  to  vote  upon  them  ;  and 
if  the  majority  of  the  people  agree  to  them,  or  to 
either  one  of  them,  then  those  which  are  agreed 
to,  become  a  part  of  the  Constitution  ;  and  his 
ground  seems  to  be,  that  they  can  be  left  out  of 
the  Constitution,  and  still  the  Constitution  will 
be  a  perfect  and  full  declaration  of  rights,  and  the 
proper  fundamental  law  of  the  Commonwealth. 
Now,  Sir,  I  will  ask  that  gentleman,  and  the 
members  of  this  Convention,  why  some  of  these 
articles — and  particularly  the  fifth  one,  concern 
ing  imprisonment  for  debt — should  be  left  out  in 
this  way,  when  at  the  same  time  we  find  in  the 
next  chapter,  iipon  the  general  court,  it  is  stated 
in  article  third,  that  the  "  compensation  of  mem 
bers  of  the  general  court  shall  be  established  by 
standing  laws  ;  but  no  act  increasing  the  compen 
sation  shall  apply  to  the  general  court  which 
passes  such  act ;  and  no  compensation  shall  be 
allowed  for  attendance  of  members  at  any  one 
session  for  a  longer  time  than  one  hundred  days." 

Suppose  that  was  struck  out  of  the  Constitu 
tion,  and  the  Constitution  should  remain  just  as 
it  is,  leaving  the  legislature  to  sit  as  long  as  they 
have  a  mind  to,  and  to  fix  their  own  pay  as  they 
have  done  ever  since  1780.  Is  that  not  as  dis 
tinct  and  separate  a  proposition  to  be  submitted 
to  the  people,  as  the  article  in  relation  to  im 
prisonment  for  debt,  or  the  article  in  relation  to 
habeas  corpus,  which  are  both  left  out  ?  Here  is 


another  provision  in  article  six,  declaring  that  the 
"  general  court  shall  have  power  to  make  laws 
regulating  marriage,  divorce  and  alimony,  but 
shall  in  no  case  decree  a  divorce,  or  hear  and  de 
termine  any  causes  touching  the  validity  of  the 
marriage  contract."  Suppose  that  was  left  out, 
what  harm  would  be  done  ?  Sir,  that  is  a  new 
feature  in  the  Constitution  which  is  reported  here ; 
and  I  will  ask  gentlemen  of  the  Convention  why 
these  should  be  considered  as  of  so  much  conse 
quence  as  to  go  into  the  Constitution,  while  that 
in  regard  to  imprisonment  for  debt  is  left 
out  ?  It  seems  to  me,  that  the  Constitution, 
in  relation  to  that  part  of  our  legislative  power, 
would  be  just  as  perfect  if  these  were  left  out, 
and  it  should  remain  in  the  same  way  that  it 
has  remained  ever  since  1780.  A  little  farther 
on  we  find  article  thirteen,  in  the  same  chapter, 
which  says  :  "In  all  elections  by  the  general 
court,  or  either  branch  thereof,  a  majority  of 
votes  shall  be  required,  and  the  members  shall 
vote  viva  voce."  This  is  considered  of  so  much 
importance  that  it  is  put  into  the  Constitution, 
while  the  provisions  in  regard  to  the  right  of 
habeas  corpus,  and  imprisonment  for  debt,  and 
other  matters,  are  left  out.  I  can  see  no  prin 
ciple  in  this  thing ;  and  I  think,  if  we  want  to 
strengthen  the  Constitution,  we  had  better  put 
this  provision  about  imprisonment  for  debt  into 
it.  I  do  not  desire  to  occupy  the  time  of  the 
Convention,  and  so  I  will  close  by  saying  that  I 
hope  the  amendment  will  be  adopted. 

Mr.  BOUTWELL,  for  Berlin.  I  have  not  a 
word  to  say  about  the  amendment ;  but  we  should 
consider,  that  if  this  Constitution  is  adopted,  it 
ought  to  be  as  perfect  an  instrument  as  possible. 
Suppose  it  should  be  adopted  as  it  stands,  except 
ing  that  the  third  article  of  the  chapter  on  the 
general  court  should  be  left  out ;  we  should  then 
have  no  provision  in  the  Constitution,  of  any  sort, 
in  reference  to  the  compensation  of  members,  un 
less  we  put  the  Constitution  in  such  a  form  as  we 
shall  have  to  do,  if  we  follow  the  suggestions  of  the 
gentleman  from  Boston,  that  only  those  parts  of 
the  existing  form  of  government  shall  be  annulled, 
which  are  inconsistent  with  what  we  propose. 
The  consequence  will  be,  that  this  will  lead  us  to 
a  position  upon  which  no  government  can  stand. 
That  provision  of  the  existing  Constitution  will 
be  found  on  page  80,  and  is  as  follows :  "  The 
expenses  of  travelling  to  the  general  assembly, 
and  returning  home  once  in  every  session,  and 
no  more,  shall  be  paid  by  the  government  out  of 
the  public  treasury,"  &c.  If  you  annul  only 
those  things  in  the  existing  Constitution,  which 
are  not  in  the  new  one,  what  does  it  bring  with 
it  ?  It  brings  with  it  the  necessity  of  going  to 


72d  day.] 


REVISED    CONSTITUTION. 


657 


Monday,] 


BOUTWELL  —  LORD. 


[August  1st. 


the  Constitution  of  1780,  and  examining  all  the 
subsequent  provisions  of  constitutional  law  ;  and 
then  it  all  depends  upon  the  construction.  In 
regard  to  the  provision  respecting  legislative  power 
over  alimony  and  divorce,  if  you  pass  your  Con 
stitution  in  such  a  way  as  to  annul  all  the  exist 
ing  provisions,  and  this  should  be  put  separately 
and  rejected,  you  would  have  no  power  to  pass 
laws  regulating  the  proceedings  in  relation  to  di 
vorce  and  alimony.  Are  you  prepared  to  do  that  ? 
If  you  pursued  the  other  course,  and  allowed  all 
to  remain  that  is  not  inconsistent  with  the  new 
action,  then  comes  up  the  third  article  of  the 
Constitution  in  reference  to  the  judiciary  power, 
that  they  may  regulate  proceedings  with  regard 
to  divorce  and  alimony,  unless  the  legislature 
shall  otherwise  order.  The  consequence  of  this 
mode  of  proceeding  will  be,  that  you  will  have 
two  Constitutions  in  existence  at  the  same  time, 
and  every  man  will  have  to  go  to  the  Constitution 
of  1780,  and  to  all  the  subsequent  amendments, 
and  analyze  them,  to  see  whether  they  are  con 
sistent  with  the  new  one.  Therefore,  I  say  that 
we  must  put  into  the  new  Constitution  what  is 
necessary  to  make  the  system  perfect,  and  stand 
upon  that.  The  rest  is  of  little  consequence. 

Mr.  LOUD,  of  Salem.  If  the  gentleman  stands 
upon  that  ground,  and  puts  into  the  Constitution 
as  a  whole,  just  exactly  what  is  necessary,  in 
order  to  make  a  perfectly  complete  system  of  gov 
ernment,  and  just  enough  to  make  his  machine 
work  well,  I  want  to  know  why  he  has  not  sep 
arated  all  these  new  propositions  which  are  not 
necessary,  in  order  to  enable  the  instrument  to  be 
a  perfect  instrument.  Why  has  he  not  allowed 
the  voters  of  this  Commonwealth  to  pass  dis 
tinctly  upon  such  questions  as  do  not  go  to  make 
up  a  perfect  system  of  government  ?  I  will  give 
him  an  example.  I  will  take  the  proposition 
which  is  incorporated  into  the  Constitution,  of  the 
secret  ballot,  and  I  will  ask,  why  did  he  not  put 
the  secret  ballot  as  a  separate  proposition  ?  Can 
not  the  government  work,  and  is  not  the  machine 
a  perfect  instrument,  without  the  secret  ballot  in 
it  ?  If  they  were  to  be  chosen  by  ballot,  as  the 
old  Constitution  provides,  does  it  not  stand  well 
enough,  without  having  the  secret  ballot  put  in  ? 
Cannot  that  stand  as  an  independent  proposition, 
just  as  well  as  imprisonment  for  debt  ?  I  want 
to  have  gentlemen  show  me  how  it  happens, 
while  we  have  been  living  here  seventy  years 
under  this  government,  and  have  got  along  pretty 
well,  and  all  that  time  have  not  had  this  provision 
— how  does  it  happen  that  there  is  now  such  an 
essential  necessity  for  the  introduction  of  this 
principle  into  the  Constitution  ?  What  I  want  to 
find  out,  is,  whether  there  is  any  distinct  princi 


ple  within  which  this  Report  of  the  Committee 
falls.  It  seems  to  me  that  it  does  not  fall  within 
any  principle  at  all.  Suppose  it  is  submitted  to 
the  people,  whether  the  judicial  tenure  should  be 
changed,  I  want  to  know  whether  that  cannot 
be  put  as  a  distinct  proposition  to  the  people  ?  I 
do  not  see  anything  to  prevent  that  from  being 
done  ;  and  so,  Sir,  I  do  not  know  why  any  one 
of  these  seven  articles  is  any  less  necessary  than 
the  several  articles  of  the  Bill  of  Rights.  If  I 
understand  the  ground  upon  which  the  gentle 
man's  argument  is  put,  it  is  exactly  this :  that 
there  is  nothing  in  this  first  proposition,  occupy 
ing  thirty- eight  pages,  which  is  not  essential  to 
the  operation  of  government.  Does  not  the 
gentleman  for  Berlin  say,  that  there  is  nothing  in 
these  thirty- eight  pages,  that  is  not  essential  in 
order  to  make  the  machine  operate  ? 

Mr.  BOUTWELL.  It  is  undoubtedly  true, 
that  there  are  some  things  in  these  propositions 
which  might  be  submitted  separately.  For  in 
stance,  we  have  decided  that  a  quorum  in  the 
Senate  shall  be  twenty- one,  and  of  the  House 
one  hundred.  There  is  a  distinct  proposition,  no 
doubt,  which  can  be  submitted  to  the  people.  We 
have  also  provided,  that  the  judicial  tenure  shall 
be  ten  years,  and  to  stand  during  good  behavior ; 
that  is  a  distinct  proposition ;  but,  suppose  you 
leave  out  of  the  Constitution  which  you  intend 
to  submit  to  the  people,  all  reference  to  a  quorum 
of  the  Senate,  and  all  reference  to  a  quorum  of 
the  House  of  Representatives,  and  you  do  not 
establish  the  judicial  tenure  one  way  or  the  other 
— you  submit  them  to  the  people  as  independent 
propositions,  and  what  is  the  result  ?  If  the  peo 
ple  vote  that  the  quorum  of  the  Senate  shall  not 
be  twenty- one,  the  quorum  of  the  Senate  under 
the  old  Constitution  is  sixteen.  If  they  vote  that 
the  quorum  of  the  House  shall  not  be  one  hun 
dred,  then  you  have  no  quorum  unless  you  revive 
the  old  Constitution,  and  have  it  sixty.  But  in 
case  you  revive  the  old  Constitution,  the  difficulty 
to  which  I  have  referred,  presents  itself.  It  is 
undoubtedly  true,  that  many  propositions  could 
be  submitted  separately,  but  yet,  in  order  to  make 
the  different  parts  harmonious,  it  is  better  to  sub 
mit  them  together. 

Mr.  LORD.  Let  me  call  the  gentleman's  atten 
tion  to  chapter  fourteen  articles  first  and  second, 
in  relation  to  future  revision  and  amendments  of 
the  Constitution ;  why  could  not  that  be  put  sep 
arately  ? 

Mr.  BOUTWELL.  We  have  already,  in  the 
existing  Constitution,  an  article  in  reference  to 
amendments  to  the  Constitution,  and  we  have 
deemed  it  one  subject,  as  we  have  that  of  elec 
tions.  We  have  three  separate  provisions  in 


658 


REVISED   CONSTITUTION. 


[72d  day. 


Monday,] 


LORD  —  KELLOGG  —  HALLETT  —  HATHAWAY. 


[August  1st. 


regard  to  elections,  but  we  have  thought  it  expe 
dient  and  proper,  in  order  to  make  it  harmonious, 
to  have  one  chapter,  where  all  in  our  fundamen 
tal  law  upon  that  subject,  might  be  found,  and 
we  have  framed  a  chapter  accordingly.  So  with 
regard  to  amendments  of  the  Constitution.  If 
you  proceed  to  analyze  the  Constitution  in  that 
way,  the  result  will  be  that  we  shall  have  so  many 
propositions  to  submit  to  the  people,  that,  after 
all,  the  system  will  be  exceedingly  unintelligible. 
There  are  some  propositions  which  are  entirely 
disconnected  with  the  Constitution,  and  which 
may  be  submitted  independently,  without  essen 
tially  affecting  the  Constitution  one  way  or  the 
other.  That,  I  think,  will  be  the  case  with  every 
one  of  these  seven  articles ;  if  they  are  rejected, 
the  people  are  not  confused — if  they  are  adopted, 
the  people  are  not  confused. 

Mr.  LORD.  I  understand  the  explanation  of 
the  gentleman  for  Berlin,  to  be  this :  Although 
the  proposition  in  reference  to  the  secret  ballot, 
which  I  have  pointed  out,  is  one  of  those  amend 
ments  which  are  of  a  nature  that  they  can  be 
submitted  separately,  and  yet,  inasmuch  as  the 
same  subject  matter  is  in  the  Constitution,  it  is 
desirable  to  have  all  upon  the  same  subject  incor 
porated  together.  In  order  that  the  people  may 
more  readily  understand  it,  all  on  one  subject 
should  be  put  in  one  chapter,  and  submitted  to 
gether.  Now,  the  thought  accidentally  occurred 
to  my  mind,  that  it  was  a  little  singular  why  he 
did  not  apply  the  principle  to  the  twelfth  article  of 
the  Bill  of  Rights,  where  the  subject  treated  of 
is  the  right  of  habeas  corpus;  why  is  not  his 
proposition,  numbered  two,  which  relates  to  that 
very  subject,  put  into  the  twelfth  article,  instead 
of  being  placed  at  the  end,  as  a  proposition  by 
itself?  I  want  to  find  out,  if  I  can,  whether 
there  is  any  principle  that  will  cover  the  whole 
Report. 

The  question  being  upon  the  motion  of  Mr. 
Schouler  which  was,  to  annex  to  the  twenty-sev 
enth  article  of  the  Bill  of  Rights,  the  following 
words,  contained  under  head  "five"  of  the  Report 
of  the  Committee,  viz.  :  "  No  person  shall  be  im 
prisoned  for  any  debt  hereafter  contracted,  unless 
in  cases  of  fraud,"  it  was  put,  and  decided  in  the 
negative. 

So  the  amendment  was  not  agreed  to. 

Mr.  KELLOGG,  of  Hadley.  I  move  to 
amend  the  fourth  article  of  the  Bill  of  Rights, 
which  is  as  follows  : — 

The  people  of  this  Commonwealth  have  the 
sole  and  exclusive  right  of  governing  themselves, 
as  a  free,  sovereign,  and  independent  State  ;  and 
do,  and  forever  hereafter  shall,  exercise  and  enjoy 
every  power,  jurisdiction,  and  right,  which  is 


not,  or  may  not  hereafter,  be  by  them  expressly 
delegated  to  the  United  States  of  America,  in 
Congress  assembled, 

by  striking  out  the  three  last  words,  "  in  Congress 
assembled." 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  the  proposition  is  not  in  order. 

Mr.  HALLETT,  for  Wilbraham.  It  seems  to 
me  to  be  important  to  settle  here,  the  rules  of 
order  upon  which  we  are  to  proceed,  before  we 
advance  any  farther,  in  order  that  we  may  know 
how  and  by  what  we  are  to  be  governed.  For 
instance,  the  subject  upon  which  the  gentleman 
from  Hadley  proposes  an  amendment,  was  a  sub 
ject  considered  in  the  Committee,  and  reported 
against  by  the  Committee  on  the  Bill  of  Rights. 
Therefore,  the  subject  has  been  considered  in  Com 
mittee,  has  been  reported  upon,  or  rather  not 
reported  upon,  which  is  equivalent  to  recommend 
ing  no  change  in  it,  and  has  so  passed  through 
its  various  stages  in  the  Convention.  Now,  the 
question  arises  upon  the  Report  of  a  Committee, 
which  is  merely  a  Committee  to  draft  the  form  of 
a  Constitution — to  reduce  the  resolves  of  the  Con 
vention  to  the  best  form  and  language  which 
would  express  the  meaning  and  intent  of  the 
resolves.  The  question  arises  here,  at  this  stage, 
whether  the  Constitution  is  open  to  amendment 
upon  those  topics  which  have  been  submitted  to 
a  Committee  and  acted  upon  ;  and  then,  secondly, 
whether  it  is  open  to  amendment  upon  topics 
which  had  not  been  submitted  to  a  Committee. 
In  my  judgment,  in  neither  case  can  it  be  done. 
If  it  should  be  considered  in  order,  there  are  a 
number  of  amendments  which  I  should  propose  ; 
for  instance,  as  to  giving  the  legislature  the  power 
to  establish  martial  law.  With  the  view  of  hav 
ing  this  matter  determined,  I  submit  these 
remarks ;  that  we  may  understand  our  position, 
and  settle,  in  limine,  the  question,  and  thereby  we 
shall  be  released  from  great  difficulty  and  delay. 

The  PRESIDENT.  The  Chair  rules  that  the 
amendment  of  the  gentleman  from  Hadley  is  not 
in  order,  inasmuch  as  it  reverses  the  action  of  the 
Convention. 

Mr.  HATHAWAY,  of  Freetown.  I  do  not 
rise  for  the  purpose  of  taking  an  appeal  from  the 
decision  of  the  Chair,  by  no  means  ;  but  merely 
to  ask  for  information  through  the  Chair.  I  sup 
pose,  Sir,  that  it  was  the  duty  of  the  Committee, 
which  have  made  this  Report,  under  the  order  for 
their  appointment,  to  revise  and  report  to  the 
Convention,  for  their  consideration,  the  amend 
ments  which  had  been  proposed  and  adopted  by 
the  Convention  to  the  Constitution.  The  Com 
mittee  have  made  the  Report  which  we  have  before 
us,  and  what  is  it  ?  They  have  embraced  not  only 


72d  day.]  ^ 


REVISED  CONSTITUTION. 


659 


Monday,] 


HATHAWAY  —  JENK.S  —  PLTJNKETT. 


[August  1st. 


the  amendments,  I  am  free  to  say,  but  the  whole 
provisions  of  the  Constitution,  as  it  has  hereto 
fore  existed,  together  with  the  amendments  which 
have  been  made  since  1780,  and  are  now  in  force. 
If  all  this  is  proposed  here  as  an  amendment,  I 
submit  whether  the  proposition  of  the  gentleman 
from  Hadley  is  not  a  correct  one  ;  that  is,  to  make 
an  amendment  to  this  amendment  ?  If  it  be  not 
an  amendment,  then  I  submit  the  question  as  to 
the  power  of  the  Committee  to  report  as  they 
have.  The  resolution  by  which  that  Committee 
was  directed  to  be  appointed,  as  I  have  it  from  the 
Secretary,  is  in  these  words  : — 

Ordered,  That  a  Committee  of members 

be  appointed  to  reduce  such  amendments  as  have 
been,  or  may  be  agreed  upon,  to  the  form  in  which 
it  is  proper  to  submit  the  same  to  the  people  for 
ratification. 

It  evidently  only  applies  it  to  such  amendments 
as  we  have  made  to  the  Constitution,  and  not  to 
a  substituted  Constitution. 

The  PRESIDENT.  The  gentleman  from 
Freetown  raises  a  different  question  from  that 
raised  by  the  amendment  offered  by  the  gentleman 
from  Hadley.  If  the  gentleman  proposes  his 
question  as  a  question  of  order,  the  Chair  will  rule 
upon  it. 

Mr.  HATHAWAY.  My  question  is,  whether 
this  Report  of  the  Committee  is  embraced  within 
the  meaning  of  the  word  "  amendments,"  as  used 
in  the  order  by  virtue  of  which  the  Committee 
was  appointed,  under  date  of  June  twenty-first  ? 
If  it  be  embraced  in  the  meaning  of  that  word, 
then  I  submit  that  the  proposition  of  the  gentle 
man  from  Hadley  is  a  correct  one,  and  in  order. 
If  it  be  not  embraced,  then  I  submit  whether  the 
Committee  have  not  superseded  their  authori- 
ty? 

The  PRESIDENT.  The  question  raised  by 
the  gentleman  it  is  not  competent  for  the  Con 
vention  to  settle  at  this  time,  as  the  question  now 
under  consideration  is  the* Declaration  of  Rights 
— that  is,  under  the  unanimous  consent  of  the 
Convention.  If  the  gentleman  presents  any  case 
in  reference  to  the  Bill  of  Rights,  where  the  Com 
mittee  have  transcended  their  authority,  the  Chair 
will  decide  it. 

Mr.  JENKS,  of  Boston.  Is  it  in  order  to  offer 
an  amendment  to  the  Bill  of  Rights  ? 

The  PRESIDENT.     It  is. 

Mr.  JENKS.  I  move,  then,  to  add  to  the 
twenty-fifth  article  of  the  Bill  of  Rights,  which 
is  as  follows  : — 

Laws  made  to  punish  for  actions  clone  before 
the  existence  of  such  laws,  and  which  have  not 
been  declared  crimes  by  preceding  laws,  are  un 


just,  oppressive,  and  inconsistent  with  the  funda 
mental  principles  of  a  free  government. 

The  following  words  : — 

No  person  shall  be  imprisoned  for  any  cause, 
not  declared  by  law  to  be  criminal,  or  dangerous 
to  the  public  safety. 

If  this  amendment  is  adopted,  it  will  supersede 
the  provision  under  head  "  five,"  upon  the  same 
subject,  though  in  different  language. 

The  PRESIDENT.  The  Chair  thinks  the 
amendment  not  in  order  at  this  time,  as  it  is  only 
competent  to  amend  in  matters  before  the  Con 
vention,  and  that  in  form,  and  not  in  substance. 

Mr.  PLUNKETT,  of  Adams.  I  move  to 
amend  article  thirteenth  of  the  Bill  of  Rights,  by 
adding  thereto  what  the  Committee  have  placed 
under  head  "  three,"  with  a  view  of  a  separate 
submission  thereof  to  the  people,  and  which  is  in 
the  following  words  : — 

In  all  trials  for  criminal  offences,  the  jury,  after 
having  received  the  instruction  of  the  court,  shall 
have  the  right,  in  their  verdict,  of  guilty,  or  not 
guilty,  to  determine  the  law  and  the  facts  of  the 
case,  but  it  shall  be  the  duty  of  the  court  to 
superintend  the  course  of  the  trials,  to  decide  up 
on  the  admission  and  rejection  of  evidence,  and 
upon  all  questions  of  law  raised  during  the  trials, 
and  upon  all  collateral  and  incidental  proceed 
ings  ;  and  also  to  allow  bills  of  exceptions.  And 
the  court  may  grant  a  new  trial  in  case  of  con 
viction. 

The  question  was  taken,  and  the  amendment 
was  rejected. 

No  farther  amendments  being  offered  to  the 
Bill  of  Rights,  the  Secretary  then  read  the  first 
chapter  of  the  Frame  of  Government,  as  follows  : 

ARTICLE  1.  The  department  of  legislation  shall 
be  styled  the  General  Court  of  Massachusetts. 
It  shall  consist  of  two  branches,  a  Senate  and  a 
House  of  Representatives,  each  of  which  shall 
have  a  negative  upon  the  other. 

ART.  2.  The  political  year  shall  begin  on  the 
first  Wednesday  in  January ;  and  the  General 
Court  shall  assemble  every  year,  on  the  said  first 
Wednesday  in  January,  and  shall  be  dissolved 
on  the  day  next  preceding  the  first  Wednesday 
in  January  following,  without  any  proclamation 
or  other  act  of  the  Governor.  But  nothing  herein 
contained  shall  prevent  the  General  Court  from 
assembling  at  such  other  times  as  they  shall  judge 
necessary,  or  when  called  together  by  the  Gov 
ernor. 

ART.  3.  The  compensation  of  members  of  the 
General  Court  shall  be  established  by  standing 
laws ;  but  no  act  increasing  the  compensation 
shall  apply  to  the  General  Court  which  passes 
such  act ;  and  no  compensation  shall  be  allowed 
for  attendance  of  members  at  any  one  session, 
for  a  longer  time  than  one  hundred  days. 


660 


REVISED   CONSTITUTION. 


[72d   day. 


Monday,] 


FHAME  OF  GOVERNMENT. 


[August  1st. 


ART.  4.  No  bill  or  resolve  of  the  Senate  or 
House  of  Representatives  shall  become  a  law,  and 
have  force  as  such,  until  it  shall  have  been  laid 
before  the  Governor  for  his  revisal ;  and  if  he, 
upon  such  revision,  approve  thereof,  he  shall  sig 
nify  his  approbation  by  signing  the  same.  But 
if  he  have  any  objection  to  the  passing  of  such 
bill  or  resolve,  he  shall  return  the  same,  together 
with  his  objections  thereto,  in  writing,  to  the 
Senate  or  House  of  Representatives,  in  which 
soever  the  same  shall  have  originated  ;  who  shall 
enter  the  objections  sent  down  by  the  Governor, 
at  large,  on  their  records,  and  proceed  to  recon 
sider  the  said  bill  or  resolve  :  but  if,  after  such 
reconsideration,  two- thirds  of  the  said  Senate  or 
House  of  Representatives,  present,  shall,  notwith 
standing  the  said  objections,  agree  to  pass  the 
same,  it  shall,  together  with  the  objections,  be 
sent  to  the  other  branch  of  the  Legislature,  where 
it  shall  also  be  reconsidered,  and  if  approved  by 
two-thirds  of  the  members  present,  shall  have 
the  force  of  a  law :  but,  in  all  such  cases,  the 
votes  of  both  Houses  shall  be  determined  by 
yeas  and  nays  ;  and  the  names  of  the  persons 
voting  for,  or  against,  the  said  bill  or  resolve, 
shall  be  entered  upon  the  public  records  of  the 
Commonwealth. 

And  in  order  to  prevent  unnecessary  delays,  if 
any  bill  or  resolve  shall  not  be  returned  by  the 
Governor,  within  five  days  after  it  shall  have  been 
presented  to  himt  the  same  shall  have  the  force  of 
a  law. 

But  if  any  bill  or  resolve  shall  be  objected  to 
and  not  approved  by  the  Governor,  and  if  the 
General  Court  shall  adjourn  within  five  days 
after  the  same  shall  have  been  laid  before  the 
Governor  for  his  approbation,  and  thereby  pre 
vent  his  returning  it,  with  his  objections,  as  pro 
vided  by  the  Constitution,  such  bill  or  resolve 
shall  not  become  a  law,  nor  have  force  as  such. 

ART.  5.  The  General  Court  shall  forever  have 
full  power  and  authority  to  erect  and  constitute 
judicatories  and  courts  of  record,  or  other  courts, 
to  be  held  in  the  name  of  the  Commonwealth,  for 
the  hearing,  trying,  and  determining  of  all  manner 
of  crimes,  offences,  pleas,  processes,  plaints,  ac 
tions,  matters,  causes,  and  things,  whatsoever, 
arising  or  happening  within  the  Commonwealth, 
or  between  or  concerning  persons  inhabiting,  or 
residing,  or  brought  within  the  same  ;  whether 
the  same  be  criminal  or  civil,  or  whether  the  said 
crimes  be  capital  or  not  capital,  and  whether  the 
said  pleas  be  real,  personal,  or  mixed ;  and  for 
the  awarding  and  making  out  of  execution  there 
upon  :  to  which  courts  and  judicatories  are  hereby 
given  and  granted  full  power  and  authority,  from 
time  to  time,  to  administer  oaths  or  affirmations, 
for  the  better  discovery  of  truth  in  any  matter  in 
controversy,  or  depending  before  them. 

ART.  6.  The  General  Court  shall  have  power 
to  make  laws  regulating  marriage,  divorce,  and 
alimony,  but  shall  in  no  case  decree  a  divorce,  or 
hear  and  determine  any  causes  touching  the  va 
lidity  of  the  marriage  contract. 

ART.  7.  And  farther,  full  power  and  author 
ity  are  hereby  given  and  granted  to  the  said 
General  Court,  from  time  to  time,  to  make,  or 
dain,  and  establish,  all  manner  of  wholesome  and 


reasonable  orders,  laws,  statutes,  and  ordinances, 
directions,  and  instructions,  either  with  penalties 
or  without ;  so  as  the  same  be  not  repugnant  or 
contrary  to  this  Constitution,  as  they  shall  judge 
to  be  for  the  good  and  welfare  of  this  Common 
wealth,  and  for  the  government  and  ordering 
thereof,  and  of  the  subjects  of  the  same,  and  for 
the  necessary  support  and  defence  of  the  govern 
ment  thereof;  and  to  name  and  settle  annually, 
or  provide,  by  fixed  laws,  for  the  naming  and 
settling  all  civil  officers  within  the  said  Common 
wealth,  the  election  and  constitution  of  whom 
are  not  hereafter  in  this  form  of  government  oth 
erwise  provided  for  ;  and  to  set  forth  the  several 
duties,  powers,  and  limits,  of  the  several  civil 
and  military  officers  of  this  Commonwealth,  and 
the  forms  of  such  oaths  or  affirmations  as  shall 
be  respectively  administered  unto  them  for  the 
execution  of  their  several  offices  and  places,  so  as 
the  same  be  not  repugnant  or  contrary  to  this 
Constitution ;  and  to  impose  and  levy  propor 
tional  and  reasonable  assessments,  rates,  and  taxes, 
upon  all  the  inhabitants  of,  and  persons  resident, 
and  estates  lying  within  the  said  Commonwealth  ; 
and  also  to  impose,  and  levy,  reasonable  duties 
and  excises  upon  any  produce,  goods,  wares,  mer 
chandise,  and  commodities,  whatsoever,  brought 
into,  produced,  manufactured,  or  being  within 
the  same  ;  to  be  issued  and  disposed  of  by  war 
rant,  under  the  hand  of  the  Governor  of  this 
Commonwealth,  for  the  time  being,  with  the  ad 
vice  and  consent  of  the  Council,  for  the  public 
service,  in  the  necessary  defence  and  support  of 
the  government  of  the  said  Commonwealth,  and 
the  protection  and  preservation  of  the  subjects 
thereof,  according  to  such  acts  as  are  or  shall  be 
in  force  within  the  same. 

ART.  8.  The  General  Court  shall  have  full 
power  and  authority  to  erect  and  constitute  mu 
nicipal  or  city  governments  in  any  corporate  town 
or  towns  in  this  Commonwealth,  and  to  grant  to 
the  inhabitants  thereof  such  powers,  privileges, 
and  immunities,  not  repugnant  to  the  Constitu 
tion,  as  the  General  Court  shall  deem  necessary 
or  expedient  for  the  regulation  and  government 
thereof,  and  to  prescribe  the  manner  of  calling 
and  holding  public  meetings  of  the  inhabitants, 
in  wards  or  otherwise,  for  the  election  of  officers 
under  the  Constitution,  and  the  manner  of  re 
turning  the  votes  given  at  such  meetings  :  pro 
vided,  that  no  such  government  shall  be  erected 
or  constituted  in  any  town  not  containing  twelve 
thousand  inhabitants  ;  nor  unless  it  be  with  the 
consent  and  on  the  application  of  a  majority  of 
the  inhabitants  of  such  town,  present  and  voting 
thereon,  pursuant  to  a  vote  at  a  meeting  duly 
warned  and  holden  for  that  purpose  :  and  pro 
vided,  also,  that  all  by-laws,  made  by  such  mu 
nicipal  or  city  government,  shall  be  subject,  at  all 
times,  to  be  annulled  by  the  General  Court. 

ART.  9.  Each  branch  of  the  General  Court 
shall  have  authority  to  punish,  by  imprisonment, 
every  person,  not  one  of  its  members,  who  shall 
be  guilty  of  disrespect  thereto,  by  any  disorderly 
or  contemptuous  behavior,  in  its  presence;  or 
who,  in  the  town  or  city  where  the  General 
Court  is  sitting,  and  during  the  time  of  its  sitting, 
shall  threaten  harm  to  the  body  or  estate  of  any 


72d  day.] 


REVISED   CONSTITUTION. 


661 


Monday,] 


LORD  —  BOUTWELL. 


[August  1st. 


of  its  members,  or  assault  any  of  them  for  any 
thing  said  or  done  in  its  session  ;  or  shall  assault, 
or  arrest,  any  witness,  or  other  person,  ordered  to 
attend  it,  in  his  way  in  going,  or  returning  ;  or 
who  shall  rescue  any  person  arrrested  by  its  order : 
provided,  that  no  imprisonment,  on  its  warrant  or 
order,  for  either  of  the  above  described  offences, 
shall  be  for  a  term  exceeding  thirty  days  ;  and  the 
Governor  and  Council  shall  have  the  same  author 
ity  to  punish  in  like  cases.  And  no  member, 
during  his  going  to,  returning  from,  or  attending, 
the  General  Court,  shall  be  arrested,  or  held  to 
bail,  on  mesne  process. 

ART.  10.  Each  branch  of  the  General  Court 
may  try,  and  determine  all  cases  where  their 
rights,  and  privileges  are  concerned,  and  which, 
by  the  Constitution,  they  have  authority  to  try 
and  determine,  by  committees  of  their  own  mem 
bers,  or  in  such  other  way  as  they  may  respec 
tively  think  best. 

ART.  11.  Each  branch  shall  be  the  final  judge 
of  the  elections,  returns,  and  qualifications,  of  its 
members,  as  pointed  out  in  the  Constitution ; 
shall  choose  a  presiding  officer  from  among  its 
members ;  appoint  its  other  officers  ;  settle  its 
rules  and  orders  of  proceeding,  and  shall  have 
power  to  adjourn  :  provided)  such  adjournment 
shall  not  exceed  three  days  at  a  time. 

ART.  12.  And  whereas  the  elections  appointed 
to  be  made  by  this  Constitution,  on  the  first 
Wednesday  in  January  annually,  by  the  two 
Houses  of  the  Legislature,  may  not  be  completed 
on  that  day,  the  said  elections  may  be  adjourned, 
from  day  to  day,  until  the  same  shall  be  com 
pleted. 

ART.  13.  In  all  elections  by  the  General  Court, 
or  either  branch  thereof,  a  majority  of  votes  shall 
be  required,  and  the  members  shall  vote  viva  voce. 

ART.  14.  The  enacting  style,  in  making  and 
passing  all  acts,  statutes,  and  laws,  shall  be  :  BE 

IT  ENACTED  BY  THE  GENERAL  COURT  OF  MASSA 
CHUSETTS. 

Mr.  LORD,  of  Salem,  asked  the  reading  of  the 
resolution  of  the  Convention  which  authorized 
the  change  in  article  four. 

Mr.  BOUTWELL,  for  Berlin.  I  suppose  the 
gentleman  refers  to  the  word  "present"  which 
has  been  inserted  in  that  article.  A  part  of  the 
article,  including  the  word  "  present,"  inserted  in 
italics,  reads  as  follows  : — 

But  if  he  have  any  objection  to  the  passing  of 
such  bill  or  resolve,  he  shall  return  the  same, 
together  with  his  objections  thereto,  in  writing,  to 
the  Senate  or  House  of  Representatives,  in  which 
soever  the  same  shall  have  originated ;  who  shall 
enter  the  objections  sent  down  by  the  Governor, 
at  large,  on  their  records,  and  proceed  to  recon 
sider  the  said  bill  or  resolve :  but  if,  after  such 
reconsideration,  two- thirds  of  the  said  Senate  or 
House  of  Representatives,  present,  shall,  notwith 
standing  the  said  objections,  agree  to  pass  the 
same,  it  shall,  together  with  the  objections,  be 
sent  to  the  other  branch  of  the  Legislature,  where 
it  shall  also  be  reconsidered,  and  if  approved  by 


two-thirds  of  the  members  present,  shall  have  the 
force  of  a  law. 


Now,  Sir,  of  course  under  the  order  of  the 
Convention,  the  Committee  thought  that  some 
little  discretion  was  allowed  them ;  and  I  have  in 
my  mind  a  fact  within  the  knowledge  of  the  gen 
tleman  from  Salem  himself,  which  assures  me 
that  I  was  not  alone  in  that  opinion.  If  the  Con 
vention  will  be  kind  enough  to  read  from  the 
word  "present,"  in  italics,  to  the  close  of  the 
article,  they  will  see  that  the  word  "  present"  is 
used  in  the  present  Constitution  in  reference  to 
one  branch  of  the  legislature,  and  not  in  reference 
to  the  other.  Therefore,  it  being  declared  in  the 
original  article  that  two-thirds  of  the  "  members 
present"  in  one  case,  and  there  being  no  declara 
tion  in  regard  to  the  other,  the  Committee  thought 
it  within  the  rule,  for  the  purpose  of  consistency, 
in  the  administration  of  the  government  in  that 
respect,  to  introduce  the  word  "present."  That 
is  the  idea  the  Committee  had,  and,  of  course,  it 
is  for  the  Convention  to  decide  whether  the  Com 
mittee  went  beyond  their  authority  in  intro 
ducing  this  word. 

Mr.  LORD.  Then  I  understand  from  the 
chairman  of  the  Committee,  that  this  alteration 
is  made  without  any  vote  of  the  Convention. 
The  old  Constitution  requires  that  when  a  bill 
shall  receive  the  veto  of  the  governor,  it  shall, 
in  the  first  place,  be  sent  to  the  House  in  which 
it  originated,  and  be  passed  by  two-thirds  of  that 
body,  not  of  those  who  happen  to  be  present  at 
the  time,  but  by  two-thirds  of  that  body  in  which 
the  bill  originated.  This  amendment,  which  this 
Convention  has  not  voted  nor  acted  upon,  pro 
vides  that  two-thirds  of  a  bare  quorum  may  pass 
a  bill,  notwithstanding  there  may  not  be  even  a 
majority  present,  and  notwithstanding  the  num 
ber  may  be  less  than  the  number  that  ordinarily 
votes  in  favor  of  an  amendment. 

I  merely  call  the  attention  of  the  Convention  to 
this  matter,  because  it  is  a  palpable  alteration  of 
the  Constitution,  by  the  Committee,  without  the 
authority  of  any  action  of  the  Convention  in  its 
favor,  for  there  has  been  no  action  of  the  Con 
vention  upon  it. 

Now,  I  suppose  the  Committee  went  the  whole 
length  of  its  powers,  when  they  reported  the  old 
Constitution,  where  it  remains  unaltered,  when 
under  the  authority  to  report  amendments,  it 
reported  what  were  not  amendments ;  but  it 
seems  to  me  to  be  transcending  their  powers,  to 
report  as  an  amendment  what  the  Convention 
have  not  at  all  acted  upon.  The  question  now 
is,  not  whether  it  ought  to  be  so,  but  whether  we 
have  made  it  so. 


662 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


DANA  —  LORD  —  BOUTWELL  —  BUTLER. 


[August  1st. 


Mr.  DANA,  for  Manchester.  I  would  state, 
in  addition  to  the  reasons  stated  by  the  gentleman 
who  represents  Berlin,  for  the  action  of  the  Com 
mittee,  that  we  understood,  and  understand  now, 
that  the  practice  has  been  to  consider  this  article 
four,  as  requiring  only  two-thirds  of  the  members 
present,  in  either  branch  of  the  legislature.  So 
that,  by  this  amendment,  we  not  only  make  the 
rule  uniform,  but  make  it  conform  to  the  uniform 
practice  heretofore. 

Mr.  LOUD.  Will  the  gentlemen  of  the  Com 
mittee  inform  us  in  what  cases  any  resolve  has 
passed  either  branch  by  two-thirds  of  those  pres 
ent,  where  that  was  not  two-thirds  of  the  whole  ? 

Mr.  DANA.  I  do  not  know,  of  my  own 
knowledge,  that  there  had  been  anything  actually 
passed  by  such  a  two-third  vote,  but  I  have  been 
told,  on  good  authority,  that  such  has  been 
regarded  to  be  the  rule.  It  has  always  been  so 
considered.  I  cannot  mention  any  vetoed  bill 
that  has  actually  passed  the  House,  in  which  it 
originated,  by  a  two-thirds  vote,  when  that  vote 
was  not  two-thirds  of  the  whole.  On  consulting 
with  persons  learned  in  the  practice  of  the  legisla 
ture,  Presidents  and  Speakers,  I  learned  that 
such  had  been  the  understanding,  and  such  the 
action  of  the  House  of  Representatives.  Whether 
the  question  has  ever  come  under  the  adjudica 
tion  of  the  courts,  I  do  not  know. 

Mr.  LORD.  Has  there  ever  been  any  case,  in 
which  a  bill  has  passed  the  branch  of  the  legisla 
ture  to  which  it  was  returned,  and  declared  pass 
ed,  with  less  than  two-thirds  of  that  branch 
voting  in  its  favor  ?  Because,  if  there  has  been, 
it  is  a  precedent  in  favor  of  our  adopting  this  as 
a  rule.  But  if  there  has  not  been,  I  am  entitled 
to  my  own  construction  of  the  Constitution,  un 
til  the  supreme  court  have  ruled  it,  or  until  the 
people  have  changed  it ;  and  I  submit,  that  this 
Committee  cannot  put  their  construction  upon 
language,  and  base  an  amendment  upon  that  con 
struction,  and  say  that  it  means  two- thirds  of 
those  present,  without  deciding  whether  it  means 
those  present  and  voting,  or  not.  I  do  not  believe 
there  is  a  precedent  to  that  effect,  because  the 
only  bill  I  ever  knew  pass  through  the  House, 
against  the  governor's  veto,  was  the  proposition  to 
increase  the  members'  pay,  and  that  passed  by  a 
good  deal  more  than  two-thirds  of  the  whole 
number. 

Some  gentleman  suggests  to  me  that  the  bill 
establishing  the  Boston  Wharf  Company  passed 
so.  My  impression  is,  that  when  it  was  vetoed, 
it  failed,  and  was  brought  up  again  the  next 
year. 

Mr.  BOUTWELL.     It  passed  the  same  year. 

Mr.  LORD.    But  did  it  pass  by  less  than  two- 


thirds  of  the  body  to  which  it  was  returned  ?  To 
which  body  was  it  returned  ? 

Mr.  BOUTWELL.     To  the  Senate. 

Mr.  LORD.  The  gentleman  says  it  was  re 
turned  to  the  Senate,  and  being  returned  to  the 
Senate  I  suppose  that  gentleman  can  tell  me 
whether  it  obtained  twenty- seven  members  of 
that  body  in  its  favor,  because  it  must  have  ob 
tained  the  votes  of  that  number  in  order  to  have 
had  two- thirds  of  that  body  ?  If  it  did,  then  it  is 
a  precedent. 

Mr.  BUTLER,  of  Lowell.  I  wish  to  call  the 
attention  of  the  gentleman  from  Salem,  (Mr. 
Lord,)  to  a  very  palpable  alteration  in  the  same 
article,  which  I  commend  to  his  deliberate  judg 
ment,  because  that  has  never  received  the  judicial 
interpretation  of  the  supreme  court.  He  will  find 
it  in  the  last  line  but  one  on  the  ninth  page,  in  the 
following  language  : — 

And  in  order  to  prevent  unnecessary  delays, 
if  any  bill  or  resolve  shall  not  be  returned  by  the 
Governor,  within  five  days  after  it  shall  have  been 
presented  to  him,  the  same  shall  have  the  force  of 
a  law. 

The  words  "  to  him  "  are  very  evidently  in 
serted.  Now,  the  supreme  court  have  never  de 
cided  judicially  upon  that  point,  as  I  am  aware 
of;  and  I  should  like  to  know  by  what  authority 
the  Committee  put  in  those  words  ? 

Mr.  LORD.  I  do  not  believe  that  the  Com 
mittee  have  any  right  to  put  in  the  words  "  to 
him,"  for  I  think  if  a  governor,  to  avoid  having 
a  bill  presented  to  him  for  his  signature,  should 
undertake  to  take  himself  out  of  the  State  for  five 
days,  and  the  bill  should  be  presented  at  the 
council- chamber,  that  would  be  a  sufficient  pre 
sentation  to  him.  I  do  not  believe  in  the  Revising 
Committee  undertaking  to  amend  the  Constitu 
tion.  If  it  is  proper  that  the  Constitution  should 
be  amended,  it  should  be  amended  by  the  Con 
vention. 

Mr.  BUTLER.  The  Convention  are  now 
about  doing  it,  as  I  understand  it.  That  is  what 
we  are  after ;  if  not,  we  had  better  go  home.  We 
are  about  adopting  these  suggestions. 

Mr.  LORD.  If  the  gentleman  from  Lowell  is 
right,  I  withdraw  my  request  for  the  reading  of 
the  resolution.  I  understood  the  ruling  of 
the  Chair  to  be  that  no  amendment  of  the  Consti 
tution  which  affected  the  substance  of  the  Consti 
tution,  and  which  had  not  been  passed  upon  by 
the  Convention  heretofore,  would  be  in  order.  If 
these  are  amendments  to  the  Constitution,  and  if 
they  have  not  been  passed  upon,  they  are  not  in 
order  now. 

The  PRESIDENT.  The  gentleman  from  Sa 
lem  raises  the  question  of  order  whether  the  Com- 


72d  day.] 


REVISED    CONSTITUTION. 


663 


Monday,] 


BUTLER  —  LORD  —  HILLARD —  JENKS  —  BOUTWELL. 


[August  1st. 


mittee  have  transcended  their  authority.  That 
question  has  not  heretofore  been  raised. 

Mr.  BUTLER.  I  am  of  the  opinion  that  there 
has  been  a  uniform  construction  in  regard  to  this 
matter.  Let  us  take  an  illustration.  The  gentle 
man  from  Salem  supposes  that  the  governor  might 
be  sick  or  he  would  not  be  found  within  five  days ; 
or  he  might  have  broken  his  leg  and  be  confined 
to  his  room  at  New  Bedford,  and  then  if  a  bill  or 
resolve  was  presented  for  five  days  to  his  empty 
chair  in  the  council- chamber  when  it  was  known 
that  the  governor  would  not  be  there,  it  would 
have  the  effect  of  law. 

Mr.  LORD.  By  our  provisions  the  lieutenant- 
governor  is  acting  governor  under  such  circum 
stances. 

Mr.  BUTLER.  I  am  talking  about  it  as  it 
was.  The  lieutenant-governor  was  not  governor, 
and  that  is  another  provision  that  we  have 
changed.  But  in  these  cases  where  a  certain  con 
struction  has  been  given  to  language  by  usage, 
the  Committee  have  not  changed  the  matter  in 
substance ;  they  have  only  made  use  of  good  lan 
guage  and  good  forms  to  express  just  exactly 
what  it  meant  before.  In  this  case,  there  is  not  a 
man  here  who  supposes  that  an  absolute  majority 
of  two-thirds  was  required.  It  is  easy  for  the 
gentleman  to  ask  how  the  vote  stood,  when 
neither  he  nor  anybody  else  here  knows  how  it 
stood.  I  will  put  the  question  to  him,  whether 
he  knows  himself. 

Mr.  LORD.     I  am  going  to  see. 

Mr.  BUTLER.  When  the  gentleman  finds 
out,  I  shall  beglad  to  hear  the  result.  But  when 
the  gentleman  asks  questions  that  he  cannot  an 
swer  himself,  it  puts  me  in  mind  of  an  old  prov 
erb  which  says  that  a  certain  class  of  persons  may 
ask  questions  which  a  philosopher  cannot  answer. 
[Laughter.]  My  rule  is,  if  I  do  not  know  the 
truth  of  the  case,  to  hold  my  peace.  But  I  think 
we  might  as  well  meet  this,  once  for  all — Have 
the  Committee  transcended  their  power  ?  If  they 
have,  we  shall  have  to  send  their  Report  back  to 
them,  and  in  the  course  of  some  weeks  or  months 
we  may  perhaps  get  a  new  Report. 

Mr.  HILLARD,  of  Boston.  I  wieh  to  ask  for 
information,  although  I  shall,  perhaps,  come  in 
the  category  of  those  who  ask  questions  that  can 
not  be  answered,  whether  the  change  of  "  three 
days"  in  the  last  line  of  article  eleven  has  been 
adopted  by  the  Convention. 

Mr.  LORD.  I  will  state  that  I  have  been  in 
formed  that  the  bill  by  which  the  Boston  Wharf 
Company  increased  its  capital,  passed  by  twenty- 
four  to  seven — being  two -thirds  of  those  present, 
and  not  two-thirds  of  the  Senate.  No  one  raised 
any  objection. 


Mr.  JENKS,  of  Boston.  I  will  call  attention 
to  the  proviso  in  article  eight,  which  is  as  fol 
lows  : — 

Provided,  That  no  such  government  shall  be 
erected  or  constituted  in  any  town  not  containing 
twelve  thousand  inhabitants ;  nor  unless  it  be 
with  the  consent  and  on  the  application  of  a  ma 
jority  of  the  inhabitants  of  such  town,  present  and 
voting  thereon,  pursuant  to  a  vote  at  a  meeting 
duly  warned  and  holden  for  that  purpose. 

It  seems  to  me  that  there  is  a  great  inconsis 
tency  in  requiring  that  any  town  in  order  to  be 
come  a  city  should  have  twelve  thousand  inhabi 
tants  ;  and  more  than  six  thousand  would  be 
required  to  vote  for  it,  if  I  understand  it  right. 

Mr.  BOUTWELL,  for  Berlin.  The  gentleman 
will  perceive,  if  he  notices  the  type  in  which  that 
proviso  is  printed,  that  it  is  exactly  the  same  as  a 
provision  of  the  present  Constitution ;  and  accord 
ing  to  the  ruling  of  the  Chair,  the  Convention 
cannot  now  proceed  to  consider  any  matters  of 
that  kind.  I  will  say  in  regard  to  the  observation 
of  the  gentleman  from  Salem,  and  in  order  that 
the  impression  may  be  removed  which  is  raised 
upon  the  minds  of  other  gentlemen  upon  this 
floor,  that  the  first  idea  of  the  Committee  was  to 
make  a  systematic  and  harmonious  frame  of  gov 
ernment,  so  that  they  had  in  some  cases  to  take 
liberties  with  the  language  which  was  passed  by 
this  Convention.  For  instance,  in  the  very  chap 
ter  now  under  consideration,  the  Convention 
decided  by  a  vote  that  the  Senate  might  adjourn 
three  days  at  a  time,  but  they  passed  no  such  vote 
in  regard  to  the  House.  The  existing  Constitu 
tion  provides  that  the  House  may  adjourn  for  two 
days  at  a  time.  The  Committee  did  take  so  much 
liberty  as  this ;  it  being  desirable  to  comprise  it 
all  into  one  chapter,  under  the  head  of  the  general 
court,  for  the  purpose  of  harmony,  they  say  that 
each  branch  of  the  legislature  may  adjourn  for 
three  days.  They  supposed  it  might  be  proper  to 
apply  that  provision  to  the  House  of  Representa 
tives,  being  guided  by  the  resolve  which  was 
passed  by  this  Convention  in  relation  to  the  Sen 
ate.  If  the  gentleman  from  Salem  was  in  his 
seat,  I  would  say  to  him,  that  if  he  would  turn  to 
the  chapter  on  elections,  he  will  see  a  provision 
for  the  election  of  governor  by  the  House  and 
Senate  in  case  there  is  no  election  by  the  people. 
The  words  "  then  eligible"  were  proposed  to  be 
added  by  one  of  the  Committee,  and  I  assented 
to  it  because  I  thought  it  expedient ;  it  was 
thought  proper  that  a  man  who  should  cease  to 
reside  in  the  Commonwealth  should  cease  to  be 
eligible  as  governor,  and  I  accepted  the  recom 
mendation.  There  was  no  provision  made  with 
regard  to  elections  from  cities ;  while  provision 


664 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


LlVERMORE  —  BOUTWELL UPTON  — 


[August  1st. 


with  regard  to  the  election  of  governor  from  the 
towns  was  made,  the  cities  were  omitted ;  and 
what  did  the  Committee  do  ?  They  had  to  make 
a  provision  which  stands  in  the  chapter  relating 
to  elections,  that  the  manner  of  calling  and  hold 
ing  public  meetings  in  cities  for  the  election  of 
officers  under  the  Constitution,  and  the  manner 
of  retxirning  the  votes  given,  shall  be  as  now  pre 
scribed,  or  as  may  be  hereafter  prescribed  by  the 
legislature.  What  I  desire  is,  that  the  Conven 
tion  will  take  up  these  different  changes  and 
examine  them.  The  Committee  have  no  desire  to 
make  issue  on  these  points ;  they  are  perfectly 
willing  that  the  opinion  of  the  Convention 
should  be  taken,  and  they  believe  that  a  good 
reason  can  be  given  for  all  they  have  done. 

Mr.  LlVERMORE,  of  Cambridge.  I  should 
like  to  inquire  of  the  chairman  of  the  Committee, 
by  what  authority  they  put  in  the  last  sentence  of 
article  two,  which  is  in  these  words  : — 

But  nothing  herein  contained  shall  prevent 
the  General  Court  from  assembling  at  such  other 
times  as  they  shall  judge  necessary,  or  when 
called  together  by  the  Governor. 

Mr.  BOUTWELL.  I  do  not  find  any  resolve 
on  that  subject,  among  my  official  papers. 

Mr.  LIVERMORE.  The  Committee  on  the 
Frame  of  Government  reported  it  in  the  following 
words : — 

The  Legislature  shall  assemble  every  year,  on 
the  first  Wednesday  in  January ;  and  shall  be 
dissolved  on  the  day  next  preceding  the  said  first 
Wednesday  in  January,  without  any  proclama 
tion  or  other  act  of  the  Governor. 

That  was  afterwards  amended,  by  striking  out 
the  words  "  said  first  Wednesday  in  January," 
and  inserting  the  words  "  first  Wednesday  in 
January  following  ;"  but  there  was  no  provision 
allowing  them  to  assemble  at  such  other  times  as 
they  shall  judge  necessary. 

Mr.  UPTON,  of  Boston.  It  seems  to  me  that 
numbers  seven  and  eight  of  the  proposed  amend 
ments  ought  to  go  into  the  Frame  of  Government, 
and  I  can  hardly  understand  why  they  were 
omitted,  when  all  the  other  duties  of  the  general 
court  are  included.  I  move  that  they  be  inserted, 
to  constitute  article  twelve  of  the  Frame  of  Gov 
ernment,  as  follows : — 

ART.  12.  The  Legislature  shall  not  create  cor 
porations  by  special  act,  when  the  object  of  the 
incorporation  is  attainable  by  general  laws. 

The  Legislature  shall  have  no  power  to  pass 
any  act  granting  any  special  charter  for  banking 
purposes,  or  any  special  act  to  increase  the  capital 
stock  of  any  chartered  bank;  but  corporations 
may  be  formed  for  such  purposes,  or  the  capital 


stock  of  chartered  banks  may  be  increased,  under 
general  laws. 

The  Legislature  shall  provide  by  law  for  the 
registry  of  all  notes  or  bills  authorized  by  general 
laws  to  be  issued  or  put  in  circulation  as  money ; 
and  shall  require  ample  security  for  the  redemp 
tion  of  such  notes  in  specie. 

The  question  being  taken,  the  amendment  was 
not  agreed  to. 

Mr.  LORD,  of  Salem.  I  wish  to  inquire 
whether  the  wrord  "present"  is  under  the  power 
of  the  Committee  ?  I  raise  that  question  of  order. 

The  PRESIDENT.  The  gentleman  from  Sa 
lem  raises  the  question  of  order,  whether  the 
amendments  reported  by  the  Committee  of  Re 
vision  to  the  fourth  article  of  the  first  chapter,  be 
in  order.  It  is  the  opinion  of  the  Chair  that  the 
insertion  of  the  word  "present"  does  not  change 
the  substance  of  the  article ;  the  experience  of  the 
Chair  has  been  invariably  that  a  question  has  been 
considered  settled  on  receiving  the  assent  of  two- 
thirds  of  the  members  present  and  voting  thereon. 
The  Chair  does  not,  therefore,  regard  it  as  chang 
ing  the  substance  of  the  article. 

Mr.  LORD.  In  my  opinion,  it  does  change  it, 
and  I  do  not  think  the  Committee  on  Revision 
have  any  authority  to  give  a  construction  to  an 
article  about  which  there  may  have  been  a  differ 
ence  of  opinion,  so  as  to  have  the  Constitution 
settled  according  to  their  exposition  in  relation  to 
the  governor's  veto.  The  Constitution  provides 
that  sixteen  shall  be  a  quorum  of  the  Senate ; 
and  I  do  not  believe  that  that  same  Constitution 
meant  that  eleven  members  of  the  Senate  should 
pass  a  bill  over  the  governor's  veto.  I  think,  if 
they  had  meant  that  eleven  members  could  pass 
a  bill  in  such  circumstances,  they  would  not  have 
said  that  it  should  take  two-thirds  of  the  body  to 
pass  it. 

Now,  if  it  should  so  happen — a  thing  which  I 
can  hardly  suppose  —  that  the  President  was 
wrong  in  his  construction  of  the  Constitution  be 
fore,  then  this  Constitution  gets  changed  against 
my  wishes,  and  without  any  action  of  this  Con 
vention.  I  am  willing  that  the  law  should  re 
quire  two-thirds  of  one  House  only  to  pass  a  bill 
over  the  governor's  veto,  but  I  think  there  should 
be  a  check  of  twro- thirds  of  either  one  body  or  the 
other  of  the  legislature.  It  seems  to  me  to  be  a 
good  and  desirable  provision,  and  one  which 
ought  not  to  be  changed,  and  especially  it  should 
not  be  changed  without  some  action  of  the  Con 
vention.  But  suppose— and  I  agree  that  the 
charter  of  the  Boston  Wharf  Company  was  so 
passed  by  a  vote  of  24  to  7— but  suppose,  upon  a 
quo  warranto  against  the  corporation,  the  supreme 
court  should  hold  that  the  charter  never  had  an 


72d  day.] 


REVISED   CONSTITUTION. 


665 


Monday,] 


OLIVER  —  BOUTWELL  —  DANA  —  LIVERMORE. 


[August  1st. 


existence,  if  they  should  go  behind  that  which 
appeared  to  be  a  legal  enactment,  and  make  that 
decision,  the  fact  that  the  President  of  this  Con 
vention  had  a  different  view  of  the  subject,  would 
not  seem  to  me  to  be  a  sufficient  reason  for  sus 
taining  this  phraseology.  If,  Sir,  it  really  does 
mean  the  same  thing,  then  it  seems  to  me  to  be 
right  to  put  it  into  the  Constitution ;  if  it  does 
not,  then  it  ought  not  to  be  incorporated  into  that 
instrument.  It  is  undertaking  to  give  a  construc 
tion  to,  and  to  reduce  to  a  certainty,  a  provision 
of  the  Constitution,  upon  which,  perhaps,  gen 
tlemen  may  entertain  different  opinions.  I  am 
myself  so  much  opposed  to  allowing  two-thirds 
of  a  bare  majority  to  pass  a  bill  over  the  veto  of 
the  governor,  that  if  that  had  been  the  true  con 
struction  heretofore,  I  should  have  been  in  favor 
of  a  change.  And  I  now  move  that  the  word 
"present,"  where  it  appears  in  italics,  be  struck 
out. 

The  question  was  taken  upon  the  motion  of 
Mr.  Lord,  and  there  were,  on  a  division — ayes, 
G3  ;  noes,  162. 

So  the  amendment  was  rejected. 

Mr.  OLIVER,  of  Lawrence.  Since  the  amend 
ed  Constitution,  as  presented  by  the  Committee, 
contains  some  provisions  for  which,  when  it  comes 
before  the  people,  I  can  vote,  and  some  for  which 
I  cannot  vote,  and  as  these  to  which  I  refer  are  all 
contained  in  division  number  one  of  their  Report, 
thereby  compelling  me  to  vote  either  against  some 
that  I  approve  of,  or  for  some  that  I  disapprove 
of,  I  move,  in  order  to  relieve  myself  from  this 
future  false  position,  that  article  three  of  this 
chapter,  which  is  as  follows  : — 

ART.  3.  The  compensation  of  members  of  the 
General  Court  shall  be  established  by  standing 
laws ;  but  no  act  increasing  the  compensation  shall 
apply  to  the  General  Court  which  passes  such  act ; 
and  no  compensation  shall  be  allowed  for  attend 
ance  of  members  at  any  one  session  for  a  longer 
time  than  one  hundred  days. 

Be  separated  from  this  chapter,  and  be  placed 
among  those  provisions  which  are  proposed  to 
be  submitted  to  the  people  as  independent 
propositions,  and  form  a  new  one  numbered 
"nine." 

The  question  was  taken  upon  Mr.  Oliver's 
motion,  and  it  was  decided  in  the  negative. 

So  the  amendment  was  rejected. 

Mr.  OLIVER.  I  make  the  same  motion  in 
regard  to  article  thirteenth  of  the  same  chapter, 
arid  for  the  same  reasons.  That  article  reads  as 
follows : — 

ART.  13.  In  all  elections  by  the  General 
Court,  or  either  branch  thereof,  a  majority  of 

45 ' 


votes  shall  be  required,  and  the  members  shall 
vote  viva  voce. 

The  question  was  taken  on  the  latter  motion, 
and  the  amendment  was  not  agreed  to. 

Mr.  BOUTWELL,  for  Berlin.  Some  question 
has  arisen  in  regard  to  the  second  article,  relating 
to  the  general  court.  It  reads  as  follows  : — 

ART.  2.  The  political  year  shall  begin  on  the 
first  Wednesday  in  January ;  and  the  General 
Court  shall  assemble  every  year  on  the  said  first 
Wednesday  in  January,  and  shall  be  dissolved  on 
the  day  next  preceding  the  first  Wednesday  in 
January  following,  without  any  proclamation  or 
other  act  of  the  Governor.  But  nothing  herein 
contained  shall  prevent  the  General  Court  from 
assembling  at  such  other  times  as  they  shall  judge 
necessary,  or  when  called  together  by  the  Gov 
ernor. 

The  question  is  upon  the  last  clause.  The 
Committee  on  the  Bill  of  Rights,  so  far  as  I  can 
learn,  made  an  amendment  to  the  first  article  of 
the  existing  chapter  on  the  general  court,  which 
was  adopted  by  the  Convention.  But  it  happens 
that  in  the  tenth  article  of  the  Amendments  to  the 
present  Constitution,  are  the  words,  "but  nothing 
herein  contained  shall  prevent  the  general  court 
from  assembling  at  such  other  times  as  they  shall 
judge  necessary,  or  when  called  together  by  the 
governor." 

So  far  as  I  know,  the  Convention  have  never 
passed  upon  that  portion  of  the  tenth  article  or 
amendment  to  the  present  Constitution.  The 
Committee  have  transferred  that  article,  and  made 
it  here  the  closing  paragraph  of  the  second  article 
upon  the  general  court.  So  that,  while  I  believe 
that  the  Convention  have  passed  upon  something 
nearly  like  this  article,  yet  they  have  not  passed 
upon  that;  if  I  am  correct,  the  provision  being 
part  of  the  existing  Constitution  of  the  Common 
wealth. 

Mr.  DANA,  for  Manchester.  I  can  only  say, 
that  the  preparation  of  this  chapter  was  placed  in 
my  hands.  I  found  this  last  clause  in  the  old 
Constitution,  and  could  not  find  any  resolve  by 
which  it  was  repealed,  and  therefore  I  felt  bound 
to  put  it  into  the  Constitution,  and  it  was  adopted 
by  the  Committee. 

Mr.  LIVERMORE,  of  Cambridge.  I  move 
to  strike  out  the  very  words  contained  in  this 
last  clause,  that  is,  the  clause  relating  to  the 
assembling  of  the  general  court  at  such  other 
times  as  they  shall  deem  necessary.  To  be  sure, 
it  occurs  in  another  part  of  the  Constitution,  but 
the  Committee  reported  to  strike  out  of  the  pres 
ent  Constitution  the  first  article,  and  that  was 
adopted  by  the  Convention.  I  do  not  know  what 
effect  that  clause  would  have,  standing  in  another 


666 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


ALLEN  —  BUTLER  —  MORTON  —  LORD. 


[August  1st. 


part  of  the  Constitution.  It  was  once  struck  out 
by  the  vote  of  the  Convention.  If  in  order,  I 
now  move  to  strike  out  those  words. 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  the  motion  is  not  in  order,  as  it  proposes  a 
change  in  matter  of  substance.  If  it  appears 
from  the  records  that  the  Convention  have  stricken 
out  from  the  Constitution  those  words,  the  Chair 
will  rule  upon  it  as  a  question  of  order. 

Mr.  LIVERMORE.  I  desire  to  reserve  the 
right  to  examine  the  matter. 

Mr.  ALLEN,  of  Worcester.  I  think  I  can 
explain  the  matter.  In.  a  part  of  the  Constitu 
tion  committed  to  the  Committee  on  the  Frame 
of  Government,  there  was  a  provision  that  the 
legislature  should  assemble  on  the  first  Wednes 
day  of  January,  and  when  called  by  the  governor, 
and  also  at  such  other  times  as  they  should  judge 
necessary.  The  Committee  on  the  Frame  of 
Government,  moved  to  strike  out  that  part  which 
authorized  the  legislature  to  assemble  at  its  pleas 
ure.  The  Convention  adopted  that  amendment. 
But  it  seems  that  a  similar  provision,  which  au 
thorized  the  general  court  to  assemble  at  its 
pleasure,  occurs  in  another  part  of  the  Constitu 
tion.  The  Committee  on  the  Frame  of  Govern 
ment  had  not  that  part  of  the  Constitution  sub 
mitted  to  them,  and  therefore,  they  could  not 
make  a  Report  concerning  it.  The  consequence 
is,  that  while  the  Convention  have  signified  the 
purpose  to  take  away  from  the  legislature  the 
power  of  assembling  at  such  times  as  they  should 
deem  necessary,  there  is  still  a  provision  left  in 
the  Constitution,  authorizing  them  to  do  so,  and 
that  remains  in  the  new  Constitution. 

If  the  Convention  generally  believe  that  it  is 
not  necessary  for  the  legislature  to  assemble,  and 
to  hold  extra  sessions,  except  when  called  together 
by  the  governor — and,  I  believe,  extra  sessions 
never  have  been  held  except  upon  such  call — per 
haps  by  general  consent,  and  without  objection, 
this  part  of  the  Constitution  might  be  made  to 
conform  to  the  vote  which  the  Convention  have 
already  adopted,  and  these  words  be  stricken  out. 

Mr.  BUTLEIl,  of  Lowell.  I  wish  merely  to 
suggest,  that  tlic  right  of  the  general  court  to  as 
semble  without  the  consent  of  the  governor,  is  a 
valuable  right.  It  is  one  which  made  the  funda 
mental  quarrel  between  Governor  Gage  and  the 
general  court  of  that  day.  lie  refused  to  have 
them  called  together,  and  made  proclamation  that 
they  should  not  assemble  together,  but  when  they 
thought  that  the  exigencies  of  the  times  required 
it,  they  did  so  ;  and,  when  they  came  to  make  a 
Constitution,  they  took  care  not  to  put  themselves 
into  the  power  of  any  governor.  Therefore,  I 
object  to  having  it  struck  out. 


Mr.  MORTON,  of  Taunton.  Is  there  no  way 
of  getting  at  this  matter  without  unanimous  con 
sent  ?  I  did  not  exactly  hear  the  suggestions  of 
the  gentleman  from  Worcester.  I  think  it  very 
important  to  strike  out  the  words  "  at  such  other 
times  as  they  shall  judge  necessary  or  "  and  leave 
them  to  be  called  together  by  the  governor.  Be 
fore  it  is  finally  settled  one  way  or  another,  I  beg 
leave  to  make  a  suggestion  or  two.  It  seems  to 
me  that  if  we  authorize  the  general  court  to  meet 
as  often  as  they  please,  we  render  entirely  nuga 
tory  another  provision  which  we  have  incorpo 
rated  among  the  new  provisions  of  the  Constitu 
tion,  and  we  had  better  strike  that  out,  if  we 
retain  this.  We  have  provided,  in  another  clause, 
that  no  session  of  the  general  court  shall  last 
beyond  one  hundred  days  ;  but  such  a  restriction 
is  entirely  useless,  if  they  may  have  half  a  dozen 
sessions  in  the  year.  The  motion  which  I  made 
upon  the  subject,  and  which  finally  passed,  only 
limited  the  sessions  to  one  hundred  days  ;  but  if 
the  legislature  have  the  right  to  adjourn  over  a 
week,  and  then  hold  another  session,  it  seems  to 
me  that  the  first  provision  is  entirely  useless.  I 
make  this  suggestion  for  the  consideration  of  the 
gentlemen  of  the  Convention  as  worthy  of  atten 
tion. 

Mr.  LORD,  of  Salem.  I  desire  to  call  the 
mind  of  the  President  to  a  matter  of  construction. 
I  take  it  that  the  old  instrument  is  to  be  construed 
as  entire.  In  the  old  Constitution,  chapter  first, 
under  the  Frame  of  Government,  section  first, 
provides,  that  the  legislative  body  shall  assemble 
every  year,  on  the  first  Wednesday  of  May,  and 
at  such  other  time  as  they  shall  judge  necessary. 
In  the  tenth  article  of  the  Amendments  to  the 
Constitution,  the  first  Wednesday  of  May  was 
changed  to  the  first  Wednesday  of  January  ;  and 
the  phrase  "  But  nothing  herein  contained  shall 
prevent  the  general  court  from  assembling  at  such 
other  times  as  they  shall  judge  necessary,  or  when 
called  together  by  the  governor,"  was  merely  put 
into  that  article,  to  show  that  the  entire  first  sec 
tion  was  not  to  be  abrogated ;  that  they  meant 
simply,  to  change  the  time  of  meeting.  It  was 
introduced  for  that  purpose,  and  to  show  that  the 
framers  of  it  did  not  mean  to  change  the  power 
of  the  general  court  to  sit  when  they  should  deem 
it  necessary.  But  this  Convention,  having  changed 
that  first  article,  it  seems  to  me  that  the  proviso 
that  it  shall  not  be  altered,  falls  also,  and  that  the 
change  is  perfect  and  complete.  I  make  these 
suggestions  as  worthy  of  consideration,  and  not 
because  I  want  to  have  those  words  stricken  out, 
for  I  agree,  somewhat,  with  the  opinions  of  the 
gentleman  from  Lowell,  that,  after  all,  this  legis 
lature,  which  we  treat  so  contumeliously,  is  a 


'2d  day.] 


REVISED    CONSTITUTION. 


667 


Monday, 


DANA  —  HALE  —  GARDXEH. 


[August  1st. 


pretty  important  branch  of  this  government,  and 
ought  to  have  some  power,  and  that  they  should 
come  together  whenever  the  exigencies  of  the 
public  require  it.  But  certain,  it  does,  as  sug 
gested  by  the  gentleman  from  Taunton,  (Mr. 
Morton,)  render  nugatory  the  provision  limiting 
the  session  to  one  hundred  days  ;  because  they 
may  have  a  session  the  next  day  after  the  hun 
dred  days  have  expired,  and  take  another  hundred 
days,  and  get  their  pay  for  it.  I  merely  call  the 
attention  of  the  presiding  officer  to  this  matter  of 
construction,  to  know — when  we  consider  the 
form  of  the  matter  which  was  original  in  the 
Constitution,  and  that  the  tenth  amendment  only 
changed  the  day,  and  provided  that  this  other 
matter  of  the  first  article,  should  not  be  repealed 
by  that — whether,  when  we  come  to  repeal  the 
first  article,  the  other  does  not  fall  with  it  ? 

Mr.  DANA,  for  Manchester.  A  single  word 
upon  this  matter.  As  I  recollect  it,  there  was  no 
debate  or  consideration  of  that  point,  when  the 
Report  was  made  from  the  Committee,  of  which 
the  gentleman  from  Worcester,  (Mr.  Allen,)  was 
chairman.  There  was  no  debate  upon  the  point 
whether  we  should  prevent  the  legislature  from 
meeting  without  the  consent  of  the  governor.  I 
found  no  amendment  debated,  striking  out  the 
grant  of  power,  and  I  supposed  the  Convention 
had  not  intended  to  strike  it  out,  and  the  He- 
vising  Committee  did  not  feel  authorized  to  do  so. 

In  the  next  place,  I  should  feel  reluctant  to  say 
that  the  legislature  never  shall  meet  but  by  the 
consent  of  the  governor.  Suppose  that,  after  the 
January  session,  in  the  autumn,  or  in  the  early 
part  of  the  winter,  there  should  be  war,  insur 
rection,  or  invasion,  and  the  governor  was  not  to 
be  relied  upon,  should  the  people  of  the  Com 
monwealth  be  put  into  such  a  situation  that  they 
cannot  meet  in  legislature,  to  provide  the  neces 
sary  measures  of  defence  and  safety  ? 

I  have  no  idea  that  the  legislature  will  be  likely 
to  meet  unnecessarily,  but  would  we  like  to  say 
that  they  never  should  meet  in  extra  session  un 
less  by  the  call  of  the  governor  ? 

As  to  pay,  they  may  have  extra  pay  now,  if 
the  governor  calls  them  together,  and  they  ought 
to  be  paid  if  they  come  together  upon  an  exigency 
of  the  public  affairs,  without  the  consent  of  the 
governor. 

Mr.  HALE,  of  Bridgewater.  I  would  inquire 
of  the  gentleman  for  Manchester,  in  what  way 
the  general  court  should  hold  a  session  in  such 
case,  unless  by  a  call  of  the  governor,  or  by  hav 
ing  adjourned  to  meet  again  on  a  given  day  ?  We 
ought  certainly  to  provide  some  mode  by  which 
they  can.  be  called  together  in  case  of  great  emer 
gency. 


Mr.  DANA,  for  Manchester.  I  can  say  to  the 
gentleman  from  Bridgewater,  that  if  any  exigency 
should  arise,  rendering  it  necessary  for  the  legisla 
ture  to  meet,  and  the  Constitution  says  that  they 
may  meet,  they  will  find  out  a  way  to  meet.  The 
independence  and  self- subsistence  of  the  legisla 
tive  power,  and  representative  department,  is  an 
essential  idea  in  the  Anglo  Saxon  race.  If  the 
Constitution  says  they  may  meet,  and  the  exi 
gency  says  they  must  meet,  I  think  they  will 
meet. 

Mr.  GARDNER,  of  Seekonk.  I  hope  this 
section  will  stand  as  it  is.  In  17i5,  a  message 
was  sent  to  the  then  governor  of  the  Common 
wealth,  (Governor  Shirley,)  to  call  the  legislature 
together,  to  settle  a  boundary  question  between 
this  State  and  the  State  of  Rhode  Island.  Not 
withstanding  that  this  was  felt  to  be  a  question  of 
great  importance,  the  governor  did  not  feel  obliged 
to  call  an  extra  session,  and  the  commissioners  of 
Rhode  Island  ran  an  ex  parte  boundary  line,  from 
which  all  the  difficulties  that  have  ever  arisen  be 
tween  the  two  States,  has  originated.  I  think 
that  that  is  one  essential  reason  why  this  provision 
should  be  retained.  As  the  gentleman  for  Man 
chester  says,  the  legislature  will  find  a  way  to 
meet,  if  it  be  necessary  that  they  should. 

The  first  chapter  on  the  "  Frame  of  Govern 
ment,"  as  amended,  was  then  finally  passed. 

The  second  chapter  was  then  read  by  the  Secre 
tary,  containing  provisions  in  regard  to  the  Senate 
districts  in  which  senators  are  to  be  chosen ; 
qualifications  of  candidates ;  manner  of  electing 
senators ;  examination  of  election  returns ;  quorum 
of  the  Senate ;  impeachments,  &C.,  and  it  was 
finally  passed  without  farther  amendment.  It  is 
as  follows  : — 

[AHTICLE  1.  There  shall  be  annually  elected 
by  the  inhabitants  of  this  Commonwealth,  quali 
fied  as  in  this  Constitution  is  provided,  forty  per 
sons  to  be  senators,  for  the  year  ensuing  their 
election ;  and  the  Senate  shall  be  the  first  branch 
of  the  General  Court.  For  this  purpose,  the 
General  Court,  holden  next  after  the  adoption  of 
this  Constitution,  and  next  after  each  decennial 
census  thereafter,  shall  divide  the  Commonwealth 
into  forty  districts,  composed  of  contiguous  terri 
tory,  and  as  nearly  equal  in  population  as  may  be : 
provided,  that  110  town  or  ward  of  a  city  be  di 
vided  therefor.  Each  district  shall  be  entitled  to 
elect  one  serator,  who  shall  have  been  an  inhabi 
tant  of  this  Commonwealth  for  five  years  immedi 
ately  preceding  his  election,  and  at  the  time  of  his 
election  shall  be  an  inhabitant  of  the  district  for 
which  he  is  chosen.] 

ART.  2.  There  shall  be  a  meeting  on  the  Tues 
day  next  after  the  first  Monday  in  November,  an 
nually,  forever,  of  the  inhabitants  of  each  town 
and  city  in  this  Commonwealth,  to  be  called  and 
warned  in  due  course  of  law,  at  least  seven  days 


668 


REVISED  CONSTITUTION. 


[72d  day. 


Monday, 


SENATE  —  HOUSE. 


[August  1st. 


before  the  day  of  such  meeting,  for  the  purpose  of 
electing  senators  ;  and  at  such  meetings  every 
qualified  voter  shall  have  a  right  to  give  in  his 
vote  for  a  senator  for  the  district  of  which  he  is  an 
inhabitant. 

The  selectmen  of  the  several  towns  shall  pre 
side  at  the  town  meetings  impartially  ;  and  shall 
receive  the  votes  of  all  the  inhabitants  of  such 
towns  present  arid  qualified  to  vote  for  a  senator, 
arid  shall  sort  and  count  them  in  open  town  meet 
ing,  and  in  presence  of  the  town  clerk,  who  shall 
make  a  fair  record,  in  presence  of  the  select 
men,  and,  in  open  town  meeting,  of  the  name  of 
every  person  voted  for,  and  of  the  number  of 
votes  against  his  name ;  and  a  fair  copy  of  this 
record  shall  be  attested  by  the  selectmen  and  the 
town  clerk,  and  shall  be  sealed  up,  directed  to  the 
Secretary  of  the  Commonwealth  for  the  time 
being,  with  a  superscription  expressing  the  pur 
port  of  the  contents  thereof,  and  delivered  by  the 
town  clerk  of  said  towns  to  the  sheriff  of  the 
county  in  which  such  town  lies,  thirty  days  at 
least  before  the  first  Wednesday  in  January  an 
nually  ;  or  it  shall  be  delivered  into  the  Secretary's 
office  seventeen  days  at  least  before  the  said  first 
Wednesday  in  January ;  and  the  sheriff  of  each 
county  shall  deliver  all  such  certificates,  by  him 
received,  into  the  Secretary's  office,  seventeen  days 
before  the  said  first  Wednesday  in  January. 

And  the  inhabitants  of  plantations  unincor 
porated,  qualified  as  this  Constitution  provides, 
shall  have  the  same  privilege  of  voting  for  a  sena 
tor,  in  the  plantations  where  they  reside,  as  town 
inhabitants  have  in  their  respective  towns  ;  and 
the  plantation  meetings  for  that  purpose  shall  be 
held  annually  on  the  same  Tuesday  next  after  the 
first  Monday  in  November,  at  such  place  in  the 
plantations  respectively  as  the  assessors  thereof 
shall  direct;  which  assessors  shall  have  like 
authority  for  notifying  the  voters,  collecting  and 
returning  the  votes,  as  the  selectmen  and  town 
clerks  have  in  their  several  towns,  by  this  Consti 
tution.  And  all  other  persons  living  in  places 
unincorporated,  (qualified  as  aforesaid,)  shall  have 
the  privilege  of  giving  in  their  votes  for  a  senator, 
in  the  town  where  the  inhabitants  of  such  unin 
corporated  places  shall  be  assessed,  and  be  notified 
of  the  place  of  meeting  by  the  selectmen  of  the 
said  town  for  that  purpose,  accordingly. 

[ART.  3.  The  Governor  and  Council  shall,  as 
soon  as  may  be,  examine  the  returned  copies  of 
the  record  provided  for  in  article  second  of  this 
chapter,  and  ascertain  who  shall  have  received  the 
largest  number  of  votes  in  each  of  the  several  sena 
torial  districts,  and  the  person  who  has  so  received 
the  largest  number  of  votes  in  each  of  said  districts 
shall  be  a  senator  for  the  following  political  year  ; 
and  the  governor  shall  cause  each  of  said  persons, 
so  appearing  to  be  elected,  to  be  notified  at  least 
fourteen  days  before  the  first  Wednesday  in  Jan 
uary  of  each  year,  to  attend  on  that  day,  and  take 
his  seat  accordingly. 

ART.  4.  Not  less  than  twenty- one  members 
shall  constitute  a  quorum  for  doing  business  ;  but 
a  less  rmmber  may  organize,  adjourn  from  day  to 
day,  and  compel  the  attendance  of  absent  mem 
bers.] 

ART.  5.    The  Senate  shall  be  a  court  with  full 


authority  to  hear  and  determine  all  impeachments 
made  by  the  House  of  Representatives  against 
any  officer  or  officers  of  the  Commonwealth,  for 
misconduct  and  maladministration  in  their  offices  ; 
but,  previous  to  the  trial  of  every  impeachment, 
the  members  of  the  Senate  shall  respectively  be 
sworn,  truly  and  impartially  to  try  and  determine 
the  charge  in  question,  according  to  evidence. 
Their  judgment,  however,  shall  not  extend  far 
ther  than  to  removal  from  office  and  disqualifica 
tion  to  hold  or  enjoy  any  place  of  honor,  trust,  or 
profit,  under  this  Commonwealth  :  but  the  party, 
so  convicted,  shall  be,  nevertheless,  liable  to  in 
dictment,  trial,  judgment  and  punishment,  ac 
cording  to  the  laws  of  the  land. 

The  Secretary  was  then  directed  to  read  the 
third  chapter,  containing  provisions  in  relation  to 
the  House  of  Representatives — the  mode  of  their 
election,  and  the  qualifications  of  voters  ;  mode  of 
apportioning  representatives  among  the  several 
towns  and  cities  by  the  Senate  ;  division  of  cities 
into  districts ;  time  of  electing  representatives  ; 
fines  on  towns  neglecting  to  elect ;  qualifications 
of  representatives ;  power  of  the  House  in  re 
gard  to  impeachments  ;  the  origination  of  money 
bills  ;  and  the  number  of  members  constituting 
a  quorum.  It  was  read,  as  follows  : — 

ARTICLE  1.  There  shall  be,  in  the  Legislature 
of  this  Commonwealth,  a  representation  of  the 
people,  annually  elected,  and  founded  upon  the 
principle  of  equality. 

ART.  2.  And  in  order  to  provide  for  a  repre 
sentation  of  the  citizens  of  this  Commonwealth, 
founded  upon  the  principle  of  equality,  every 
corporate  town,  containing  [less  than  one  thou 
sand  inhabitants,  may  elect  one  representative  in 
the  year  when  the  valuation  of  estates  shall  be 
settled,  and,  in  addition  thereto,  one  representa 
tive  five  years  in  every  ten  years.  Every  town 
containing  one  thousand  inhabitants  and  less  than 
four  thousand,  may  elect  one  representative. 
Every  town  containing  four  thousand  inhabitants 
and  less  than  eight  thousand,  may  elect  two  rep 
resentatives.  Every  town  containing  eight  thou 
sand  inhabitants  and  less  than  twelve  thousand, 
may  elect  three  representatives.  Every  city  or 
town  containing  twelve  thousand  inhabitants,  may 
elect  four  representatives.  Every  city  or  town 
containing  over  twelve  thousand  inhabitants,  may 
elect  one  additional  representative  for  every  four 
thousand  inhabitants  it  shall  contain,  over  twelve 
thousand.  Any  two  towns,  each  containing  less 
than  one  thousand  inhabitants,  may,  by  consent 
of  a  majority  of  the  legal  voters  present  at  a  legal 
meeting  in  each  of  said  towns  respectively,  called 
for  that  purpose,  form  themselves  into  a  represen 
tative  district,  to  continue  for  the  term  of  not  less 
than  two  years  ;  and  such  district  shall  have  all 
the  rights,  in  regard  to  representation,  which  be 
long  to  a  town  having  one  thousand  inhabitants. 
And  this  apportionment  shall  be  based  upon  the 
census  of  the  year  one  thousand  eight  hundred 
and  fifty,  until  a  new  census  shall  be  taken. 


72d  day.] 


REVISED   CONSTITUTION. 


669 


Monday,] 


EARLE. 


[August  1st. 


ART.  3.  The  Senate  at  its  first  session  after 
this  Constitution  shall  have  been  adopted,  and 
at  its  first  session  after  the  next  State  census  shall 
have  been  taken,  and  at  its  first  session  next  after 
each  decennial  State  census  thereafter  wards,  shall 
apportion  the  number  of  representatives  to  which 
each  town  and  city  shall  be  entitled,  and  shall 
cause  the  same  to  be  seasonably  published  ;  and 
in  all  apportionments  after  the  first,  the  numbers 
which  shall  entitle  any  town  or  city,  to  two,  three, 
four,  or  more  representatives,  shall  be  increased 
or  diminished  in  the  same  proportion  as  the 
population  of  the  whole  Commonwealth  shall 
have  increased  or  decreased  since  the  last  preced 
ing  apportionment. 

ART.  4.  No  town  hereafter  incorporated,  con 
taining  less  than  fifteen  hundred  inhabitants,  shall 
be  entitled  to  choose  a  representative. 

ART.  5.  Each  city  in  this  Commonwealth, 
shall  be  divided,  by  such  means  as  the  Legislature 
may  provide,  into  districts  of  contiguous  territory, 
as  nearly  equal  in  population  as  may  be,  for  the 
election  of  representatives,  which  districts  shall 
not  be  changed  oftener  than  once  in  five  years  : 
provided,  tiowever,  that  no  one  district  shall  be  en 
titled  to  elect  more  than  three  representatives.] 

ART.  G.  The  members  of  the  House  of  Rep 
resentatives  shall  be  chosen  on  the  Tuesday  next 
after  the  first  Monday  in  November,  annually  ;  but 
meetings  may  be  adjourned,  if  necessary,  for  the 
choice  of  representatives,  to  the  next  day,  and 
again  to  the  next  succeeding  day,  but  no  farther : 
but  in  case  a  second  meeting  shall  be  necessary 
for  the  choice  of  representatives,  such  meetings 
shall  be  held  on  the  fourth  Monday  of  the  same 
month  of  November. 

ART.  7.  The  House  of  Representatives  shall 
have  power,  from  time  to  time,  to  impose  fines 
upon  such  towns  as  shall  neglect  to  choose  and 
return  members  to  the  same,  agreeably  to  this 
Constitution. 

ART.  8.  Every  member  of  the  House  of  Rep 
resentatives  shall  have  been  for  one  year,  at  least, 
next  preceding  his  election,  an  inhabitant  of  the 
town  he  shall  be  chosen  to  represent. 

ART.  9.  The  House  of  Representatives  shall 
be  the  grand  inquest  of  this  Commonwealth ;  and 
all  impeachments  made  by  them  shall  be  heard 
and  tried  by  the  Senate. 

ART.  10.  All  money  bills  shall  originate  in 
the  House  of  Representatives  ;  but  the  Senate 
may  propose  or  concur  with  amendments,  as  on 
other  bills. 

ART.  11.  Not  less  than  one  hundred  members 
of  the  House  of  Representatives  shall  constitute  a 
quorum  for  doing  business. 

Mr.  EARLE,  of  "Worcester.  I  move  to  amend 
this  chapter,  in  the  second  article,  by  striking  out 
these  words  : — 

Every  town  containing  eight  thousand  inhabi 
tants,  and  less  than  twelve  thousand,  may  elect 
three  representatives.  Every  city  or  town  con 
taining  twelve  thousand  inhabitants  may  elect 
four  representatives. 

Also  to  strike  out  the  word  "twelve"  in  the 


next  line  below,  and  insert  in  its  place  the  word 
"  four."  The  part  which  I  propose  to  strike  out 
is  mere  surplusage.  The  amendment  will  not 
change  the  meaning  of  the  article,  while  it  will 
divest  it  of  unnecessary  verbiage.  The  article,  as 
it  now  stands,  reads  thus  : — 

ART.  2.  And  in  order  to  provide  for  a  repre 
sentation  of  the  citizens  of  this  Commonwealth, 
founded  upon  the  principle  of  equality,  every 
corporate  town,  containing  less  than  one  thousand 
inhabitants,  may  elect  one  representative  in  the 
year  when  the  valuation  of  estates  shall  be  settled, 
and,  in  addition  thereto,  one  representative  five 
years  in  every  ten  years.  Every  town  containing 
one  thousand  inhabitants  and  less  than  four  thou 
sand,  may  elect  one  representative.  Every  town 
containing  four  thousand  inhabitants  and  less  than 
eight  thousand,  may  elect  two  representatives. 
Every  town  containing  eight  thousand  inhabitants 
and  less  than  twelve  thousand,  may  elect  three 
representatives.  Every  city  or  town  containing 
twelve  thousand  inhabitants,  may  elect  four  rep 
resentatives.  Every  city  or  town  containing  over 
twelve  thousand  inhabitants,  may  elect  one  ad 
ditional  representative  for  every  four  thousand 
inhabitants  it  shall  contain  over  twelve  thousand. 
Any  two  towns,  each  containing  less  than  one 
thousand  inhabitants,  may,  by  consent  of  a  ma 
jority  of  the  legal  voters  present  at  a  legal  meet 
ing,  in  each  of  said  towns  respectively,  called  for 
that  purpose,  form  themselves  into  a  representa 
tive  district,  to  continue  for  the  term  of  not  less 
than  two  years ;  and  such  district  shall  have  all 
the  rights,  in  regard  to  representation,  which  be 
long  to  a  town  having  one  thousand  inhabitants. 
And  this  apportionment  shall  be  based  upon  the 
census  of  the  year  eighteen  hundred  and  fifty, 
until  a  new  census  shall  be  taken. 

If  it  be  amended  as  I  propose,  it  will  then  read 
as  follows  : — 

ART.  2.  And  in  order  to  provide  for  a  repre 
sentation  of  the  citizens  of  this  Commonwealth, 
founded  upon  the  principle  of  equality,  every 
corporate  town  containing  less  than  one  thou 
sand  inhabitants,  may  elect  one  representative  in 
the  year  when  the  valuation  of  estates  shall  be 
settled,  and,  in  addition  thereto,  one  representa 
tive  five  years  in  every  ten  years.  Every  town 
containing  one  thousand  inhabitants  and  less  than 
four  thousand,  may  elect  one  representative. 
Every  town  containing  four  thousand  inhabitants 
and  less  than  eight  thousand,  may  elect  two  rep 
resentatives.  Every  city  or  town  containing  over 
four  thousand  inhabitants,  may  elect  one  ad 
ditional  representative  for  every  four  thousand 
inhabitants  it  shall  contain  over  four  thousand. 
Any  two  towns,  each  containing  less  than  one 
thousand  inhabitants,  may,  by  consent  of  a  ma 
jority  of  the  legal  voters  present  at  a  legal  meet 
ing,  in  each  of  said  towns  respectively,  called  for 
that  purpose,  form  themselves  into  a  representa 
tive  district,  to  continue  for  the  term  of  not  less 
than  two  years ;  and  such  district  shall  have  all 
the  rights,  in  regard  to  representation,  which  be- 


670 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


OLIVER —  EARLE  —  BUTLER  —  SCHOTJLER  —  MORTON  —  BOUTWELL.      [August  1st. 


long  to  a  town  having  one  thousand  inhabitants. 
And  this  apportionment  shall  be  based  upon  the 
census  of  the  year  eighteen  hundred  and  fifty, 
until  a  new  census  shall  be  taken. 

Mr.  OLIVER,  of  Lawrence.  I  would  ask 
•whether  the  article,  if  thus  amended,  will  be  con 
sistent  ? 

Mr.  EAULE.  The  amendment  will  not  change 
the  meaning  of  the  article  at  all.  It  will  rather 
make  it  more  consistent,  if  anything. 

Mr.  BUTLER,  of  Lowell.  I  think  that  this  is 
an  amendment  of  substance  rather  than  of  form, 
and  therefore,  I  must  object  to  it. 

Mr.  EARLE.  I  repeat,  that  it  does  not  change 
the  subject  at  all.  When  I  proposed  this  amend 
ment,  at  the  time  the  article  was  under  considera 
tion  by  the  Convention,  it  was  objected,  that  the 
Committee  on  Revision  would  take  out  all  sur 
plusage,  and  this  not  having  been  done  here  by 
the  Committee,  I  propose  to  strike  it  out  now. 

Mr.  BUTLER.  My  reason  for  thinking  this  a 
substantive  amendment,  is  this  :  You  go  on  pro 
viding  for  the  representation  of  towns  progressive 
ly,  till  you  get  up  to  towns  having  a  sufficient 
number  of  inhabitants  to  entitle  them  to  be  char 
tered  as  cities.  Yet  the  gentleman  from  Worcester 
proposes  to  strike  out  these  words  :  "  Every  city 
or  town  containing  twelve  hundred  inhabitants, 
may  elect  four  representatives."  I  really  do  not 
see  any  necessity  at  all  for  this  amendment. 

Mr.  EARLE.  I  would  like  to  read  the  article 
again,  so  that  the  Convention  may  see  how  the 
matter  will  stand.  [Mr.  Earle  accordingly  read 
the  article  as  he  proposed  to  amend  it,  as  given 
above.]  That  is  precisely  the  provision  now ; 
and  if  we  allow  these  words  to  stand,  we  might 
as  well  go  on  repeating  the  same  words,  until 
we  get  up  to  fifty  representatives.  It  is  mere 
surplusage.  If  the  Convention  choose  to  have 
it,  they  can  say  so  ;  and  if  not,  they  will  strike 
them  out. 

Mr.  SCIIOULER,  of  Boston.  I  am  not  quite 
certain  about  the  amendment  of  the  gentleman 
from  Worcester  being  surplusage;  but  I  feel 
pretty  sure,  that  there  is  some  surplusage  in  the 
first  part  of  the  article.  In  the  first  place,  it 
says  :  "In  order  to  provide  for  a  representation 
of  the  citizen*  of  this  Commonwealth  upon  a  prin 
ciple  of  equality,  every  corporate  town,"  &c.  And 
I  find  also  in  the  first  article  these  words  :  "  There 
shall  be,  in  the  Legislature  of  this  Commonwealth, 
a  representation  of  the  people,  annually  elected, 
and  founded  upon  the  principle  of  equality." 
Now,  all  this  rhodomontade  about  being  "  found 
ed  upon  the  principle  of  equality,"  I  hold  to  be 
not  mere  surplusage,  but  something  a  great  deal 
worse,  [laughter]  ;  and  if  we  are  to  amend  on  the 


principle  of  striking  out  ail  the  "  surplusage,"  it 
strikes  me  there  wift  be  very  little  of  your  new 
Constitution  left.  [Renewed  laughter.] 

The  question  being  taken  on  the  amendment, 
it  was  agreed  to. 

Mr.  MORTON,  of  Taunton.  I  would  ask  the 
attention  of  the  Convention  to  the  eighth  article 
as  it  is  prepared  by  the  Committee.  It  is  as 
follows : — 

ART.  8.  Every  member  of  the  House  of  Rep 
resentatives  shall  have  been  for  one  year,  at  least, 
next  preceding  his  election,  an  inhabitant  of  the 
town  he  shall  be  chosen  to  represent. 

It  seems  to  me  that  the  Committee  have  omitted 
a  very  important  provision  of  the  old  Constitu 
tion.  I  will,  therefore,  read  it.  It  will  be  found 
on  the  eightieth  page  of  the  Constitution  now  in 
the  hands  of  members,  and  is  as  follows  : — 

III.  Every  member  of  the  House  of  Repre 
sentatives  shall  be  chosen  by  written  votes ;  and, 
for  one  year  at  least  next  preceding  his  election, 
shall  have  been  an  inhabitant  of,  [and  have  been 
seized  in  his  own  right  of  a  freehold  of  the  value  of 
one  hundred  pounds,  within  the  town  he  shall  be 
chosen  to  represent,  or  any  ratable  estate  to  the 
value  of  two  hundred  pounds  ;  ]  and  he  shall 
cease  to  represent  the  said  town  immediately  on 
his  ceasing  to  be  qualified  as  aforesaid. 

This  latter  clause,  "  and  he  shall  cease  to  rep 
resent  the  said  town  immediately  on  his  ceasing 
to  be  qualified  as  aforesaid,"  which  I  hold  to  be 
exceedingly  important,  is  here  entirely  omitted. 
I  think  it  should  be  supplied.  I  therefore  move 
to  amend  the  eighth  article  of  this  chapter  by  add 
ing  this  clause  to  it,  so  as  to  make  it  read  : — 

ART.  8.  Every  member  of  the  House  of  Rep 
resentatives  shall  have  been  for  one  year,  at  least, 
next  preceding  his  election,  an  inhabitant  of  the 
town  he  shall  be  chosen  to  represent ;  and  he  shall 
cease  to  represent  the  said  town  immediately  on 
his  ceasing  to  be  qualified  as  aforesaid. 

Mr.  BOUTWELL,  for  Berlin.  If  gentlemen 
will  look  at  the  Constitution  as  it  at  present  stands, 
they  will  perceive  that  there  are  certain  words  in 
the  article  referred  to  by  the  gentleman  from 
Taunton,  enclosed  within  brackets,  involving  a 
property  qualification  for  members,  which  words 
were  stricken  out  by  the  Convention  of  1820, 
leaving  the  article  in  a  somewhat  inelegant,  if  not 
unintelligible,  condition.  We  have,  of  course,  no 
authority  to  say,  that  no  other  words  than  those 
within  the  brackets  were  stricken  out  at  that  time. 
The  qualification  there  alluded  to,  I  take  it,  referred 
entirely  to  property  ;  and  there  can  be  no  doubt, 
that  the  design  of  the  Convention  of  1820  was 


72d  day.] 


REVISED    CONSTITUTION. 


671 


Monday,] 


MORTON  —  BUTLER. 


[August  1st. 


to  do  away  with  that  qualification  only,  because 
the  qualification  of  having  been  a  resident  in  a 
town  one  year  preceding  election,  is  a  qualifica 
tion  that,  by  the  terms  of  the  present  Constitu 
tion,  cannot  cease  after  it  is  obtained;  but  the 
property  qualification  may  cease. 

Mr.  MORTON.  It  seems  to  me  there  need  be 
no  difficulty  in  understanding  the  provision  of 
the  present  Constitution  in  regard  to  this,  as  it 
now  stands.  I  am  aware,  that  originally,  two 
qualifications  for  a  representative  were  required  : 
A  qualification  of  property,  and  also  a  qualifica 
tion  in  regard  to  residence ;  but  the  amendment 
of  1820  struck  out  the  qualification  of  property, 
leaving  that  of  residence.  I  admit  that  the  man 
ner  in  which  this  provision  was  left,  was  very  in 
elegantly  expressed.  But,  if  gentlemen  will  read 
the  provision  as  we  now  receive  it,  I  maintain, 
that  it  is  capable  of  only  one  single  construction. 
It  may  not,  perhaps,  be  expressed  in  the  best  pos 
sible  way,  but  it  certainly  does  provide  for  a  resi 
dence  of  one  year  in  a  town  or  city  prior  to 
election.  That  is  an  indispensable  qualification, 
and  the  true  meaning  of  it  I  hold  to  be,  that  it 
shall  continue  during  the  period  of  service :  that 
when  a  representative  changes  his  residence  into 
another  town,  or  county,  or  State,  he  ceases,  by 
that  act,  to  represent  the  town  for  which  he  was 
elected.  Believing,  therefore,  that  this  is  a  valu 
able  provision,  I  hope  that  we  shall  retain  it  in 
the  revised  Constitution. 

Mr.  BUTLER,  of  Lowell.  I  do  not  under 
stand  how  the  amendment  of  the  gentleman  from 
Tauiitoii  will  reach  what  he  wants  to  reach,  and 
I  should  object  to  it,  somewhat,  if  we  could  get 
at  it.  The  regulation  now  is,  that  every  member 
of  the  House  of  Representatives  shall  have  been 
for  one  year  at  least,  next  preceding  his  election, 
an  inhabitant  of  the  town  he  shall  be  chosen  to 
represent.  He  shall  have  lived  there  a  year 
before  he  is  elected.  Now,  if  he  has  lived  there  a 
year  before  he  is  elected,  there  is  his  full  qualifi 
cation  ;  and  after  this  is  done,  I  do  not  see  how  a 
man  can  help  having  lived  there.  He  may  move 
away  the  next  day,  but  yet,  he  has  lived  there  a 
year. 

Mr.  MORTON.  He  ceases  to  represent  the 
town  immediately  on  his  ceasing  to  be  qualified, 
according  to  the  present  Constitution. 

Mr.  BUTLER.  That  is  one  of  the  reasons 
why  the  Constitution  needs  revising  ;  it  is  one  of 
the  best  arguments  I  could  have,  and  I  thank  the 
gentleman  for  calling  my  attention  to  it.  When 
the  Constitution  was  originally  made,  there  were 
two  qualifications  ;  one  was,  that  he  should  have 
lived  there  a  year,  so  as  to  have  learned  the  wishes 
of  the  inhabitants ;  and  the  other  was,  that  he 


should  have  so  much  money.  When  the  amend 
ment  was  made,  taking  out  the  money  qualifica 
tion  ;  and  Judge  Gushing  came  to  print  his  edition 
and  put  in  the  brackets— for  which  he  has  got  a 
patent — having  done  that,  what  happened  ?  That 
last  line  which  used  to  refer  to  the  money  quali 
fication,  and  which  provided  that  when  he  ceased 
to  be  a  freeholder,  he  ceased  to  represent  the  town 
— when  he  ceased  to  have  property,  he  ceased  to 
be  qualified  as  aforesaid — stands  now  to  refer  to 
something  that  is  wholly  incongruous  with  it.  I 
submit  to  my  learned  friend  from  Taunton, 
whether  it  is  not  just  like  a  seizin,  in  a  deed,  it  is 
either  broken  at  once,  or  it  is  never  broken. 
Now,  we  propose  to  say,  that  although  it  was 
never  broken,  still  it  may  be  broken  afterwards. 
I  appeal  to  him  as  a  lawyer,  if  I  am  not  correct 
in  that  position.  I  insist  that  this  being  qualified 
and  "  ceasing  to  be  qualified  as  aforesaid,"  refers 
simply  to  the  freehold  qualification,  and  not  to  any 
other  part  of  the  Constitution.  When  the  prop 
erty  qualification  Avas  stricken  out,  it  did  not 
make  good  grammar  or  good  sense  to  leave  it 
there  ;  it  made  it  say  that  a  man  should  cease  to 
live  not  before  he  was  elected,  but  after  he  was 
elected ;  and  that  is  one  of  the  reasons  first, 
against  Mr.  Cushing's  copyright,  and  second,  for 
the  revision  of  the  Constitution.  I  think  this 
is  a  valuable  privilege  in.  a  town.  If  a  town 
chooses  to  elect  a  man  who  has  lived  there  and 
has  learned  its  habits,  its  manners,  and  the  wants 
and  wishes  of  the  people,  and  he  has  had  the 
qualification  of  living  there  a  year  before  he  is 
elected,  and  comes  down  here  to  represent  them  ; 
but  yet,  he  chooses  to  move  away  into  another 
town,— now  I  take  it  that  he  is  still  elected  from 
that  town  that  sent  him  here.  If  they  have 
chosen  a  man  to  represent  them,  they  want  to 
have  him  here,  and  what  right  have  we  to  take 
away  their  privilege  ?  He  knows  what  their 
wants  and  wishes  are,  for  he  has  lived  there  long 
enough  to  be  qualified ;  and  if  qualified,  he  can 
not  be  unqualified  by  simply  crossing  an  imagi 
nary  line.  For  one,  I  am  not  willing  that  such  an 
amendment  should  go  in ;  for  it  is  still  an  open 
question. 

Mr.  MORTON.  I  would  not  say  another 
word,  had  it  not  been  that  I  was  appealed 
to  as  a  lawyer,  which  is  somewhat  of  a  misnomer, 
on  the  part  of  the  gentleman  from  Lowell.  I 
know  that  I  have  grown  somewhat  rusty  upon 
that  subject,  but  still,  I  have  kept  in  mind  a  few 
old  rules  of  construction,  which  I  think  are  now 
sound  and  bright,  and  as  good  as  new ;  and  in 
answer  to  the  gentleman,  I  will  refer  to  them. 
In  the  first  place,  it  is  one  of  the  most  ancient  and 
well  established  rules  of  construction,  that  in 


672 


REVISED   CONSTITUTION. 


[72d   day. 


Monday,] 


MORTON  —  BOUTWELL  —  SCHOULER. 


[August  1st. 


construing  a  statute,  or  any  other  public  instru 
ment,  you  must  so  construe  it  as  to  give  effect  to 
all  the  language  used  in  it ;  and  if  it  is  not 
exactly  consistent,  if  some  of  it  appears  to  have 
one  definite  meaning,  yet,  if  taking  it  all  together, 
you  can  give  a  construction  to  it  to  meet  what  is 
well  settled,  you  are  bound  to  give  such  a  con 
struction.  Now,  if  you  take  it  all  together  with 
a  little  latitude  in  construing  the  first  part  of  it, 
you  give  a  meaning  to  the  whole  of  it.  It  pro 
vides  that  he  shall  have  been  an  inhabitant  for  one 
year  next  preceding  his  election,  and  shall  cease 
to  represent  the  said  town  immediately  on  his 
ceasing  to  be  qualified  as  aforesaid.  If  you  take 
a  little  liberal  construction,  this  last  clause  will  be 
applicable  to  the  residence  ;  residence  is  what  they 
are  aiming  at,  as  this  is  necessary  in  order  to  give 
entire  effect  to  the  last  clause.  The  qualification 
refers  to  residence,  and  there  is  nothing  else  that 
it  could  refer  to  ;  and  therefore,  when  he  ceases  to 
be  a  resident  of  that  town,  he  ceases  to  be  quali 
fied.  I  suppose  there  was  some  wisdom,  and  some 
good  sense,  and  some  knowledge  of  English,  in 
the  Convention  which  preceded  us  thirty- three 
years  ago  ;  and  it  seems  to  me  that  we  are  not  at 
liberty  to  assume  that  they  did  not  know  what 
they  were  saying,  and  that  the  language  they  used 
was  a  perfect  nullity,  with  no  meaning  whatever. 
I  suppose  that  respectable  and  learned  body  had 
an  idea  that  they  were  adopting  such  language  as 
would  convey  their  meaning  ;  and  I  am  not  will 
ing  to  adopt  a  construction,  the  effect  of  which, 
would  be  to  stultify  that  Convention  of  great 
men.  Now,  I  differ  with  the  gentleman  from 
Lowell  in  regard  to  the  reasonableness  of  it.  I 
hold  that  a  man,  in  order  to  be  a  representative 
of  a  town,  should  live  in  that  town,  in  order  not 
only  that  he  may  know  what  are  the  views  and 
intentions,  and  wishes  of  the  inhabitants,  but  in 
order  that  his  interest  may  be  identified  with  their 
interests.  If  a  man  is  chosen,  who  the  next  day 
moves  away  into  South  Carolina,  or  New  Orleans, 
or  perhaps  to  some  part  of  Europe,  according  to 
this  construction  of  the  Constitution,  he  can  even 
come  across  the  Atlantic  in  a  steamer  and  take 
his  place  here  in  the  House  of  Representatives, 
when  he  has  no  more  interest  in  the  welfare  of 
the  town  which  he  formerly  lived  in,  than  the 
Queen  of  England  has.  In  that  point  of  view, 
I  think  the  construction  which  I  have  given  is  the 
sound  one,  and  I  hope  it  will  be  retained. 

Mr.  BOUTWELL,  for  Berlin.  I  beg  leave  to 
make  a  suggestion  to  the  Convention  upon  an 
other  point.  Some  gentlemen  have  desired  that 
we  should  propose  specific  amendments  to  the 
Constitution.  I  dare  say,  such  a  motion  will  be 
made  before  we  adjourn  to-night;  but  already 


several  questions  have  arisen  upon  this  floor  as 
to  what  the  Constitution  is,  because  it  is  so  diffi 
cult  to  analyze  the  existing  provisions  so  as  to 
determine  just  how  far  new  amendments  go  in 
nullifying  them.  One  word  upon  this  particular 
point  now  under  discussion.  In  1780,  the  Con 
vention  provided  that  all  persons  should  have 
two  qualifications  to  entitle  them  to  hold  seats  in 
the  House  of  Representatives ;  one  was,  that  they 
should  have  lived  in  the  town  they  were  chosen 
to  represent,  one  year  preceding  their  election  ; 
and  the  other  was,  that  they  should  have  a  certain 
amount  of  property.  In  consequence  of  that, 
they  said  that  a  person  not  thus  qualified  should 
cease  to  represent  the  town  from  which  he  was 
chosen.  I  will  give  to  the  Convention  of  1780 
some  credit  for  intelligence,  although  it  so  hap 
pens  that  the  amendment  alluded  to,  did  not  pass, 
by  the  by,  until  1840  ;  but  they  did  not  intend 
that  a  person  should  cease  to  be  qualified,  from 
any  circumstance  over  which  he  had  power  of 
his  own  will,  but  on  account  of  contingencies  to 
which  he  was,  or  might  be  liable.  There  were 
two  qualifications  ;  he  could  rid  himself  of  the 
one,  but  he  could  not  rid  himself  of  the  other. 
If  he  had  lived  in  the  town  for  twelve  months 
previous  to  his  election,  that  qualification  stood 
by  him.  But,  if  he  possessed  a  hundred  pounds, 
and  should  lose  it  in  speculations,  and  become 
bankrupt,  he  then  ceased  to  be  qualified  to  rep 
resent  the  town.  Therefore,  the  Committee  did 
not  follow  the  interpretation  given  by  the  gentle 
man  who  has  had  charge  of  this  for  twenty  years. 
They  came  to  the  conclusion  that  when  the  peo 
ple  annulled  the  property  qualification,  they  also 
annulled  the  result  of  it. 

Mr.  SCHOULER,  of  Boston.  A  case  came 
up  during  the  last  session  of  the  legislature,  when 
a  man  was  elected  in  the  town  of  Blackstone,  but 
previous  to  the  adjournment  of  the  House  he  had 
removed  to  the  town  of  New  Market,  N.  H.  In 
consequence  of  this  fact,  the  subject  was  referred 
to  a  committee,  and  the  committee  reported  that 
the  seat  was  vacant ;  but  as  it  was  only  a  day  or 
two  before  the  adjournment  of  the  legislature,  no 
action  was  taken  upon  it,  and  the  report  was  laid 
upon  the  table  without  any  decision  being  made. 
It  was  the  decision  of  the  majority  of  the  com 
mittee,  that  the  seat  was  vacant,  under  the  eighth 
article  of  the  Constitution.  Now,  Sir,  I  should 
like  to  understand  this  matter.  I  agree  with  the 
gentleman  for  Berlin,  and  I  thought  so  last 
winter,  that  the  article  was  ambiguous,  and  I 
want  to  make  sense  of  it.  I  should  like  to  know 
whether,  under  this  article,  a  person  could  continue 
to  represent  a  town  even  after  he  had  moved  out 
of  the  State  ;  for  if  so,  I  think  it  should  be  amend- 


72d    day.] 


REVISED   CONSTITUTION. 


673 


Monday,] 


SCHOULER  —  LORD  —  WILKINSON  —  GARDNER  —  DANA. 


[August  1st. 


ed.  There  is  no  propriety  whatever  in  allowing 
a  person  to  represent  a  town  after  he  ceased  to  be 
an  inhabitant  of  the  State,  although  it  might  not 
be  so  bad  if  he  merely  removed  from  one  part  of 
the  State  to  another  part ;  but  an  inhabitant  of 
another  State  certainly  cannot  represent  the  people 
of  this  State.  We  had  up  last  year — and  that  is 
what  brought  the  matter  before  us — one  of  the 
most  important  bills,  that  with  regard  to  the  liquor 
law ;  and  there  are  many  gentlemen  here  who 
will  recollect  it  was  defeated  by  a  tie-vote,  the 
gentleman  from  Blackstone  voting  upon  one  side. 
There  was  another  bill  passed  here,  assessing 
taxes  to  the  amount  of  $300,000  upon  the  people 
of  the  Commonwealth  ;  and  now  the  question  for 
this  Convention  to  decide  is,  whether  a  man  who 
has  moved  out  of  this  Commonwealth  and  is  an 
inhabitant  of  another  State,  has  a  right  to  come 
into  our  legislature  and  vote  to  tax  our  people. 
If  the  construction  at  present  is,  that  a  man  shall 
continue  to  be  a  representative  after  he  has  re 
moved  his  residence  from  the  State,  I  think  this 
article  should  be  amended  so  that  he  shall  cease 
to  be  a  representative  after  he  has  left  the  county 
or  town  where  he  was  chosen — and  above  all, 
when  he  leaves  the  State. 

The  question  being  taken  on  the  amendment 
of  Mr.  Morton,  it  was  not  agreed  to. 

Mr.  LORD,  of  Salem.  I  desire  to  know 
whether  this  is  not  a  matter  of  right  that  this 
should  go  in,  if  anybody  desires  it  r  It  is  printed 
as  a  part  of  our  present  Constitution,  and  no 
action  of  the  Convention  has  stricken  it  out.  I 
desire  to  have  it  put  in  as  we  always  have  had  it 
in,  and  inasmuch  as  there  is  no  authority  that  I 
can  see  for  leaving  it  out. 

The  PRESIDENT.  It  seems  from  the  Report 
of  the  Committee,  that  their  judgment  was  that 
these  words  are  not  a  part  of  the  Constitution. 
They  have  so  reported.  The  Chair  cannot  say 
that  they  are  such  a  part  of  the  Constitution  as 
will  go  into  the  present  draft  upon  the  claim  of  a 
single  member ;  and  therefore  the  question  has 
been  submitted  to  the  judgment  of  the  Conven 
tion. 

Mr.  LORD.  I  desire  to  ask  the  Committee 
what  draft  of  the  Constitution  they  look  upon  as 
authentic.  I  am  not  sure  that  the  Convention 
did  not  reject  this  on  the  ground  that  it  should 
go  in  as  a  matter  of  right  and  not  as  amendment. 
If  those  words  are  a  part  of  our  present  Constitu 
tion,  they  belong  there  as  a  matter  of  right/ be 
cause  this  Convention  has  not  stricken  them  out. 

Mr.  WILKINSON,  of  Dedham.  I  understand 
that  the  Chair  rules  that  these  words  are  not  in 
the  Constitution  ? 

The  PRESIDENT.     The  gentleman  misunder 


stands  the  Chair.  The  Chair  understands  that 
the  Committee  have  reported  that  they  are  not  a 
part  of  the  Constitution. 

Mr.  WILKINSON.  It  seems  to  me  that  there 
ought  to  be  some  way  for  the  Convention  to  settle 
the  question. 

The  PRESIDENT.  The  Chair  has  not  ruled 
that  they  are  not  a  part  of  the  Constitution,  for  if 
that  had  been  the  ruling,  the  Chair  would  not 
have  submitted  the  motion  of  the  gentleman  from 
Taunton,  (Mr.  Morton).  The  question  has  been 
submitted  to  the  Convention,  and  the  Convention 
have  decided  not  to  insert  the  words. 

Mr.  WILKINSON.  It  strikes  me  clearly  that 
the  words  are  in  the  present  Constitution.  I  see 
that  the  article  now  reported  by  the  Committee  is 
entitled  on  the  margin  "qualification."  I  there 
fore  supposed  that  a  person  in  order  to  be  elected 
must  be  an  inhabitant ;  that  is  a  qualification 
which  he  should  possess  at  the  time  of  the  election. 
He  must  have  been  an  inhabitant  for  the  next 
twelve  months  preceding  his  election,  and  that 
necessarily  implies  that  at  the  time  of  his  election 
he  shall  be  an  inhabitant,  for  he  cannot  have  been 
an  inhabitant  for  the  twelve  months  next  preced 
ing  his  election,  unless  at  the  time  of  his  election 
he  is  an  inhabitant.  Well,  then,  inhabitancy  is 
one  of  the  qualifications  necessary  to  constitute  a 
representative,  and  when  the  Constitution  pro 
vides  that  he  should  have  all  those  qualifications, 
and  that  they  should  continue  till  the  election,  it 
seems  to  me  clear  that  the  limitation  implies  the 
qualification  of  inhabitancy.  It  seems  to  me  that 
inhabitancy  is  a  qualification,  and  that  the  quali 
fication  must  continue.  If,  however,  as  seems  to 
be  the  opinion  of  some  gentlemen,  it  is  best  to 
alter  the  Constitution,  then  it  may  be  proper  to 
introduce  such  a  resolution.  At  any  rate,  it  is 
proper  that  we  should  have  a  perfect  understand 
ing  of  this  matter.  It  ought  to  be  settled  one 
way  or  another,  and  therefore  it  seems  proper,  if  the 
President  rules  this  an  amendment  in  substance, 
and  therefore  out  of  order,  that  the  question 
should  at  sometime  be  raised. 

The  PRESIDENT.  The  Chair  did  not  rule 
that.  It  stated  the  question  to  the  Convention, 
and  the  Convention  has  voted  upon  it. 

Mr.  GARDNER,  of  Boston.  Has  the  Chair 
decided  the  motion  of  the  gentleman  from  Boston  ? 

The  PRESIDENT.  It  has  been  decided  by 
the  Convention. 

Mr.  WILKINSON.  I  move  to  reconsider  the 
vote  by  which  the  motion  of  the  gentleman  from 
Taunton,  (Mr.  Morton,)  was  rejected. 

Mr.  DANA,  for  Manchester.  I  think  it  pos 
sible  that  there  is  a  little  misapprehension  in  the 
minds  of  members  of  the  Convention.  By  turn- 


674 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


DAXA  —  GRAY. 


[August  1st. 


ing  to  page  eightieth  of  the  Rules  and  Orders  of 
the  Convention,  you  will  find  in  the  middle  of 
article  third,  of  section  third,  chapter  first,  a  part 
put  in  brackets.  It  is  assumed,  in  the  debates, 
that  the  putting  of  that  part  in  brackets  is  a  legal 
act  done  by  some  authority,  and  that  all  not  in 
brackets  is  not  a  part  of  the  Constitution.  That 
is  not  so.  The  people  of  Massachusetts  have 
never  adopted  those  brackets  in  any  way. 
The  following  is  the  third  article : — 

III.  Every  member  of  the  House  of  Represent 
atives  shall  be  chosen  by  written  votes ;  and,  for 
one  year  at  least  next  preceding  his  election,  shall 
have  been  an  inhabitant  of,  [and  have  been  seized 
in  his  own  right  of,  a  freehold  of  the  value  of  one 
hundred  pounds,  within  the  town  he  shall  be 
chosen  to  represent,  or  any  ratable  estate  to  the 
value  of  two  hundred  pounds ;]  and  he  shall 
cease  to  represent  the  said  town  immediately  on 
his  ceasing  to  be  qualified  as  aforesaid. 

Here  you  see  the  bracket  is  put  after  the  word 
"  pounds  "  instead  of  after  the  word  "  aforesaid," 
as  it  should  have  been.  You  may  ask  how  the 
brackets  came  there.  The  answer  is  this :  In 
1780,  the  whole  of  the  third  article  stood,  requir 
ing  two  qualifications,  that  of  previous  residence, 
and  a  freehold  of  the  value  of  one  hundred 
pounds,  and  the  provision  that  a  member  should 
cease  to  represent  a  town  immediately  on  his 
ceasing  to  be  qualified  as  aforesaid. 

If,  then,  gentlemen  will  turn  to  the  114th  page 
of  the  same  book,  at  the  bottom  of  that  page  they 
will  find  this  amendment : — 

No  possession  of  a  freehold,  or  of  any  other 
estate,  should  be  required  as  a  qualification  for 
holding  a  seat  in  either  branch  of  the  General 
Court,  or  in  the  Executive  Council. 

Then  the  question  is — and  it  is  an  open  ques 
tion,  and  one  never  ruled  upon  by  the  people  of 
the  Commonwealth — did  the  passage  of  that 
amendment  strike  out  all  of  the  latter  part,  or 
only  a  portion  of  the  latter  part  of  the  third  sec 
tion  ?  Judge  Gushing  saw  fit  to  put  the  brackets 
after  the  word  "pounds"  in  his  edition  of  the 
Constitution  which  he  got  up  for  sale,  as  a  private 
matter.  Another  edition  might  have  put  it  after 
the  word « '  aforesaid. ' '  The  legislature  has  printed 
the  Constitution  after  Judge  Gushing' s  edition, 
but  only  for  convenience,  and  not  enacting  con 
stitutional  law  by  brackets. 

The  words  "  and  he  shall  cease  to  represent  the 
said  town  immediately  on  his  ceasing  to  be  qual 
ified  as  aforesaid,"  have  no  more  virtue  than  the 
part  in  brackets.  The  fact  that  the  words  stand 
within  or  without  the  brackets,  has  no  effect 
•whatever.  Then  it  is  an  open  question  as  to 


what  is  the  effect  of  the  last  clause  on  page  114, 
which  I  have  read.  The  Committee  were  of 
opinion  that  it  only  affected  the  qualification  of 
freehold,  because  the  qualification  that  a  man 
should  have  resided  for  one  year,  is  a  thing  which 
either  existed  at  the  time  or  not,  and  if  it  did 
exist  at  the  time,  it  never  ceased  to  exist  after 
wards.  Could  a  man  ever  cease  to  have  been 
twenty- one  years  of  age,  after  he  had  once  been 
so  at  a  given  time  ? 

Mr.  GRAY,  of  Boston.  I  agree  that  the  gen 
tleman  for  Manchester  has  stated  the  question 
fairly,  and  that  is,  that  gentlemen,  whichever  side 
they  take,  are  not  to  rest  their  position  upon  these 
brackets.  I  am  very  sorry  that  this  digest  was 
ever  made  and  adopted.  If  this  were  the  proper 
occasion,  a.  c-mld  point  out  very  important  blun 
ders  in  this  respect. 

If  we  take  the  text  of  the  Constitution  of  1780, 
and  as  it  existed  until  1840,  we  find  the  third 
clause  as  it  stands,  as  it  has  been  read  by  the  gen 
tleman  for  Manchester,  beginning  with  the  words, 
"  every  member,"  and  ending  with  the  word 
"aforesaid."  No  person  raised  a  construction 
upon  that.  But,  in  1840,  the  people  adopted  an 
amendment,  in  which  there  was  a  clause,  very 
clear  and  distinct,  that  no  possession  of  freehold 
or  other  estate  should  be  required  as  a  qualifica 
tion  for  either  branch  of  the  legislature,  or  the 
council.  Now,  I  am  ready,  with  the  gentleman 
for  Manchester,  to  reconcile  those  two  clauses. 

Every  member  of  the  House  of  Representatives 
shall  be  chosen  by  written  votes.  But  what 
qualification  must  he  have  ?  What  incident,  ac 
cident  and  possession,  must  he  have  to  qualify  him 
for  a  seat?  He  must,  for  one  year  preceding  his 
election,  have  been  an  inhabitant  of  the  town,  and 
"  he  shall  cease  to  represent  the  said  town  imme 
diately  on  his  ceasing  to  be  qualified  as  aforesaid." 
I  contend  that  upon  every  fair  principle  of  con 
struction,  that  the  clause,  "  he  shall  cease,"  &c., 
refers  to  the  first  part  of  the  qualification,  as  well 
as  to  the  last ;  refers  to  the  residence,  as  making 
a  part  of  the  qualification.  It  is  a  question  of 
construction.  I  say  it  is  a  question  upon  which 
I  never  entertained  a  doubt ;  and,  until  the  de 
cision  of  the  Committee,  I  did  not  suppose  that 
any  other  one  did.  I  have  heard  that  in  this  Com 
mittee,  or  in  some  other  committee,  the  question 
was  raised  upon  striking  out  this  qualification. 
I  do  maintain  that  this  is  an  essential  part  of 
the  qualification,  and  the  words,  "  he  shall  cease," 
&c.,  refers  to  one  as  well  as  to  the  other.  The 
last  part  being  qualified  by  the  act  of  1840,  we 
need  say  nothing  about  that.  The  question  is 
this,  and  it  is  an  important  one  :  Shall  the  Con 
vention  now  do  what  they  have  not  yet  done, 


72d  day.] 


REVISED  CONSTITUTION. 


675 


Monday,] 


LORD  —  GRAY. 


[August  1st. 


shall  they  abolish  the  qualification  of  residence  ? 
I  think  that  has  not  been  done,  and  if  it  is  to  be 
done,  I  object  to  it. 

This  is  a  question  of  so  much  consequence, 
that  I  venture  to  ask  the  yeas  and  nays  upon  the 
motion  to  reconsider. 

The  yeas  and  nays  were  ordered — one- fifth  of 
the  members  present  voting  therefor. 

Mr.  LORD,  of  Salem.  I  desire  to  call  the  at 
tention  of  those  gentlemen  who  think  that  this 
does  not  relate  to  anything  but  the  freehold,  to 
this  point,  whether  this  proposition  of  the  Consti 
tution  requires  that  the  person  to  be  elected  shall 
be  an  inhabitant  of  the  town  at  the  time  of  his 
election  ?  And  if  they  hold  that  he  must  be  an 
inhabitant  of  the  town  at  the  time  of  his  election, 
where  do  they  get  that  proposition,  except  from 
the  phraseology  that  he  must  have  been  an  inhab 
itant  for  twelve  months  next  preceding  ?  Then, 
if  he  must  have  been  an  inhabitant  for  twelve 
months  next  preceding,  and  if  that  phraseology, 
by  its  own  force  imputes  a  present  inhabitancy, 
the  same  qualification  which  requires  a  twelve 
months'  residence  requires  a  present  inhabitancy. 
If  gentlemen  will  remark  the  next  article  as  it 
stood  in  the  original  Constitution,  they  will  per 
ceive  that  the  same  phraseology  is  used,  and  there 
nobody  doubts  that  present  inhabitancy  is  re 
quired.  The  fourth  article  in  the  original  Con 
stitution,  was  this:  — 

IV.  [Every  male  person,  being  twenty- one 
years  of  age,  and  resident  in  any  particular  town 
in  this  Commonwealth,  for  the  space  of  one  year 
next  preceding,  having  a  freehold  estate  within 
the  same  town,  of  the  annual  income  of  three 
pounds,  or  any  estate  of  the  value  of  sixty  pounds, 
shall  have  a  right  to  vote  in  the  choice  of  a  rep 
resentative  or  representatives  for  the  said  town.] 

Now,  Sir,  does  that  require  present  inhabi 
tancy  ? 

The  hour  of  two  o'clock  having  arrived,  the 
President  adjourned  the  Convention  until  three 
o'clock,  P.  M. 


AFTERNOON    SESSION. 

The  Convention  reassembled  at  three  o'clock, 
P.  M.,  and  resumed  the  consideration  of  the  un 
finished  business  of  the  morning  session. 

Mr.  GRAY,  of  Boston.  It  will  be  recollected 
(hat  I  this  morning  moved  the  yeas  and  nays 
upon  the  question  now  before  the  Convention. 
I  am  unwilling,  when  not  compelled  to  do  so.  to 
make  a  motion  which  merely  takes  up  the  time 
of  the  Convention,  or  even  to  appear  to  make 
such  a  motion.  I  find  that  the  question  of  resi 


dence  of  members  as  a  qualification,  is  disposed  of, 
to  a  great  degree,  by  another  article,  and  though  1 
still  adhere  to  my  argument,  I  do  not  think  it 
important  that  the  yeas  and  nays  should  be  called, 
and  perhaps  other  gentlemen  who  voted  with  me 
will  think  so  also.  I  therefore  move  a  reconsid 
eration  of  the  vote  by  which  the  yeas  and  nays 
were  ordered.  I  trust  gentlemen  will  observe 
that  this  in  no  way  affects  my  argument  as  ap 
plied  to  the  main  question. 

Mr.  LORD,  of  Salem.  I  should  like  to  have 
the  gentleman  from  Boston  tell  us  what  other 
provision  he  refers  to,  as  disposing  of  this  ques 
tion,  to  some  degree  ? 

Mr.  GRAY.  I  refer  to  article  eighth  of  chap 
ter  third  of  the  new  Constitution.  I  had  the 
impression  when  I  made  the  motion,  that  that 
disposed  of  the  whole  question  of  qualification, 
but  it  does  not,  and  my  justification  is,  I  had  but 
little  time  to  go  over  the  pamphlet  containing  the 
Report  of  the  Committee.  Though  I  think  it  an 
important  question,  still,  finding  the  matter  stand 
ing  in  a  different  position  from  what  I  had  sup 
posed,  I  do  not  wish  to  have  the  time  of  the  Con 
vention  taken  up  by  calling  the  yeas  and  nays. 

The  question  was  then  taken  upon  the  motion 
to  reconsider  the  vote  by  which  the  yeas  and  nays 
were  ordered,  and  it  was  decided  in  the  affirma 
tive. 

Mr.  GRAY.  I  now  withdraw  my  motion  for 
the  yeas  and  nays. 

The  question  then  recurred  upon  the  motion 
offered  by  Mr.  Wilkinson,  to  reconsider  the  vote 
by  which  the  Convention  rejected  the  motion  of 
the  gentleman  from  Taunton,  (Mr.  Morton). 

Mr.  GRAY.  I  beg  leave  to  make  a  remark 
or  two.  It  has  been  conceded,  I  believe,  that 
if  there  is  anything  in  the  old  Constitution  which 
has  not  been  struck  out,  it  goes  into  the  new 
Constitution,  as  a  matter  of  course,  and  as  a 
matter  of  right.  Now,  Sir,  it  appears  to  me  to 
be  a  clear  case,  as  it  did  to  my  friend  from  Salem, 
that  these  words  have  not  been  rightfully  struck 
out  by  the  Committee;  that  they  have  never 
been  struck  out  by  the  Convention.  I  make 
these  suggestions  to  bring  the  matter  once  more 
to  the  consideration  of  the  Chair,  and  of  the 
House.  It  is  not  a  question  whether  we  had 
better  do  one  thing  or  the  other,  but  whether 
they  are  not  left  in  by  the  action  of  the  Conven 
tion. 

I  wish  merely  to  make  myself  fully  under 
stood.  Article  eighth  of  chapter  third,  of  the  Re 
port  of  this  Committee,  provides  that  every  mem 
ber  of  the  House  of  Representatives  shall  have 
been,  for  one  year  next  at  least,  preceding  his 
election,  an  inhabitant  of  the  town  he  shall  be 


676 


REVISED   CONSTITUTION. 


[72d  day. 


Monday," 


CHAPIN  —  LORD. 


[August  1st. 


chosen  to  represent.  That,  Sir,  as  I  have  stated, 
provides,  in  a  great  degree,  for  the  question  of 
residence ;  but  there  is  another  branch  which  is 
not  provided  for,  though,  as  I  contend,  it  is  pro 
vided  for  in  the  old  Constitution,  and  that  is, 
that  he  shall  cease  to  be  a  representative  when  he 
ceases  to  be  a  resident.  Now,  the  Committee 
have  struck  out  those  words ;  and  what  I  con 
tend  for,  is,  that  the  Convention  never  did  strike 
them  out,  and  every-body  agrees  they  are  in  the 
old  Constitution,  and  the  Committee  in  doing  it 
committed  a  mistake ;  and  they  should  go  in 
here  as  a  matter  of  course. 

Mr.  CHAPIN,  of  Worcester.  The  question, 
I  believe,  is  on  the  motion  of  the  gentleman  from 
Dedham. 

The  PRESIDENT.  The  question  is  on  the 
motion  to  reconsider  the  vote  by  which  the  amend 
ment  of  the  gentleman  from  Taunton,  (Mr.  Mor 
ton,)  was  rejected. 

The  question  was  then  taken,  and  on  a  di 
vision,  there  were— ayes,  39  ;  noes,  103. 

So  the  motion  to  reconsider  was  not  agreed  to. 

Mr.  LORD,  of  Salem.  I  move  that  all  that 
portion  of  chapter  third  which  relates  to  the 
House  of  Representatives,  involving  articles  two, 
three,  and  four,  be  stricken  out  of  this  chapter, 
and  submitted  to  the  people  as  a  separate  amend 
ment.  The  articles  are  as  follows  : — 

AHT.  2.  And  in  order  to  provide  for  a  repre 
sentation  of  the  citizens  of  this  Commonwealth, 
founded  upon  the  principle  of  equality,  every 
corporate  town,  containing  less  than  one  thou 
sand  inhabitants,  may  elect  one  representative  in 
the  year  when  the  valuation  of  estates  shall  be 
settled,  and,  in  addition  thereto,  one  representa 
tive  five  years  in  every  ten  years.  Every  town 
containing  one  thousand  inhabitants  and  less 
than  four  thousand,  may  elect  one  representative. 
Every  town  containing  four  thousand  inhabitants 
and  less  than  eight  thousand,  may  elect  two  rep 
resentatives.  Every  town  containing  eight  thou 
sand  inhabitants  and  less  than  twelve  thousand, 
may  elect  three  representatives.  Every  city  or 
town  containing  twelve  thousand  inhabitants,  may 
elect  four  representatives.  Every  city  or  town 
containing  over  twelve  thousand  inhabitants,  may 
elect  one  additional  representative  for  every  four 
thousand  inhabitants  it  shall  contain,  over  twelve 
thousand.  Any  two  towns,  each  containing  less 
than  one  thousand  inhabitants,  may,  by  consent  of 
a  majority  of  the  legal  voters  present  at  a  legal 
meeting,  in  each  of  said  towns  respectively,  called 
for  that  purpose,  form  themselves  into  a  repre 
sentative  district,  to  continue  for  the  term  of  not 
less  than  two  years  ;  and  such  district  shall  have 
all  the  rights,  in  regard  to  representation,  which 
belong  to  a  town  having  one  thousand  inhabi 
tants.  And  this  apportionment  shall  be  based 
upon  the  census  of  the  year  eighteen  hundred  and 
fifty,  until  a  new  census  shall  be  taken. 


ART.  3.  The  Senate,  at  its  first  session  after 
this  Constitution  shall  have  been  adopted,  and  at 
its  first  session  after  the  next  State  Census  shall 
have  been  taken,  and  at  its  first  session  next  after 
each  decennial  State  Census  thereafterwards,  shall 
apportion  the  number  of  Representatives  to  which 
each  town  and  city  shall  be  entitled,  and  shall 
cause  the  same  to  be  seasonably  published ;  and 
in  all  apportionments  after  the  first,  the  numbers 
which  shall  entitle  any  town  or  city,  to  two, 
three,  four,  or  more  Representatives,  shall  be 
increased  or  diminished  in  the  same  proportion 
as  the  population  of  the  whole  Commonwealth 
shall  bave  increased  or  decreased  since  the  last 
preceding  apportionment. 

ART.  4.  No  town  hereafter  incorporated,  con 
taining  less  than  fifteen  hundred  inhabitants,  shall 
be  entitled  to  choose  a  representative. 

Mr.  LORD.  I  do  not  think  that  we  shall  do  our 
duty  to  those  who  sent  us  here,  and  who  cer 
tainly  have  a  right  to  have  a  separate  vote  upon 
amendments  so  important  as  these,  unless  we 
provide  that  right.  I  think  it  is  desired  by  the 
people  that  they  should  pass  upon  all  very  im 
portant  changes,  upon  their  merits  separately.  I 
do  not  believe  that  the  people  of  this  Common 
wealth  want  to  have  things  that  they  like,  and 
things  that  they  do  not  like,  mixed  together,  and 
then  to  be  told  "  you  must  take  both,  or  get  nei 
ther."  I  think  the  people  of  the  Commonwealth 
are  as  capable  of  deciding  on  what  they  want,  as 
this  Convention  is.  When  gentlemen  profess  to 
have  so  much  respect  for  the  people,  I  want  them 
to  understand  that  I  think  the  people  have  quite 
as  much  discrimination  as  we  have,  and  that  they 
are  quite  as  capable  of  judging  of  what  they  want, 
as  we  are  to  judge  for  them  ;  and  I  have  no  hes 
itation  in  saying  that  they  would  prefer  to  pass 
upon  this  question  of  the  basis  of  representation, 
without  having  it  sweetened  with  something  the 
Convention  thinks  they  would  like.  The  Con 
vention  in  effect,  says  :  "  We  want  the  people  to 
take  this  basis  of  representation  which  we  have 
prepared  for  them.  We  know  that  the  natural 
sense  of  justice  inherent  in  the  people  will  never 
allow  them  to  pass  this  system  as  it  is ;  but 
we  will  sweeten  it  to  make  it  palatable,  and  thus 
we  will  compel  them  to  take  this  thing  which 
they  do  not  like,  with  something  which  they  do 
like." 

Sir,  I  desire  to  have  somebody  point  out  to  me 
any  difficulty  that  exists  in  the  way  of  these 
three  articles  being  put  at  the  end  of  the  eight 
propositions  on  which  you  propose  to  take  the 
vote  of  the  people  separately,  and  to  make  them 
proposition  number  nine,  for  the  same  purpose, 
and  say — as  we  propose  to  say  in  regard  to  the 
other  eight  propositions— "  If  these  articles  be 
adopted  and  ratified,  then  they  shall  be  a  part  of 


72d  day.] 


REVISED   CONSTITUTION. 


677 


Monday,] 


LOUD  —  HILLARD. 


[August  1st. 


the  Constitution ;  and  if  they  are  not  adopted 
and  ratified,  then  the  present  basis  shall  stand  as 
the  basis  of  representation  until  it  is  changed  by 
some  competent  authority  ? "  I  want  to  know 
the  difficulty  in  the  way  of  this  ?  What  is  it  ? 
Where  is  it  ?  Is  it  not  as  easy  to  submit  separ 
ately  a  question  of  such  vast  moment  and  import 
ance  as  this,  as  any  one  of  the  eight  propositions 
on  which  you  propose  to  take  a  separate  vote  ? 
Quite  as  easy,  Mr.  President,  and  much  more 
desirable ;  but  the  real  fact  is,  that  it  is  an  unjust 
proposition,  and  gentlemen  know  it ;  and,  know 
ing  that,  they  sagaciously  conclude  that  the  peo 
ple  will  not  swallow  it  without  some  sweetening ; 
that  the  people  will  reject  it  unless  something  is 
put  along  with  it  to  make  it  palatable. 

My  idea  is — and  the  people  will  eventually 
acknowledge  that  it  is  the  true  one,  whatever  may 
be  done  by  this  Convention — that  no  one  propo 
sition  which  may  be  popular,  ought  to  be  com 
pelled  to  drag  after  it  an  unpopular  one,  nor 
should  an  unpopular  proposition  be  permitted  to 
hang,  for  its  success,  upon  the  skirts  of  a  popular 
one.  Nobody  in  this  Convention  believes  that 
there  is  the  slightest  difficulty  or  obstruction  in 
the  way  of  putting  this  matter  as  a  separate  ques 
tion  to  the  people — except  that  party  in  the  Con 
vention  who  fear  to  trust  the  people,  arid  who  are 
determined  to  dragoon  them  into  the  adoption  of 
this  measure,  if  they  can  do  so  by  any  possible 
means.  Talk  not  to  me  about  "  trusting  the 
people,"  when  you  dare  not  say  to  them  "  Will 
you  have  this,  or  will  you  have  that  ? "  Sir,  I 
was  surprised  at  the  argument  of  the  gentleman 
for  Berlin,  in  regard  to  this  question,  when  he 
professed  to  entertain  great  fear  that  if  the  ques 
tion  of  the  basis  of  representation  were  put  alter 
nately,  as  between  two  systems,  there  would  be 
danger  of  losing  both!  Sir,  in  adopting  the 
amendment  which  I  suggest,  we  do  not  propose 
to  do  anything  except  to  say  that,  in  case  the 
system  you  have  now  incorporated  into  your 
Constitution  should  not  meet  the  approbation  of 
the  popular  will,  the  system  as  we  now  have  it 
shall  remain  as  it  is.  There  is,  therefore,  none  of 
the  danger  of  which  the  gentleman  speaks  ;  and 
the  only  objection  to  taking  this  question  separ 
ately  that  I  can  see,  is,  a  fixed  determination  to 
cram  this  system  down  the  throats  of  the  people, 
at  the  risk  of  losing  all  the  other  amendments,  or 
of  remaining  upon  the  old  Constitution.  I  have 
heard  no  reason  that  is  at  all  satisfactory  to~my 
mind — nor  have  I  heard  any  that  I  think  will 
satisfy  the  people — why  particular  articles  should 
be  taken  from  the  Constitution  and  put  by  them 
selves,  while  others  are  not  so.  I  regard  this 
question  of  representation  as  one  of  the  most  vital 


questions  that  has  come  before  us  ;  and,  in  refer 
ence  to  it,  I  deem  it  so  important  for  the  people 
to  know  who  are  willing  that  they  should  pass 
upon  it  by  itself — a  proposition  which,  in  my 
judgment,  the  people  would  reject  with  scorn,  as 
an  injustice  that  they  would  be  unwilling  to  per 
petrate — and  also  because,  as  a  member  of  this 
Convention,  I  feel  desirous  that  my  constituents 
should  have  an  opportunity  of  voting  simply 
"yes"  or  "no"  upon  this  matter,  I  ask,  that 
when  the  question  is  taken  upon  my  amendment, 
it  may  be  taken  by  the  yeas  and  nays. 

The  yeas  and  nays  were  accordingly  ordered, 
on  a  division,  the  vote  being — ayes,  55  ;  noes, 
163. 

Mr.  HILLARD,  of  Boston.  As  it  is  so  soon 
after  dinner,  I  wish  to  be  allowed  to  recite,  for 
the  benefit  of  the  Convention,  and  in  answer  to 
the  suggestion  of  my  friend  from  Salem,  (Mr. 
Lord,)  an  Eastern  apologue. 

Once  upon  a  time  an  Arab  was  sick  unto 
death,  and  he  vowed  a  vow  to  the  prophet  that  he 
would  offer  for  sale  his  only  camel,  for  five  pieces 
of  gold,  if  he  were  restored  to  health.  When  he 
got  well  he  felt  sorely  perplexed  as  to  how  he 
should  keep  his  vow — a  perplexity,  I  fancy, 
something  like  that  which  is  experienced  by  the 
majority  of  the  Convention,  in  regard  to  the 
opinions  expressed,  and  promises  heretofore  made, 
and  the  mode  in  which  they  will  show  to  the 
people,  next  November,  how  they  have  been 
true  to  those  opinions  and  promises. 

But  the  way  that  the  Arab  got  out  of  his  diffi 
culty,  was  this  :  He  sent  his  camel  to  the  market 
to  be  sold,  but  he  sent  it  with  a  cat  tied  round  its 
neck,  and  he  ordered  the  crier  to  proclaim  :  "  The 
camel  for  five  pieces  of  gold,  and  the  cat  for  one 
hundred,  but  both  must  be  sold  together."  Thus 
there  arose  a  saying  which  passed  into  a  proverb  : 
"  How  cheap  the  camel  would  be,  if  it  were  not 
for  that  cursed  thing  around  its  neck  ! " 

So  it  is  with  the  discordant  provisions  contained 
in  the  first  proposition  to  be  submitted  to  the 
people.  The  cat  and  the  camel  must  be  sold  to 
gether.  He  who  wants  only  one,  must  take  both 
or  none.  [Laughter.] 

Mr.  LOUD.  I  think  the  question  should  em 
brace  the  second,  third,  fourth,  and  fifth  articles. 
When  I  moved  the  amendments,  I  only  included 
the  second,  third,  and  fourth.  I  now  move  to 
add  the  fifth,  as  follows  : — 

ART.  5.  Each  city  in  this  Commonwealth, 
shall  be  divided,  by  such  means  as  the  Legislature 
may  provide,  into  districts  of  contiguous  territory, 
as  nearly  equal  in  population  as  may  be,  for  the 
election  of  representatives,  which  districts  shall 
not  be  changed  oftener  than  once  in  five  years  : 


678                                         REVISED   CONSTITUTION. 

[72d  day. 

* 
Monday,]                                                         YEAS  —  NAYS. 

[August  1st. 

provided,  towever,  that  no  one  district  shall  be  en-      Baker,  Hillel 

Fiske,  Emery 

titled  to  elect  more  than  three  representatives. 

Ball,  George  S. 

Fowle,  Samuel 

Bancroft,  Alpheus 

Freeman,  James  M. 

As  the  order  for  the  yeas  and  nays  did  not  in 

Bartlett,  Russel 

French,  Charles  A. 

clude  the  question  on  the  fifth  article,  I  hope  it 

Barrett,  Marcus 

French,  Rodney 

may,  by  general  consent,  be  included  without  the 
necessity  of  calling  for  another  division. 
No  objection  was  made,  and  the  fifth  article 

Bates,  Eliakim  A. 
Beal,  John 
Bennett,  William,  Jr. 
Bennett,  Zephaiiiah 

French,  Samuel 
Gardner,  Johnson 
Gates,  Elbridge 
Gilbert,  Wanton  C. 

was  included  in  the  question  to  be  taken  by  the 

Bigelow,  Edward  B. 

Gilbert,  Washington 

yeas  and  nays,  which  were  then  taken,  and  re 

Bird,  Francis  W. 

Giles,  Charles  G. 

sulted  —  yeas,  91  ;  nays,  205  —  as  follows  :  — 

Booth,  William  S. 
Boutwell,  Geo.  S. 

Gooch,  Daniel  W. 
Gooding,  Leonard 

"VT?  A  d 

Bout  well,  Sewell 

Graves,  JohnW. 

JLJ&AO* 

Breed,  Hiram  N. 

Green,  Jabez 

Abbott,  Alfred  A.           Jenkins,  John 

Bronson,  Asa 

Greene,  William  B. 

Adams,  Benjamin  P.       Jenks,  Samuel  H. 

Brown,  Adolphus  F. 

Griswold,  Jo.siah  W. 

Aldrich,  P.  Emory          Kellogg,  Giles  C. 

Brown,  Alpheus  R. 

Griswold,  Whiting 

Aspiiiwall,  William         Kuhn,  George,  H. 

Brown,  Artemas 

Hadley,  Samuel  P. 

Ayres,  Samuel                  Lincoln,  Abishai 

Brown,  Hammond 

Hallett,  B.  F. 

Burtlett,  Sidney                Littlefield,  Tristram 

Brown,  Hiram  C. 

Hapgood,  Seth 

Beach,  Erasmus  D.         Livermore,  Isaac 

Brownell,  Frederick 

Harmon,  Phineas 

Bigelow,  Jacob                 Lord,  Otis  P. 

Brownell,  Joseph 

Hayden,  Isaac 

Bradbury,  Ebenezer         Lothrop,  Samuel  K. 

Bryant,  Patrick 

Hazewell,  Charles  C. 

Bradford,  William  J.  A,  Loud,  Samuel  P. 

Buck,  Asahel 

Heath,  Ezra,  2d, 

Braman,  Milton  P.          Lowell,  John  A. 

Bullen,  Amos  H. 

Hewes,  William  H. 

Bullock,  Rufus                 Miller,  Seth,  Jr. 

Burlingame,  Anson 

Heywood,  Levi 

Choate,  Rufus                  Morey,  George 

Butler,  Benjamin  F. 

Hobart,  Henry 

Cogswell,  Nathaniel        Morss,  Joseph  B. 

Caruthers,  William 

Hobbs,  EdAvin 

Cook,  Charles  E.              Morton,  Marcus 

Case,  Isaac 

Holder,  Nathaniel 

Cooledge,  Henry  F.         Noyes,  Daniel 

Chandler,  Amariah 

Hood,  George 

Copeland,  Benjamin  F.   Oliver,  Henry  K. 

Chapin,  Chester  W. 

Howard,  Martin 

Davis,  John                       Paige,  James  W. 

Chapn,  Daniel  E. 

Howland,  Abraham  H. 

Davis,  Solomon                Park,  John  G. 

Chapin,  Henry 

Hoyt,  Henry  K. 

Denison,  Hiram  S.          Parker,  Adolphus  G. 

Chllds,  Josiah 

Hurlbut,  Moses  C. 

Eaton,  Lilley                     Parker,  Joel 

Clark,  Henry 

Ide,  Abijah  M.,  Jr. 

Ely,  Homer                      Perkins,  Daniel  A. 

Clark,  Ransom 

Jacobs,  John 

Farwell,  A.  G.                 Perkins,  Jonathan  C. 

Clark,  Salah 

Johnson,  John 

Fowler,  Samuel  P.          Plunkett,  William  C. 

Clarke,  Alpheus  B. 

Kendall,  Isaac 

French,  Charles  H.          Pomroy,  Jeremiah 

Clarke,  Sdllman 

Keycs,  Edward  L. 

Gardner,  Henry  J.           Putnam,  George 

Cole,  Lansing  J. 

Kimball,  Joseph 

Gould,  Robert                  Rantoul,  Robert 

Cole,  Sumner 

Kingman,  Joseph 

Goulding,  Dalton            Read,  James 

Crane,  George  B. 

Knight,  Hiram 

Gray,  John  C.                  Reed,  Sampson 

Cressy,  Oliver  S. 

Knight,  Jefferson 

Hale,  Artemas                  Sargent,  John 

Crittenden,  Simeon 

Knight,  Joseph 

Hammond,  A.  B.             Souther,  John 

Cross,  Joseph  W. 

Knowlton,  J.  S.  C. 

Haskell,  George               Stetson,  Caleb 

Cushman,  Henry  W. 

Knowlton,  William  H. 

Hathaway,  Eliiathan  P.  Stevens,  Charles  G. 

Cushman,  Thomas 

Knox,  Albert 

Hawkes,  Stephen  E.        Stevenson,  J.  Thomas 

Cutler,  Simeon  N. 

Ladd,  Gardner  P. 

Hayward,  George             Talbot,  Thomas 

Dana,  Richard  H.,  Jr. 

Langdon,  Wilber  C. 

Heard,  Charles                 Thompson,  Charles 

Davis,  Ebenezer 

Lawrence,  Luther 

Hersey,  Henry                 Tyler,  John  S. 

Davis,  Isaac 

Leland,  Alden 

Hewes,  James                   Upton,  George  B. 

Davis,  Robert  T. 

Little,  Otis 

Hillard,  George  S.           Walcott,  Samuel  B. 

Dean,  Silas 

Marble,  William  P. 

Hooper,  Foster                 Wheeler,  William  F. 

Doming,  Elijah  S. 

Marvin,  Abijah  P. 

Hopkinson,  Thomas         Wilbur,  Joseph 

Denton,  Augustus 

Mason,  Charles 

Houghton,  Samuel          Wilder,  Joel 

Duncan,  Samuel 

Merritt,  Simeon 

Hubbard,  William  J.      Wilkinson,  Ezra 

Dunham,  Bradish 

Monroe,  James  L. 

Hunt,  William                 Williams,  Henry 

Durgin,  John  M. 

Moore,  James  M. 

Hurlburt,  Samuel  A.       AVilson,  Milo 

Eames,  Philip 

Morton,  Elbridge  G. 

Jackson,  Samuel 

Eaiie,  John  M. 

Morton,  Marcus,  Jr. 

Easland,  Peter 

Morton,  William  S. 

Eaton,  Calvin  D. 

Nash,  Hiram 

NAYS. 

Edwards,  Elisha 

Nayson,  Jonathan 

Adams,  Shubael  P.         Alley,  John  B. 

Edwards,  Samuel 

Nichols,  William 

Allen,  Charles                  Allis,  Josiah 

Fay,  Sullivan 

Nute,  Andrew  T. 

Allen,  James  B.               Alvord,  D.  W. 

Fellows,  James  K. 

Orne,  Benjamin  S. 

Allen,  Joel  C.                   Austin,  George 

Fisk,  Lyman 

Osgood,  Charles 

72d  day.] 

REVISED    CONSTITUTION.                                       679 

Monday,] 

ABSENT  —  GARDNER.                                             [August  1st. 

Packer,  E.  Wing 

Stevens,  Granville                Loomis,  E.  Justin            Stevens,  Joseph  L.,  Jr. 

Paine,  Benjamin 

Stevens,  William 

Marcy,  Laban                   Storrow,  Charles  S. 

Paine,  Henry 

Stiles,  Gideon 

Marvin,  Theophilus  R.    Strong,  Alfred  L. 

Parris,  Jonathan 

Taber,  Isaac  C. 

Meader,  Reuben               Stutson,  Wilh'am 

Partridge,  John 

Taft,  Arnold 

Mixter,  Samuel                 Sunnier,  Charles 

Peabody,  Nathaniel 

Thayer,  Willard,  2d 

Newman,  Charles             Sumner,  Increase 

Peiiniman,  John 

Thomas,  John  W. 

Norton,  Alfred                 Swain,  Alansou 

Perkins,  Jesse 

Tilton,  Abraham 

Ober,  Joseph  E.               Taylor,  Ralph 

Perkins,  Noah  C. 

Tyler,  William 

Orcutt,  Nathan                 Thayer,  Joseph 

Phinney,  Silvanus  B. 

Underwood,  Orison 

Parker,  Samuel  D.           Tileston,  Edmund  P. 

Pierce,  Henry 

Viles,  Joel 

Parsons,  Samuel  C.          Tilton,  Horatio  W. 

Putnam,  John  A. 

Yinton,  George  A. 

Parsons,  Thomas  A.        Tower,  Ephraim 

Pvawson,  Silas 

Wallace,  Frederick  T. 

Payson,  Thomas  E.          Train,  Charles  R. 

Rice,  David 

Wallis,  Freeland 

Peabody,  George              Turner,  David 

Richards,  Luther 

Walker,  Amasa 

Pease,  Jeremiah,  Jr.         Turner,  David  P. 

Richardson,  Daniel 

Ward,  Andrew  H. 

Phelps,  Charles                 Upham,  Charles  W. 

Richardson,  Nathan 

Weston,  Gershom  B. 

Pool,  James  M.                Wales,  Bradford  L. 

Richardson,  Samuel  H. 

White,  Benjamin 

Powers,  Peter                   Walker,  Samuel 

Ring,  Elkanah,  Jr. 

White,  George 

Preston,  Jonathan            Warner,  Marshal 

Rogers,  John 

Whitney,  Daniel  S. 

Prince,  F.  O.                    Warner,  Samuel,  Jr. 

Ross,  David  S. 

Whitney,  James  S. 

Rockwell,  Julius              Waters,  Asa  H. 

Royce,  James  C. 

Wilbur,  Daniel 

Rockwood,  Joseph  M.     Weeks,  Cyrus 

Sanderson,  Amasa 

Williams,  J.  B. 

Sampson,  George  R.        Wetmore,  Thomas 

Sanderson,  Chester 

Wilson,  Henry 

Schouler,  William            Wilkins,  John  H. 

Sherril,  John 

Wilson,  Willard 

Sheldon,  Luther               Winn,  Jonathan  B. 

Simmons,  Perez 

Winslow,  Levi  M. 

Sherman,  Charles             Wood,  William  H. 

Simonds,  John  ~SV. 

Wood,  Charles  C. 

Sikes,  Chester                   Woods,  Josiah  B. 

Smith,  Matthew 

Wood,  Nathaniel 

Sleeper,  John  S. 

Sprague,  Melzar 
Spooner,  Samuel  W. 

Wood,  Otis 
Wright,  Ezekiel 

Absent  and  not  voting,  123. 

Stacy,  Eben  H. 

Mr.    GARDNER.     I  wish  that  this  matter 

ABSENT. 

might,  if  possible,  be  sent  out  to  the  people  with 

out  any  contradiction  of  principle  upon  its  face. 

Abbott,  Josiah  G. 

Dehon,  William 

The  first  article  of  this  third  chapter,  is  as  follows  : 

Allen,  Parsons 

DeWitt,  Alexander 

Andrews,  Robert 
Appleton,  William 
Atwood,  David  C. 
Ballard,  Alvah 
Banks,  Nathaniel  P.,  Jr 

Doaiie,  James  C. 
Dorman,  Moses 
E  as  ton,  James,  2d 
Ely,  Joseph  M. 
.  Eustis,  William  T. 

ARTICLE  1.     There  shall  be,  in  the  Legislature 
of  this   Commonwealth,  a  representation  of  the 
people,  annually  elected,  and  founded  upon  the 
principle  of  equality. 

Barrows,  Joseph 
Bates,  Moses,  Jr. 

Fitch,  Ezekiel  W. 
Foster,  Aaron 

In  order  to  make  this  article  consistent  with 

Beebe,  James  M. 

Foster,  Abram 

the  one  following  it,  I  wish  to  amend  it  thus  : 

Bell,  Luther  V. 

Frothmgham,  Rich'd,  Jr. 

strike  out  the  word  "  people,"  in  the  second  line, 

Bishop,  Henry  W. 

Gale,  Liithcr 

and  insert  the  words  "  several  towns  ;"  and  also 

Blagden,  George  W. 

Giles,  Joel 

strike  out  the  last  word  in  the  article,  "  equality," 

Bliss,  Gad  O. 
Bliss,  Willam  C. 

Goulding,  Jason 
Greenleaf,  Simon 

J.                 J  " 

and  insert  the  words  "  prerogative  rights."     It 

Brewster,  Osmyn 

Hale,  Nathan 

will  then  read  :  — 

Brinley,  Francis 

Hall,  Charles  B. 

Briggs,  George  N. 

Hapgood,  Lyman  W. 

ARTICLE  1.     There  shall  be,  in  the  Legislature 

Bumpus,  Cephas  C. 

Haskms,  William 

of  this  Commonwealth,  a  representation   of  the 

Cady,  Henry 

Henry,  Samuel 

several  towns,    annually   elected,    and    founded 

Carter,  Timothy  W. 

Hinsdale,  William. 

upon  the  principle  of  prerogative  rights. 

Churchill,  J.  McKean 

Hobart,  Aaron 

Cleverly,  William 

Hunt,  Charles  E. 

The  PRESIDENT.     The  Chair  is  of  opinion 

Coggin,  Jacob 

Htmtington,  Asahel 

that  the  amendment  is  not  in  order,  being  one  of 

Conkey,  Ithamar 
Crockett,  George  W. 
Crosby,  Leander 

Huntiiigton,  Charles  P. 
Huntingtoii,  George  H. 
Hyde,  Benjamin  D. 

substance,  and  not  of  form. 
No  other  amendment  being  offered,  the  third 

Crowell,  Seth 

James,  William 

chapter,  as  amended,  was  finally  passed,  and  the 

Crowninshield,  F.  B. 

Kellogg,  Martin  R. 

Secretary  proceeded  to  read  chapter  four,  containing 

Cummings,  Joseph 
Curtis,  Wilber 
Davis,  Charles  G. 
Dawes,  Henry  L. 

Kinsman,  Henry  W. 
KnoAvlton,  Charles  L. 
Ladd,  John  S. 
Lawton,  Job  G.,  Jr. 

provisions  in  relation  to  the  governor  and  his  title 
—  his  qualifications  and  tenure  of  office  —  the  mode 
of  his  election,  and  by  whom  —  his  powers,  and  the 

Day,  Gilman 

Lincoln,  Frederic  W.,  Jr. 

powers  of  the  council—  notaries  public—  coroners 

680 


REVISED   CONSTITUTION. 


[72d  day. 


Monday,] 


GOVERNOR. 


[August  1st. 


— mode  of  drawing  money  from  the  treasury — 
the  duties  of  public  boards  in  regard  to  their  re 
turns — and,  lastly — the  salary  of  the  governor, 
the  whole  chapter  containing  twelve  articles.  It 
is  as  follows  : — 

ARTICLE  1.  There  shall  be  a  supreme  execu 
tive  magistrate,  who  shall  be  styled,  THE  GOVER 
NOR  or  THE  COMMONWEALTH  OF  MASSACHUSETTS. 

ART.  2.  The  governor  shall  be  a  citizen  of 
Massachusetts,  and  shall  be  chosen  annually,  by 
the  inhabitants  of  the  towns  and  cities  of  this  Com 
monwealth,  on  the  Tuesday  next  after  the  first  Mon 
day  in  November.  He  shall  hold  his  office  for 
one  year  next  following  the  first  Wednesday  of 
January,  and  until  another  is  chosen  and  qualified 
in  his  stead.  And  no  person  shall  be  eligible  to 
this  office,  unless,  at  the  time  of  his  election,  he 
shall  have  been  an  inhabitant  of  this  Common 
wealth  for  seven  years  next  preceding. 

ART.  3.  Those  persons  who  shall  be  qualified 
to  vote  for  senators  and  representatives,  within 
the  several  towns  of  this  Commonwealth,  shall, 
at  \L  meeting  to  be  called  for  that  purpose,  on  the 
Tuesday  next  after  the  first  Monday  in  November, 
annually,  give  in  their  votes  for  a  governor,  to 
the  selectmen,  who  shall  preside  at  such  meeting, 
and  the  town  clerk,  in  the  presence  and  with  the 
assistance  of  the  selectmen,  shall,  in  open  town 
meeting,  sort  and  count  the  votes,  and  form  a  list 
of  the  persons  voted  for,  with  the  number  of  votes 
for  each  person  against  his  name  ;  and  shall  make 
a  fair  record  of  the  same  in  the  town  books,  and 
a  public  declaration  thereof  in  the  said  meeting  ; 
and  shall,  in  the  presence  of  the  inhabitants,  seal 
up  copies  of  the  said  list,  attested  by  him  and  the 
selectmen,  and  transmit  the  same  to  the  sheriff  of 
the  county,  thirty  days  at  least  before  the  first 
Wednesday  in  January;  and  the  sheriff  shall 
transmit  the  same  to  the  secretary's  office  seven 
teen  days  at  least  before  the  said  first  Wednesday 
in  January  ;  or  the  selectmen  may  cause  returns 
of  the  same  to  be  made  to  the  office  of  the  secre 
tary  of  the  Commonwealth  seventeen  days  at 
least  before  the  said  day  ;  and  the  secretary  shall 
lay  the  same  before  the  Senate  and  the  House  of 
Representatives,  on  the  first  Wednesday  in  Jan 
uary,  to  be  by  them  examined  ;  and  in  case  of  an 
election,  the  choice  shall  be  by  them  declared  and 
published. 

ART.  4.  The  governor  shall  have  authority, 
from  time  to  time,  at  his  discretion,  to  assemble 
and  call  together  the  councillors  of  this  Common 
wealth  for  the  time  being ;  and  the  governor, 
with  the  said  councillors,  or  five  of  them  at  least, 
shall,  and  may,  from  time  to  time,  hold  and  keep 
a  Council,  for  the  ordering  and  directing  the 
affairs  of  the  Commonwealth,  agreeably  to  the 
Constitution  and  the  laws  of  the  land. 

ART.  5.  The  governor,  with  advice  of  Council, 
shall  have  full  power  and  authority,  during  the 
session  of  the  General  Court,  to  adjourn  or  pro 
rogue  the  same  to  any  time  the  two  Houses  shall 
desire ;  and  in  the  recess  of  the  said  Court,  to 
prorogue  the  same  from  time  to  time,  not  exceed 
ing  ninety  days  in  any  one  recess  ;  and  to  call  it 
together  sooner  than  the  time  to  which  it  may  be 


adjourned  or  prorogued,  if  the  welfare  of  the 
Commonwealth  shall  require  the  same;  and  in 
case  of  any  infectious  distemper  prevailing  in  the 
place  where  the  said  Court  is  next,  at  any  time 
to  convene,  or  any  other  cause  happening,  where 
by  danger  may  arise  to  the  health  or  lives  of  the 
members  from  their  attendance,  he  may  direct  the 
session  to  be  held  at  some  other,  the  most  conve 
nient  place  within  the  State. 

ART.  6.  In  cases  of  disagreement  between  the 
two  Houses,  with  regard  to  the  necessity,  expe 
diency  or  time  of  adjournment,  or  prorogation, 
the  governor,  with  advice  of  the  Council,  shall 
have  a  right  to  adjourn  or  prorogue  the  General 
Court,  not  exceeding  ninety  days,  as  he  shall  de 
termine  the  public  good  shall  require. 

ART.  7.  The  power  of  pardoning  offences,  ex 
cept  such  as  persons  may  be  convicted  of  before 
the  Senate,  by  an  impeachment  of  the  House, 
shall  be  in  the  governor,  by  and  with  the  advice 
of  Council ;  but  no  charter  of  pardon,  granted  by 
the  governor,  with  advice  of  the  Council,  before 
conviction,  shall  avail  the  party  pleading  the  same, 
notwithstanding  any  general  or  particular  ex 
pressions  contained  therein,  descriptive  of  the 
offence  or  offences  intended  to  be  pardoned. 

ART.  8.  Notaries  public  shall  be  appointed  by 
the  governor,  in  the  same  manner  as  judicial  offi 
cers  are  appointed,  and  shall  hold  their  offices 
during  seven  years,  unless  sooner  removed  by  the 
governor,  with  the  consent  of  the  Council,  upon 
the  address  of  both  Houses  of  the  General  Court. 

ART.  9.  Coroners  shall  be  nominated  and  ap 
pointed  by  the  governor,  by  and  with  the  advice 
and  consent  of  the  Council ;  and  every  such  nom 
ination  shall  be  made  by  the  governor,  and  made 
at  least  seven  days  prior  to  such  appointment. 

ART.  10.  No  moneys  shall  be  issued  out  of 
the  treasury  of  this  Commonwealth  and  disposed 
of,  (except  such  sums  as  may  be  appropriated  for 
the  redemption  of  bills  of  credit  or  treasurer's 
notes,  or  for  the  payment  of  interest  arising  there 
on,)  but  by  warrant  under  the  hand  of  the  gov 
ernor  for  the  time  being,  with  the  advice  and  con 
sent  of  the  Council,  for  the  necessary  defence  and 
support  of  the  Commonwealth  ;  and  for  the  pro 
tection  and  preservation  of  the  inhabitants  thereof, 
agreeably  to  the  acts  and  resolves  of  the  General 
Court. 

ART.  11.  All  public  boards,  the  commissary- 
general,  all  superintending  officers  of  public  mag 
azines  and  stores,  belonging  to  this  Common 
wealth,  and  all  commanding  officers  of  forts  and 
garrisons  within  the  same,  shall,  once  in  every 
three  months,  officially  and  without  requisition, 
and  at  other  times,  when  required  by  the  gover 
nor,  deliver  to  him  an  account  of  all  goods, 
stores,  provisions,  ammunition,  cannon  with  their 
appendages,  and  small  arms  with  their  accoutre 
ments,  and  of  all  other  public  property  whatever 
under  their  care,  respectively  ;  distinguishing  the 
quantity,  number,  quality  and  kind  of  each,  as 
particularly  as  may  be ;  together  with  the  condi 
tion  of  such  forts  and  garrisons  ;  and  the  said 
commanding  officer  shall  exhibit  to  the  governor, 
when  required  by  him,  true  and  exact  plans  of 
such  forts,  and  of  the  land  and  sea,  or  harbor  or 
harbors,  adjacent. 


72d  day.] 


REVISED   CONSTITUTION. 


681 


Monday,] 


HATHAWAY  —  BOUT  WELL —  MILLER. 


August  1st. 


And  the  said  boards,  and  all  public  officers, 
shall  communicate  to  the  governor,  as  soon  as 
may  be  after  receiving  the  same,  all  letters,  des 
patches,  and  intelligences  of  a  public  nature, 
•which  shall  be  directed  to  them  respectively. 

AIIT.  12.  As  the  public  good  requires  that  the 
governor  should  not  be  under  the  undue  influence 
of  any  of  the  members  of  the  General  Court,  by 
a  dependence  on  them  for  his  support — that  he 
should,  in  all  cases,  act  with  freedom  for  the  ben 
efit  of  the  public — that  he  should  not  have  his 
attention  necessarily  diverted  from  that  object  to 
his  private  concerns — and  that  he  should  main 
tain  the  dignity  of  the  Commonwealth  in  the 
character  of  its  chief  magistrate — it  is  necessary 
that  he  should  have  an  honorable  stated  salary, 
of  a  fixed  and  permanent  value,  amply  sufficient 
for  those  purposes,  and  established  by  standing 
laws  :  and  it  shall  be  among  the  first  acts  of  the 
General  Court,  after  the  commencement  of  this 
Constitution,  to  establish  such  salary  by  law  ac 
cordingly. 

Mr.  HATHAWAY,  of  Freetown.  As  there 
was  a  question  raised,  and  some  difficulty  felt 
upon  the  subject,  in  regard  to  the  qualifications  of 
members  of  the  House  of  Representatives,  as  they 
existed  under  the  amended  Constitution  of  1820, 
I  wish  to  call  the  attention  of  the  Convention  to 
another  matter  about  which  there  seems  to  me  to 
be  no  question — that  is,  the  qualifications  of  a 
governor.  If  I  read  the  Constitution  correctly  as 
it  now  stands,  it  requires  that  no  person  shall 
be  eligible  to  the  office  of  governor,  unless,  at  the 
time  of  his  election,  he  has  been  an  inhabitant  of 
the  Commonwealth  for  seven  years  next  preced 
ing  such  election.  Here  is  the  provision  as  it 
stands  in  our  present  Constitution : — 

"The  governor  shall  be  chosen  annually;  and 
no  person  shall  be  eligible  to  this  office,  unless,  at 
the  time  of  his  election,  he  shall  have  been  an  in 
habitant  of  this  Commonwealth  for  seven  years 
next  preceding." 

I  would  inquire  whether  there  has  been  any 
action  of  the  Convention  by  which  that  provision 
of  our  present  Constitution  was  amended  ?  And 
if  there  was  no  such  action  why  is  it  omitted 
here  ?  If  I  recollect  rightly — and  I  think  I  am 
right,  although  I  have  not  now  the  record  of  de 
bates  before  me — when  this  question  was  asked 
on  a  former  occasion,  it  was  stated  that  the  Com 
mittee  had  only  reported  in  part.  The  gentleman 
from  Worcester,  (Mr.  Davis,)  and  also  my  friend 
from  Wareham,  (Mr.  Miller,)  were  on  that  Com 
mittee,  and  when  I  inquired  in  regard  to  ~this 
matter,  it  was  said  that  everything — except  those 
matters  in  which  the  Committee  recommended  a 
change — would  be  retained,  and  ought  to  be  re 
tained  in  the  Constitution.  That  was  my  answer. 
Now,  if  there  was  any  action  of  the  Convention 

463 


in  regard  to  this  matter  changing  the  requirement 
of  a  seven  years'  residence  in  the  election  of  gov 
ernor,  I  should  like  to  be  informed  what  that 
action  was,  and  when  and  under  what  circum 
stances  it  was  had.  I  make  no  motion  for  any 
amendment,  but  I  should  certainly  like  to  have 
this  explained. 

Mr.  EOUTWELL,  for  Berlin.  I  am  not  able 
to  answer  the  gentleman  from  Freetown,  but  I 
think  we  have  a  resolution  that  will  meet  the 
case. 

Mr.  MILLER,  of  Wareham.  I  recollect  very 
well  when  the  Report  first  came  up,  the  gentleman 
from  Freetown,  (Mr.  Hathaway,)  inquired  at  the 
time  in  reference  to  this  qualification  of  a  seven 
years'  residence  for  a  governor ;  and  that  I  then 
rose  in  my  place  and  stated  that  we  intended 
that  provision  to  remain  in  the  Constitution. 
I  have  no  recollection  of  any  action  of  this 
Convention  alteiing  the  determination  of  the 
Committee  to  whom  this  portion  of  the  Constitu 
tion  was  referred. 

Mr.  HATHAWAY.  If  the  gentleman  will 
pardon  me,  I  will  make  an  inquiry.  I  wish  to 
know  whether  the  Committee  of  which  the  gen 
tleman  was  one,  and  who  had  this  under  con 
sideration  at  the  time,  reported  any  action  for  this 
Convention  to  take  in  reference  to  the  seven 
years'  residence. 

Mr.  MILLER.  The  Committee  did  not  report 
any  action  on  that  point,  but  they  supposed — as  it 
is  stated  in  the  present  Constitution,  that  the 
governor  shall,  at  the  time  of  his  election,  have 
been  an  inhabitant  of  the  Commonwealth  for 
seven  years  next  preceding — that  this  provision 
would  remain  in  the  Constitution.  That  was  re 
garded  as  decided  upon.  In  the  new  Constitu 
tion,  there  is  a  requirement  of  a  five  years'  resi 
dence  in  the  Commonwealth  to  enable  a  person  to 
be  qualified  to  be  a  senator  ;  and,  it  appears  to  me, 
that  if  you  require  a  residence  of  five  years  for  a 
senator,  you  should,  at  least,  require  five,  if  not 
seven  years'  residence  in  order  to  make  a  person 
eligible  for  the  higher  office  of  governor.  The  term 
"  citizen  of  Massachusetts,"  I  remember,  was  dis 
cussed  very  much  in  the  Convention  at  the  time  ; 
but  I  know  of  no  action,  either  in  Convention  or 
in  Committee,  that  has  altered,  or  that  was  in 
tended  to  alter,  the  present  requisition  of  seven 
years  in  order  to  make  a  person  eligible  to  the 
gubernatorial  chair. 

Mr.  BOUTWELL.  My  own  impression  is  that 
the  Committee  have  made  an  omission,  although 
I  am  not  able  at  this  moment  to  verify  that  state 
ment.  If  the  Convention  will  go  on  with  the 
amendments,  the  Committee  will  ascertain,  and 
have  the  matter  placed  right. 


682 


REVISED   CONSTITUTION. 


[72d  day. 


Monday,] 


DAVIS  —  DANA  —  HOOPER  —  BOUTWELL. 


August  1st. 


Mr.  DAYIS,  of  Worcester.  I  will  remark, 
that  in  document  No.  8,  the  Convention  will  find 
the  Report  of  the  Committee,  and  will  perceive 
what  alterations  the  Committee  recommended  to 
the  Convention.  It  is  precisely  as  the  gentleman 
from  Wareham  has  stated ;  they  reported  to  the 
Convention  that  no  person  except  a  citizen  of  the 
United  States  should  be  eligible  to  the  office  of 
governor ;  but  the  Convention  afterwards  changed 
it  to  "citizen  of  Massachusetts." 

Mr.  DANA,  for  Manchester.  I  have  examined 
the  record,  and  I  find  that  the  resolves  in  docu 
ment  No.  8  were  amended  only  in  two  particu 
lars — in  the  first  resolve  by  striking  out  the  words 
"United  States,"  and  inserting  "Massachusetts," 
and  by  striking  out  of  the  last  line  the  words : 
"  nor  shall  any  person  be  eligible  to  that  office 
who  shall  not  have  attained  to  the  age  of  thirty 
years."  There  was  no  other  amendment  at  all, 
and  it  must  have  been  an  omission  by  the  Com 
mittee. 

Mr.  HOOPER,  of  Fall  River.  It  was  dis 
tinctly  stated  in  the  discussion,  by  the  gentleman 
from  Freetown,  that  the  other  qualification  would 
remain. 

Mr.  BOUTWELL.  I  have  no  doubt,  upon 
examination  of  the  record,  that  the  Committee 
were  in  error.  I  therefore  move  to  insert,  at  the 
close  of  the  article,  the  following : — 

And  no  person  shall  be  eligible  to  this  office 
unless,  at  the  time  of  his  election,  he  shall  have 
been  an  inhabitant  of  this  Commonwealth  for 
seven  years  next  preceding. 

The  question  being  taken,  the  amendment  was 
agreed  to. 

The  PRESIDENT  stated  that  unless  further 
amendment  was  proposed  to  the  fourth  chapter, 
the  Secretary  would  read  the  fifth  chapter. 

The  fifth  chapter  was  accordingly  read,  as  fol 
lows  : — 

ARTICLE  1.  There  shall  be  annually  elected  a 
Lieutenant- Governor  of  the  Commonwealth  of 
Massachusetts,  who  shall  be  qualified  in  the  same 
manner  with  the  governor ;  and  the  day  and 
manner  of  his  election,  the  qualifications  of  the 
voters,  the  return  of  the  votes,  and  the  declaration 
of  the  election,  shall  be  the  same  as  in  the  election 
of  a  governor. 

[And  the  lieutenant-governor  shall  hold  his 
office  for  one  year  next  following  the  first 
Wednesday  of  January,  and  until  another  is 
chosen  and  qualified  in  his  stead.] 

ART.  2.  The  governor,  and  in  his  absence, 
the  lieutenant-governor,  shall  be  president  of  the 
Council,  but  shall  have  no  vote  in  Council ;  and 
the  lieutenant-governor  shall  always  be  a  member 
of  the  Council,  except  when  the  chair  of  the  gov 
ernor  shall  be  vacant. 

ART.  3.     Whenever,  by  reason  of  sickness  or 


absence  from  the  Commonwealth,  or  otherwise, 
the  governor  shall  be  unable  to  perform  his  offi 
cial  duties,  the  lieutenant-governor,  for  the  time 
being,  shall  have  and  exercise  all  the  powers  and 
authorities,  and  perform  all  the  duties  of  governor; 
and  whenever  the  chair  of  the  governor  shall  be 
vacant,  by  reason  of  his  resignation,  death,  or 
removal  from  office,  the  lieutenant-governor  shall 
be  governor  of  the  Commonwealth. 

No  amendment  being  proposed  to  the  fifth 
chapter,  the  Secretary  read  the  sixth  chapter,  as 
follows : — 

ARTICLE  1.  There  shall  be  a  Council  for  ad 
vising  the  governor  in  the  executive  part  of  the 
government,  to  consist  of  eight  persons  besides 
the  lieutenant-governor,  whom  the  governor  for 
the  time  being,  shall  have  full  power  and  author 
ity,  from  time  to  time,  at  his  discretion,  to  assem 
ble  and  call  together ;  and  the  governor,  with  the 
said  councillors,  or  five  of  them  at  least,  shall 
and  may,  from  time  to  time,  hold  and  keep  a 
Council,  for  the  ordering  and  directing  the  affairs 
of  the  Commonwealth,  according  to  the  laws  of 
the  land. 

[ART.  2.  Eight  councillors  shall  be  annually 
chosen  by  the  people  ;  and  for  that  purpose  the 
State  shall  be  divided  by  the  General  Court  into 
eight  districts,  each  district  to  consist  of  five  con 
tiguous  senatorial  districts,  and  entitled  to  elect 
one  councillor,  who  shall  hold  his  office  for  one 
year  next  following  the  first  Wednesday  in  Jan 
uary,  and  until  a  successor  is  chosen  and  quali 
fied  in  his  stead.] 

ART.  3.  No  person  shall  be  elected  a  council 
lor  who  has  not  been  an  inhabitant  of  this  Com 
monwealth  for  the  term  of  five  years  immediately 
preceding  his  election. 

[ART.  4.  The  day  and  manner  of  the  election 
of  councillors,  the  qualifications  of  the  voters,  the 
return  of  the  votes,  and  the  declaration  of  the 
elections,  shall  be  the  same  as  are  required  in  the 
election  of  senators ;  and  the  person  having  the 
highest  number  of  votes  shall  be  declared  to  be 
elected. 

ART.  5.  No  councillor,  during  the  time  for 
which  he  is  elected,  shall  be  appointed  on  any 
commission  or  to  any  place  and  receive  compen 
sation  therefor.] 

ART.  6.  The  councillors,  in  the  civil  arrange 
ments  of  the  Commonwealth,  shall  have  rank 
next  after  the  lieutenant-governor. 

ART.  7.  The  resolutions  and  advice  of  the 
Council  shall  be  recorded  in  a  register,  and  signed 
by  the  members  present ;  and  any  member  of  the 
Council  may  insert  his  opinion  contrary  to  the 
resolution  of  the  majority.  This  record  shall 
always  be  subject  to  public  examination,  and  may 
be  called  for  by  either  House  of  the  Legislature. 

ART.  8.  Whenever  the  office  of  the  governor 
and  lieutenant-governor  shall  be  vacant,  by  rea 
son  of  death,  absence,  or  otherwise,  then  the 
Council,  or  the  major  part  of  them,  shall,  during 
such  vacancy,  have  full  power  and  authority,  to 
do,  and  execute  all  and  every  such  acts,  matters 
and  things,  as  the  governor  or  the  lieutenant- gov- 


72d   day.] 


REVISED   CONSTITUTION. 


683 


Monday,] 


WILSOX  —  HALE  — HALLETT  —  OLIVER  —  JENKS  —  BIRD. 


[August  1st. 


ernor  might  or  could,  by  virtue  of  this  Constitu 
tion,  do  or  execute,  if  they,  or  either  of  them, 
were  personally  present. 

Mr.  WILSON,  of  Natick.  It  seems  to  me  that 
there  is  an  omission  in  the  second  article.  It  pro 
vides  that  eight  councillors  shall  be  annually 
chosen  by  the  people,  and  for  that  purpose  the 
State  shall  be  divided  by  the  general  court  into 
eight  districts,  each  district  to  consist  of  five  con 
tiguous  senatorial  districts,  and  entitled  to  elect 
one  councillor,  &c.  It  seems  to  me  that  there 
should  be  a  provision  in  addition,  and  I  will  move 
to  add,  after  the  word  "  court,"  the  following 
words:  "holden.  next  after  the  adoption  of  this 
Constitution,  and  next  after  each  decennial  cen 
sus  thereafter,"  so  that  it  will  read : — 

ART.  2.  Eight  councillors  shall  be  annually 
chosen  by  the  people ;  and  for  that  purpose  the 
State  shall  be  divided  by  the  General  Court 
holden  next  after  the  adoption  of  this  Constitu 
tion,  and  next  after  each  decennial  census  there 
after,  into  eight  districts,  each  district  to  consist 
of  five  contiguous  senatorial  districts,  and  entitled 
to  elect  one  councillor,  who  shall  hold  his  office 
for  one  year  next  following  the  first  Wednesday 
in  January,  and  until  a  successor  is  chosen  and 
qualified  in  his  stead. 

13  y  the  adoption  of  this  amendment  it  will  be 
in  the  power  of  the  legislature  to  change  the 
councillor  districts  whenever  they  see  fit. 

The  PRESIDENT.  The  amendment  is  not  in 
order.  It  is  an  amendment  of  substance  and  not 
of  form. 

Mr.  HALE,  of  Boston.  I  will  ask  if,  in  the 
engrossed  form,  the  orthography  of  this  edition 
will  be  followed  ?  If  so,  I  move  to  amend  it  so 
that  the  word  "  councillor,"  wherever  it  occurs, 
shall  be  spelled  as  in  the  original  Constitution. 
It  is  here  spelled  with  a  c  instead  of  an  s. 

Mr.  HALLETT,  for  Wilbraham.  As  one  of 
the  Committee,  I  will  say  that  this  was  a  subject 
of  very  grave  consideration  before  the  Committee. 
If  the  gentleman  will  consult  the  original  orthog 
raphy,  I  think  he  will  find  that  the  word  is 
spelled  with  a  c.  It  appears  to  be  the  proper 
word,  too ;  they  are  not  counsellors  at  law  or 
barristers — they  are  simply  councillors,  who  sur 
round  the  governor. 

Mr.  HALE.  Undoubtedly  it  is  in  the  power 
of  the  Convention  to  coin  a  word ;  but  the  word 
counsellor,  in  the  English  language,  is  always 
spelled  with  an  "s."  I  therefore  move  that 
"councillor"  be  stricken  out,  and  "counsellor" 
inserted  in  its  stead. 

Mr.  OLIVER,  of  Lawrence.  It  strikes  me 
that  it  would  not  be  correct  to  have  it  spelled  in 
that  way.  These  gentlemen  are  members  of  the 


Council,  and  they  sit  in  council  together.  They 
are  not  members  of  a  counsel,  and  therefore  they 
are  not  counsellors.  I  think  there  is  excellent 
authority  to  sustain  this  mode  of  spelling  the 
word ;  and  if  I  am  not  greatly  mistaken,  it  was 
so  spelled  in  the  original  draft  of  the  Constitution 
of  this  Commonwealth.  That  is  the  way  that 
the  Privy  Council  of  England  is  spelled,  almost 
universally. 

Mr.  JENKS,  of  Boston.  I  have  always  looked 
upon  this  orthography  of  the  word  "councillor," 
as  a  matter  of  affectation,  and  I  do  not  think  it  is 
worth  while  for  us  to  continue  to  use  this  new 
fangled  word  which  has  been  manufactured  within 
a  few  years.  I  think  "counsellor  "  is  the  proper 
word,  and  in  my  opinion  that  is  the  way  in  which 
it  was  originally  spelled.  I  am  in  favor  of  the 
amendment,  for  I  think  it  is  a  mere  matter  of 
affectation  to  spell  it  "councillor." 

Mr.  BIRD,  of  Walpole.  This  is  not,  perhaps, 
a  very  vital  matter,  but  I  am  of  opinion,  that  as 
long  as  we  have  taken  it  up,  it  may  be  as  well  to 
have  it  settled  correctly,  and  I  believe  that  "coun 
sellor  "  is  the  real  way  in  which  this  word  should 
be  spelled.  If  you  say  that  it  should  be  spelled 
"councillor"  as  derived  from  "  council,"  1  will 
admit,  that  a  word  may  be  coined,  and  of  course, 
when  a  new  word  is  coined,  there  is  no  particular 
rule  by  which  it  can  be  decided  that  one  mode  of 
spelling  is  right  and  another  is  wrong.  I  hold, 
that  "  counsellor "  is  derived  from  "  counsel," 
which  means  to  give  advice ;  and  as  these  men 
are  appointed  for  the  purpose  of  giving  advice  to 
the  governor,  they  should  be  termed  counsellors. 
It  is  not  a  very  important  matter,  and  it  may  have 
been  rather  an  inadvertance  of  the  printers  or  the 
copyist,  than  an  intentional  mode  of  spelling  the 
word. 

Mr.  HALLETT,  for  Wilbraham.  Not  at  all. 
This  subject  was  considered  by  the  Committee, 
and  the  question  was  decided  by  them ;  so  they 
are  responsible  for  the  orthography.  I  will  add 
that  in  the  original  charter,  it  is  spelled  "councilor  " 
in  some  places,  and  in  others  it  is  spelled  "  coun 
cillor."  These  men  are  not  counsellors — they  are 
not  kings'  attorneys,  but  they  are  councillors  as 
distinctive  from  the  legal  profession. 

The  question  being  taken,  the  amendment  was 
not  agreed  to. 

No  further  amendment  being  proposed  to  the 
sixth  chapter,  the  Secretary  read  the  seventh 
chapter,  as  follows  : — 

[ARTICLE  1.  The  secretary,  treasurer,  auditor 
and  attorney-general,  shall  be  chosen  by  the  peo 
ple,  annually  on  the  Tuesday  next  after  the  first 
Monday  in  November ;  and  they  shall  hold  their 
offices,  respectively,  for  one  year  next  following 
the  first  Wednesday  in  the  succeeding  January, 


684 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


DENTON  —  HALLETT  —  BUTLER.  —  LORD. 


[August  1st. 


and  until  their  successors  are  chosen  and  qualified 
in  their  stead. 

The  day  and  manner  of  their  election,  the 
qualifications  of  the  voters,  the  return  of  the  votes, 
and  the  declaration  of  the  elections,  shall  be  the 
same  as  are  required  in  the  election  of  governor.] 

ART.  2.  No  man  shall  he  eligible  as  treasurer, 
more  than  five  years  successively. 

ART.  3.  The  records  of  the  Commonwealth 
shall  be  kept  in  the  office  of  the  secretary,  who 
may  appoint  his  deputies,  for  whose  conduct  he 
shall  be  accountable;  and  he  shall  attend  the 
governor  and  Council,  the  Senate  and  House  of 
Representatives,  in  person,  or  by  his  deputies,  as 
they  shall  respectively  require. 

[  ART.  4.  Judges  of  probate,  registers  of  pro 
bate,  sheriffs,  clerks  of  the  courts,  commissioners 
of  insolvency,  district-attorneys,  registers  of  deeds, 
county  treasurers,  and  county  commissioners, 
shall  be  elected  triennially  by  the  people  of  their 
respective  counties  and  districts,  on  the  Tuesday 
next  after  the  first  Monday  in  November,  and 
shall  hold  their  offices,  respectively,  for  three  years 
next  following  the  first  Wednesday  in  the  suc 
ceeding  January,  and  until  their  respective  suc 
cessors  are  chosen  and  qualified  in  their  stead. 

The  manner  of  their  election,  the  qualifications 
of  the  voters,  the  return  of  the  votes,  and  the 
declaration  of  the  elections,  shall  be  the  same  as 
are  required  in  the  election  of  senators  ;  and  the 
person,  having  the  highest  number  of  votes  shall 
be  elected.] 

Mr.  DENTON,  of  Chelsea,  moved,  that  after 
the  words  ".county  commissioners,"  in  the  fourth 
line  of  article  fcmr,  the  words  "  except  for  the 
county  of  Suffolk"  be  inserted. 

Mr.  HALLE  FT.  Upon  an  examination  of 
that  subject,  I  have  no  question  that  there  is  no 
change  at  all  affected  by  this  Constitution.  The 
city  treasurer  of  Boston  is  chosen  under  the  exist 
ing  law.  This  only  requires  that  when  there  shall 
be  a  county  treasurer,  he  shall  be  chosen  as  pro 
vided  for  in  the  Constitution. 

Mr.  DENTON.  I  speak  of  county  commis 
sioners.  A  portion  of  Suffolk  County  has  been  set 
off  from  the  county  of  Middlesex,  and  as  I  under 
stand,  the  chairman  of  the  Committee  which 
reported  these  resolves  was  unaware  that  there 
had  been  a  division.  The  mayor  and  aldermen 
are  county  commissioners  of  the  city  of  Boston, 
which  is  a  portion  of  the  county  of  Suffolk.  The 
three  remaining  towns  are  attached  to  the  county 
of  Middlesex.  I  understand  that  the  chairman 
of  the  Committee  thinks  there  is  a  doubt,  if  action 
is  taken  upon  the  resolution  as  presented  to  the 
Convention,  whether  it  would  not  put  Chelsea 
and  North  Chelsea  precisely  where  they  were 
before,  separate  from  the  county  of  Middlesex. 

The  PRESIDENT.      The   Chair   thinks   the 

amendment  one  of  substance  and  not  one  of  form. 

Mr.  BUTLER,  of  Lowell.     Lest  there  should 


be  trouble  so  far  as  that  matter  is  concerned,  I 
call  the  attention  of  the  Convention  to  the  lan 
guage  of  the  article.  It  says  that  "  county 
treasurers  and  county  commissioners  shall  be 
elected  triennially  by  the  people  of  their  respective 
counties  and  districts,"  &c.  Now  the  legislature 
have  set  off  Chelsea  and  North  Chelsea  each  to 
Middlesex,  and  they,  with  the  county  of  Middle 
sex,  make  a  district  for  the  purpose  of  choosing 
commissioners.  So  that  I  do  not  see  the  trouble 
which  is  suggested  by  the  gentleman  from  Chel 
sea,  that  it  can  only  be  the  people  of  a  county 
who  elect  a  commissioner.  The  language  is, 
"  chosen  in  their  respective  districts." 

Mr.  LORD,  of  Salem.  I  had  the  idea  when 
the  matter  was  under  consideration,  that  the 
county  of  Suffolk  was  excepted  ;  arid,  if  in  reality 
the  county  of  Suffolk  was  excepted,  they  ought 
to  be  excepted  in  this  provision.  I  do  not  know 
that  I  am  right,  but  I  think  that  county  commis 
sioners,  so  far  as  Boston  was  concerned,  were  ex 
cepted  upon  the  motion  of  the  gentleman  who 
represents  Wilbraham,  (Mr.  Hallett).  Now,  it 
seems  to  me  that  if  they  were,  they  ought  to  be 
here,  because  I  do  not  agree  at  all  to  the  con 
struction  which  is  now  given  to  this  clause  by  the 
gentleman  for  Wilbraham,  that  until  the  office  of 
county  commissioner  shall  be  created  for  the 
county  of  Suffolk,  it  does  not  devolve  upon  the 
people  to  choose  one.  I  think  if  the  duties  of 
that  office  are  performed  by  another  tribunal,  that 
tribunal  must  be  elected  precisely  in  the  same 
manner  as  is  provided  for  the  election  of  county 
commissioners,  otherwise  it  will  be  competent  for 
the  legislature  to  alter  the  Constitution,  simply  by 
changing  the  name  of  the  officer,  and  putting 
upon  him  the  duties  imposed  upon  the  county 
commissioners.  Suppose  that  instead  of  there 
being  county  commissioners,  the  legislature  should 
create  a  body  of  county  selectmen,  and  place 
upon  them  the  precise  duties  which  now  belong 
to  county  commissioners.  Now,  having  imposed 
the  duties  of  county  commissioners  upon  the 
selectmen  of  the  county,  those  duties  being  the 
same  as  those  of  county  commissioners,  it  seems 
to  me  that  the  Constitution  would  require  that 
they  shall  be  elected  in  the  mode  pointed  out  in 
the  Constitution  for  the  election  of  county  com 
missioners,  and  that  their  appointment  could  not 
be  given  to  the  governor,  because,  if  otherwise, 
every  officer  that  you  have  made  elective  by  the 
people  can  be  appointed  by  the  governor,  simply 
by  the  legislature  changing  the  name  of  the 
officer,  and  imposing  upon  him  the  same  duties  as 
the  other  officer.  If  the  construction  which  I 
give  to  it  is  the  true  one,  then  the  mayor  and 
aldermen  of  the  city  of  Boston  must  be  elected 


72d  day.] 


REVISED   CONSTITUTION. 


685 


Monday,] 


BOUTWELL  —  LORD  —  CIIOATB. 


[August  1st. 


for  the  term  of  three  years,  unless  an  exception  is 
made  in  their  favor,  which  was  made  in  the  Com 
mittee  of  the  Whole,  when  the  subject  was  under 
consideration.  I  think  the  exception  was  made 
there,  though  I  have  no  distinct  recollection  about 
it.  I  wish  to  stand  upon  the  action  of  the  Con 
vention,  whatever  it  is. 

Mr.  BOUTWELL,  for  Berlin.  I  have  a  cer 
tified  copy  of  the  proceedings  of  the  Convention, 
but  the  exception  was  not  made. 

Mr.  LOUD.  I  knew  the  action  of  the  Con 
vention  was  reversed  as  to  county  treasurer,  but 
as  to  county  commissioners  I  did  not  know. 

Mr.  BOUTWELL.  As  some  gentlemen  desire 
that  the  title  of  this  seventh  chapter  should  be 
made  more  explicit,  I  move  to  amend  it,  so  that  it 
shall  read :  "  Secretary,  Treasurer,  Attorney- 
General,  Auditor,  District- Attorneys,  and  County 
Officers." 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

The  Secretary  then  proceeded  to  read  the  next 
chapter,  being  chapter  eight,  entitled  "  Judiciary 
Power,"  which  is  as  follows  : — 

[ARTICLE  1.  The  judicial  power  of  the  Com 
monwealth  shall  be  vested  in  a  Supreme  Judicial 
Court,  and  such  other  courts  as  the  legislature 
may  from  time  to  time  establish.] 

ART.  2.  The  tenure  that  all  commission  officers 
shall  by  law  have  in  their  offices,  shall  be  ex 
pressed  in  their  respective  commissions. 

All  judicial  officers,  duly  appointed,  commis 
sioned  and  sworn,  shall  hold  their  offices  for  the 
term  of  ten  years,  excepting  such  concerning 
whom  there  is  different  provision  made  in  this 
Constitution.  And  upon  the  expiration  of  such 
term  they  may  be  reappoinied;  and  all  judicial 
officers  for  whose  appointment  a  different  provision 
is  not  made  in  this  Constitution,  shall  be  nominated 
and  appointed  by  the  Governor,  by  and  with  the 
advice  and  consent  of  the  Council,  and  they  may  be 
removed  by  the  Governor,  with  consent  of  the 
Council,  upon  the  address  of  both  Houses  of  the 
Legislature. 

[ART.  3.  The  present  justices  of  the  Supreme 
Judicial  Court  shall  hold  their  offices  according  to 
their  respective  commissions ;  and  the  present 
justices  of  the  Court  of  Common  Pleas  shall  hold 
their  offices  by  the  same  tenure,  while  the  law 
establishing  the  said  Court  of  Common  Pleas 
shall  continue.  All  nominations  of  judicial  offi 
cers,  whose  term  of  office  is  by  this  Constitution 
limited  to  ten  yaars,  shall  be  publicly  announced 
at  least  seven  days  before  their  appointment ;  and 
no  person  who  shall  have  been  commissioned  after 
the  tenth  day  of  August,  in  the  year  one  thousand 
eight  hundred  and  fifty-three,  shall  hold  by  any 
longer  tenure  of  office  than  the  term  of  ten 
years. 

ART.  4.  Neither  the  Governor  and  Council, 
nor  the  two  branches  of  the  Legislature,  or  either 
of  them,  shall  hereafter  propose  questions  to 


justices  of  the  Supreme  Judicial  Court,  and  re 
quire  their  opinions  thereon.] 

ART.  5.  The  judges  of  probate  of  wills,  and 
for  granting  letters  of  administration,  shall  hold 
their  courts  at  such  place  or  places,  on  fixed  days, 
as  the  convenience  of  the  people  shall  require ; 
and  the  Legislature  shall  from  time  to  time,  here 
after,  appoint  such  times  and  places  ;  \intil  which 
appointments,  the  said  courts  shall  be  holden  at 
the  times  and  places  which  the  respective  judges 
shall  direct. 

[ART.  6.  Justices  of  the  peace,  justices  of  the 
peace  and  quorum,  justices  of  the  peace  through 
out  the  Commonwealth,  and  commissioners  to 
qualify  civil  officers,  may  be  appointed  by  the 
governor  and  Council  for  a  term  of  seven  years  ; 
and  upon  the  expiration  of  any  commission,  the 
same  may  be  renewed ;  and  those  now  in  office 
shall  continue  therein  according  to  the  tenure  of 
their  respective  commissions  :  provided,  that  the 
jurisdiction  of  the  justices  named  in  this  article, 
shall  not  extend  to  the  hearing  or  trial  of  any 
causes,  or  the  issuing  of  warrants  in  criminal 
cases. 

ART.  7.  Trial  justices  shall  be  elected  by  the 
legal  voters  of  the  several  towns  and  cities,  where, 
at  the  time  of  stich  election  there  is  no  Police 
Court  established  by  law,  who  shall  hold  their 
offices  for  a  term  of  three  years,  and  have  the 
same  jurisdiction,  powers,  and  duties,  as  are  now 
exercised  by  justices  of  the  peace,  or  such  as  may 
hereafter  be  established  by  law.  Every  city  or 
town,  authori/ed  as  herein  provided,  shall  e"!ect  a 
trial  justice,  and  may  elect  one  additional  for  each 
two  thousand  inhabitants  therein,  according  to 
the  next  preceding  decennial  census  :  provided, 
however,  that  any  trial  justice  who  shall  remove 
from  the  city  or  town  in  which  he  was  elected 
shall  thereby  vacate  his  office. 

ART.  8.  Justices  and  clerks  of  the  Police 
Courts  of  the  several  cities  and  towns  of  the 
Commonwealth  shall  be  elected  by  the  legal 
voters  thereof,  respectively,  for  a  term  of  three 
years.] 

Mr.  CIIOATE,  of  Boston.  I  beg  to  offer  an 
amendment,  which  I  have  drawn  with  some  little 
care,  and  extended,  therefore,  into  several  parts, 
though  constituting  an  entire  amendment  alto 
gether,  for  the  purpose  merely  of  transferring  the 
change  proposed  to  be  made  by  the  Convention 
in  the  matter  of  judicial  tenure  of  office,  from  the 
body  of  the  Constitution,  where  it  must  be  voted 
for  along  with  everything  else,  for  the  purpose,  I 
say,  of  transferring  that  subject,  into  that  part  of 
the  amendments  proposed  to  be  submitted  sepa 
rately  to  the  people,  so  that  it  may  be  separately 
acted  upon  by  the  people,  and  by  the  individual 
voter. 

As  I  understood  the  learned  chairman,  (Mr. 
Boutwell,)  this  morning,  to  suggest,  that  he 
should  himself  favor  the  separate  submission  of 
everything  to  the  individual  voter — which,  it  can 
be  shown,  may  be  practicably  and  properly  done 


686 


REVISED   CONSTITUTION. 


[72d   day. 


Monday,] 


CHOATE. 


[August  1st. 


— I  anticipate  his  support.  I  have  paid  some 
little  attention  to  the  details  of  this  motion,  and 
I  count  upon  his  cooperation.  I  propose,  then, 
•without  sending  the  amendments  to  the  Chair  at 
present,  to  strike  out,  as  follows  :  In  the  first 
place,  strike  out  article  thirty  of  the  Bill  of  Rights, 
\vhich  is  this  : — 

ART.  30.  It  is  essential  to  the  preservation  of 
the  rights  of  every  individual,  his  life,  liberty, 
property,  and  character,  that  there  be  an  impar 
tial  interpretation  of  the  laws,  and  administra 
tion  of  justice.  It  is  the  right  of  every  citizen  to 
be  tried  by  judges  as  free,  impartial,  and  inde 
pendent,  as  the  lot  of  humanity  will  admit.  It 
is  therefore  not  only  the  best  policy,  but  for  the 
security  of  the  rights  of  the  people,  and  of  every 
citizen,  that  the  Judges  of  the  Supreme  Judicial 
Court  should  hold  their  offices  by  tenures  estab 
lished  bij  the  Constitution,  and  should  have  honor 
able  salaries,  ivhich  shall  not  be  diminished  during 
their  continuance  in  office. 

Then  strike  out  of  article  two,  in  this  chapter 
eight,  the  following  : — 

All  judicial  officers,  dulv  appointed,  commis 
sioned  and  sworn,  shall  hold  their  offices  for  the 
term  of  ten  years,  excepting  such  concerning  whom 
there  is  different  provision  made  in  this  Consti 
tution.  And  upon  the  expiration  of  such  term 
they  may  be  reappointed. 

Strike  out  all  of  article  three,  as  follows  : — 

ART.  3.  The  present  justices  of  the  Supreme 
Judicial  Court  shall  hold  their  offices  according 
to  their  respective  commissions  ;  and  the  present 
justices  of  the  Court  of  Common  Pleas  shall  hold 
their  offices  by  the  Fame  tenure,  while  the  law 
establishing  the  said  Court  of  Common  Pleas 
shall  continue.  All  nominations  of  judicial  offi 
cers,  whose  term  of  office  is  by  this  Constitution 
limited  to  ten  years,  shall  be  publicly  announced 
at  least  seven  days  before  their  appointment : 
and  no  person  who  shall  have  been  commissioned 
after  the  tenth  day  of  August,  in  the  year  one 
thousand  eight  hundred  and  fifty-three,  shall 
hold  by  any  longer  tenure  of  office  than  the  term 
of  ten  years. 

The  effect  will  be  to  remove  from  this  portion 
of  the  Constitution  which  the  Committee  have 
numbered  "one,"  everything  which  applies  to  a 
change  in  the  judicial  tenure,  and  nothing  else. 
It  will  take  that  bodily  from  the  position  in  which 
it  now  stands. 

I  then  respectfully  propose  that  you  shall  in 
sert,  on  page  forty  of  this  printed  Report  of  the 
Committee,  under  heads  "nine,"  "ten,"  "eleven," 
and  "  twelve,"  the  following,  constituting  one 
distinct  provision  and  proposition,  and  those  will 
be  exactly7  what  will  have  been  removed,  by  the 
first  branch  of  my  proposed  amendment,  from 


number  "  one,"  that  is  to  say,  having  struck  out 
what  I  have  indicated,  then  insert,  as  the  ninth, 
tenth,  eleventh,  and  twelfth  paragraphs,  what  I 
will  have  the  honor  to  read.  They  are  nothing, 
but  in  their  very  terms,  the  provisions  which  the 
proposition  to  strike  out,  will  have  struck  out. 
Supposing,  then,  that  part  of  the  amendment  to 
have  been  adopted,  and  that  nothing  remains  in 
number  "one,"  upon  the  subject  of  the  judicial 
tenure,  then  the  following  propositions  will  cover 
that  ground  exactly  in  the  language  of  the  Com 
mittee,  and  embrace  what  the  Convention  has 
done. 

Ninth.  All  judicial  officers,  dulyr  appointed, 
commissioned  and  sworn,  shall  hold  their  offices 
for  the  term  of  ten  years,  excepting  such  concern 
ing  whom  there  is  different  provision  made  in 
this  Constitution.  And  upon  the  expiration  of 
any  such  term,  they  may  be  reappointed. 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  in  addition  to  the  chapter  on  the  judiciary 
power. 

Tenth.  The  present  justices  of  the  Supreme 
Judicial  Court  shall  hold  their  offices  according 
to  their  respective  commissions  ;  and  the  present 
justices  of  the  Court  of  Common  Pleas  shall  hold 
their  offices  by  the  same  tenure,  while  the  law 
establishing  the  said  Court  of  Common  Pleas 
shall  continue.  All  nominations  of  judicial  offi 
cers,  whose  term  of  office  is  by  this  Constitution 
limited  to  ten  years,  shall  be  publicly  announced 
at  least  seven  days  before  their  appointment :  and 
no  person  who  shall  have  been  commissioned 
after  the  tenth  day  of  Aiigust,  in  the  year  one 
thousand  eight  hundred  and  fifty-three,  shall 
hold  by  any  longer  tenure  of  office  than  the  term 
of  ten  years. 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  in  addition  to  the  chapter  011  the  judi 
ciary  power. 

Eleventh.  It  is  essential  to  the  preservation  of 
the  rights  of  every  individual,  his  life,  liberty, 
property,  and  character,  that  there  be  an  impar 
tial  interpretation  of  the  laws,  and  administration 
of  justice.  It  is  the  right  of  every  citi/en  to  be 
tried  by  judges  as  free,  impartial,  and  indepen 
dent,  as  the  lot  of  humanity  will  admit.  It  is 
therefore  not  only  the  best  policy,  but  for  the 
security  of  the  rights  of  the  people,  and  of  every 
citizen,  that  the  Judges  of  the  Supreme  Judicial 
Court  shoul'd  hold  their  offices  by  tenures  estab 
lished  by  the  Constitution,  and  should  have  honor 
able  salaries,  which  shall  not  be  diminished  during 
their  continuance  in  office. 

If  this  proposition  is  ratified  and  adopted,  it 
shall  be  in  addition  to  the  Declaration  of  Rights. 

Twelfth.  That  all  tenure  of  judicial  office 
which  shall  not  be  changed  by  the  Constitution, 
shall  remain  as  heretofore. 

This  last  proposition  is  indispensable,  to  meet 


72(1  day.] 


REVISED    CONSTITUTION. 


687 


Monday,] 


CHOATE  —  HALLETT  —  DANA. 


[August  1st. 


a  difficulty  suggested  by  my  friend  for  Manches 
ter,  (Mr.  Dana,)  in  consultation  with  him,  for 
it  may  happen  that  number  "  one  "  of  the  pro 
posed  amendments,  may  be  adopted.  If  number 
"one"  should  be  rejected,  and  this  particular 
amendment  should  be  rejected  also,  there  might 
be  a  Constitution  left  without  any  tenure  of 
office. 

It  is  a  part  of  this  scheme  of  amendments,  Mr. 
President,  that  the  provisions  respecting  the  limi 
tation  of  judicial  tenure,  as  proposed  to  be 
numbered  progressively,  nine,  ten,  eleven,  and 
twelve,  are  to  be  considered  as  distinct  proposi 
tions,  to  be  adopted  in  the  whole  or  rejected  in 
the  whole,  as  the  people  think  proper.  Now, 
having  indicated  what  will  unquestionably  be  the 
judicial  effect  of  this  amendment,  I  do  not  intend 
to  detain  the  Convention  with  but  a  word  in  its 
favor.  It  simply,  fairly,  and  in  good  faith,  with 
out  modifying  in  the  least  degree  the  substantial 
action  of  this  Convention,  enables  every  voter  in 
Massachusetts  to  express  his  own  opinion, 
directly,  upon  so  substantial,  so  distinct  and  im 
portant  a  proposition  as  to  change  the  judicial 
tenure,  uncoerced  by  its  connection  with  any 
other  subject — to  the  intent  that  every  voter  shall 
exercise  his  own  reason  and  free  will  upon  a  sub 
ject  distinct  from  every  other  branch  of  the  entire 
subject  committed  to  him — a  proposition  so 
reasonable,  that,  unless  it  is  attended  with  the 
technical  difficulty  indicated  this  morning,  by 
the  honorable  chairman  of  the  Committee,  would 
meet  with  universal  approbation.  It  should  be 
borne  in  mind — and  it  strikes  me  that  it  is  a  prin 
ciple  which  should  govern  us — that  we  had  to 
perform  a  distinct  branch  of  duty.  We  were  to 
express,  and  procure  to  be  adopted — if  we  could 
— by  this  Convention,  our  own  opinions  concern 
ing  amendments  to  the  Constitution.  That  duty 
we  have  been  engaged  in  arduously  for  ninety 
days,  and  we  have  done  it.  We  have  conferred 
upon  it,  we  have  voted  upon  it,  we  have  accom 
plished  it,  and  we  have  completely  and  in  good 
faith,  finished  that  branch  of  our  duties,  the  ex 
pression  of  our  own  opinions  touching  amend 
ments  to  the  Constitution.  The  other  piece  of 
work  submitted  to  us,  and  to  which  we  have  now 
arrived,  is  exactly  to  enable  the  people  to  do  their 
part  of  the  great  concurrent  work,  in  amending 
the  Constitution,  in  the  best  practicable  manner, 
on  their  part.  And  I  apprehend  that  nobody  can 
feel  any  desire  whatever,  to  give  it  such  a  direc 
tion  before  the  people,  as  shall  lay  them  under 
coercion  to  adopt  our  views  whether  they  like 
them  or  not.  We  should  all  feel,  and  should  all 
cooperate  to  bring  the  matter  before  them  in  such 
a  shape  that  they  will  express  their  own  views 


exactly,  without  coercion,  from  any   of  its   con 
nections. 

I  hope,  therefore,  that  unless  my  friend  for  Man 
chester,  (Mr.  Dana,)  who  has,  I  believe,  been 
engaged  more  particularly  with  the  consideration 
of  the  details  of  this  part  of  the  general  subject, 
and  with  the  composition  of  the  amendments 
which  are  to  be  presented,  should  indicate  some 
greater  difficulties  than  I  yet  imagine  exist,  this 
particular  amendment  may  be  separately  con 
sidered.  The  present  is  not  the  time  to  say  a 
single  word  on  the  merits  of  the  question,  nor  is 
it  necessary.  In  regard  to  that,  the  Convention 
has  already  formed  its  opinion  ;  but,  I  would 
suggest  that  this  change  in  the  nature  of  the 
judicial  tenure,  is  a  matter  wholly  new  to  every 
body  in  the  Commonwealth — that  it  is  an  inno 
vation  on  our  ancient  usages  that  was  not  exten 
sively  canvassed  before  the  Convention  met — that 
it  is  a  matter  of  vast  importance  to  the  whole 
community — and  that  it  is  easily  separated  from 
the  rest  of  the  Constitution. 

Mr.  HALLETT,  for  Wilbraham.  I  rise  for 
the  purpose  of  suggesting  to  the  gentleman  from 
Boston,  the  inquiry  whether  the  thirtieth  article 
of  the  Bill  of  Ilights  may  not  be  left  standing  as  it 
is ;  because,  as  it  is  there,  it  is  entirely  in  the 
alternative,  and  is  to  be  adapted  either  to  the  old 
or  the  new  Constitution. 

Mr.  CHOATE.  Suppose,  for  instance,  that 
the  whole  of  this  resolve,  which  you  call  number 
one — embracing  the  great  bulk  of  the  Constitu 
tion — should  be  rejected  by  the  people,  then  there 
is  no  such  article  there.  No  such  article  remains, 
and  the  old  article  in  the  old  Constitution,  com 
missioning  the  judges  for  good  behavior,  and  this 
amendment  would  also  remain,  commissioning 
them  under  a  ten  years'  tenure. 

Mr.  HALLETT.  Then  you  might  reject  the 
whole  of  the  first,  and  part  of  the  last.  I  say  to 
the  gentleman  from  Boston,  that  I  will  go  with 
him  upon  this  point,  if  it  is  possible  to  make  this 
provision  a  separate  question,  so  that  the  remain 
der  of  the  Constitution  remains  entire.  I  am  not 
able  to  say  whether  the  Constitution  will  bear 
that  separation ;  but,  as  I  have  said  before,  if  it 
can  be  submitted  to  the  people  without  marring 
the  symmetry  of  the  instrument  as  a  whole, 
whether  it  is  adopted  cr  rejected,  I  will  go  with 
the  gentleman  for  his  proposition. 

Mr.  DANA,  for  Manchester.  Having  been 
somewhat  appealed  to  by  the  learned  attorney- 
general,  I  feel  bound  to  speak  to  the  subject  mat 
ter  which  he  has  brought  before  the  Convention. 
It  is  certainly  true,  that  the  amendment  we  have 
adopted  altering  the  tenure  of  the  office  of  supreme 
judges  from  a  life  tenure  to  a  tenure  of  only  ten 


638 


REVISED    CONSTITUTION. 


[72d   day. 


Monday,] 


DANA. 


[August  1st. 


years  duration,  is  a  material  change  in  the  Con 
stitution.  I  trust  that  some  of  the  members  of 
this  body  will  remember  that  I  was  not  in  favor 
of  this  change,  and  if  it  were  to  go  as  a  sepa 
rate  proposition  before  the  people,  I  should  vote 
against  it.  As  one  of  the  Committee  of  Revision, 
I  was  in  the  hope  that  we  should  be  able  to  put 
all  these  propositions  separately  to  the  people. 
But,  after  a  more  careful  examination  of  the 
matter,  I  came  to  the  conclusion  that  we  could 
not  put  any  of  them  as  separate  propositions, 
except  such  as  were  entirely  new  and  independ 
ent.  The  gentleman  for  Wilbraham  thought  we 
could  ;  but  he  afterwards  changed  his  opinion.  I 
I  gave  early  notice  of  this  effect.  During  the 
debate  on  the  subject  of  the  judiciary,  I  said  to 
the  Convention  that  if  these  changes  in  the 
judicial  tenure  were  made,  they  would  have  to  be 
submitted  to  the  people  with  all  the  rest  of  the 
propositions,  as  a  unit.  I  gave  that  as  a  reason 
against  adopting  a  change  on  which  no  public 
opinion  had  been  expressed.  I  have  not  been 
able  since  then,  to  change  my  opinion.  The 
learned  attorney- general  has  brought  before  us  a 
proposition  that  will  do  it,  if  anything  Iranian 
can.  I  have  tried,  myself,  to  invent  or  discover  a 
mode  by  which  it  could  be  done  ;  and  doubtless 
the  learned  attorney- general  has  gone  far  beyond 
me  in  his  plan  ;  but  I  confess  that  I  do  not  see  the 
way  clear  yet.  He  proposes  to  divide  all  that  re 
lates  to  the  judicial  tenure  embraced  in  the  chap 
ter  on  the  judiciary,  from  the  rest  of  the  Consti 
tution,  and  to  present  it  as  a  separate  resolution, 
to  be  called  number  nine.  This  embraces  four 
distinct  sections  or  articles.  The  first,  relates  to 
the  ten  years'  tenure ;  the  second,  to  the  tenure  of 
the  present  judges ;  the  third,  is  the  thirtieth 
article  of  the  Bill  of  Ilights  ;  and  the  last,  is  a 
new  proposition,  which  I  suppose  the  Chair  will 
be  obliged  to  rule  out  of  order,  at  this  time. 

Now,  the  principle  upon  which  we  have  gone, 
and  which  the  chairman  of  the  Committee  has  so 
clearly  illustrated,  is  this  :  that  the  Constitution 
of  1780  has  thirteen  amendments,  many  of  them 
amendments  upon  amendments,  rendering  the 
construction  of  the  Constitution  extremely  diffi 
cult.  We  wish  to  have  a  symmetrical  instru 
ment,  so  that  every  officer  in  the  Commonwealth 
may  find  everything  he  wants  to  find,  under  its 
proper  caption,  without  being  obliged  to  hunt 
over  the  Constitution  of  1780,  and  all  the  amend 
ments  from  that  day  to  this,  to  find  what  he  ought 
to  be  able  to  find  in  a  moment.  We  wish  to 
secure  this  result.  For  this  purpose,  the  new 
Constitution  must  go  entire  to  the  people. 

It  was  truly  said  by  the  chairman  of  the  Com 
mittee,  that  number  "  one  "  must  contain  all  that 


is  necessary  for  the  working  of  the  government. 
Now,  the  learned  attorney- general  will  admit  that 
the  judicial  tenure  is  one  of  the  essential  provis 
ions  of  every  Constitution.  Yet  he  proposes  to 
strike  out  from  proposition  number  one,  all  the 
provisions  relating  to  the  judicial  tenure,  so  that 
if  number  one  alone  is  accepted,  and  nine,  ten, 
eleven,  and  twelve  are  rejected,  we  shall  have  a 
Constitution  without  any  provision  for  a  judicial 
tenure.  With  a  Constitution  so  defective,  it 
might  be  left  to  the  legislature,  to  regulate  the 
judicial  tenure  ;  but,  would  he  be  willing  to  leave 
to  the  legislature  the  power  to  regulate  the 
tenure  of  the  judges  ?  I  think  not.  If  we  did 
not  do  that,  then  we  must  go  back  to  the  Consti 
tution  of  1780  for  our  judicial  tenure,  reviving  it, 
by  construction.  Which  of  these  courses  would 
be  followed,  I  cannot  guess ;  but  put  it  at  the 
best,  and  suppose  the  old  Constitution  to  revive. 
The  result  would  be,  that  all  the  old  Constitu 
tion  would  be  revived,  for  there  is  no  power  short 
of  the  people  which  can  say  to  what  portion  of 
the  Constitution  of  1780  we  shall  go  to  find  which 
relates  to  the  judicial  tenure.  The  whole  Con 
stitution  would  therefore  be  printed  and  kept 
alive.  Now,  I  submit  to  the  gentleman  whether 
it  would  be  worth  while  to  send  out  a  Constitu 
tion  without  a  provision  for  a  judicial  tenure,  and 
then  to  say  to  the  people,  when  they  want  to 
know  the  tenure  of  the  judges,  "Look  to  the 
Constitution  of  1780,  and  if  that  is  not  the  prop 
er  place  to  look  for  it,  then  leave  the  matter  to  the 
legislature  ? "  I  cannot  think  that  this  will  be 
done.  If  the  people  accept  that  part  of  the  Con 
stitution  which  we  call  number  one,  and  reject 
nine,  ten,  eleven,  and  twelve,  then  we  have  no 
provision  in  regard  to  a  judicial  tenure.  The 
question  then  would  be,  whether  that  tenure 
should  be  left  to  the  legislature,  or  whether  we 
are  to  grope  for  it  in  the  Constitution  of  1780, 
with  its  amendments.  In  that  Constitution,  the 
judicial  tenure  is  mentioned  in  two  or  three 
places  ;  and  the  difficulty  would  be  that  that 
Constitution  would  necessarily,  so  far,  be  in  exist 
ence,  if  that  supposition  be  a  correct  one.  If  it 
is  not,  then  it  would  necessarily  be  left  to  the 
legislature,  and  that  objection,  to  my  mind,  would 
be  fatal. 

But  there  are  other  objections.  Suppose  that 
the  Constitution  of  1853 — which  for  convenience 
we  call  number  one — should  be  rejected,  and  the 
twelve  resolutions  should  be  accepted ;  wrhat  kind 
of  a  Constitution  would  you  have  ?  It  would 
declare  in  the  most  solemn  manner,  the  life  ten 
ure  of  the  judges  to  be  essential  to  their  impar 
tiality,  and  then,  in  the  thirty-second  article  it 
would  present  the  contradictory  provision  that 


72d  day.] 


REVISED   CONSTITUTION. 


689 


Monday,^ 


DANA  —  LORD  —  BOUTVVELL. 


August  1st. 


they  should  only  hold  them  for  ten  years.  That 
would  be  an  inconsistency,  from  which  I  should 
think  the  good  taste  of  the  gentleman  would  lead 
him  to  shrink. 

Moreover,  if  the  first  proposition  is  rejected, 
and  this  proposition  is  accepted,  then  the  ninth 
proposition  would  be  inconsistent  with  the  Bill 
of  Rights ;  the  one  saying  that  the  office  should 
be  held  for  life,  and  the  other  for  ten  years.  The 
tenth  proposition  would  say  that  the  present 
judges  should  hold  their  offices  according  to  their 
commissions.  That  would  be  right,  undoubtedly. 
I  think  there  is  no  objection  to  that.  The 
eleventh  article  would  insert  a  provision  which 
would  be  inconsistent  with  the  Bill  of  Rights,  as 
I  have  mentioned.  If  I  could  see  my  way  clear, 
in  the  amendment  of  the  gentleman  from  Boston, 
I  would  certainly  go  for  it;  but  at  present,  I 
must  confess  that  everything  in  regard  to  it  pre 
sents  nothing  but  darkness  and  difficulty  to  my 
mind.  And  if  we,  who  have  studied  the  subject, 
find  it  complicated  and  difficult  of  adjustment, 
how  will  it  strike  the  voters  at  the  polls  ? 

Mr.  LORD,  of  Salem.  I  believe  that  the  diffi 
culty  of  the  delegate  who  represents  Manchester, 
arises  from  not  considering  that  it  is  necessary  to 
do  something  to  make  an  amendment  to  the  third 
and  fourth  resolutions,  which  will  become  neces 
sary  in  consequence  of  the  adoption  of  these  articles 
as  put  separately  ;  and  if  he  will  consider  for  one 
moment,  he  will  see  that  there  is  no  difficulty 
whatever  in  the  proposition  which  the  very  dis 
tinguished  gentleman  from  Boston  submits.  In 
the  first  place,  he  will  perceive  that  when  the 
people  vote,  they  will  either  accept  both,  reject 
both,  or  accept  one  and  reject  the  other,  or  reject 
one  and  accept  the  other.  There  are,  then,  four 
different  ways  in  which  the  people  can  act  upon 
them. 

Mr.  DANA,  (in  his  seat).  The  people  may 
accept  part,  and  reject  part. 

Mr.  LORD.  No,  Sir  ;  the  four  go  together,  as 
one  proposition,  being  all  one  system.  If,  there 
fore,  it  can  be  made  clear  that  whatever  action 
the  people  may  take,  it  will  leave  a  perfectly 
sound  Constitution  throughout,  with  a  sound 
judiciary  system,  then  the  gentleman  for  Man 
chester  will  find  his  whole  end  answered.  I  sub 
mit,  Sir,  that  it  will  be  proper  to  add  this  provis 
ion  to  the  resolution  :  If  number  one  is  adopted 
and  ratified  by  the  people,  and  nine,  ten,  eleven, 
and  twelve  are  rejected,  then  number  twenty- 
nine  in  the  Bill  of  Rights  of  the  present  Constitu 
tion  shall  be  considered  as  number  thirty  in  the 
Bill  of  Rights  of  the  new  Constitution.  With 
tins  suggestion,  let  us  see  how  it  will  operate  in 
either  alternative :  If  the  people  accept  both 


propositions,  then  the  gentleman  for  Manchester 
himself  will  be  satisfied  that  it  will  be  a  perfect 
system.  If  the  people  reject  them  both,  there 
will  be  no  difficulty;  because,  having  rejected 
them  both,  the  old  Constitution  will  stand  just  as 
it  does  now.  We  see,  then,  that  if  either  both 
are  accepted  or  both  rejected,  there  is  no  trouble. 
Now,  suppose  they  accept  number  one  as  the  new 
Constitution,  and  reject  these  four  propositions, 
nine,  ten,  eleven  and  twelve ;  what  will  be  the 
state  of  things  then  ?  You  will  have  your  judi 
ciary  power.  You  will  have  article  one,  which 
says  that  "  the  judicial  power  of  the  Common 
wealth  shall  be  vested  in  a  supreme  judicial 
court,  and  such  other  courts  as  the  legislature 
may  from  time  to  time  establish."  You  will 
have  article  two,  which  says  that  "the  tenure 
that  all  commission  officers  shall  by  law  have  in 
their  offices,  shall  be  expressed  in  their  respective 
commissions."  Then  what  else  will  you  have? 
You  will  have  the  old  twenty- ninth  article  of  the 
Bill  of  Rights  restored  as  the  thirtieth  article  of 
the  Bill  of  Rights  of  this  Constitution,  declaring 
a  judicial  tenure  for  life,  or  during  good  behavior. 
You  will  therefore  have  a  perfect  Constitution, 
harmonious  and  consistent,  if  the  people  accept 
this,  and  reject  the  other.  But  suppose  they  re 
ject  number  one,  and  accept  the  other,  what  will 
you  have  in  that  case  ?  Then,  of  course,  having 
rejected  the  new  Constitution,  the  old  Constitu 
tion  stands  as  the  Constitution  of  the  Common 
wealth;  but,  having  accepted  an  amendment 
which  is,  to  some  extent,  inconsistent  with  that, 
as  every  amendment  is  supposed  to  be,  that 
amendment  stands  just  exactly  as  other  amend 
ments  stand,  which  have  changed  the  old  Consti 
tution  in  some  particular  lespects.  To  my  mind 
it  is  perfectly  clear,  that  if  you  adopt  this  provis 
ion  and  put  into  the  resolve  the  words  which  I 
have  now  suggested,  the  Constitution  will  be  a 
perfect  system,  no  matter  what  action  the  people 
may  take  with  regard  to  the  adoption  or  rejection 
of  these  amendments.  I  submit  to  the  discrim 
inating  mind  of  the  gentleman  who  represents 
Manchester,  that  there  can  be  no  difficulty  what 
ever. 

Mr.  BOUTWELL,  for  Berlin.  This  proposi 
tion  is  so  very  complicated,  that  gentlemen  for  a 
considerable  time  may  disagree  as  to  what  its 
effect  is  ;  and  what  I  have  to  say  is  rather  in  the 
way  of  suggestion.  If  the  proposition  of  the 
gentleman  from  Boston  shall  be  entertained  by 
the  Convention,  and  his  numbers  nine,  ten, 
eleven  and  twelve,  shall  be  submitted  to  the  peo 
ple,  we  also  submit  number  one,  which  stands  in 
place  of  the  old  Constitution.  If,  then,  numbers 
nine,  ten,  eleven  and  twelve,  are  rejected,  the 


690 


REVISED   CONSTITUTION. 


[72d  day. 


Monday," 


BOUTWELL  —  SCHOULEB, "WHITNEY CHOATE. 


[August  1st. 


result  is,  that  your  thirtieth  article  of  the  Bill  of 
Rights  is  gone  altogether.  But  suppose  we  sub 
mit  number  one  to  the  people,  without  the  second 
clause  of  article  second,  article  third  of  the  chap 
ter  on  the  judiciary  power  in  the  present  Consti 
tution  passes  away ;  and  if  the  proposition  of  the 
gentleman  from  Boston  is  rejected,  that  passes 
away,  and  then  what  will  you  have  ?  You 
declare  in  the  Constitution  that  the  judicial  power 
of  the  Commonwealth  shall  be  vested  in  a  su 
preme  judicial  court,  and  such  other  courts  as  the 
legislature  may  from  time  to  time  establish ;  but 
you  have  no  provision  how  your  judges  shall  be 
appointed,  so  far  as  I  can  see  at  this  moment. 
Are  they  to  be  elected  by  the  people  in  that  case  ? 
I  presume  that  would  be  a  question  for  the  legis 
lature  to  determine  ;  and  thus,  instead  of  settling 
the  mode  of  election  by  the  people  in  the  Consti 
tution,  you  leave  it  for  legislative  action.  And 
you  have  stricken  out  the  provision  in  the  third 
article  of  the  proposed  Constitution,  which  de 
clares  that  the  judges  may  be  removed  by  the 
governor,  with  the  consent  of  the  council,  upon 
the  address  of  both  branches  of  the  legislature  ; 
so  that  according  to  this,  whether  the  proposition 
of  the  gentleman  from  Boston  be  adopted  or 
rejected  by  the  people,  as  the  former  Constitution 
will  have  passed  away,  you  will  have  a  Constitu 
tion  without  any  power  whatever  to  remove  a 
judge  by  the  address  of  both  branches  of  the 
legislature.  I  make  these  remarks  by  way  of 
suggestion,  in  order  to  show  the  complicated 
nature  of  the  proposition  of  the  gentleman  from 
Boston.  I  cannot  tell  how  I  should  regard  it  if 
we  had  time  to  give  it  a  deliberate  examination  ; 
but  it  seems  to  me  so  complicated  that  it  cannot 
probably  be  fully  comprehended  by  this  Conven 
tion  to-day. 

Mr.  SCHOULER,  of  Boston.  I  would  like 
to  ask  the  gentleman  for  Berlin  a  question.  If 
we  strike  out  all  with  regard  to  the  judiciary, 
according  to  the  proposition  of  the  gentleman 
from  Boston,  (Mr.  Choate,)  and  if  the  people 
should  adopt  the  Constitution  in  this  form,  and 
at  the  same  time  reject  the  propositions  of  my 
distinguished  colleague,  I  want  to  know  whether 
that  part  of  the  old  Constitution  which  relates  to 
the  judiciary,  would  not  stand  as  a  part  of  the 
new  Constitution  ? 

Mr.  BOUTWELL.  That  would  not  stand 
unless  this  Convention  should  make  that  excep 
tion  in  proposition  number  one,  because  it  is 
expressly  declared  that  proposition  number  one 
shall  take  the  place  of  the  existing  Constitution 
of  the  Commonwealth.  But  if  the  idea  that  exists 
in  the  mind  of  the  gentleman  from  Boston,  should 
be  the  idea  of  this  Convention,  then  what  have 


you  ?  You  have  now  a  Constitution  without 
proper  provisions  for  the  existence  and  working 
of  the  judiciary  power,  and  in  order  to  remedy 
that  evil,  what  do  you  do  ?  You  bring  back  into 
life  again  the  Constitution  of  1780  and  all  its 
amendments ;  and  what  the  judiciary  power  is,  as 
provided  in  that  Constitution,  no  man  can  tell, 
unless  he  has  the  whole  instrument  with  all  the 
amendments  and  provisions  before  him.  For  my 
part,  I  cannot  see  how  this  proposition  can  be 
submitted  in  the  manner  proposed  by  my  friend 
from  Boston,  without  working  infinite  evil  in 
some  one  of  these  ways  which  I  have  suggested, 
if  not  in  other  ways  which  may  be  seen  when  it 
shall  be  more  fully  examined. 

Mr.  WHITNEY,  of  Boylston.  The  system  of 
the  gentleman  from  Boston  may  be_yery  beautiful 
—I  have  no  doubt  it  is — but  it  is  too  complicated 
for  this  time.  We  have  no  opportunity  to  exam 
ine  it  and  to  understand  it ;  and  I  hope,  there 
fore,  that  his  amendment  will  not  be  adopted. 

Mr.  CHOATE,  of  Boston.  A  single  word, 
Mr.  President.  This  is  to  some  extent  an  ex 
pression  of  opinion  against  opinion ;  and  when  I 
shall  have  repeated  the  expression  of  my  own,  in 
entire  concurrence  with  that  of  my  friend  from 
Salem,  availing  myself  of  his  very  clear  and  lucid 
exposition  of  the  matter,  I  shall  have  said  all  that 
I  have  to  say  on  the  present  occasion.  As  I 
understand  the  chairman  of  the  Committee  and 
my  friend  for  Manchester,  there  is  but  one  single 
contingency  in  which  any  difficulty  can  be  appre 
hended.  Let  us  see  what  that  difficulty  is,  and 
in  one  single  word,  what  the  answer  to  it  is. 
The  difficulty  which  is  expected,  is,  that  resolu 
tion  number  one  may  be  adopted  by  the  people, 
and  these  amendments  may  be  rejected;  and 
thereupon  they  suppose  that  the  people  will  have 
repealed  and  abrogated  the  old  Constitution,  and 
will  have  made  a  new  Constitution,  in  which 
they  will  have  made  no  provision  at  all  for  the 
tenure  of  judicial  offices.  Let  me  repeat  it,  in 
order  that  we  may  see  whether  the  answer  to  this 
difficulty  is  not  entirely  satisfactory.  By  the 
adoption  of  resolution  number  one,  the  old  Con 
stitution  will  have  ceased  to  be,  because  the 
proposition  numbered  one  becomes  the  Constitu 
tion  of  the  Commonwealth,  and  displaces  the 
other,  of  course.  The  amendments  which  I  now 
offer  as  numbers  nine,  ten  and  eleven,  however, 
being  rejected,  and  the  Convention  having  first 
stricken  from  number  one  those  three  provisions 
which  prescribe  the  judicial  tenure  of  ten  years, 
the  difficulty  which  they  fear  is,  that  they  shall 
be  left  with  judicial  offices  having  no  tenure 
whatever  prescribed.  Now,  I  respectfully  sub 
mit,  that  there  are  three  several  answers  to  this 


72d  day.] 


REVISED   CONSTITUTION. 


691 


Monday," 


CHOATE  —  BOUTWELL  —  DANA. 


[August  1st. 


difficulty,  to  which  I  imagine  that  every  legal 
mind  and  sober  understanding  will  entirely  assent. 
In  the  first  place,  we  are  to  suppose  that  the  peo 
ple  will  do  nothing  at  all  capricious  in  regard  to 
what  we  are  about  to  submit  to  them ;  and  there 
fore  I  reason  upon  the  supposition  that  article 
number  twelve  will  also  be  adopted  and  become 
a  part  of  the  new  Constitution.  That  article  pro 
vides  that  all  tenures  of  judicial  offices  which  are 
not  changed  by  the  Constitution,  shall  remain  as 
heretofore.  Very  well ;  then  you  have  got  a  new 
Constitution  as  contained  in  proposition  number 
one  ;  but  you  have  made  no  change  in  the  tenure 
of  judicial  offices,  because  that  part  of  number 
one  which  undertook  to  make  a  change,  has  been 
stricken  out  of  number  one  and  placed  in  the 
appendix.  You  will  have  a  new  Constitution, 
abolishing  the  old  one,  it  is  true ;  but  the  new 
Constitution  makes  no  change  in  the  tenure  of 
judicial  offices,  and  therefore  by  the  force  of  my 
own  amendment,  all  these  tenures  being  un 
changed,  remain  as  heretofore.  In  order,  then, 
to  know  what  is  the  existing  tenure  of  judicial 
offices,  it  will  not  be  necessary  to  go  back  to  trace 
the  history  of  the  past  two  hundred  years,  for  the 
provisions  of  the  present  Constitution  on  that 
subject  are  well  understood,  and  no  change  will 
take  place. 

Mr.  BOUTWELL,  for  Berlin.  It  may  be  that 
I  do  not  understand  the  proposition  of  the  gen 
tleman  ;  but  my  point  is  this :  If  proposition 
number  one  is  accepted,  it  becomes  the  Constitu 
tion  of  the  State ;  but  if  the  propositions  of  the 
gentleman  from  Boston  are  rejected,  that  one 
which  provides  for  a  judicial  tenure  is  rejected 
with  the  rest. 

Mr.  CHOATE.  In  the  first  place,  I  do  not 
apprehend  anything  like  capricious  action  upon 
the  part  of  the  people  of  this  Commonwealth.  I 
presume  them  to  be,  in  the  main,  intelligent,  and 
I  presume  them  to  act  thus.  If  they  make  a 
new  Constitution  which  establishes  no  change 
whatever  in  the  judicial  tenure,  and  which  in 
tentionally  omits  to  change  the  judicial  tenure, 
and  if,  at  the  same  time,  they  reject  the  separate 
proposition  which  does  make  that  change,  they 
will  of  course  desire  that  the  tenure  shall  remain 
as  it  is,  and  will  adopt  my  amendment,  num 
bered  twelve. 

The  second  answer  I  submit  on  the  sugges 
tion  which  I  adopt  very  cheerfully  from  my  friend 
from  Salem,  (Mr.  Lord)  ;  and  that  is,  that  in  a 
certain  contingency,  which  is  contemplated  by 
the  honorable  chairman  of  the  Committee,  arti 
cle  number  twenty-nine,  in  the  present  Bill  of 
Rights  shall  be  revived  and  considered  as  article 
thirty  in  the  Bill  of  Rights  of  the  new  Constitu 


tion.  Then  you  will  have  not  only  your  new 
Constitution,  as  contained  in  proposition  number 
one,  making  in  itself  no  change  in  the  judicial 
tenure,  but  you  will  also  have  the  twenty- ninth 
article  of  the  old  Bill  of  Rights,  adopted  by  the 
same  popular  act,  and  declaring  that  the  judges 
of  the  supreme  judicial  court  shall  hold  their 
offices  during  good  behavior.  Thus,  in  either  mode, 
unless  you  suppose  the  conduct  of  the  people 
wrill  be  capricious,  unsystematic,  and  unintelli 
gent  in  the  last  degree,  the  difficulty  suggested  by 
the  gentleman  will  be  obviated. 

But  there  is  a  third  reason  upon  which  I  may 
very  well  stand,  in  point  of  fact.  The  effect  of 
such  a  state  of  things  as  the  gentleman  has  hy 
pothecated,  will  be  exactly  this — that  the  exist 
ing  Constitution  will  not  have  been  changed  at 
all  in  the  matter  of  judicial  tenures ;  and  when 
you  become  satisfied  of  that  fact,  it  follows,  as  a 
principle  of  universal  jurisprudence,  that»the  old 
Constitution,  so  far  as  it  is  unchanged  by  what 
you  do,  remains  entirely  unaffected,  and  in  full 
force.  I  remember  very  well,  that  that  principle 
was  advanced,  and  I  listened  to  an  argument  of 
great  learning  and  power  based  upon  it,  in  the 
Convention  in  the  State  of  New  York.  The 
question  was  there  raised,  what  would  be  the 
state  of  things  if  the  new  Constitution  should 
not  completely  abrogate  the  old,  but  become  part 
and  parcel  of  it.  And  I  understood  the  doctrine 
to  have  been — the  argument  was  conducted  by 
Mr.  Wheaton — that,  as  a  matter  of  course,  if,  on 
collating  the  new  work  with  the  old  one,  you 
should  find  that  you  have  not  changed  the  old 
Constitution  or  law — whether  it  be  Constitution, 
statute,  or  treaty,  or  whatever  it  may  be — it  re 
mains  entirely  unaffected.  So  it  does  seem  to 
me  that  the  contingency  which  the  ingenuity  of 
gentlemen  have  discovered,  can  never  happen, 
and  therefore  is  not  a  ground  of  rational  objec 
tion. 

Mr.  DANA,  for  Manchester.  I  wish  to  get  at 
a  full  understanding  of  this  question,  so  that  we 
may  know  what  we  accept  or  reject.  I  ask  the 
gentleman  whether  I  understand  him  as  saying 
that  he  intends  to  put  the  four  propositions  out 
to  the  people  as  one,  to  stand  or  fall  together  ? 

Mr.  CHOATE.     All  together. 

Mr.  DANA.  Then  I  do  not  understand  the 
remark  as  to  the  possible  capriciousness  of  the 
people  in  rejecting  one  part  or  the  other.  I  un 
derstood  the  gentleman  to  adopt  the  suggestion 
of  the  gentleman  from  Salem,  (Mr.  Lord).  We 
put  to  the  people  this  ninth  proposition  to  say 
"  yes,"  or  "  no  "  to.  If  they  say  "  yes,"  they  are 
accepted,  if  "  no,"  they  are  rejected.  Well,  then, 
we  propose  to  say  here,  in  Convention,  by  force 


692 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


LORD  —  HALLETT. 


[August  1st. 


of  resolves,  that  if  the  people  reject  that  propo 
sition,  that  rejection  shall  thereby  transfer  the 
thirtieth  article  of  the  old  Bill  of  Eights,  into  our 
new  Constitution.  I  ask  the  gentleman  whether 
he  apprehends  that  we  have  any  right,  by  force  of 
resolution  merely,  to  transfer  an  article  from  the 
Bill  of  Rights  of  1780,  to  the  Constitution  of  1853  ? 
You  say  to  the  people,  will  you  accept  or  reject 
proposition  "ten?"  They  answer,  «« no  "  Can 
we  say,  then,  by  resolution  here,  that  their  nega 
tive  shall  operate  to  transfer  article  thirtieth  of 
the  Bill  of  Rights  from  the  Constitution  of  1780, 
to  the  Constitution  of  1853  ?  I  put  it  to  those 
gentlemen  as  a  legal  question,  whether  it  can  be 
done  ? 

Mr.  LORD,  of  Salem.  I  suppose  it  is  not 
quite  unimportant  in  what  sort  of  form  this  mat 
ter  goes  out.  In  my  judgment,  the  people  are 
quite  as  anxious  to  have  it  put  into  a  proper 
shape,  as  they  are  for  us  to  go  home  ;  and  they 
are  anxious  for  the  last,  we  all  know.  Now, 
Sir,  the  suggestion  which  I  make  in  reply  to  the 
question  put  by  the  gentleman  who  represents 
Manchester,  is  this:  He  asks  if  we  have  the 
power  to  say,  if  the  people  reject  propositions 
nine,  ten,  eleven,  and  twelve,  that  the  twenty- 
ninth  article  of  the  Bill  of  Rights  of  the  old  Con 
stitution  shall  be  called,  and  shall  form  the  thir 
tieth  article  in  the  new  Constitution  ?  Well,  Sir, 
I  think  the  form  is  pretty  unimportant ;  what  I 
am  after,  is  substance.  Numbers  nine,  ten,  eleven, 
and  twelve,  are  amendments  to  an  article  of  the 
Bill  of  Rights  of  the  old  Constitution.  The 
twenty- ninth  article  of  the  old  Constitution 
says,  for  certain  reasons,  which  it  recites,  that 
judges  shall  hold  their  offices  during  good  be 
havior.  The  amendment  says,  that  for  these 
very  same  reasons,  they  shall  hold  their  offices 
according  to  the  tenure  of  the  Constitution.  Now 
we  say,  it  is  competent  for  us  to  submit  to  the 
people  the  question  "  will  you  amend  that  article  r" 
If  you  adopt  it,  you  amend  that  article,  if  you 
do  not,  it  stands ;  and  the  mere  fact  that  we 
designate  the  article  in  which  it  shall  stand,  is  an 
unimportant  matter.  The  whole  question  which 
we  submit  to  the  people,  being,  will  you  amend 
it ;  if  you  do  amend  it,  then  it  stands  amended  ; 
if  you  do  not  amend  it,  then  the  article  which 
we  propose  to  amend,  shall  still  remain  a  part  of 
the  Constitution,  unamended,  and  unaltered.  I 
can  see  no  difficulty  in  this  matter.  I  think  it 
would  be  proper  to  say,  that  if  number  "one"  is 
adopted,  then  the  present  Constitution  is  abro 
gated,  but  if  it  is  not  adopted,  then  the  present 
Constitution  shall  stand.  I  think  that  is  proper, 
and  I  think  it  is  just  as  proper  to  say  if  the 
twenty- ninth  article  of  the  Bill  of  Rights  is 


amended,  it  shall  stand  amended,  but  if  the  peo 
ple  reject  it,  then  the  twenty-ninth  article  shall 
stand  unamended,  and  unaltered.  I  see  no  diffi 
culty  whatever,  and  I  hope  gentlemen  who  are 
anxious  to  have  this  question  submitted  to  the 
people  as  an  independent  one,  will  overlook  the 
nice  technicalities  in  form,  where  there  is  no  ob 
jection  to  the  substance. 

Mr.  HALLETT,  for  Wilbraham.  As  I  am 
desirous  to  satisfy  every  gentleman  as  to  the  mode 
of  submitting  these  provisions  to  the  people,  I  ask 
them  to  look  at  the  different  systems  upon  v\  hich 
the  old  Constitution  and  the  proposed  Constitu 
tion  have  been  formed.  Now,  I  said  on  a  former 
occasion,  that  it  is  easy  for  any  gentleman  to  sit 
down  and  take  these  amendments,  and  by  clas 
sifying  them  under  as  many  chapters  as  there  are 
in  the  old  Constitution,  and  putting  in  every 
matter  into  the  chapter  to  which  it  belongs,  form 
the  chapters  in  place  of  the  old  ones.  Now  you 
can  do  that,  but  in  order  to  carry  out  that  mode, 
you  must  sacrifice  a  great  deal  of  system.  Just 
look  at  the  effect.  In  the  old  Constitution  are 
six  chapters  and  thirteen  amendments.  There 
are  sections  in  each  chapter,  and  those  sections  are 
divided  and  subdivided  into  articles.  If  you  fol 
low  the  old  system  you  will  have  a  jumbled 
up  Constitution,  one  exceedingly  difficult  to  be 
cited,  for  every-body  knows  that  in  citing  the 
Constitution  to  the  court,  they  are  frequently  in 
volved  in  extreme  difficulty  to  make  themselves 
understood  by  the  court  as  to  their  citation. 
Now  here  is  an  improvement.  Every  gentleman 
who  has  ever  looked  to  an  analysis  will  see  that 
it  is  an  improvement,  by  taking  this  new  Consti 
tution  and  making  fourteen  chapters  of  it,  and 
subdividing  each  chapter  into  articles,  and  em 
bracing  in  each  chapter  the  whole  subject  matter 
of  that  chapter.  It  is  a  scientific  classification, 
according  to  all  rules,  to  comprise  subjects  into 
chapters  and  articles.  If  you  desire  to  have  that, 
you  must  have  the  great  body  of  the  Constitution 
presented  together.  Now  I  confess  that  when  I 
began  to  make  these  amendments,  I  was  desirous 
to  put  them  in  that  form,  chapter  for  chapter,  and 
yet,  as  I  said  before,  it  can  be  done  only  at  the 
expense  of  symmetry.  At  the  same  time,  how 
ever,  I  yield,  though  not  without  doubt  of  diffi 
culty,  to  the  suggestion  of  the  attorney-general, 
(Mr.  Choate,)  so  far  as  to  place  the  subject  of  the 
judiciary  before  the  people  as  a  separate  question, 
because  it  is  a  distinct  subject,  though  not  en 
tirely  satisfied  as  to  the  manner  in  which  it  is 
brought  forward,  or  that  the  adoption  of  it  in  that 
particular  form  will  not  involve  us  in  difficulties. 

These  are  the  reasons  why  I  shall  vote  for  the 
proposition  of  the  gentleman  from  Boston,  (Mr. 


72d  day.] 


REVISED   CONSTITUTION. 


693 


Monday,] 


BOUTWELL  —  LORD. 


[August  1st. 


Choate,)  while  at  the  same  time  my  convictions 
are,  that  we  should  take  as  much  of  this  Constitu 
tion  as  a  whole  as  we  practically  can. 

The  question  was  then  taken  upon  the  motion 
of  Mr.  Choate,  to  strike  out  the  different  portions 
of  number  "  one  "  as  hereinbefore  stated,  and  to 
insert  them  among  the  separate  propositions  to  be 
submitted  to  the  people  as  distinct  questions,  and 
it  was  decided  in  the  negative — ayes,  72 ;  noes, 
168. 

So  the  motion  was  lost. 

Mr.  BOUTWELL,  for  Berlin.  In  consequence 
of  a  change  of  the  resolution  by  the  Committee 
immediately  before  the  last  edition  of  the  Report 
went  to  the  press,  an  omission  has  been  made 
which  leaves  a  matter  in  doubt  which  ought  to  be 
rendered  certain.  I  therefore  move  to  insert  after 
the  word  "  officers  "  in  the  following  clause  of  the 
second  article  of  this  chapter,  "  and  all  judicial 
officers  may  be  removed  by  the  governor,  with 
consent  of  the  council,  upon  the  address  of  both 
houses  of  the  legislature,"  the  words  "  for  whose 
appointments  different  provision  is  not  made  in 
this  Constitution,  shall  be  appointed  by  the  gov 
ernor,  by  and  with  the  advice  and  consent  of  the 
council,  and  they  ". 

Mr.  LORD,  of  Salem.  I  desire  to  ask  the 
chairman  of  the  Committee  whether  he  under 
stands  that  these  limited  justices,  those  who  have 
power  to  do  certain  things,  but  not  to  try  causes, 
are  judicial  officers  who  are  to  be  removed  ? 

Mr.  BOUTWELL.     I  do. 

Mr.  LORD.  Then  I  submit  that  this  amend 
ment  of  the  Constitution  which  the  Convention 
has  not  voted  upon,  that  the  provision  of  the 
Constitution  in  relation  to  the  removal  of  officers 
upon  the  address  of  the  two  houses,  applies  in  its 
terms  only  to  those  officers  who  are  appointed 
during  good  behavior,  while  another  mode  is  pre 
scribed  by  the  Constitution  for  getting  rid  of 
justices.  Now  this  article  makes  justices  remova 
ble  by  the  governor  and  council,  when  they  were 
not  removable  by  the  governor  and  council  upon 
the  address  to  the  two  houses,  under  the  former 
Constitution.  That  is  an  amendment  which  is 
not  in  the  Constitution,  and  I  submit  that  in 
order  to  make  this  amendment  conform  to  the 
present  action  of  the  Convention,  it  is  necessary  to 
insert  after  the  words  "judicial  officers"  the 
words  "except  justices,"  so  that  it  shall  read, 
"and  all  judicial  officers  except  justices  may  be 
removed  by  the  governor,  with  consent  of  the 
council,  upon  the  address  of  both  houses  of  the 
legislature."  The  clause  as  it  now  stands,  changes 
the  Constitution  without  the  action  of  the  Con 
vention. 

Mr.  BOUTWELL.    The  point  suggested  by 


the  gentleman  from  Salem,  was  considered  in 
Committee,  if  I  understand  it ;  and  it  arose  from 
this  fact,  that  the  first  article  of  the  third  chapter 
of  the  existing  Constitution  leaves  the  question  as 
to  the  power  of  the  governor  and  council  in  some 
doubt  in  this  regard.  That  article  reads  thus  : — 

"  The  tenure  that  all  commission  officers  shall, 
by  law,  have  in  their  offices,  shall  be  expressed  in 
their  respective  commissions.  All  judicial  offi 
cers,  duly  appointed,  commissioned  and  sworn, 
shall  hold  their  offices  during  good  behavior,  ex 
cepting  such  concerning  whom  there  is  different 
provision  made  in  this  Constitution  :  provided, 
nevertheless,  the  Governor,  with  consent  of  the 
Council,  may  remove  them  upon  the  address  of 
both  houses  of  the  legislature." 

The  difficulty  about  this  provision  is,  that  it  is 
a  matter  of  some  doubt  whether  it  includes  justices 
of  the  peace,  or  excludes  them.  If  it  includes 
them,  then  they  may  be  removed  by  the  governor 
as  well  as  other  judicial  officers.  The  Committee 
intended  to  declare  that  they  might  be  removed, 
because  they  thought  such  was  the  design  of  the 
Convention.  It  is,  however,  for  the  Convention 
to  say  whether  justices  of  the  peace  shall  be  re 
movable  or  not. 

Mr.  LORD,  of  Salem.  The  question  before 
the  Convention  now  is  :  "  Did  the  old  Constitu 
tion  provide  for  the  removal  of  justices  of  the 
peace  ? "  In  the  old  Constitution  we  find  in  the 
paragraph  which  the  gentleman  for  Berlin  has 
just  quoted,  that 

"  All  judicial  officers  duly  appointed,  commis 
sioned  and  sworn,  shall  hold  their  offices  during 
good  behavior,  excepting  such  concerning  whom 
there  is  different  provision  made  in  this  Constitu 
tion  :  provided,  nevertheless,  the  Governor  with 
consent  of  the  Council,  may  remove  them  upon 
the  address  of  both  houses  of  the  legislature." 

Remove  whom  ?  Those  officers  whose  term  of 
office  continued  during  good  behavior. 

Now  here  are  justices  of  the  peace  who  are  not 
otherwise  provided  for  ;  and  then  the  section  goes 
011  to  say  that  all  commissions  shall  expire  and 
become  void  in  seven  years.  I  contend  that, 
taking  these  two  articles  together,  it  was  not  com 
petent  for  the  governor  and  council  to  remove 
them  upon  the  address  of  both  houses  of  the  leg 
islature  ;  and  the  reason  was,  that  their  tenure 
was  limited.  This  matter  was  once  before  a  com 
mittee  of  the  legislature  with  a  case  before  them 
in  which  they  were  all  of  opinion  that  there 
should  be  a  removal,  but  the  legislature  laid  the 
report  upon  the  table,  and  took  no  action  upon  it. 

Now  it  seems  to  me  that,  taking  these  provis 
ions  together,  justices  of  the  peace  were  not  de 
signed  to  be  removed.  I  therefore  move  to  amend 


694 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


WATERS  —  HATHAWAY  —  LORD  —  HUBBARD. 


[August  1st. 


the  article  by  inserting,  after  the  words  "judicial 
officers,"  the  words  "  except  justices  of  the  peace." 
That  clause  will  then  read,  "  and  all  judicial 
officers  except  justices  of  the  peace,  may  be  re 
moved  by  the  governor,  with  consent  of  the 
council,  upon  the  address  of  both  houses  of  the 
legislature." 

Mr.  WATERS,  of  Millbury.  I  hope  that  this 
stumbling- block  which  has  always  been  in  the 
old  Constitution,  will  not  be  retained.  There 
have  been  three  constructions  given  to  this  article 
referred  to  by  the  gentleman  from  Salem,  by  men 
of  extreme  legal  ability ;  and  whenever  you  have 
attempted  to  remove  a  justice  of  the  peace,  this 
obscurity  has  been  brought  up  and  the  respond 
ent  has  escaped.  When  the  Constitution  of  1820 
was  adopted,  Judge  Story  referred  to  the  difficulty 
in  the  third  article,  and  with  that  provision  it  has 
been  impossible  to  remove  justices  of  the  peace 
under  the  old  Constitution.  Cases  of  gross  mal 
feasance  have  been  proved,  and  yet,  in  conse 
quence  of  the  obscurity  of  this  article,  it  is  im 
possible  to  remove  a  justice  of  the  peace.  Why, 
Sir,  I  would  sooner  undertake  to  draw  a  wood- 
chuck  from  his  burrow,  ten  feet  under  ground, 
with  a  corkscrew,  [laughter,]  than  attempt  to  re 
move  a  justice  of  the  peace  under  the  existing 
Constitution,  no  matter  how  corrupt  he  may  be. 
It  cannot  be  done,  Sir. 

Now,  it  seems  to  me,  that  tne  Coiiiiu.nec  .-~,- 
ing  that  matter  under  consideration,  have  re 
moved  that  obscurity ;  and  I  regard  it  as  one  of 
the  most  important  improvements  made  in  this 
Constitution.  I  therefore  hope  that  the  article 
will  be  retained,  as  they  have  reported  it.  To 
attempt  to  remove  a  justice  of  the  peace  involves 
a  great  expense ;  you  cannot  try  a  justice  of  the 
peace  short  of  two  thousand  dollars ;  and  I  trust, 
therefore,  that  this  evil  may  be  remedied,  and  I 
think  the  article  as  it  stands  does  furnish  that 
remedy. 

Mr.  HATHAWAY,  of  Freetown.  I  have  my 
doubts  as  to  whether  a  justice  of  the  peace  is  a 
judicial  officer.  The  court  of  a  justice  of  the 
peace  never  was  a  court  of  record.  Now,  what 
are  justices  of  the  peace,  under  the  Constitution, 
as  we  propose  to  make  them  ?  Their  authority  is 
exceedingly  limited.  Instead  of  making  them 
officers  capable  of  holding  courts  of  record,  we 
make  them  merely  ministerial  officers.  Trial 
justices  may,  perhaps,  be  regarded  as  a  different 
class,  holding  courts  of  record ;  but  if  justices  of 
the  peace  are  forever  prohibited  from  issuing 
warrants,  how  can  it  be  that  those  persons  are 
judiciary  officers  who  cannot  try  any  cases,  civil 
or  criminal  ?  It  seems  to  me — unless  there  is  a 
great  mistake  somewhere — that  it  is  wholly  un 


necessary  to  make  the  exception  of  justices  of  the 
peace. 

Mr.  LORD,  of  Salem.  In  order  to  save  labor 
and  the  time  of  the  Convention,  I  would  suggest 
that  instead  of  the  words  "justices  of  the  peace," 
the  words  "justices  of  police  courts,"  should  be 
used. 

Mr.  HATHAWAY.  There  is  no  doubt  about 
their  being  judicial  officers. 

Mr.  LORD.  I  offer  this  amendment  because 
the  Convention  has  already  determined  another 
mode  for  removing  them,  and  there  was  no  such 
mode  for  removing  them  in  the  old  Constitution, 
any  way.  If  the  Convention  inserts  these  words, 
it  will  leave  the  old  Constitution,  in  that  respect, 
as  it  is. 

Mr.  HUBBARD,  of  Boston.  If  I  understand 
the  question,  the  gentleman  for  Berlin  proposes 
that  justices  of  the  peace  may  be  removable  by 
the  governor  and  council,  on  address,  as  in  other 
cases  ? 

Mr.  LORD.  In  order  to  avoid  farther  dispute 
and  trouble  in  regard  to  this  matter,  I  will  with 
draw  the  amendment. 

The  eighth  chapter  was  then  finally  passed. 

The  Secretary  then  proceeded  to  read  the 
ninth  chapter,  relating  to  the  qualifications  of 
voters,  and  elections — designating  the  persons 
entitled  to  vote ;  the  mode  of  voting  ;  ballots 

uc  'r  T-'lod  envelopes;  the  day  of  elections; 
by  wiiuiJL.  iucctuigs  to  be  cal  ed  ;  the  officers  who 
are  to  be  elected  by  a  majority  of  votes;  pro 
visions  in  case  of  no  election  by  the  people  ;  pro 
visions  in  regard  to  the  election  of  city  and 
town  officers ;  officers  who  may  be  elected  by  a 
plurality  vote  ;  and  provisions  in  cases  of  failure 
to  elect.  It  is  as  follows  : — 

ARTICLE  1.  Every  male  citizen,  twenty- one 
years  of  age  and  upwards,  (excepting  paupers  and 
persons  under  guardianship,)  who  shall  have  re 
sided  within  the  Commonwealth  one  year,  and 
within  the  town  or  district,  in  which  he  may  claim 
a  right  to  vote,  six  calendar  months  next  pre 
ceding  any  election  of  any  national  officer,  or  any 
officer  required  by  this  Constitution  to  be  elect 
ed  by  the  people,  shall  have  a  right  to  vote  in  such 
election  ;  and  no  other  person  shall  have  such  right. 

[ART.  2.  All  ballots  required  by  law  to  be 
given  at  any  national,  state,  county,  district,  or 
city  election,  including  elections  for  representa 
tives  and  trial  justices,  justices  and  clerks  of  police 
courts,  shall  be  deposited  in  sealed  envelopes  of 
uniform  size  and  appearance,  to  be  furnished  by 
the  Commonwealth. 

ART.  3.  Lists  of  the  names  of  qualified  voters 
shall  be  used  at  all  elections  required  by  this 
Constitution.  They  shall  be  made  out  and  used 
in  such  manner  as  shall  be  by  law  provided. 
The  presiding  officers  at  such  elections  shall  re 
ceive  the  votes  of  all  persons  whose  names  are 


72d  day.] 


REVISED   CONSTITUTION. 


695 


Monday,] 


PARKER  —  BOUTWELL  —  WATERS  —  HALLETT. 


[August  1st. 


borne  on  such  lists,  and  shall  not  be  held  answer 
able  for  refusing  the  votes  of  any  persons  whose 
names  are  not  borne  thereon. 

ART.  4.  All  meetings  for  the  choice  of  national, 
state,  county,  or  district  officers,  including  rep 
resentatives,  trial  justices,  clerks  and  justices  of 
police  courts,  by  the  people,  shall  be  held  on  the 
Tuesday  next  after  the  first  Monday  in  Novem 
ber,  annually  ;  and  they  shall  be  called  by  the 
mayor  and  aldermen  of  the  cities,  and  the  select 
men  of  the  towns,  and  warned  in  due  course  of 
law.  The  manner  of  calling  and  holding  public 
meetings  in  cities,  for  the  election  of  officers  under 
this  Constitution,  and  the  manner  of  returning 
the  votes  given  at  such  meetings,  shall  be  as  now 
prescribed,  or  as  shall  hereafter  be  prescribed  by 
the  Legislature. 

ART.  5.  A  majority  of  all  the  votes  given 
shall  be  necessary  to  the  election  of  governor, 
lieutenant-governor,  secretary,  treasurer,  auditor, 
and  attorney- general,  of  the  Common  wealth, 
until  otherwise  provided  by  law,  but  no  such 
law  providing  that  such  officers,  or  either  of 
them,  or  representatives  to  the  General  Court, 
shall  be  elected  by  plurality,  instead  of  a  majority 
of  votes  given,  shall  take  effect  until  one  year 
after  its  passage ;  and  if  at  any  time  after  any 
such  law  shall  have  taken  effect,  it  shall  be  re 
pealed,  such  repeal  shall  not  become  a  law  until 
one  year  after  the  passage  of  the  repealing  act ;  and 
in  the  absence  of  any  such  law,  if  at  any  election 
of  either  of  the  above-named  officers,  except  the 
representatives  to  the  General  Court,  no  person 
shall  have  a  majority  of  the  votes  given,  the 
House  of  Representatives  shall  elect  two  out  of 
three  persons  then  eligible,  who  had  the  highest 
number  of  votes,  if  so  many  shall  have  been  voted 
for,  and  return  the  persons  so  elected  to  the  Sen 
ate,  from  whom  the  Senate  shall  choose  one  who 
shall  be  the  officer  thus  to  be  elected. 

ART.  6.  A  majority  of  votes  shall  be  required 
in  all  elections  of  representatives  to  the  General 
Court,  until  otherwise  provided  by  law. 

ART.  7.  In  the  election  of  all  city  or  town 
officers,  such  rule  of  election  shall  govern  as  the 
Legislature  may  by  law  prescribe. 

ART.  8.  In  all  elections  of  councillors  and 
senators,  and  in  all  elections  of  county  or  district 
officers,  the  person  having  the  highest  number  of 
votes  shall  be  elected. 

ART.  9.  Wnenever,  in  any  election  where 
the  person  having  the  highest  number  of  votes 
may  be  elected,  there  is  a  failure  of  election  be 
cause  two  persons  have  an  equal  number  of  votes, 
subsequent  trials  may  be  had  at  such  times  as 
may  be  prescribed  by  the  Legislature.] 

Mr.  PARKER,  of  Cambridge.  The  Report 
of  the  Committee  appointed  to  revise  and  put  the 
amendments  into  form,  was  distributed  this  morn 
ing,  and  it  is  very  evident  that  sufficient  time  has 
not  been  given  for  an  examination  of  that  Report, 
so  that  we  can  compare  it  with  the  resolutions 
which  were  committed  to  the  Committee,  and 
with  the  present  Constitution.  I  am,  therefore, 
of  the  opinion  that  the  work  of  this  Convention 


cannot  be  finished  to-night  in  a  proper  manner. 
For  the  purpose  of  having  an  opportunity  to 
make  that  examination,  I  move  that  the  Conven 
tion  do  now  adjourn. 

The  question  being  taken,  on  a  division,  there 
were — ayes,  51  ;  noes,  133 — so  the  Convention 
refused  to  adjourn. 

Mr.  BOUTWELL,  for  Berlin.  In  order  to 
make  it  conform  to  the  resolution  referred  to  the 
Committee,  which  includes  state  as  well  as  na 
tional  officers,  I  move  that  the  word  "  state"  be 
inserted  after  the  word  "  any,"  so  that  it  will 
read  : — 

Every  male  citizen,  of  twenty- one  years  of  age 
and  upwards,  (excepting  paupers  and  persons 
under  guardianship,)  who  shall  have  resided 
within  the  Commonwealth  one  year,  and  within 
the  town  or  district,  in  which  he  may  claim  a 
right  to  vote,  six  calendar  months  next  preceding 
any  election  of  any  national  officer,  or  any  state 
officer  required  by  this  Constitution  to  be  elected 
by  the  people,  shall  have  a  right  to  vote  in  such 
election ;  and  no  other  person  shall  have  such 
right. 

The  question  being  taken  upon  the  amend 
ment,  it  was  agreed  to. 

Mr.  WATERS,  of  Millbury.  It  seems  to  me 
that  there  is  a  little  obscurity  as  to  the  manner  of 
electing  trial  justices.  If  they  are  county  officers, 
they  are  to  be  elected  by  a  plurality  vote,  while  if 
they  are  town  officers,  they  are  to  be  elected  by  a 
majority  vote.  I  think  this  obscurity  ought  to  be 
remedied,  as  it  may  lead  to  a  practical  difficulty  ; 
and  I  would  suggest  to  the  chairman,  whether  it 
should  not  be  remedied  now,  by  deciding  whether 
these  officers  should  be  elected  by  a  plurality  vote 
or  a  majority  vote.  I  move  to  add  the  words 
"including trial  justices"  after  the  word  "offi 
cers,"  in  the  eighth  article,  so  that  it  will  read  as 
follows  : — 

ART.  8.  In  all  elections  of  councillors  and 
senators,  and  in  all  elections  of  county  or  district 
officers,  including  trial  justices,  the  person  having 
the  highest  number  of  votes  shall  be  elected. 

The  PRESIDENT.  That  is  an  amendment  of 
substance,  and  not  of  form. 

Mr.  WATERS.  I  believe  the  Convention  have 
decided  that  trial  justices  are  county  officers. 

The  PRESIDENT.  As  it  is  an  amendment 
of  substance,  it  is  not,  therefore,  admissible. 

Mr.  HALLETT,  for  Wilbraham.  I  wish  to 
move  a  reconsideration  of  the  vote  which  has  just 
been  taken,  by  which  the  word  "state"  was 
inserted  between  "any"  and  "officer."  I  un 
derstand  that  the  construction  with  regard  to 
national  and  state  officers,  out  of  which  this  pro 
vision  grew,  was  somewhat  doubtful.  If  the 


698 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,^ 


LOUD  —  HALLETT  —  HUBBARD  —  BUTLER. 


[August  1st. 


word  "  state  "  is  put  in  there,  so  that  it  will  read 
"  the  election  of  any  national  officer  or  any  state 
officer,"  you  declare  in  your  Constitution,  that 
when  a  man  has  no  right  to  vote  for  national  or 
state  officers,  therefore  he  has  no  right  to  vote  for 
county  and  district  officers.  I  cannot  think  that 
the  Convention  intend  to  put  any  such  construc 
tion  as  that  upon  it.  I  move  to  reconsider  that 
vote,  for  the  purpose  of  either  striking  out  the 
word  "  state"  or  adding  "  or  other,"  which  will 
amount  to  the  same  thing.  I  do  not  know  how 
you  can  give  a  voter  any  more  power  than  the 
Constitution  gives  him. 

Mr.  LOUD,  of  Salem.  I  understand  that  that 
amendment  was  made  for  the  purpose  of  putting 
the  Constitution  into  the  form  in  which  we  have 
already  voted  that  we  want  it ;  and,  it  seems  to 
me,  that  if  we  now  change  that,  it  is  a  change  of 
substance,  and  not  a  change  of  form. 

The  PllESIDENT.  The  Chair  admitted  the 
amendment,  on  the  ground  that  it  was  to  rees 
tablish  the  original  construction. 

Mr  HALLETT.  Is  the  motion  to  reconsider, 
out  of  order  ? 

The  PllESIDENT.  The  amendment  was  ad 
mitted  in  order  that  the  article  might  stand  in 
accordance  with  the  terms  of  the  resolution  which 
the  Convention  acted  upon. 

Mr.  HALLETT.  That  is  the  question.  I  say 
it  stands  as  the  Convention  passed  upon  the  sub 
ject,  without  the  word  «•  state,"  and  the  intro 
duction  of  that  word  changes  the  meaning. 

The  PRESIDENT.  The  Chair  will  entertain 
the  motion  to  reconsider. 

Mr.  HUBBARD,  of  Boston.  I  am  very  con 
fident  that  the  article,  as  placed  in  the  Constitu 
tion,  conforms  to  the  resolve  which  was  passed 
by  the  Convention.  The  amendment  that  was 
made  with  regard  to  the  qualification  of  voters,  had 
reference  to  article  number  nine  of  the  Constitu 
tion,  which  prescribes  the  qualifications  of  elec 
tors  of  governor,  lieutenant-governor,  senators 
and  representatives,  and  an  attempt  was  made  to 
extend  it  to  all  classes  of  elections,  when  the 
ground  was  taken  that  the  Constitution  provided 
for  those  classes  of  officers,  but  the  legislature,  by 
statute,  provided  for  the  qualification  of  electors 
at  town  meetings,  and  that  it  should  be  left  to 
them  to  act  upon  those  elections  hereafter.  I  am 
certain  that  it  corresponds  to  the  resolve,  as  it 
was  adopted  by  the  Convention. 

Mr.  BUTLER,  of  Lowell.  I  cannot  have  any 
doubt  in  my  own  mind,  that  the  introduction  of 
the  word  "  state "  there,  is  meant  to  designate 
them  as  contradistinguished  from  national  officers. 
When  I  say  state  officers,  I  mean  officers  who 
act  under  the  authority  of  the  State ;  and  when 


I  say  national  officers,  I  mean  those  officers  who 
act  under  the  authority  of  the  general  govern 
ment.  The  two  terms  are  merely  used  in  contra 
distinction  to  each  other.  I  think  that  the  legis 
lature,  or  the  judges  of  the  supreme  court,  when 
ever  they  are  called  upon  to  construe  it,  would 
consider  it  to  apply  to  electors  in  all  elections.  I 
am  not  in  favor,  therefore,  of  the  motion  to  re 
consider.  I  doubt  the  propriety  of  the  construc 
tion  of  the  gentleman  for  Wilbraham.  The 
provision  is,  that  any  man  "  shall  have  a  right  to 
vote  in  such  election ; "  that  is  all.  What  election 
is  that  ?  Of  course  it  must  be  State  elections  ; 
and  what  can  you  elect  at  State  elections  ?  Ev 
ery  officer  in  the  Commonwealth  of  Massachu 
setts,  in  my  judgment.  I  am  content  with  it,  Sir, 
as  it  is.  I  am  not  very  strongly  in  favor  of  hav 
ing  a  tax  qualification  for  voting  for  anything 
under  Heaven ;  and  I  insist  that  no  man  shall 
have  such  qualification,  but  what  is  put  in  in 
conformity  with  the  resolve  as  it  was  passed.  I 
have  no  doubt  as  to  the  construction  of  that  res 
olution,  and  I  hope  the  motion  to  reconsider  will 
not  prevail. 

Mr.  HALLETT.  The  assurances  of  gentle 
men,  that  they  have  no  doubt  about  the  construc 
tion,  does  not  relieve  my  difficulty ;  I  wish  to 
place  it  beyond  the  possibility  of  doubt,  and  to 
make  it  certain.  The  proposition  which  was 
adopted  by  the  Convention  was,  the  proposition 
that  no  tax  qualification  should  be  required  to 
qualify  any  person  to  vote  for  state  or  national 
officers.  It  struck  out,  consequently,  that  pro 
vision  contained  in  the  ninth  article  of  the  old 
Constitution,  which  declared  that  every  male 
citizen,  of  twenty- one  years  of  age  and  upwards, 
— excepting  paupers  and  persons  under  guardian 
ship— who  shall  have  resided  within  the  Com 
monwealth  one  year,  &c.,  and  who  shall  have 
paid  a  tax,  &c.,  in  the  town  in  which  he  shall 
claim  the  right  to  vote,  shall  have  a  right  to  vote 
for  governor,  lieutenant-governor,  senators  and 
representatives.  Now,  you  say  that  persons  with 
out  paying  taxes,  if  they  have  the  residence,  shall 
have  the  right  to  vote  for  any  national  or  any 
state  officer ;  and,  thereby,  you  say  that  they  shall 
not  vote  for  town  representatives,  because  town 
representatives  are  not  state  officers ;  and  I.  do 
not  wish  to  go  before  the  supreme  court  of  this 
Commonwealth,  upon  the  construction  whether  a 
representative  of  a  town  is  a  state  officer,  or  an 
officer  of  the  town.  The  only  position  upon 
which  you  stand  here,  in  maintaining  town  rep 
resentation,  is,  that  the  representative  is  an  officer 
of  the  town,  and  not  an  officer  of  the  state.  If 
he  comes  here,  and  helps  to  make  laws  which 
govern  the  whole  State,  he  is  not  an  officer  of  the 


72d  day.] 


REVISED   CONSTITUTION. 


6S7 


Monday,] 


HALLETT  —  MILLER. 


[August  1st. 


Commonwealth  of  Massachusetts,  but  he  is  an 
officer  acting  for  the  town  that  elects  him — he  is 
a  deputy  of  that  town.  With  that  construction, 
no  person  has  a  right  to  vote  for  a  town  repre 
sentative  unless  he  pays  a  tax.  For  this  reason,  I 
want  the  word  "state"  stricken  out,  and  I 
should  like  to  have  the  word  "other"  inserted, 
so  that  it  will  read  "  any  national  officer,  or  any 
other  officer  required  by  this  Constitution,"  &c. 

The  PRESIDENT.  It  is  not  competent  to 
strike  out  the  word  "  state,"  inasmuch  as  that 
•word  was  in  the  original  resolution ;  the  gentle 
man  may  make  any  proposition  to  change  the 
form  which  does  not  change  the  substance. 

Mr.  HALLETT.  If  that  cannot  be  done,  I 
should  like  to  add  the  words  "  or  other"  between 
"  state  "  and  "  officer,"  so  that  it  will  read,  "  any 
national  officer,  or  any  state  or  other  officer,"  &c. 

The  PRESIDENT.  That  is  an  amendment  of 
substance. 

Mr.  HALLETT.  I  think  not,  Sir.  Then  I 
ask  general  consent  to  put  the  proposition  in  this 
form ;  it  certainly  can  do  no  injury,  and  it  may 
prevent  much  confusion  hereafter. 

The  PRESIDENT.  If  no  objection  is  made, 
the  gentleman  can  make  the  modification. 

Mr.  ASPINWALL,  of  Brookline.  I  object, 
Mr.  President. 

Mr.  MILLER,  of  Wareham.  I  wish  to  state 
a  difficulty  which  I  have  in  my  own  mind.  In  the 
ninth  article  you  provide  for  subsequent  trials 
where  there  is  a  failure  of  election,  becaiise  two 
persons  have  an  equal  number  of  votes  ;  but  in 
the  choice  of  senators  and  councillors  the  return 
is  to  be  made  seventeen  days  before  the  first  Wed 
nesday  in  January.  Now,  if  it  should  so  happen 
that  any  two  candidates  for  the  office  of  senator 
in  any  district  voted  for  have  an  equal  number  of 
votes  there  would  be  no  chance  that  another  elec 
tion  could  be  had  before  the  meeting  of  the  legis 
lature,  and  certain  districts  might  thereby  be 
deprived  of  their  senators.  I  make  n^  motion ; 
but  merely  name  this  for  the  consideration  of  the 
Convention. 

No  farther  amendment  being  proposed,  the 
Secretary  proceeded  to  read  chapter  ten,  as  fol 
lows  : — 

ARTICLE  1.  The  following  oath  shall  be  taken 
and  subscribed  by  every  person  chosen  or  ap 
pointed  to  any  office,  civil  or  military,  under  the 
government  of  the  Commonwealth,  before  he 
shall  enter  upon  the  duties  of  his  office,  to  wit : — 

"  I,  A.  B.,  do  solemnly  swear  that  I  will  bear 
true  faith  and  allegiance  to  the  Commonwealth  of 
Massachusetts,  and  will  support  the  Constitution 
thereof ;  and  that  I  will  faithfully  and  impartially 
discharge  and  perform  all  the  duties  incumbent 
on  me  as  [here  insert  the  office],  according  to  the 
478  ' 


best  of  my  abilities  and  understanding,  agreeably 
to  the  Constitution  and  laws  of  the  Common 
wealth.  So  help  me  God." 

[Provided,  that  when  any  person,  chosen  or 
appointed  as  aforesaid,  shall  be  conscientiously 
scrupulous  of  taking  and  subscribing  an  oath, 
and  shall  for  that  reason  decline  taking  the  above 
oath,  he  shall  make  and  subscribe  his  affirmation 
in  the  foregoing  form,  omitting  the  word  "  swear," 
and  substituting  the  word  "  affirm  ;"  and  omit 
ting  the  words  "  So  help  me  God,"  and  subjoin 
ing  instead  thereof  the  words  "  And  this  I  do 
under  the  pains  and  penalties  of  perjury."] 

And  the  said  oaths  or  affirmations  shall  be  taken 
and  subscribed,  by  the  governor  and  lieutenant- 
governor  before  the  president  of  the  Senate,  in 
presence  of  the  two  Houses  in  convention ;  and 
by  councillors  before  the  president  of  the  Senate 
and  in  presence  of  the  Senate  ;  and  by  the  sena 
tors  and  representatives  before  the  governor  and 
council  for  the  time  being ;  and  by  the  residue 
of  the  officers  aforesaid  before  such  persons,  and 
in  such  manner,  as  shall  from  time  to  time  be  pre 
scribed  by  law. 

ART.  2.  No  governor,  lieutenant-governor,  or 
judge  of  the  Supreme  Judicial  Court  or  Court  of 
Common  Pleas,  shall  hold  any  other  office  under 
the  authority  of  this  Commonwealth,  except  such 
as  by  this  Constitution  they  are  admitted  to  hold, 
saving  that  the  judges  of  the  said  courts  may 
hold  the  offices  of  justices  of  the  peace  through 
the  State  ;  nor  shall  they  hold  any  other  office,  or 
receive  any  pension  or  salary  from  any  other 
State,  or  government,  or  power  whatever,  except 
that  they  may  be  appointed  to  take  depositions,  or 
acknoiclcdgments  of  deeds,  or  other  legal  instru 
ments,  by  the  authority  of  other  States  or  count  ri  es 

[No  person  shall  hold  or  exercise  at  the  same 
time  more  than  one  of  the  following  offices,  to 
wit :  the  office  of  governor,  lieutenant-governor, 
senator,  representative,  judge  of  the  Supreme 
Judicial  Court,  or  Court  of  Common  Pleas,  sec 
retary  of  the  Commonwealth,  attorney-general, 
treasurer,  auditor,  councillor,  judge  of  probate, 
register  of  probate,  register  of  deeds,  sheriif  or  his 
deputy,  clerk  of  the  Supreme  Judicial  Court,  or 
Court  of  Common  Pleas,  clerk  of  the  Senate  or 
House  of  Representati  ves  ;  and  any  per  son  holding 
either  of  the  above  offices  shall  be  deemed  to  have 
vacated  the  same  by  accepting  a  seat  in  the  con 
gress  of  the  United  States,  or  any  office  under  the 
authority  of  the  United  States,  the  office  of  post 
master  excepted.  And  no  person  shall  be  capable 
of  holding  at  the  same  time  more  than  two  offices, 
which  are  held  by  appointment  of  the  governor,  or 
governor  and  Council,  or  the  Senate,  or  the  House 
of  Representatives,  military  offices,  and  the  offices 
of  justices  of  the  peace,  justices  of  the  peace  and 
quorum,  notaries  public,  and  commissioners  to 
qualify  civil  officers,  excepted.] 

ART.  3.  And  no  person  shall  ever  be  admitted 
to  hold  a  seat  in  the  legislature,  or  any  office  of 
trust  or  importance  under  the  government  of  this 
Commonwealth,  who  shall,  in  the  due  course  of 
law,  have  been  convicted  of  bribery  or  corruption, 
in  obtaining  an  election  or  appointment. 

ART.  4.     All  commissions  shall  be  in  the  name 


698 


REVISED   CONSTITUTION. 


[72d    day. 


Monday,] 


OLIVER  —  BUTLER. 


[August  1st. 


of  the  Commonwealth  of  Massachusetts,  signec 
by  the  governor,  and  attested  by  the  secretary  or 
his  deputy,  and  have  the  great  seal  of  the  Com 
monwealth  affixed  thereto. 

AIIT.  5.  All  writs,  issuing  out  of  the  clerk'? 
office  in  any  of  the  courts  of  law,  shall  be  in  the 
name  of  the  Commonwealth  of  Massachusetts  ; 
they  shall  be  under  the  seal  of  the  court  from 
whence  they  issue,  and  be  signed  by  the  clerk  ol 
such  court. 

ART.  6.  All  the  laws,  which  have  heretofore 
been  adopted,  used,  and  approved  in  the  Province, 
Colony,  State  or  Commonwealth  of  Massachusetts, 
and  usually  practised  on  in  the  courts  of  law, 
shall  still  remain  and  be  in  full  force,  until  altered 
or  repealed  by  the  legislature  ;  such  parts  only 
excepted  as  are  repugnant  to  the  rights  and  liber 
ties  contained  in  this  Constitution. 

No  amendment  being  offered  to  chapter  ten,  the 
Secretary  then  read  chapter  eleven,  as  follows  : — 

ARTICLE  1.  The  governor  shall  be  the  com- 
mander-in- chief  of  the  army  and  navy  of  the 
Commonwealth,  and  of  the  Militia  thereof,  except 
ing  when  these  forces  shall  be  actually  in  the  ser 
vice  of  the  United  States  ;  and  shall  have  power  to 
call  out  any  part  of  the  military  force  to  aid  in  the 
execution  of  the  laws,  to  suppress  insurrection,  and 
to  rqpel  invasion. 

[ART.  2.  All  citizens  of  this  Commonwealth 
liable  to  military  service,  except  such  as  may  by 
law  be  exempted,  shall  be  enrolled  in  the  militia, 
and  held  to  perform  such  military  duty  as  by  law 
may  be  reg  uired. 

ART.  3."  The  militia  may  be  divided  into  con 
venient  divisions,  brigades,  regiments,  squadrons, 
battalions,  and  companies ;  and  officers  with  ap 
propriate  rank  and  titles  may  be  elected  to  com 
mand  the  sanae.  And  the  discipline  of  the 
militia  shall  be  made  to  conform,  as  nearly  as 
practicable,  to  the  discipline  of  the  army  of  the 
United  States. 

ART.  4.  The  governor  shall  appoint  an  adju 
tant-general,  a  quartermaster-general,  and  such 
other  general  staff- officers  as  shall  be  designated 
by  law  ;  who  shall  be  commissioned  by  him  for 
the  term  of  one  year,  and  until  their  successors 
shall  be  commissioned  and  qualified.  And  the 
adjutant- general  and  quartermaster- general  shall 
have  salaries  fixed  by  law,  which  shall  be  in  full 
for  all  services  rendered  by  them  in  their  several 
offices. 

ART.  5.  The  major-generals  shall  be  elected 
by  the  votes  of  the  brigadier-generals  and  field- 
officers  of  the  brigades,  regiments,  squadrons, 
and  battalions  of  the  respective  divisions. 

ART.  6.  The  brigadier- generals  shall  be  elect 
ed  by  the  votes  of  the  field-officers  of  the  regi 
ments,  squadrons,  and  battalions,  and  captains  of 
companies,  of  the  respective  brigades. 

ART.  7.  The  field- officers  of  regiments,  squad 
rons,  and  battalions,  shall  be  elected  by  the  votes 
of  the  captains  and  subalterns  of  companies  of 
the  respective  regiments,  squadrons,  and  bat 
talions. 

ART.  8.     The  captains  and  subalterns  shall  be 


elected  by  the  members  of  the  respective  com 
panies. 

ART.  9.  All  elections  of  military  officers  shall 
be  by  a  majority  of  the  written  votes  of  those 
present  and  voting,  and  no  person,  within  the 
description  of  a  voter  as  hereinbefore  specified, 
shall  be  disqualified  by  reason  of  his  being  a 
minor. 

ART.  10.  The  Legislature  shall  prescribe  the 
time  and  manner  of  convening  the  electors  here 
inbefore  named,  of  conducting  the  elections,  and 
of  certifying  to  the  governor  the  names  of  the 
officers  elected. 

ART.  11.  The  several  officers  elected  shall  be 
forthwith  commissioned  by  the  governor  for  the 
term  of  three  years  from  the  dates  of  their  respec 
tive  commissions,  and  until  their  successors  shall 
be  commissioned  and  qualified. 

ART.  12.  If  the  electors  of  the  several  offi 
cers  before  named  shall  refuse  or  neglect  to  make 
an  election,  for  the  space  of  three  months  after 
legal  notice  of  a  meeting  for  that  purpose,  the 
governor  shall  appoint  and  commission  for  three 
years  a  suitable  person  to  fill  the  vacant  office, 
with  the  advice  of  the  Council  if  the  vacancy  be 
that  of  a  major-general,  or  with  the  advice  of  the 
major-general  of  the  division  in  which  the 
appointment  is  to  be  made,  if  the  vacancy  be  of 
an  inferior  grade. 

ART.  13.  Major-generals,  brigadier- generals, 
and  commandants  of  regiments,  squadrons,  and 
battalions,  shall  severally  appoint  such  staff- offi 
cers  as  shall  be  designated  by  law  in  their  respect 
ive  commands. 

ART.  14.  All  non-commissioned  officers, 
whether  of  staff  or  company,  and  all  musicians, 
shall  be  appointed  in  such  manner  as  may  be  pre 
scribed  by  law. 

ART.  15.  All  officers  of  the  militia  may  be 
removed  from  office  by  sentence  of  court-martial, 
or  by  such  other  modes  as  may  be  prescribed  by 
law.] 

Mr.  OLIVER,  of  Lawrence.  This  chapter 
being  one  of  those  things  which  are  put  into  the 
omnibus  to  sweeten  it,  according  to  the  idea  of 
my  friend  from  Salem,  (Mr.  Lord,)  and  as  I  am 
very  desirous  to  vote  for  it  just  as  it  is,  I  move 
to  take  it  out  from  number  "  one,"  and  put  it 
among  the  propositions  which  are  proposed  to 
be  sent  out  to  the  people  separately,  as  number 
'  nine." 

The  PRESIDENT.  It  is  not  competent  at 
;his  stage  to  move  to  strike  out  the  whole  chap- 
;er. 

Mr.  BUTLER,  of  Lowell.  As  in  my  judg 
ment,  it  is  best  that  we  never  shall  adjourn  this 
Convention  but  once,  and  then  without  day,  and 
11  order  that  we  may  finish  our  work  without 
eeling  that  we  have  not  had  supper,  I  move  that 
ve  take  a  recess  for  one  hour,  until  eight  o'clock. 

The  motion  was  agreed  to,  and  the  Conven- 
ion  accordingly  took  a  recess  until  eight  o'clock. 


72d   day.] 


REVISED    CONSTITUTION. 


699 


Monday, 


CHAPTERS    TWELVE  AND    THIRTEEN. 


[August  1st. 


EVENING  SESSION. 

The  Convention  reassembled  at  eight  o'clock. 

No  amendment  being  proposed  to  chapter 
eleven,  chapter  twelve — in  regard  to  the  Uni 
versity  of  Cambridge,  the  school  fund,  and  the 
encouragement  of  literature — was  read,  and 
finally  passed  without  amendment,  as  follows  : — 

ARTICLE  1.  Whereas  our  wise  and  pious  ances 
tors,  so  early  as  the  year  one  thousand  six  hundred 
and  thirty-six,  laid  the  foundation  of  Harvard  Col 
lege,  in  which  university  many  persons  of  great 
eminence  have,  by  the  blessing  of  GOD,  been  in 
itiated  into  those  arts  and  sciences  which  qualified 
them  for  public  employments,  both  in  church  and 
state ;  and  whereas  the  encouragement  of  arts 
and  sciences,  and  all  good  literature,  tends  to  the 
honor  of  God,  the  advantage  of  the  Christian 
religion,  and  the  great  benefit  of  this,  and  the 
other  United  States  of  America — it  is  declared, 
that  the  PRESIDENT  AND  FELLOWS  OF  HARVARD 
COLLEGE,  in  their  corporate  capacity,  and  their 
successors  in  that  capacity,  their  officers  and  ser 
vants,  shall  have,  hold,  use,  exercise  arid  enjoy, 
all  the  powers,  authorities,  rights,  liberties,  privi 
leges,  immunities  and  franchises,  which  they  now 
have,  or  are  entitled  to  have,  hold,  use,  exercise 
and  enjoy  ;  and  the  same  are  hereby  ratified  and 
confirmed  unto  them,  the  said  President  and  Fel 
lows  of  Harvard  College,  and  to  their  sxiccessors, 
and  to  their  officers  and  servants,  respectively,  for 
ever.  But  the  Legislature  shall  always  have  fall 
power  and  authority,  as  may  be  judged  needful  for  the 
advancement  of  learning,  to  grant  any  farther  powers 
to  the  President  and  Fellows  of  Harvard  College,  or 
to  alter,  limit,  annul,  or  restrain,  any  of  the  powers 
now  vested  in  them  :  provided,  the  obligation  of 
contracts  shall  not  be  impaired  ;  and  shall  have  the 
like  poioer  and  authority  over  all  corporate 
franchises  hereafter  granted,  for  the  purposes  of 
education,  in  this  Commonwealth. 

ART.  2.  And  whereas  there  have  been,  at 
sundry  times,  by  divers  persons,  gifts,  grants, 
devises  of  houses,  lands,  tenements,  goods,  chat 
tels,  legacies  and  conveyances,  heretofore  made, 
either  to  Harvard  College  in  Cambridge,  in  New 
England,  or  to  the  President  and  Fellows  of 
Harvard  College,  or  to  the  said  College  by  some 
other  description,  under  several  charters  succes 
sively  ;  it  is  declared,  that  all  the  said  gifts,  grants, 
devises,  legacies  and  conveyances,  are  hereby  for 
ever  confirmed  unto  the  President  and  Fellows  of 
Harvard  College,  and  to  their  successors,  in  the 
capacity  aforesaid,  according  to  the  true  intent 
and  meaning  of  the  donor  or  donors,  grantor  or 
grantors,  devisor  or  devisors. 

ART.  3.  And  whereas  by  an  Act  of  the  Gen 
eral  Court  of  the  Colony  of  Massachusetts  Bay, 
passed  in  the  year  one  thousand  six  hundred  and 
forty-two,  the  governor  and  deputy- governor,  for 
the  time  being,  and  all  the  magistrates  of  that 
jurisdiction,  were,  with  the  president,  and  a  num 
ber  of  the  clergy  in  the  said  Act  described,  con 
stituted  the  overseers  of  Harvard  College  ;  and  it 
being  necessary,  in  this  new  constitution  of  gov 
ernment,  to  ascertain  who  shall  be  deemed  suc 


cessors  to  the  said  governor,  deputy-governor, 
and  magistrates  ;  it  is  declared  that  the  governor, 
lieutenant-governor,  Council  and  Senate  of  this 
Commonwealth  are,  and  shall  be  deemed,  their  suc 
cessors  ;  who,  with  the  president  of  Harvard  Col 
lege,  for  the  time  being,  together  with  the  ministers 
of  the  congregational  churches  in  the  towns  of 
Cambridge,  Watertown,  Charlestown,  Boston, 
Roxbury,  and  Dorchester,  mentioned  in  the  said 
Act,  shall  be,  and  hereby  are,  vested  with  all  the 
powers  and  authority  belonging,  or  in  any  way 
appertaining,  to  the  overseers  of  Harvard  College  : 
provided,  that  nothing  herein  shall  be  construed 
to  prevent  the  Legislature  of  this  Commonwealth 
from  making  such  alterations  in  the  government 
of  the  said  University,  as  shall  be  conducive  to  its 
advantage,  and  the  interest  of  the  republic  of  let 
ters,  in  as  full  a  manner  as  might  have  been  done 
by  the  Legislature  of  the  late  Province  of  the 
Massachusetts  Bay. 

[AitT.  4.  It  shall  be  the  duty  of  the  Legisla 
ture,  as  soon  as  may  be,  to  provide  for  the  -en 
largement  of  the  School  Fund  of  the  Common 
wealth,  until  it  shall  amount  to  a  sum  not  less 
than  two  millions  of  dollars ;  and  the  said  fund 
shall  be  preserved  inviolate,  and  the  income  there 
of  shall  be  annually  appropriated  for  the  aid  and 
improvement  of  the  common  schools  of  the  State, 
and  for  no  other  purpose.] 

ART.  5.  Wisdom  and  knowledge,  as  well  as 
virtue,  diffused  generally  among  the  body  of  the 
people,  being  necessary  for  the  preservation  of 
their  rights  and  liberties  ;  and  as  these  depend  on 
spreading  the  opportunities  and  advantages  of 
education  in  the  various  parts  of  the  country,  and 
among  the  different  orders  of  the  people,  it  shall 
be  the  duty  of  Legislatures  and  magistrates,  in 
all  future  periods  of  this  Commomvealth,  to  cher 
ish  the  interests  of  literature  and  the  sciences,  and 
all  seminaries  of  them  ;  especially  the  University 
at  Cambridge,  public  schools,  and  grammar  schools 
in  the  towns  ;  to  encourage  private  societies,  and 
public  institutions,  rewards  and  immunities,  for 
the  promotion  of  agriculture,  arts,  sciences,  com 
merce,  trades,  manufactures,  and  a  natural  history 
of  the  country  ;  to  countenance  and  inculcate  the 
principles  of  humanity  and  general  benevolence, 
public  and  private  charity,  industry  and  frugality, 
honesty  and  punctuality  in  their  dealings  ;  sin 
cerity,  good  humor,  and  all  social  affections,  and 
generous  sentiments  among  the  people. 

Chapter  thirteen,  containing  miscellaneous  pro 
visions,  was  next  read  by  the  Secretary,  as  fol 
lows  : — 

ARTICLE  1.  A  census  of  the  inhabitants  of  each 
city  and  town  in  the  Commonwealth,  on  the  first 
day  of  May  in  the  year  185o,  and  on  the  first  day  of 
May  of  each  tenth  year  thereafter,  shall  be  taken  and 
returned  into  the  secretary's  office,  on  or  before 
the  last  day  of  the  June  following  the  said  first 
day  of  May  in  each  of  said  years ;  and  while  the 
public  charges  of  government,  or  any  part  thereof, 
shall  be  assessed  on  polls  and  estates,  in  the  man 
ner  that  has  hitherto  been  practised,  in  order  that 
such  assessments  may  be  made  with  equality, 


'00 


REVISED  CONSTITUTION. 


[72d  day. 


Monday,] 


BOUTWELL  —  HlLLARD  —  CHAPIN  —  HATHAWAY  —  MASON. 


[August  1st. 


there  shall  be  a  valuation  of  estates  within  the 
Commonwealth  taken  anew  once  in  every  ten 
years  at  least,  and  as  much  oftener  as  the  General 
Court  shall  order. 

[ART.  2.  Persons  holding  office  by  election  or 
appointment,  when  this  Constitution  takes  effect, 
shall  continue  to  discharge  the  duties  thereof  un 
til  their  term  of  office  shall  expire,  or  officers  au 
thorized  to  perform  their  duties,  or  any  part 
thereof,  shall  be  elected  and  qualified,  pursuant 
to  the  provisions  of  this  Constitution ;  when  all 
powers  not  reserved  to  them  by  the  provisions  of 
this  Constitution  shall  cease :  provided,  however, 
that  justices  of  the  peace,  justices  of  the  peace  and 
of  the  quorum,  and  commissioners  of  insolvency, 
shall  be  authorized  to  finish  and  complete  all  pro 
ceedings  pending  before  them  at  the  time,  when 
their  powers  and  duties  shall  cease,  or  be  altered 
as  aforesaid.  All  laws  in  force  when  this  Consti 
tution  goes  into  effect,  not  inconsistent  therewith, 
shall  continue  in  force  until  amended  or  repealed. 

AIIT.  3.  The  Legislature  shall  provide,  from 
time  to  time,  the  mode  in  which  commissions  or 
certificates  of  election  shall  be  issued  to  all  officers 
elected  pursuant  to  the  Constitution,  except  in 
cases  where  provision  is  made  therein. 

AIIT.  4.  The  governor,  by  and  with  the  con 
sent  of  the  Council,  may  at  any  time,  for  incapa 
city,  misconduct  cr  maladministration  in  their 
offices,  remove  from  office,  clerks  of  courts,  com 
missioners  of  insolvency,  judges  and  registers  of 
probate,  district- attorneys,  registers  of  deeds, 
county  treasurers,  county  commissioners,  sher 
iffs,  trial  justices,  and  justices  of  police  courts  : 
provided,  that  the  cause  of  their  removal  be  en 
tered  upon  the  records  of  the  Council,  and  a 
copy  thereof  be  furnished  to  the  party  to  be  re 
moved,  and  a  reasonable  opportunity  be  given 
him  for  defence.  And  the  governor  may  at  any 
time,  if  the  public  exigency  demand  it,  either  be 
fore  or  after  such  entry  and  notice,  suspend  any 
of  said  officers,  and  appoint  substitutes,  who  shall 
hold  office  until  the  final  action  upon  the  question 
of  removal. 

AKT.  o.  Whenever  a  vacancy  shall  occur  in 
any  elective  office,  provided  for  in  this  Constitu 
tion,  except  that  of  governor,  lieutenant-governor, 
councillor,  senator,  member  of  the  House  of  Rep 
resentatives,  and  town  and  city  officers,  the  gov 
ernor  for  the  time  being,  by  and  with  the  advice 
and  consent  of  the  Council,  may  appoint  some 
suitable  person  to  fill  such  vacancy,  until  the 
next  annual  election,  when  the  same  shall  be  filled 
by  a  new  election,  in  the  manner  to  be  provided 
by  law  :  provided,  hoioevcr,  trial  justices  shall  not 
be  deemed  to  be  town  officers  for  this  purpose. 

ART.  6.  All  elections  provided  to  be  had  un 
der  this  amended  Constitution  shall,  unless  other 
wise  provided,  be  first  held  on  the  Tuesday  next 
after  the  first  Monday  of  November,  one  thou 
sand  eight  hundred  and  fifty-four. 

ART.  7.  This  Constitution  shall  go  into  ope 
ration  on  the  first  Monday  in  February,  in  the 
year  one  thousand  eight  hundred  and  fifty-four. 

ART.' 8.  The  terms  of  all  elective  officers,  not 
otherwise  provided  for  in  this  Constitution,  shall 
commence  on  the  first  Wednesday  in  January 
next  after  their  election.] 


ART.  9.  In  order  to  remove  all  doubt  of  the 
meaning  of  the  word  "  inhabitant,"  in  this  Con 
stitution,  every  person  shall  be  considered  as  an 
inhabitant,  for  the  purpose  of  electing  and  being 
elected  into  any  office  or  place  within  this  State, 
in  that  town,  district,  or  plantation,  where  he 
dwelleth,  or  hath  his  home. 

ART.  10.  This  form  of  government  shall  be 
enrolled  on  parchment,  and  deposited  in  the  sec 
retary's  office,  and  be  a  part  of  the  laws  of  the 
land  ;  and  printed  copies  thereof  shall  be  prefixed 
to  the  book  containing  the  laws  of  this  Common 
wealth,  in  all  future  editions  of  the  said  laws. 

Mr.  BOUTWELL,  for  Berlin,  moved  to  amend 
the  first  article  in  the  third  line,  by  striking  out 
the  figures  1855,  and  substituting  therefor  the 
words  "  one  thousand  eight  hundred  and  fifty- 
five." 

The  amendment  was  agreed  to. 

Mr.  HlLLARD,  of  Boston,  moved  a  verbal 
amendment  to  the  fifth  article  in  the  last  clause, 
by  inserting  the  word  "that"  after  the  word 
"  however,"  so  as  to  make  the  clause  read : — 

Provided,  however,  That  trial  justices  shall  not 
be  deemed  to  be  town  officers  for  this  purpose. 

The  amendment  was  adopted. 

Mr.  BOUTWELL  moved  to  strike  out  the 
word  "amended"  in  the  second  line  of  the  sixth 
article  as  being  surplusage,  the  article  as  it  stood 
reading  : — 

All  elections  provided  to  be  had  under  this 
amended  Constitution,  &c. 

The  motion  to  strike  out  the  word  "amended," 
was  agreed  to. 

Mr.  CHAPIN,  of  Worcester,  moved  to  amend 
the  fourth  article  in  the  seventh  line  by  inserting 
after  the  word  "justices  "  the  words  "  and  clerks," 
so  as  to  make  it  read : — 

ART.  4.  The  Governor,  by  and  with  the  con 
sent  of  the  Council,  may  at  any  time,  for  incapa 
city,  misconduct  or  maladministration  in  their 
offices,  remove  from  office,  clerks  of  courts,  com 
missioners  of  insolvency,  judges  and  registers  of 
probate,  district-attorneys,  registers  of  deeds,  coun 
ty  treasurers,  county  commissioners,  sheriffs,  trial 
justices  and  justices  and  clerks  of  police  courts,  &c. 

Mr.  HATHAWAY  thought  the  amendment 
unnecessary,  as  clerks  of  "police"  courts  were 
certainly  "  clerks  of  courts." 

Mr.  CHAPIN  regarded  the  term  "clerks  of 
courts,"  as  heretofore  used,  as  applying  to  clerks 
of  higher  courts,  and  not  to  police  courts. 

The  amendment  was  agreed  to. 

Mr.  MASON,  of  Fitchburg,  moved  to  amend 
the  sixth  article  in  the  fourth  line  by  inserting 


72d  day.] 


REVISED   CONSTITUTION. 


701 


Monday,] 


Moaxox. 


[August  1st. 


after  the  word  "  November"  the  words  "  in  the 
year,"  so  as  to  make  the  article  read  : — 

ART.  6.  All  elections  provided  to  be  had 
under  this  Constitution  shall,  unless  otherwise 
provided,  be  first  held  on  the  Tuesday  next 
after  the  first  Monday  of  November,  in  the  year 
one  thousand  eight  hundred  and  fifty-four. 

The  amendment  was  agreed  to  ;  and 
The  thirteenth  chapter  was  then  finally  passed. 
The  Secretary  then  proceeded  to  read  the  four 
teenth  and  last  chapter  of  the  Revised  Constitu 
tion,  providing  for  future  revisions  and  amend 
ments  of  the  Constitution  of  Massachusetts,  as 
follows  :— 

[ARTICLE  1.  A  Convention  to  revise  or  amend 
this  Constitution  may  be  called  and  held  in  the 
following  manner :  At  the  general  election  in  the 
year  one  thousand  eight  hundred  and  seventy- 
three,  and  in  each  twentieth  year  thereafter,  the 
qualified  voters  in  State  elections  shall  give  in 
their  votes  upon  the  question,  "  Shall  there  be  a 
Convention  to  revise  the  Constitution  r "  which 
votes  shall  be  received,  counted,  recorded,  and 
declared,  in  the  same  manner  as  in  the  election  of 
Governor ;  and  a  copy  of  the  record  thereof  shall, 
within  one  month,  be  returned  to  the  office  of 
the  Secretary  of  State,  who  shall,  thereupon,  ex 
amine  the  same,  and  shall  officially  publish  the 
number  of  yeas  and  nays  given  upon  said  ques 
tion,  in  each  town  and  city,  and  if  a  majority  of 
said  votes  shall  be  in  the  affirmative,  it  shall  be 
deemed  and  taken  to  be  the  will  of  the  people 
that  a  Convention  shall  meet  accordingly ;  and, 
thereafter,  on  the  first  Monday  of  March  en 
suing,  meetings  shall  be  held,  and  delegates  shall 
be  chosen,  in  all  the  towns,  cities,  and  districts, 
in  ihe  Commonwealth,  in  the  manner  and  num 
ber  then  provided  by  law  for  the  largest  number 
of  representatives  which  the  towns,  cities,  and 
districts  shall  then  be  entitled  to  elect  in  any  year 
of  that  decennial  period.  And  such  delegates 
shall  meet  in  Convention  at  the  State  House,  on 
the  first  Wednesday  of  May  next  ensuing,  and 
when  organized,  shall  have  all  the  powers  neces 
sary  to  execute  the  purpose  for  which  such  Con 
vention  was  called  ;  and  may  establish  the  com 
pensation  of  its  officers  and  members,  and  the 
expense  of  its  session,  for  which  the  Governor, 
with  the  advice  and  consent  of  the  Council,  shall 
draw  his  warrant  on  the  treasury.  And  if  such 
alterations  and  amendments,  as  shall  be  proposed 
by  the  Convention,  shall  be  adopted  by  the  peo 
ple  voting  thereon  in  such  manner  as  the  Conven 
tion  shall  direct,  the  Constitution  shall  be  deemed 
and  taken  to  be  altered  or  amended  accordingly. 
And  it  shall  be  the  duty  of  the  proper  officers, 
and  persons  in  authority,  to  perform  all  acts  ne 
cessary  to  carry  into  effect  the  foregoing  pro 
visions. 

ART.  2.  Whenever  towns  or  cities  containing 
not  less  than  one-third  of  the  qualified  voters  of 
the  Commonwealth,  shall  at  any  meeting  for  the 
election  of  State  officers,  request  that  a  Conven 


tion  be  called  to  revise  the  Constitution,  it  shall 
be  the  duty  of  the  legislature,  at  its  next  session, 
to  pass  an  Act  for  the  calling  of  the  same,  and  to 
submit  the  question  to  the  qualified  voters  of  the 
Commonwealth,  whether  a  Convention  shall  be 
called  accordingly  :  provided,  that  nothing  herein 
contained  shall  impair  the  power  of  the  Legisla 
ture  to  take  action  for  calling  a  Convention,  with 
out  such  request,  as  heretofore  practised  in  this 
Commonwealth.] 

ART.  3.  If,  at  any  time  hereafter,  any  specific 
and  particular  amendment  or  amendments  to  the 
Constitution  be  proposed  in  the  General  Court, 
and  agreed  to  by  a  majority  of  the  senators  and 
two-thirds  of  the  members  of  the  House  of  Rep 
resentatives,  present  and  voting  thereon,  such 
proposed  amendment  or  amendments  shall  be  en 
tered  on  the  journals  of  the  two  Houses,  with 
the  yeas  and  nays  taken  thereon,  and  referred  to 
the  General  Court  then  next  to  be  chosen,  and 
shall  be  published  ;  and  if,  in  the  General  Court 
next  chosen,  as  aforesaid,  such  proposed  amend 
ment  or  amendments  shall  be  agreed  to  by  a  ma 
jority  of  the  senators  and  two- thirds  of  the 
members  of  the  House  of  Representatives,  pres 
ent  and  voting  thereon  ;  then  it  shall  be  the  duty 
of  the  General  Court  to  submit  such  proposed 
amendment  or  amendments  to  the  people ;  and  if 
they  shall  be  approved  and  ratified  by  a  majority 
of  the  qualified  voters,  voting  thereon,  at  meet 
ings  legally  warned  and  holden  for  that  purpose, 
they  shall  become  part  of  the  Constitution  of  this 
Commonwealth. 

[ART.  4.  The  Legislature  which  shall  be  chosen 
at  the  general  election  on  the  Tuesday  next  after 
the  first  Monday  in  November,  in  the  year  one 
thousand  eight  hundred  and  fifty- five,  shall 
divide  the  State  into  forty  single  districts  for  the 
choice  of  senators,  such  districts  to  be  of  con 
tiguous  territory,  and  as  nearly  equal  as  may  be 
in  the  number  of  qualified  voters  resident  in  each ; 
and  shall  also  divide  the  State  into  single  or  dou 
ble  districts,  to  be  of  contiguous  territory,  and  as 
nearly  equal  as  may  be  in  the  number  of  qualified 
voters  resident  in  each,  for  the  choice  of  not  less 
than  two  hundred  and  forty,  nor  more  than 
three  hundred  and  twenty  representatives  ;  with 
proper  provisions  for  districting  the  Common 
wealth  as  aforesaid,  in  the  year  one  thousand 
eight  hundred  and  sixty-six,  and  every  tenth  year 
thereafter ;  and  with  all  other  provisions  neces 
sary  for  carrying  such  system  of  districts  into 
operation  ;  and  shall  submit  the  same  to  the  peo 
ple  at  the  general  election  to  be  held  in  the  year 
one  thousand  eight  hundred  and  fifty- six,  for 
their  ratification  ;  and  if  the  same  shall  be  ratified 
and  adopted  by  the  people,  it  shall  become  a  part 
of  this  Constitution  in  place  of  the  provisions 
contained  in  this  Constitution  for  the  apportion 
ment  of  senators  and  representatives.] 

Mr.  MORTON,  of  Taunton.  I  should  be  glad, 
Mr.  President,  even  at  this  late  hour  of  our 
deliberations,  to  gain,  if  I  could,  the  atten 
tion  of  the  Convention  for  a  few  moments.  I 
certainly  shall  occupy  but  very  little  time,  because 
there  are  reasons  which  will  necessarily  limit  me. 


702 


REVISED   CONSTITUTION. 


[72d  day. 


Monday,] 


MOIITON. 


[August  1st. 


Thus  far,  I  have  avoided  intruding  myself 
upon  the  Convention  in  regard  to  this  important 
and  most  objectionable  measure,  except  in  offer 
ing  a  merely  verbal  amendment.  I  had  the 
honor,  Mr.  President,  to  be  a  member  of  the 
Committee  appointed  to  revise  and  prepare  the 
amendments  of  the  Constitution  to  be  submitted 
to  the  people  of  the  Commonwealth.  It  gives 
me  great  pleasure — though  I  take  little  credit 
to  myself — to  say  that  I  think  that  that  Commit 
tee  deserves  great  credit  for  their  ingenuity  and 
industry  in  arranging  these  amendments.  The 
Committee  in  their  plan  of  submitting  them  to 
the  people,  have  thought  proper  to  form  them 
into  groups — some  of  them  in  very  large  masses, 
and  others  in  small  portions,  or  rather  to  form 
one  group  comprehending  all  the  most  important 
amendments,  and  nine-tenths  of  the  whole,  and 
to  submit  each  of  the  minor  ones  separately. 
Some  days  ago  I  prepared  a  resolution,  the  object 
of  which  was  to  give  this  Committee  instructions 
on  this  subject ;  but  the  pressure  of  other  mat 
ters  prevented  me  from  offering  it  to  the  Conven 
tion,  and  the  Committee  assumed  the  authority 
to  arrange  the  proposed  amendments  without 
any  action  of  the  Convention  ;  and  under  these 
circumstances,  I  beg  leave  to  offer  a  very  few 
suggestions  in  relation  to  the  scheme  of  the 
Committee,  and  to  the  manner  in  which  I 
think  these  amendments  should  be  presented  to 
the  people. 

Sir,  I  think  that  it  is  our  duty  as  a  Convention, 
in  executing  the  trust  which  has  been  confided  to 
us,  to  prepare  these  amendments  in  such  man 
ner  as  to  give  the  people  the  best  possible  oppor 
tunity  of  acting  upon  them  freely  and  under  - 
standingly,  and  without  any  embarrassment  or 
constraint.  This  can  only  be  done  by  allowing 
them  to  vote  separately  upon  many  different 
points.  I  had  supposed,  until  recently,  that  we 
•were  all  agreed  that  the  several  distinct  proposi 
tions  should  be  submitted  to  the  people  singly  ; 
and  it  did  not  enter  my  mind  that  the  mass  of 
them  were  to  be  put  together  and  acted  upon  by 
the  people  jointly,  so  as  to  deprive  them  of  the 
opportunity  of  approving  of  some  propositions 
and  disapproving  of  others.  The  Committee, 
however,  have  seen  fit  to  decide  otherwise,  and 
have  formed  the  major  part  of  these  amendments 
into  one  large  group,  in  regard  to  which  I  will 
say  a  few  words.  At  this  time  it  is  not  possible 
to  enter  into  a  full  argument  of  a  question  involv 
ing  so  many  important  considerations ;  I  think 
that  it  would  have  been  more  wise  and  safe  to 
have  followed  the  example  which  was  set  us  more 
than  thirty  years  ago,  and  to  have  submitted  these 
several  propositions  to  the  people,  who  could  have 


acted  upon  them  separately,  without  restraint  on 
the  one  hand  or  temptation  on  the  other.  It  ap 
pears  to  me  that  we  have  adopted  a  course  which 
trenches  upon  the  rights  of  the  people,  in  putting 
these  propositions  altogther,  for  by  adopting  this 
mode,  we  prevent  the  people  from  acting  dis 
tinctly  on  each  amendment.  You  say  to  them 
imperatively  and  authoritatively :  "  Take  this 
whole  group,  and  either  reject  the  whole  or  ac 
cept  the  whole.  We,  in  our  wisdom,  have  devised 
a  perfect  scheme.  We  will  not  endanger  its  har 
mony  by  permitting  you  to  reject  any  of  its  parts. 
We  have  one  object  in  forming  the  whole  scheme, 
which  you  are  bound  to  believe  is  for  your  good. 
It  must  be  adopted  as  we  have  devised  it.  You 
must  not  be  allowed  to  mar  the  symmetry  of  the 
plan,  or  defeat  its  object  by  altering  or  rejecting 
any  of  its  members." 

Sir,  it  is  altogether  likely  that  many  of  the 
people,  like  myself,  will  find  in  this  scheme  some 
propositions  which  they  would  wish  to  adopt, 
and  others  which  they  would  wish  to  reject. 
But  no  such  liberty  is  here  permitted  to  them ; 
and  I  ask  if  this  is  not  transcending  our  delegat 
ed  authority,  and  exercising  arbitrary  and  dicta 
torial  power  ?  What  right  have  we  to  bind  up  the 
whole  people  in  this  way  ?  Do  we  not  forget 
that  the  people  must  make  the  Constitution,  and 
that  we  are  only  instruments  to  prepare  and  lay 
before  them  such  propositions  as  they  may  wish 
to  express  their  pleasure  upon  ?  Do  we  not  per 
vert  the  purpose  of  our  appointment,  when  we 
undertake  to  devise  plans  to  arrest  from  the  peo 
ple  their  inherent  right  to  judge  of  the  proposals 
which  their  agents  have  formed,  by  their  direc 
tions  r  Do  we  not  assume  to  act  as  masters, 
when  we  are  only  servants  ?  It  may  be  that  some 
of  the  propositions  are  so  connected  and  depend 
ent  on  each  other,  that  you  cannot  separate  them. 
For  instance,  the  amendments  in  relation  to  the 
Council  and  the  Senate,  are  dependent,  and  there 
fore  indivisible.  You  cannot  separate  them, 
because  the  Council  Districts  are  based  upon  the 
Senatorial  Districts,  and  should  the  senatorial 
basis  be  rejected,  the  provision  for  the  Council 
would  be  impracticable.  I  think,  therefore,  the 
union  of  these  two  provisions  unobjectionable. 
But,  the  amendment  in  regard  to  the  House  of 
llepresentatives,  the  most  important  and  the  most 
obnoxious  one  in  the  whole  list,  stands  on  entirely 
different  ground.  And  no  substantial  reason  can 
be  assigned  for  connecting  all  sorts  of  proposi 
tions,  except  those  of  doubtful  popTilarity. 

I  am  aware  of  the  ingenious  reasons  which  the 
members  of  the  Committee  have  offered  in  regard 
to  this  point.  Gentlemen  so  correct,  and  perhaps 
I  might  say,  so  fastidious  in  their  tastes,  so  ambi- 


72d  day.] 


REVISED   CONSTITUTION. 


703 


Monday,] 


MORTON  —  EAMES. 


[August  1st. 


tious  of  elegance  of  composition,  and  so  proud  of 
harmony  of  diction,  might  well  say  they  thmight 
that,  by  grouping  these  qxiestions  together  they 
could  put  them  in  more  symmetrical  form,  and 
make  them  look  more  elegant  on  paper.  But  let 
me  ask,  gentlemen,  which  is  of  the  most  impor 
tance — the  beauty  of  the  phraseology,  or  the  value 
of  the  principle  ?  I  will  not  discuss  this  matter 
farther  ;  but  I  had  supposed  that  we  should  have 
had  the  fullest  and  fairest  scope  of  testing,  at  the 
polls,  the  estimation  in  which  the  people  hold  all 
these  amendments;  and  that  they  might  have 
said,  separately,  whether  they  were  for  senatorial 
districts,  or  against  them ;  for  the  election  of  offi 
cers  by  the  people,  or  their  appointment  by  the 
legislature  or  executive  ;  for  the  election  of  rep 
resentatives  by  towns,  or  by  equal  districts  ;  for 
the  abolition  of  a  poll  tax,  or  against  it ;  for  the 
adoption  of  the  secret  ballot,  or  against  it ;  and 
so  on  through  the  whole  category,  without  hav 
ing  other  matters  connected  with  these  questions. 
By  presenting  these  questions  altogether,  you 
coerce  the  people  on  the  one  hand,  or  offer  a 
bribe  to  them  on  the  other.  You  say  to  them, 
in  effect :  "  If  you  will  take  this  bitter  thing,  you 
shall  have  also  this  sweet  thing ; "  or  it  may 
operate  upon  them  in  the  way  of  constraint,  in 
asmuch  as  you  say :  "  If  you  do  not  accept  this 
which  you  dislike,  you  shall  not  have  that  which 
you  do  like."  This,  I  contend,  is  an  infringe 
ment  of  the  rights  of  the  people.  It  is  equivalent 
to  saying  to  a  religious  man  :  "  You  shall  have  a 
church,  if  you  will  take  an  assignation  house 
along  side  of  it,  but  you  shall  not  have  the  one 
without  the  other ;  "  or  to  an  educational  man  : 
"  You  may  have  a  school,  provided  you  are  con 
tent  to  have  a  gambling  house  next  door  to  it." 
Now,  Sir,  if  the  people  view  this  matter  as  I  do, 
they  will  say,  indignantly,  No  !  let  the  church 
go ;  let  the  school  go  ;  if  we  cannot  have  what  is 
righteous  and  just,  without  taking  what  is  un 
righteous  and  unjust,  we  spurn  them  both.  We 
will  not  be  compelled  to  take  things  which  are  so 
offensive  to  us,  in  order  that  we  may  obtain  other 
things  which  we  desire. 

But  I  will  hasten  on  with  these  suggestions, 
and  come  to  some  points  which  are  more  practi 
cal,  and  which  will,  perhaps,  stand  a  little  better 
chance  of  gaining  attention. 

I  fear,  Sir,  that  we  have  somewhat  forgotten 
the  mission  upon  which  we  were  sent  to  this 
house;  that  we  have  been  acting  together Jn  the 
exercise  of  unrestrained  power,  till  we  have  for 
gotten  the  source  of  our  authority,  and  have  not 
sufficiently  borne  in  mind  the  wishes  and  rights 
of  those  who  stand  behind  us,  to  act  upon  the 
propositions  which  we  may  submit  to  them. 


'ear  that,  while  we  profess  democracy,  and  a  love 
br  the  people,  we  have  acted  on  an  opposite  prin 
ciple.  Distrust  of  the  people  is  stamped  on  al 
most  every  act.  Look  at  what  was  said  in  regard 
to  the  State  credit.  It  was  avowed,  by  some  of 
the  majority — I  do  not  remember  whom — that 
the  people  could  not  be  trusted  with  power  in 
regard  to  this  matter.  And  what  was  the  result  ? 
They  were  divested  of  the  power  to  decide  where 
the  credit  of  the  State  might  be  loaned  or  given 
away.  What !  Not  trust  the  people  with  the 
management  of  their  own  money,  and  their  own, 
credit !  And,  Sir,  it  has  been  just  so  in  regard 
to  every  other  act.  No  principle,  however  sound 
and  just,  is  fully  carried  out.  So  it  was  in  regard 
to  the  secret  ballot.  We  all  wanted  it  in  some 
elections,  but  a  majority  were  not  willing  to 
apply  it  to  all,  and  the  people  were  not  allowed 
to  determine  for  themselves  whether  they  would 
have  it  extended  to  any,  or  in  what  cases  they 
would  adopt  it.  Just  so,  likewise,  was  it  in 
regard  to  the  plurality  question.  You  would  not 
let  the  people  decide  the  question,  for  or  against 
it,  as  they  might  choose.  And  in  regard  to  the 
subject  of  representation,  the  most  important 
subject  which  was  submitted  to  us,  we  have  not 
only  disregarded  the  well  known  wishes  of  the 
people  for  a  reduction  of  the  House,  but  refused 
to  allow  them  to  decide  between  the  town  and 
district  system. 

Sir,  from  the  beginning,  while  we  have  con 
tinually  heard  professions  of  love  for  the  people, 
and  a  desire  to  be  governed  by  their  wishes,  our 
acts  have  shown  a  want  of  confidence  in  them, 
and  a  disregard  of  their  wishes  and  interests. 
This  has  made  itself  manifest,  not  only  in  our 
acts  and  votes,  but  has  occasionally  peeped  out  of 
our  speeches.  Those  from  whom  we  have  heard 
most  of  the  sodality  of  mankind  and  the  brother 
hood  of  the  whole  human  family,  have  now  and 
then  given  us  an  inkling  of  their  feelings  by  com 
paring  large  classes  of  our  inhabitants  "to  the 
cattle  in  the  farmer's  field,  and  the  birds  that  fly 
over  them ;  "  nay,  to  that  cunning,  thievish,  car 
rion  bird,  the  "crow."  I  would  not  quote  the 
hasty  expressions  of  an  individual,  especially  a 
frank,  sincere,  and  high-minded  one,  did  they 
not,  in  my  mind,  indicate  the  feelings  and  senti 
ments  of  a  class  who,  from  their  ability,  their 
eloquence,  and  their  other  distinguished  qualities, 
seem  to  have  a  controlling  influence  over  the  de 
liberations  of  this  Convention. 

Mr.  EAMES,  of  Washington.  I  rise  to  a  point 
of  order.  If  the  gentleman  is  going  to  move  an 
amendment,  I  would  like  to  have  it  read,  that  I 
may  be  looking  it  over. 

Mr.  MORTON.     If  the  gentleman  from  Wash- 


704 


REVISED   CONSTITUTION. 


[72d  day. 


Monday,] 


MORTON  —  EAMES. 


[August  1st. 


ington  will  try  to  repress  his  wishes  for  a  few 
moments,  he  shall  be  gratified  with  the  proposi 
tion  ;  or,  if  he  cannot  restrain  his  curiosity,  I  will 
gratify  him  now. 

Mr.  EAMES.  The  fifteen  minutes  allowed 
the  gentleman  from  Taunton  will  expire  directly, 
and  I  would  like  to  know  what  the  amendment 
is,  before  the  time  expires. 

Mr.  MORTON.  The  gentleman  will  soon  be 
gratified. 

I  wanted,  Sir,  to  say  a  word  in  relation  to  the 
ground  which  several  of  the  Committee  have 
taken  upon  this  subject.  They  have  told  us  that 
their  main  desire,  in  putting  the  amendments  to 
gether  in  this  shape,  was  to  preserve  the  symme 
try  and  harmony  of  the  instrument,  and  the 
beauty  and  orderly  arrangement  of  the  pamphlet 
to  be  published.  I  am  afraid  that  gentlemen  deceive 
themselves  as  to  the  real  cause  which  has  induced 
them  to  adopt  this  course.  I  am  bound  to  be 
lieve  the  gentlemen  are  sincere  in  their  profes 
sions,  and  honestly  believe  that  they  are  governed 
by  the  causes  which  they  assign.  Eut  if  they 
will  look  at  the  matter  a  little  more  disinterest 
edly,  they  will  perceive  how  very  difficult  it  will 
be  to  make  outsiders  believe  it,  and  to  prevent 
them  from  judging  that,  in  order  to  carry  some 
favorite  but  objectionable  scheme,  all  the  popular 
measures  have  been  connected  with  it,  to  induce 
the  people  to  vote  for  it,  and  thus  to  give  it  the 
force  of  a  popular  adoption,  when  it  may  be  that 
a  majority  of  them  are  opposed  to  it.  They  may 
possibly  adopt  the  language  of  one  of  the  Com 
mittee,  on  another  occasion,  and  say  :  "  The  lion's 
skin  is  not  big  enough— not  half  big  enough,  to 
conceal  that  other  animal,  which  I  will  not  name. 
His  ears  are  in  full  view." 

Now,  Sir,  for  my  amendment.  I  move  that 
the  fourth  article  of  the  chapter  now  under  con 
sideration,  be  transferred  to  the  amendments 
which  are  to  be  passed  upon  separately ;  that  it 
stand  and  go  out  to  the  people  as  a  separate  prop 
osition. 

The  fourth  article  is  as  follows  : — 

ART.  4.  The  legislature  which  shall  be  chosen 
at  the  general  election  on  the  Tuesday  next  afier 
the  first  Monday  in  November,  in  the  year  one 
thousand  eight  hundred  and  fifty-five,  shall  divide 
the  State  into  forty  single  districts  for  the  choice 
of  Senators,  such  districts  to  be  of  contiguous  ter 
ritory,  and  as  nearly  equal  as  may  be  in  the  num 
ber  of  qualified  voters  resident  in  each  :  and  shall 
also  divide  the  State  in  single  or  double  districts, 
to  be  of  contiguous  territory,  and  as  nearly  equal 
as  may  be  in  the  number  of  qualified  voters  resi 
dent  in  each,  for  the  choice  of  not  less  than  two 
hundred  and  forty,  nor  more  than  three  hundred 
and  twenty  representatives ;  with  proper  provis 


ions  for  districting  the  Commonwealth  as  aforesaid, 
in  the  year  one  thousand  eight  hundred  and  sixty- 
six,  and  every  tenth  year  thereafter ;  and  with  all 
other  provisions  necessary  for  carrying  such  sys 
tem  of  districts  into  operation ;  and  shall  submit 
the  same  to  the  people  at  the  general  election  to 
be  held  in  the  year  one  thousand  eight  hundred 
and  fifty- six,  for  their  ratification  ;  and  if  the 
same  shall  be  ratified  and  adopted  by  the  people, 
it  shall  become  a  part  of  this  Constitution  in  place 
of  the  provisions  contained  in  this  Constitution 
for  the  apportionment  of  Senators  and  Representa 
tives. 

I  suppose  that  gentlemen  understand  what  I 
mean.  But  I  was  about  to  say  that  I  do  not 
question  the  motives  of  the  Committee,  but  this 
motion,  it  seems  to  me,  will  test  their  sincerity. 
Unless  other  reasons  than  those  assigned  influence 
their  minds,  they  cannot  hesitate  to  vote  for  this 
motion,  for  it  comes  perfectly  within  all  the 
reasons  given  and  all  the  rules  laid  down  for  the 
classification  which  they  have  made.  In  the  first 
place,  this  is  entirely  new  matter — a  new  proposi 
tion  standing  entirely  by  itself,  having  no  prece 
dents  in  the  old  Constitution. 

In  the  next  place,  it  is  entirely  unconnected  ia 
any  way  with  any  other  part  of  the  old  Constitu 
tion,  or  the  amendments ;  and  if  you  were  to 
strike  it  all  out,  every  other  portion  would  be 
perfect  without  it,  just  as  it  is  if  adopted  ;  it  in 
no  way  interferes  with  the  rest  of  the  instrument 
either  with  or  without  amendments.  It  does  not 
in  any  degree  stand  in  the  way  of  the  adoption  or 
rejection  of  any  or  all  the  other  amendments.  If 
the  whole  are  adopted,  this  is  perfectly  consistent 
with  them  all.  If  any  parts  are  adopted,  this  still 
stands  perfectly  consistent  with  them,  be  they 
whichever  they  may.  So  if  all  be  rejected,  this 
stands  in  perfect  consistency  with  the  old  Consti 
tution.  I  therefore  can  see  no  reason  why  it  should 
be  retained  in  its  position  in  this  chapter,  rather 
than  stand  by  itself.  It  proposes  a  new  method 
of  amending  or  altering  our  Constitution ;  and  if 
it  is  adopted,  then,  whatever  legislature  may  be  in 
power,  might  go  on  and  execute  the  provision. 
There  can,  therefore,  be  110  possible  reason  why 
this  should  be  retained  in  its  present  place ;  unless 
it  be  to  have  an  influence  upon  other  measures 
which  gentlemen  wish  to  get  adopted  without  the 
approbation  of  the  people.  I  will  not  impute  any 
such  motives  to  any  member  of  the  Convention. 

It  is  well  known  that  if  the  Constitution  which 
you  now  propose  should  be  adopted,  it  will  in 
troduce  a  different  basis  of  representation,  and 
will  place  the  power  to  elect  a  majority  of  the 
House  of  Representatives  into  the  hands  of  about 
one-third  of  the  people.  Now,  I  will  inquire 
whether  any  gentleman  wishes  to  prevent  the 


72d  day.J 


REVISED   CONSTITUTION. 


705 


Monday,] 


MORTON  —  WILLIAMS  —  WILSON  —  STETSON  —  BUTLER. 


[August  1st. 


adoption  of  this  provision  until  this  gross  in 
equality  be  introduced  into  the  House  of  Repre 
sentatives  ?  Are  they  afraid  to  trust  anybody 
with  the  administration  of  this  but  the  one- third 
House  of  Representatives  ?  I  would  not  do  any 
one — certainly  not  one  of  the  Committee — the 
injustice  to  suppose  that  they  had  any  desire  so 
unrighteous. 

One  word  more  in  relation  to  the  necessity  of 
the  adoption  of  this  provision.  We  never  can 
have  an  amendment  of  the  House  of  Representa 
tives  without  it.  When  the  one-third  get  the 
power  they  never  will  surrender  it.  The  amend 
ments  provide  that  under  them  no  constitutional 
amendments  can  be  proposed  unless  they  are 
adopted  in  two  successive  years,  by  a  vote  of  two- 
thirds  of  the  House.  It  may,  therefore,  be  safely 
assumed  that  you  never  will  have  an  amendment 
of  the  House  of  Representatives  made  in  this 
way ;  for  one- sixth  of  the  people  of  the  State, 
and  those  the  most  interested  portion,  could 
always  prevent  any  such  amendment.  One- 
third  of  the  House  of  Representatives  could  pre 
vent  the  amendment  from  passing,  and  that  third 
might  be  chosen  by  only  one-sixth  part  of  the 
whole  people  of  the  Commonwealth.  Under 
these  circumstances,  I  will  ask,  do  you  desire  to 
confine  the  execution  of  this  provision  to  the 
action  of  so  very  small  a  number,  especially  when 
it  is  considered  that  it  is  upon  the  very  subject  of 
their  own  power,  which  men  everywhere  are  so 
very  reluctant  to  yield  ? 

But  I  see,  by  the  President's  exceedingly  kind 
intimation,  that  my  time  has  expired,  and  so  I 
will  take  my  seat.  There  were  a  few  words  more 
that  I  would  have  been  glad  to  have  added,  had 
time  permitted. 

Mr.  WILLIAMS,  of  Taunton,  asked  for  the 
yeas  and  nays  on  the  motion  of  Mr.  Morton ; 
and  the  question  being  put,  the  result  was — ayes, 
37 ;  noes,  189. 

So  the  yeas  and  nays  were  not  ordered. 

Mr.  WILSON  obtained  the  consent  of  the  Con 
vention  to  correct  two  verbal  mistakes  in  the 
article  under  consideration. 

Mr.  STETSON,  of  Braintree.  I  trust,  Mr. 
President,  that  the  Convention  will  separate  this 
fourth  article  from  chapter  fourteen,  and  put  it  in 
among  the  miscellaneous  amendments.  I  suppose 
— I  did  suppose,  and  I  have  supposed— that  the 
people  were  to  have  the  right  to  decide  upon  such 
amendments  as  might  be  made  by  us,  so  far  as  it 
could  be  done,  by  having  the  opportunity  to  vote 
upon  them  in  a  separate  and  distinct  form.  I  did 
not  expect  that  the  doctors  who  have  had  the 
preparation  of  these  amendments  were  to  put 
them  into  the  form  of  a  bolus  dose.  I  am  gen 


erally  willing  to  take  such  doses  as  the  doctors 
prescribe,  but  if  they  give  too  large  a  dose,  it 
sometimes  makes  a  person  sick,  and  he  throws  it 
all  up ;  and  it  may  be  that  the  people  will  serve 
this  Constitution  in  the  same  way.  [Laughter.] 
But,  for  my  own  part,  I  prefer  to  take  medicine 
in  a  homoeopathic  way,  and  I  think  we  should  do 
better  to  administer  this  new  Constitution  to  the 
people  in  homoeopathic  doses.  But  if  it  is  the 
pleasure  of  the  Convention  to  send  all  these  nu 
merous  alterations  and  changes  and  amendments 
out  to  the  people,  to  be  adopted  or  rejected  to 
gether,  and  if  the  people  sanction  it  and  submit 
to  it,  I  have  nothing  to  say.  Out  of  so  many 
new  provisions,  however,  I  think  we  can  well 
separate  this,  and  put  it  as  a  separate  proposition, 
as  suggested  by  the  gentleman  from  Taunton.  I 
should  like  to  have  all  these  propositions  acted 
upon  by  the  people  separately,  so  that  every  man 
could  vote  for  what  he  liked  and  vote  against 
every  thing  else  ;  but  I  presume  the  Convention 
will  decide  otherwise,  and  the  people  will  be 
obliged  to  take  it  as  we  give  it  to  them.  I  trust 
that,  upon  sober  reflection,  however,  the  Conven 
tion  will  agree  to  the  amendment  of  the  gentle 
man  from  Taunton,  and  put  this  fourth  article 
into  the  supplement. 

Mr.  BUTLER,  of  Lowell.  I  should  be  sorry 
to  take  up  the  time  of  the  Convention  at  this  late 
hour,  but  there  are  two  or  three  things  that  have 
lately  been  said  upon  this  amendment,  that  I 
cannot  allow  to  pass,  so  far  as  I  am  concerned, 
without  a  word  of  reply.  I  had  supposed,  that 
after  the  very  learned,  able  and  experienced  gen 
tleman,  from  Taunton  had  proposed  the  district 
system,  in  various  ways — after  he  had  called  for 
it  four  times  and  had  had  the  yeas  and  nays 
called  upon  it  three  several  times,  in  various 
stages,  that  he  would  hardly  have  wished,  at  this 
hour  of  the  night,  to  trouble  us  with  it  again.  I 
have  no  doubt  but  that  what  he  has  done  has 
been  done  in  perfect  good  faith — I  am  bound  to 
suppose  that — but  I  will  state  what  seems  to  be 
the  result  to  which  he  has  arrived.  He  professes 
to  be  a  friend  to  the  district  system ;  he  is  anxious 
to  have  the  district  system  adopted  in  this  Com 
monwealth  ;  but  he  has  found  that  the  district 
system  is  unpalatable  to  a  very  large  majority  of 
this  Convention  —  I  may  say,  to  almost  if  not 
quite  a  hundred  majority — and  now,  if  he  really 
wants  the  district  system,  when  he  finds  it  is  so 
unpalatable,  why  does  he  object  to  let  us  put  it 
in  here  and  sweeten  it  with  some  other  proposi 
tions  before  it  goes  out  to  the  people  ?  Why  does 
he  object  to  our  sweetening  it  and  sending  it  out 
to  the  people,  telling  them  that  they  must  take 
the  bitter  with  the  sweet  ?  That  is  a  very  fair 


706 


REVISED   CONSTITUTION. 


[72d  day. 


Monday,] 


BUTLER  —  MORTON  —  WILLIAMS. 


[August  1st. 


comparison,  I  admit;  for  in  every  position  in 
which  we  find  ourselves  in  this  world,  we  are 
bound  to  take  the  good  and  bad  together. 

Mr.  MORTON.  The  gentleman  entirely  mis 
understood  me  ;  and  if  he  will  allow  me,  I  will 
state  what  I  said.  I  stated,  or  meant  to  state,  to 
the  Convention,  that  the  proposition,  although  it 
was  not  very  palatable  to  me,  yet  it  might  be  so 
to  a  good  many  people,  and  the  putting  it  in 
there  might  induce  some  people  to  vote  for  the 
House  of  Representatives.  While  I  am  up,  I 
wish  to  correct  another  statement  of  the  gentle 
man,  about  calling  for  the  yeas  and  nays.  I  be 
lieve  I  have  not  called  for  them  this  session. 

Mr.  BUTLER.  I  can  say  the  same  thing 
again.  Qui  facit  per  alium,  facit  per  se.  Per 
haps  the  gentleman  will  not  deny  that  he  asked 
his  colleague  to  call  for  them. 

Mr.  WILLIAMS.  I  will  answer  for  myself, 
that  I  was  not  asked  to  call  for  them. 

Mr.  BUTLER.  I  spoke  to  one  gentlemar 
from  Taunton,  and  not  the  other. 

Mr.  MORTON.  I  will  answer  then,  that  I 
did  not  say  a  word  to  that  gentleman  about  it. 

Mr.  BUTLER.  It  was  all  accidental,  then. 
The  gentleman  from  Taunton  went  over  there  by 
accident,  and  his  colleague  called  for  the  yeas  and 
nays  by  accident !  I  am  bound  to  believe  it. 

Mr.  WILLIAMS.  I  want  to  know  if  the  gen 
tleman  intends  to  impute  prevarication  to  me. 

Mr.  BUTLER.  Not  the  least  in  the  world ; 
what  are  you  so  anxious  for?  "Let  the  galled 
jade  wince — my  withers  are  un wrung  !"  What 
is  the  trouble  ?  I  will  only  say  again  that  the 
yeas  and  nays  upon  these  various  propositions 
have  been  called  for  three  several  times.  The 
gentleman  from  Taunton  says  we  take  the  bitter 
with  the  sweet.  I  call  it  bitter,  but  perhaps  it 
may  be  like  the  little  book  in  the  angel's  hand, 
sweet  in  the  mouth  and  bitter  in  the  belly.  I 
call  this  bitter,  and  I  say,  put  the  sweet  with  it. 
I  ask  the  gentleman  in  all  soberness, — I  respect 
his  grey  hairs,  for  I  am  bound  to  respect  them, — 
what  part  of  this  Constitution  he  feels  it  his  duty 
to  compare  to  an  assignation  house  ?  He  compares 
the  district  system  to  a  church  ;  but  where  is  the 
assignation  house  ?  He  compares  some  provisions 
to  a  school ;  but  where  is  the  gambling  house  in 
this  Constitution  ?  I  submit,  with  great  deference 
to  the  gentleman,  for  I  am  bound  to  defer  to  his 
experience ;  I  am  bound  to  defer  to  his  taste  ; 
but  I  simply  ask  him  whether  it  is  either  good 
taste  or  good  logic,  and  I  hope  he  will  excuse  me 
if  I  add,  good  manners,  thus  to  characterize  that 
which  has  met  the  approval  of  this  Convention. 
I  do  not  think  he  meant  it ;  I  think  it  was  a  slip 
of  the  tongue.  If  it  had  come  from  a  young  per 


son  of  hot  blood,  after  dinner,  I  should  have 
known  that  it  was  a  slip  of  the  tongue ;  but  I 
scarcely  expected  such  a  remark  from  an  elderly 
gentleman  of  the  character  of  the  gentleman  from 
Taunton.  I  will  call  attention  to  one  other  state 
ment  of  that  gentleman.  He  says  that  we  never 
can  get  our  Constitution  amended,  because  it  re 
quires  two-thirds  of  the  House  of  Representatives. 
Why,  Sir,  this  proposition  requires,  first,  that  the 
legislature  should  submit  the  district  system. 
They  cannot  help  it.  They  are  bound,  constitu 
tionally,  by  a  majority  vote,  to  do  it.  They  will 
be  obliged  to  submit  it  in  1856. 

Mr.  MORTON,  (interposing).  I  spoke  of  the 
ordinary  provisions  of  the  Constitution ;  I  had 
no  reference  to  this  at  all,  except  so  far  as  the 
provision  goes  that  it  shall  require  two-thirds.  I 
am  surprised  that  the  gentleman  should  have  got 
that  idea  from  anything  that  I  said. 

Mr.  BUTLER.  I  understand  the  state  of  the 
case  to  be  this,  they  must  vote  in  1855  by  a  ma 
jority  of  the  House  of  Representatives,  and  of 
the  Senate 

Mr.  MORTON,  (in  his  seat).  If  you  adopt 
this,  I  admit  it. 

Mr.  BUTLER.  If  this  is  adopted.  Now,  Sir, 
he  wants  a  district  system,  and  we  have  put  this 
in  here  where  every  gentleman  who  has  spoken 
to-day  thinks  is  the  best  chance  of  having  it 
adopted,  by  putting  the  whole  together.  Now  I 
ask  what  objection  there  can  be  to  it.  I  will  tell 
what  I  think  will  be  the  effect  of  his  proposition, 
although  of  course  I  know  he  does  not  mean  it. 
We  all  know  that  a  district  system  must  come, 
sooner  or  later.  Every-body  believes  that  the 
State  has  got  to  be  districted  for  choosing  repre 
sentatives,  either  before  or  after  this  is  adopted 
by  the  people,  and  I  do  not  see  any  difference 
which  it  is.  Now  the  friends  of  the  Convention 
come  forward  and  say  to  the  people :  "  We  are 
ready  to  give  you  a  district  system  if  you  want  it." 
I  do  not  think  they  do ;  but  if  they  do  they  shall 
have  a  chance  at  it.  Why  are  not  gentlemen 
ready  to  take  it  ?  I  will  tell  you  what,  in  my 
judgment,  is  thought  to  be  the  effect  of  it.  I 
think  some  gentlemen — I  do  not  refer  to  anybody 
in  particular,  and  so  I  shall  not  run  under  your 
hammer,  Mr.  President — some  gentlemen  are 
afraid  to  have  it  go  out  as  a  well-framed,  well- 
put-together  proposition ;  they  are  afraid  to  have  it, 
and  why  ?  Because  then  we  can  say  to  the  peo 
ple,  not  that  we  give  them  churches  and  assigna 
tion  houses,  and  they  must  take  both,  or  neither  ; 
we  say  to  them  :  If  you  want  a  district  system,  and 
believe  that  you  are  ready  for  it,  vote  for  your 
Constitution  and  you  will  get  it ;  but  if  you  do 
not,  if  you  prefer  the  system  which  was  sustained 


72d  day.] 


REVISED    CONSTITUTION. 


707 


Monday,] 


BUTLER,  —  HILLARD. 


[August  1st. 


by  this  Convention  by  more  than  a  hundred  ma 
jority,  you  are  at  liberty  to  retain  it  and  there  is 
no  harm  done. 

Now  what  is  there  wrong  in  that  ?  Is  anybody 
wronged,  anybody  troubled,  anybody  harmed. 
Every-body  agrees  that  if  you  put  out  the  propo 
sition  alone  it  does  not  stand  quite  so  good  a 
chance.  Gentlemen  who  want  the  district  sys 
tem,  why  not  march  up  and  take  it.  I  believe 
that  if  this  is  put  into  the  Constitution  it  goes  by 
forty  thousand  majority  at  least,  in  the  Com 
monwealth.  It  spikes  the  guns  of  certain  per 
sons,  and  that  is  the  trouble.  Now  they  want  to 
get  this  out  alone.  I  believe,  in  their  opposition 
to  this  proposition,  that  we  have  the  last  expiring 
trick  of  conservatism.  The  last.  And  as  this 
proposition  is  voted  down  by  the  Convention,  the 
last  shot  is  fired,  and  we  shall  go  out  to  the  peo 
ple  as  we  have  been  here,  in  spite  of  now  and  then 
a  man  against  us  whom  we  expected  to  be  for  us, 
and  who  if  he  had  not  professed  to  be  a  friend  of 
reform,  would  have  had  no  more  chance  of  getting 
here  than  he  would  of  getting  to  Heaven,  and 
that  is  putting  it  strong  enough.  [Laughter.] 

Gentlemen  will  find  that  we  are  not  of  those 
who  do  not  dare  to  trust  the  people.  We  say  we 
trust  you  with  anything,  bxit  we  propose  to  send 
you  a  machine  perfect  in  all  its  parts ;  not  a  hob 
bling  machine,  with  this  thing  left  out,  and  that 
thing  left  in,  where  they  ought  not  to  be  ;  not 
such  a  thing  as  that,  but  a  thing  perfect  in  all  its 
parts.  That  is  the  Constitution  which  we  pro 
pose  to  send  out  to  the  people,  and  not  such  a  con 
cern  as  will  enable  some  judge,  a  few  years  hence, 
to  come  forward  and  put  it  in  a  revised  form,  and 
claim  a  copy-right  of  it.  I  thank  God  that  we 
are  to  have  a  Constitution  which  no  judge,  pre 
sent  or  to  come,  can  obtain  a  copy-right  of,  and 
winch  we  cannot  print  until  we  get  his  permis 
sion.  We  have  come  up  here  to  have  a  Constitu 
tion  and  get  rid  of  a  patent. 

Mr.  HILLARD,  of  Boston.  The  remarks  of 
the  gentleman  from  Taunton,  (Mr.  Morton,)  have 
opened  a  pretty  wide  range  of  discussion  and  in 
quiry.  It  is  far  too  late,  and  the  Convention  far 
too  impatient  to  justify  me  in  travelling  far  in  any 
of  those  paths.  But  I  beg  leave  to  ask  the  atten 
tion  of  the  Convention  for  a  very  few  moments,  to 
considerations  suggested  by  what  fell  from  his  lips. 

What  is  the  work  to  which  we  have  been  ad 
dressing  ourselves  ?  and  in  what  spirit  should  we 
have  approached  that  work  ?  We  have  been 
making  a  Constitution,  the  highest  secular  duty 
which  can  be  devolved  upon  man  under  a  free 
government.  The  relation  of  constitutional  law 
to  legislative  enactments  has  been  somewhat  dis 
cussed  in  books, — it  has  been  treated  by  writers 


upon  political  philosophy, — but  the  relation  of 
constitutional  law  to  the  political  parties  into 
which  the  country  has  been  divided,  has,  as  yet, 
not  attracted  the  attention  of  writers  upon  politics  ; 
and  yet  it  is  a  most  important  and  novel  branch 
of  political  science,  and  one  which,  each  day,  is 
assuming  a  new  importance. 

What  is  a  model  Constitution,  and  what  would 
be  a  model  Convention  for  making  a  Constitution  ? 
It  would  be  a  Convention  anterior  to  the  forma 
tion  of  parties,  in  which  every  man  might  reason 
ably  expect  to  find  himself,  at  some  future  time 
in  the  minority,  because  the  object  of  a  Constitu 
tion  is  to  protect  the  minority.  Therefore  the 
best  Constitutions  are  those  which  have  been 
framed  at  a  time  when  no  man  could  tell  where 
the  political  changes  of  the  future  might  place 
him.  It  is  one  of  the  many  felicities  of  our  own 
history  that  the  great  political  parties  of  our 
country  grew  out  of  the  Constitution  of  the  United 
States,  and  that  the  Constitution  of  the  United 
States  did  not  grow  out  of  the  mere  political  parties 
of  the  country.  It  was  a  difficult  task  to  make  a 
Constitution  in  1789,  and  I  think  it  would  be  an 
impossible  task  to  make  one  now.  If  we  should 
succeed,  it  would  not  be  so  good  an  instrument  as 
that  which  we  now  enjoy.  The  greater  majority 
any  political  party  has  in  a  Convention,  the  more 
magnanimous  they  can  afford  to  be  to  the  mi 
nority.  But  if  party  politics,  if  political  parties 
— and  I  make  this  as  a  general  remark  with  no 
particular  application  to  this  Convention,  for  I 
would  not  utter  a  word  of  recrimination  or  re 
proach,  not  a  word  to  jar  upon  the  harmony  of 
feeling  with  which  we  should  break  up — if  polit 
ical  parties,  instead  of  finding  their  vent  in  our 
primary  assemblies,  and  in  our  legislatures,  come 
to  fight  their  battles  in  a  Constitutional  Conven 
tion,  I  have  only  to  say  that  it  is  an  element  of 
peril  in  our  institutions,  never  contemplated  by 
their  founders,  and  never  considered  by  writers 
upon  political  science,  because  you  see  that  the 
result  will  be  that  the  more  powerful  a  majority 
is,  and  the  more  that  majority  are  actuated  by 
party  feelings,  the  more  they  depart  from  the  true 
functions  of  a  Constitutional  Convention,  which 
is  to  make  a  Constitution  which  shall  protect  the 
minority.  If,  on  the  other  hand,  they  come  to 
gether  with  the  assured  purpose  of  oppressing  the 
minority,  and  of  strengthening  the  power  which 
they  hold  in  their  own  hands,  so  that  the  sceptre 
which  they  hold  shall  be  transmitted  in  a  lineal 
line  of  succession,  I  say  they  steer  by  a  false  star, 
and  never  can  land  upon  a  safe  shore.  I  would 
be  no  prophet  of  evil,  but  here  we  are  making 
arrangements  for  a  Constitutional  Convention 
every  twenty  years.  In  every  State  of  the  Union 


708 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


HlLLABD  —  BOUTWELL. 


[August  1st. 


the  Constitutions  are  renewed  about  once  in  a 
generation,  and  so  far  as  experience  has  gone, 
each  Convention  that  has  been  gathered  together 
has  had  more  of  partisan  feeling  than  its  prede 
cessor,  and  each  succeeding  Constitution  has  re 
flected  more  of  the  party  spirit  of  the  majority, 
and  has  more  and  more  departed  from  its  proper 
function,  which  is  to  protect  the  minority  ;  and  as 
a  general  rule,  wherever  there  has  been  a  change, 
the  earlier  Constitutions  have  been  the  best. 
Now  I  will  make  no  charge.  Let  every  man 
judge  and  speak  for  himself,  but  I  put  it  to  gen 
tlemen  who  have  had  the  responsibility  of  this 
Convention,  and  I  ask  them, — not  here  and  now, 
in  the  glow  and  heat  of  our  struggles  and  conten 
tions,  but  when  they  go  home  and  commune 
with  their  own  hearts, — I  ask  them  to  question 
themselves  if  they  have  approached  this  high 
work  in  the  high  spirit  in  which  they  should 
have  done,  or  whether  the  first  impulse,  the  first 
motive  and  the  first  principle  which  has  guided 
them,  has  not  been  one  which,  to  say  the  least, 
ought  to  have  been  the  last. 

Now,  on  what  ground  was  this  Convention 
opposed,  and  voted  against  by  those  who  did  op 
pose  and  vote  against  it  ?  For  one,  so  far  as  I 
can  judge  from  my  own  feelings,  and  from  those 
with  whom  I  am  in  the  habit  of  acting,  it  was 
because  it  was  a  Convention  which  was  wrung 
out  of  a  party  struggle,  and  that  of  necessity  it 
must  be  a  party  Convention.  And  I  ask  gentle 
men  in  the  majority,  in  no  unkind  feeling,  if 
there  was  not  reason  in  those  fears  and  apprehen 
sions  ?  I  put  it  to  some  of  the  gentlemen  who 
have  been  in  the  habit  of  acting  in  the  majority, 
whether  our  apprehensions  were  wholly  unreas 
onable  ?  I  would  ask,  if  from  the  beginning  to 
the  end  there  has  not  been  too  much  of  this  party 
element  in  our  deliberations,  and  if  the  provisions 
of  this  Constitution,  and  especially  the  last  and 
closing  act  of  this  eventful  drama,  have  not  been 
too  much  tinged  by  the  ignoble  desire  of  securing 
in  the  hands  which  now  sway  the  destinies  of  the 
Commonwealth,  those  destinies  ?  I  would  ask 
gentlemen  if  they  have  elevated  their  minds  to 
the  proper  point  of  view  from  which  to  contem 
plate  their  duties  and  responsibilities  ?  if  they 
have  been  actuated  by  the  single  wish  to  provide 
that  which  was  best  for  the  people,  best  for  the 
Commonwealth,  best  for  the  generation  which  is 
to  come,  and  to  put  it  forward  to  the  people  in 
such  a  manner  as  shall  secure  their  deliberate 
action  upon  it,  or  whether  they  have  been  actu 
ated  by  that  other  class  of  motives  winch  I  will 
no  longer  dwell  upon.  I  put  it  to  them,  and  let 
them  find  the  answer  in  the  silence  of  their  own 
hearts. 


Mr.  BOUTWELL,  for  Berlin.  I  have  no  de 
sire  to  dwell  long  upon  some  topics  which  have 
been  introduced  by  the  gentleman  from  Taunton, 
Mr.  (Morton,)  and  by.  the  gentleman  from  Boston 
(Mr.  Hillard).  This  Convention,  under  an  Act 
of  the  legislature,  sustained  by  the  people, 
assembled  to  revise  the  Constitution  of  this 
Commonwealth.  I  understand  the  gentleman 
from  Taunton,  and  the  gentleman  from  Boston, 
to  protest  against  the  conclusion  of  the  business 
for  which  this  assembly  have  convened,  and 
coupled  with  that  protest,  they  proceed,  if  not 
to  impugn  the  motives  of  the  gentlemen  upon 
the  other  side,  at  least  to  approach  to  the  very 
nearest  point  of  imputation.  Not  for  the  pur 
pose  of  thus  arraigning  each  other  have  we  as 
sembled,  and  for  my  part,  I  desire  not  that  the 
last  moments  of  this  Convention  should  be  em 
bittered  by  considerations  of  such  a  nature.  I 
trust,  Sir,  unless  I  have  deceived  myself,  I  have 
read  lectures  to  no  man  upon  this  floor.  I  came 
not  here  for  that  purpose,  but  to  do  my  duty  as  a 
delegate  of  the  people,  acknowledging  no  respon 
sibility  to  any  associates  here,  but  for  the  obliga 
tions  which  social  life  and  the  courtesies  of  our 
natures  demand.  To  the  people  alone,  are  we 
responsible.  That  responsibility,  I  for  one,  take ; 
its  consequences  I  shall  never  shun.  The  ma 
jority  of  this  Convention,  as  was  their  duty,  have 
taken  the  responsibility ;  and  if  they  go  before 
the  people  and  cannot  defend  their  proceedings, 
they  fall.  If  they  can  defend  their  proceedings 
here,  whatever  gentlemen  upon  this  floor  may 
say,  their  conduct  will  be  sustained,  and  their 
proceedings  will  stand. 

I  desire,  Sir,  that  instead  of  arraigning  each 
other,  we  proceed  to  the  conscientious  discharge 
of  the  duties  before  us,  that  he  who  desires  not 
to  take  the  responsibilities  of  these  last  moments 
of  this  Convention,  upon  that  record,  shall  escape 
the  responsibility ;  but  let  him,  in  justice  to  his 
fellows,  allow  them  to  take  tiie  responsibility  if 
they  choose  to  do  it.  For  one,  I  take  what  be 
longs  to  me. 

It  was  for  the  purpose  of  expressing  the  opin 
ions  which  I  have,  that  I  arose  at  this  time.  For 
one,  I  desire  to. enter  into  no  criminations  or 
recriminations.  I  have  no  doubt  that  errors  have 
been  committed  by  the  majority.  We  do  not 
claim  to  have  been  perfect  here.  Errors  may  have 
been  committed  by  the  minority,  and  it  may  be 
that  the  shield  of  public  charity  is  as  necessary 
for  them  as  for  us. 

The  question  was  then  taken  upon  the  motion 
offered  by  the  gentleman  from  Taunton,  (Mr. 
Morton,)  and  there  were,  on  a  division — ayes,  53  ; 
noes,  169. 


72d  day.]                              REVISED  CONSTITUTION. 

709 

Monday,]                                   WILKINSON  —  DANA  —  YEAS  —  NAYS. 

[August  1st. 

So  the  motion  did  not  prevail. 

Bigelow,  Jacob 

Livermore,  Isaac 

The  question  then  recurring    upon  the  final 

Bradbury,  Ebenezer 

Lothrop,  Samuel  K. 

passage  of  the  resolve  numbered  "  one"  

Brewster,  Osmyn 

Marvin,  Theophilus  R. 

Mr.  WILKINSON,  of  Dedham,  said  :  I  sup 
pose  it  may  be  proper  now  to  offer  an  amend 

Bullock,  Rufus 
Carter,  Timothy  W. 
Choate,  Rufus 

Miller,  Seth,  Jr. 
Morey,  George 
Morton,  Marcus 

ment,  but  which,  in  the  present  state  of  excite 

Cogswell,  Nathaniel 

Oliver,  Henry  K. 

ment  in  the  House,  I  do  not  wish  to  take  up  the 

Cole,  Lansing  J. 

Orcutt,  Nathan 

time  of  the  Convention  in  discussing.     It  seems 
to  me  that  the  proposition  should  be  distinctly 
passed  upon  by  this   Convention,   whether  the 

Cook,  Charles  E. 
Crockett,  George  W. 
Crosby,  Leander 
Davis,  Solomon 

Paige,  James  W. 
Parker,  Adolphus  G. 
Parker,  Samuel  D. 
Perkins,  Daniel  A. 

people  shall  have  the  right  to  pass  upon  these 

Dennison,  Hiram  S. 

Plunkett,  William  C. 

amendments  separately.     We  have  had  a  stand 

Ely,  Homer 

Pomroy,  Jeremian 

ing  rule  during  the  sitting  of  this  Convention,  by 

Eustis,  William  T. 

Preston,  Jonathan 

which  any  person  might  ask  for  a  division  of  the 
question  when  susceptible  of  division,  and  we 

Farwell,  A.  G. 
Gilbert,  Wanton  C. 
Giles,  Joel 

Read,  James 
Reed,  Sampson 
Sargent,  John 

have  voted  upon  these  several  propositions  sep 

Hale,  Nathan 

Sherman,  Charles 

arately,  and  I  am  desirous  to  submit  to  the  con 

Hammond,  A.  B. 

Sleeper,  John  S. 

sideration  of  this  Convention  the    propriety    of 

Hathaway,  Elnathan  P. 

Souther,  John 

allowing  the  people  to  do  what  we  have  done  in 
this  Convention.     I  would  therefore  move  that 
the  Report  be  recommitted  to  the  Committee  with 

Hawkes,  Stephen  E. 
Hayward,  George 
Hillard,  George  S. 
Hinsdale,  William 

Stetson,  Caleb 
Stevens,  Charles  G. 
Thompson,  Charles 
Tileston,  Edmund  P. 

instructions  to   report    the   several   amendments 

Houghton,  Samuel 

Weeks,  Cyrus 

agreed  upon  by  this  Convention,  in  such  form, 

Hunt,  William 

Wetmore,  Thomas 

and  with  such  reference  to  parts  of  the  existing 

Jenkins,  John 

White,  Benjamin 

Constitution  proposed  to  be  altered  or  annulled, 
that  each  of  said  amendments  may  be  separately 

Jenks,  Samuel  H. 
Kellogg,  Giles  C. 
Knight,  Joseph 

Wilder,  Joel 
Wilkinson,  Ezra 
Williams,  Henry 

submitted  to  the  people  for  their    adoption  or 

Ladd,  John  S. 

Wilson,  Milo 

rejection. 

Lawton,  Job  G.,  Jr. 

Wood,  Nathaniel 

The  PRESIDENT.    The  Chair  would  state 

Lincoln,  Fred.  W.,  Jr. 

that  the  motion  is  applicable  only  to  the  resolve 

numbered  "  one  ;  "  but  it  can  be  applied  to  each 

NAY3. 

proposition  as   it  comes   up.     The   propositions 

Adams,  Shubael  P. 

Chandler,  Amariah 

were  susceptible  of  division,  and  under  a  rule  of 

Allen,  James  B. 

Chapin,  Chester  W. 

the  Convention  the  Chair  must  state  the  questions 

Allen,  Joel  C. 

Chapin,  Daniel  E. 

Alley,  John  B. 

Chapin,  Henry 

Mr.    DANA,    for    Manchester.     Before    that 

Allis,  Josiah 
Alvord,  D.  W. 

Childs,  Josiah 
Clark,  Salah 

question  is  put,  I  move  to  amend  the  first  resolve 

Baker,  Hillel 

Clarke,  Alpheus  B. 

so  as  to  make  it  conform,  in  that  part  which  re 

Ball,  George  S. 

Cole,  Sumner 

fers  to  chapter  eight,  to  the  language  of  that  title 

Bancroft,  Alpheus 

Crane,  George  B. 

as  we  have  amended  it. 

Barrett,  Marcus 

Crittenden,  Simeon 

The  question  was  taken  and  the  motion  was 
agreed  to,  and  the  resolve  was  amended  accord 

Bates,  Moses,  Jr. 
Beal,  John 
Bird,  Francis  W. 

Cross,  Joseph  W. 
Cushman,  Henry  W. 
Cushman,  Thomas 

ingly. 

Bishop,  Henry  W. 

Dana,  Richard  H.,  Jr. 

The  question  recurring  upon  the  motion  of  Mr. 

Booth,  William  S. 

Davis,  Isaac 

Wilkinson  

Boutwell,  George  S. 

Davis,  Robert  T. 

Mr.    WILKINSON  called  for  the  yeas  and 

Boutwell,  Sewell 
Breed,  Hiram  N. 

Dean,  Silas 
Deming,  Elijah  S. 

nays  upon  it. 

Bronson,  Asa 

Dentoii,  Augustus 

The  yeas  and  nays  were  ordered,  one-fifth  of 

Brown,  Adolphus  F. 

Dunham,  Bradish 

the  persons  voting  having  voted  therefor,  there 

Brown,  Hammond 

Durgin,  John  M. 

being,  on  a  division  —  ayes,  51  ;  noes,  181. 
The  yeas  and  nays  were  then  called  upon  the 
motion  offered  by  Mr.  Wilkinson,  and  there  were 

Brown,  Hiram  C. 
Brownell,  Frederick 
Brownell,  Joseph 
Bryant,  Patrick 

Eames,  Philip 
Earle,  John  M. 
Easland,  Peter 
Eaton,  Calvin  D. 

—  yeas,  73  ;  nays,  170  —  as  follows  :  — 

Buck,  Asahel 

Edwards,  Elisha 

Bullen,  Amos  H. 

Fay,  Sullivan 

YEAS. 

Burlingame,  Anson 

Fellows,  James  K. 

Adams,  Benjamin  P.      Barrows,  Joseph 
Aldrich,  P.  Emory          Beach,  Erasmus  D. 

Butler,  Benjamin  F. 
Caruthers,  William 

Fisk,  Lyman 
Foster,  Aaron 

Aspinwall,  William        Beebe,  James  M. 

Case,  Isaac 

Foster,  Abram 

710 

REVISED   CONSTITUTION. 

[72  d   day. 

Monday,] 

NATS  —  ABSENT. 

[August  1st. 

Fowle,  Samuel 

Parris,  Jonathan 

Braman,  Milton  P. 

Huntington,  George  H. 

Freeman,  James  M. 

Partridge,  John 

Brinley,  Francis 

Hurlburt,  Samuel  A. 

French,  Charles  A. 

Penniman,  John 

Briggs,  George  N. 

Hyde,  Benjamin  D. 

French,  Rodney 

Perkins,  Noah  C. 

Brown,  Alpheus  R. 

Jackson,  Samuel 

French,  Samuel 

Phinney,  Sylvanus  B. 

Brown,  Artemas 

James,  William 

Frothirgham,  11'  d,  Jr. 

Pierce,  Henry 

Bumpus,  Cephas  C. 

Johnson,  John 

Gardner,  Johnson 

Pool,  James  M. 

Cady,  Henry 

Kellogg,  Martin  R. 

Gates,  Elbridge 

Powers,  Peter 

Churchill,  J.  McKean 

Keyes,  Edward  L. 

Gilbert,  Washington 

Putnam,  John  A. 

Clark,  Henry 

Kimball,  Joseph 

Giles,  Charles  G. 

Rantoul,  Robert 

Clark,  Ransom 

Kingman,  Joseph 

Gooding,  Leonard 

Rawson,  Silas 

Clarke,  Stillman 

Kinsman,  Henry  W. 

Graves,  John  "W. 

Rice,  David 

Cleverly,  William 

Knight,  Jefferson 

Green,  Jabez 

Richards,  Luther 

Coggin,  Jacob 

Knowlton,  Charles  L. 

Greene,  William  B. 

Richardson,  Daniel 

Conkey,  Ithamar 

Kuhn,  George  H. 

Griswold,  Josiah  W. 

Richardson,  Nathan 

Cooledge,  Henry  F. 

Lawrence,  Luther 

Griswoid,  Whiting 

Richardson,  Samuel  H. 

Copeland,  Benjamin  F. 

Lincoln,  Abishai 

Hadley,  Samuel  P. 

Ring,  Elkanah,  Jr. 

Cressy,  Oliver  S. 

Littlcfield,  Tristram 

Hall,  Charles  B. 

Rogers,  John 

Crowell,  Seth 

Loomis,  E.  Justin 

Hallett,  B.  F. 

Ross,  David  S. 

Crowninshield,  F.  B. 

Lord,  Otis  P. 

Hapgood,  Seth 

Royce,  James  C. 

Cummings,  Joseph. 

Loud,  Samuel  P. 

Harmon,  Phineas 

Sanderson,  Amasa 

Curtis,  Wilbur 

Lowell,  John  A. 

Haskins,  William 

Sanderson,  Chester 

Cutler,  Simeon  N. 

Marcy,  Laban 

Heath,  Ezra,  2d 

Schouler,  William 

Davis,  Charles  G. 

Marvin,  Abijah  P. 

Hewes,  William  H. 

Sherril,  John 

Davis,  Ebenezer 

Meader,  Reuben 

Hobart,  Henry 

Sikes,  Chester 

Davis,  John 

Mixter,  Samuel 

Hood,  George 

Simmons,  Perez 

Dawes,  Henry  L. 

Moore,  James  M. 

Howard,  Martin 

Simonds,  John  W. 

Day,  Gilman 

Morss,  Joseph  B. 

Hoyt,  Henry  K. 

Smith,  Matthew 

Denon,  William 

Newman,  Charles 

Hurlbut,  Moses  C. 

Sprague,  Melzar 

DeWitt,  Alexander 

Nichols,  William 

Ide,  Abijah  M.,  Jr. 

Spooner,  Samuel  W. 

Doane,  James  C. 

Norton,  Alfred 

Jacobs,  John 

Stevens,  Granville 

Dornian,  Moses 

Noyes,  Daniel 

Kendall,  Isaac 

Stiles,  Gideon 

Duncan,  Samuel 

Ober,  Joseph  E. 

Knight,  Hiram 

Strong,  Alfred  L. 

Easton,  James,  2d 

Orne,  Benjamin  S. 

Knowlton,  J.  S.  C. 

Taft,  Arnold 

Eaton,  Lilley 

Park,  John  G. 

Knowlton,  William  H. 

Tilton,  Abraham 

Edwards,  Samuel 

Parker,  Joel 

Knox,  Albert 

Tyler,  William 

Ely,  Joseph  M. 

Parsons,  Samuel  C. 

Ladd,  Gardner  P. 

Underwood,  Orison 

Fiske,  Emery 

Parsons,  Thomas  A. 

Langdon,  Wilber  C. 

Yinton,  George  A. 

Fitch,  Ezekiel  W. 

Payson,  Thomas  E. 

Leland,  Alden 

Wallace,  Frederick  T. 

Fowler,  Samuel  P. 

Peabcdy,  George 

Little,  Otis 

Wallis,  Freeland 

French,  Charles  H. 

Peabody,  Nathaniel 

Marble,  William  P. 

Walker,  Amasa 

Gale,  Luther 

Pease,  Jeremiah,  Jr. 

Mason,  Charles 

Waters,  Asa  H. 

Gardner,  Henrv  J. 

Perkins,  Jesse 

Merritt,  Simeon 

Weston,  Gershom  B. 

Gooch,  Daniel  W. 

Perkins,  Jonathan  C. 

Monroe,  James  L. 

Whitney,  Daniel  S. 

Gould,  Robert 

Phelps,  Charles 

Morton,  Elbridge  G. 

Whitney,  James  S. 

Goulding,  Dalton 

Prince,  F.  O. 

Morton,  Marcus,  Jr. 

Wilbur,  Daniel 

Goulding,  Jason 

Putnam,  George 

Morton,  William  S. 

•Williams,  J.  B. 

Gray,  John  C. 

Rockwell,  Julius 

Nash,  Hiram 

Wilson,  Henry 

Greenleaf,  Simon 

Rockwocd,  Joseph  M. 

Nayson,  Jonathan 

Wilson,  Willard 

Hu?e,  Artemas 

Sampson,  George  R. 

Nute,  Andrew  T. 

Winn,  Jonathan  B. 

Hapgood,  Lyman  W. 

Sheldon,  Luther 

Osgood,  Charles 

Winslow,  Levi  M. 

Haskell,  George 

Stacy,  Eben  H. 

Packer,  E.  Wing 

Wood,  Charles  C. 

Hayden,  Isaac 

Stevens,  Joseph  L.,  Jr. 

Paine,  Benjamin 

Wood,  Otis 

Hazewell,  Charles  C. 

Stevens,  William 

Paine,  Henry 

Wright,  Ezekiel 

Heard,  Charles 

Stevenson,  J.  Thomas 

Henry,  Samuel 

Storrow,  Charles  S. 

ABSENT. 

Hersey,  Henry 

Stutson,  William 

Hewes,  James 

Sumner,  Charles 

Abbott,  Alfred  A. 

Bartlett,  Russel 

Heywood,  Levi 

Sumner,  Increase 

Abbott,  Josiah  G. 

Bartlett,  Sidney 

Hobart,  Aaron 

Swain,  Alanson 

Allen,  Charles 

Bates,  Eliakim  A. 

Hobbs,  Edwin 

Taber,  Isaac  C. 

Allen,  Parsons 

Bell,  Luther  Y. 

Holder,  Nathaniel 

Talbot,  Thomas 

Andrews,  Robert 

Bennett,  William,  Jr. 

Hooper,  Foster 

Taylor,  Ralph 

Appleton,  William 

Bennett,  Zephaniah 

Hopkinson,  Thomas 

Thayer,  Joseph 

Atwood,  David  C. 

Bigelow,  Edward  B. 

Howland,  Abraham  H. 

Thayer,  Willard,  2d 

Austin,  George 

Blagden,  George  W. 

Hubbard,  William  J. 

Thomas,  John  W. 

Avres,  Samuel 

Bliss,  Gad  O. 

Hunt,  Charles  E. 

Tilton,  Horatio  W. 

Ballard,  Alvah 

Bliss,  William  C. 

Iluntington,  Asahel 

Tower,  Ephraim 

Banks,  Nathaniel  P.,  Jr.  Bradford,  WTilliam  J.  A. 

Huntington,  Charles  P. 

Train,  Charles  R. 

72d  day.] 


REVISED   CONSTITUTION. 


711 


Monday,] 


OLIVER  —  SCHOULER  —  SARGENT  —  MASON  —  HALLETT  —  YEAS.         [August  1st. 


Turner,  David 
Turner,  David  P. 
Tyler,  John  S. 
Upham,  Charles  "W. 
Upton,  George  B. 
Viles,  Joel 
Walcott,  Samuel  B. 
Wales,  Bradford  L. 
Walker,  Samuel 


Ward,  Andrew  H. 
Warner,  Marshal 
Warner,  Samuel,  Jr. 
Wheeler,  William  F. 
White,  George 
Wilbur,  Joseph 
Wilkiiis,  John  H. 
Wood,  William  H. 
Woods,  Josiah  B. 


Absent  and  not  voting,  176. 

So  the  motion  was  not  agreed  to. 

Mr.  O  LITER,  of  Lawrence.  I  do  not  sup 
pose  that  any  proposition  which  I  could  make, 
considering  the  condition  which  I  occupy  as  one 
of  the  minority,  will  meet  with  any  particular 
favor  at  the  hands  of  the  Convention,  and  yet  I 
will  venture  to  make  one  more  motion.  I  have 
not  any  idea  that  any  of  the  alkalies  which  have 
gone  into  the  Constitution  to  neutralize  the  acids, 
will  be  removed  ;  but  I  should  like  to  take  out 
that  bantling  of  mine  and  let  it  ride  alone  ;  there 
fore  I  move  that  chapter  eleven,  in  relation  to  the 
militia,  be  taken  out  from  the  omnium-f/atherum, 
and  made  a  separate  proposition,  number  nine, 
so  that  it  may  be  acted  upon  by  the  people  sep 
arately. 

Mr.  SCHOULER,  of  Boston.  I  am  sorry  to 
see  the  gentleman  from  Lawrence  making  that 
motion  at  this  late  hour.  I  think  that  what  is  in 
the  present  Constitution  in  relation  to  the  militia, 
is  better  than  this  bantling  of  the  gentleman  from 
Lawrence ;  and  I  said  so  when  the  matter  was  un 
der  discussion.  But,  inasmuch  as  it  is  in  there,  and 
inasmuch  as  the  gentleman  wants  to  get  rid  of  it, 
I  hope  he  will  allow  it  to  remain,  there.  [Laugh 
ter.]  Therefore,  I  am  in  favor  of  keeping  it 
where  it  is.  It  is  not  so  bad  as  I  thought  it  was 
at  first,  and  probably  that  is  the  reason  that  he 
wants  to  get  it  out. 

Mr.  SARGENT,  of  Cambridge.  I  hope  the 
motion  will  succeed.  I  do  not  think  much  of 
this  military  law.  It  makes  no  provisions  for 
Sergeants,  and  therefore,  I  hope  it  will  be  put  by 
itself.  [Laughter.] 

The  question  was  then  taken  on  the  motion  of 
Mr.  Oliver,  and  it  was  decided  in  the  negative. 

Mr.  MASON,  of  Fitchburg.  I  find  that  in 
the  latter  part  of  article  first,  chapter  second,  there 
is  the  word  "be"  before  the  word  "chosen" 
which  seems  to  be  superfluous.  The  clause  now 
reads  as  follows  : — 


Each  district  shall  be  entitled  to  elect  one 
senator,  who  shall  have  been  an  inhabitant  of  this 
Commonwealth  for  five  years  immediately  pre 
ceding  his  election,  and  at  the  time  of  his  elec 
tion  shall  be  an  inhabitant  of  the  district  for  which 
he  is  be  chosen. 


I  move  to  strike  out  the  word  "  be." 
The  question  was  taken  and  the  motion  was 
agreed  to. 

Mr.  MASON.  I  also  move  to  insert  the  words 
"  to  be  "  before  the  word  "entitled"  in  article 
two,  chapter  six,  which  is  as  follows  : — 

ART.  2.  Eight  councillors  shall  be  annually 
chosen  by  the  people  ;  and  for  that  purpose  the 
State  shall  be  divided  by  the  General  Court  into 
eight  districts,  each  district  to  consist  of  five 
coutiguous  senatorial  districts,  and  entitled  to 
elect  one  councillor,  who  shall  hold  his  office 
for  one  year  next  following  the  first  Wednesday 
in  January,  and  until  a  successor  is  chosen  and 
qualified  in  his  stead. 

Mr.  HALLETT.  In  my  judgment  the  amend 
ment  weakens  rather  than  strengthens  the  lan 
guage.  It  now  declares  that  they  are  entitled,  and 
the  amendment  says  they  are  to  be  entitled. 
When  ?  That  language  was  well  considered,  is  in 
conformity  to  the  old  Constitution,  and  is  good 
Saxon  English. 

Mr.  MASON.     I  withdraw  the  amendment. 

The  PRESIDENT.  The  question  recurs  upon 
the  final  passage  of  proposition  numbered  "  one." 

Mr.  BOUT  WELL.  This  being  the  final  dispo 
sition  of  that  proposition,  I  ask  the  yeas  and  nays 
upon  its  passage. 

The  yeas  and  nays  were  ordered. 

The  roll  was  then  called  and  there  were — yeas, 
173  ;  nays,  58 — as  follows  : — 


Allen,  James  B. 
Allen,  Joel  C. 
Alley,  John  B. 
Allis,  Josiah 
Alvord,  D.  W. 
Austin,  George 
Baker,  Hillel 
Ball,  George  S. 
Bancroft,  Alpheus 
Barrett,  Marcus 
Bates,  Moses,  Jr. 
Beach,  Erasmus  D. 
Beal,  John 
Bird,  Francis  W. 
Bishop,  Henry  W. 
Booth,  William  S. 
Boutwell,  George  S. 
Bout  well,  Sewell 
Breed,  Hiram  N. 
Bronson,  Asa 
Brown,  Adolphus  F. 
Brown,  Hammond 
Brown,  Hiram  C. 
Brownell,  Frederick 
Brownell,  Joseph 
Bryant,  Patrick 
Bullen,  Amos  H. 
Burlingame,  Alison 


TEAS. 

Butler,  Benjamin  F. 
Carruthers,  William 
Case,  Isaac 
Chandler,  Amariah 
Chapin,  Chester  W. 
Chapin,  Daniel  E. 
.Chapin,  Henry 
Childs,  Josiah 
Clark,  Ransom 
Clark,  Salah 
Clarke,  Alpheus  B. 
Cole,  Lansing  J. 
Cole,  Sumner 
Crane,  George  B. 
Crittenden,  Simeon 
Cross,  Joseph  W. 
Cushman,  Henry  W. 
Dana,  Richard  II.,  Jr. 
Davis,  Isaac 
Davis,  Robert  T. 
Dean,  Silas 
Denton,  Augustus 
Dunham,  Bradish 
Durgin,  John  M. 
Eames,  Philip 
Earle,  John  M. 
Easlaiid,  Peter 
Eaton,  Calvin  D. 


712 

REVISED    CONSTITUTION. 

[72  d  day. 

Monday,] 

NAYS  —  ABSENT. 

[August  1st. 

Edwards,  Elisha 

Nayson,  Jonathan                 Crosby,  Leander 

Miller,  Seth,  Jr. 

Fay,  Sullivan 

Nute,  Andrew  T. 

Davis,  Solomon 

Morey,  George 

Fellows,  James  K. 

Osgood,  Charles 

Denison,  Hiram  S. 

Morton,  Marcus 

Fisk,  Lyman 

Packer,  E.  Wing 

Ely,  Homer 

Oliver,  Henry  K. 

Foster,  Aaron 

Paine,  Benjamin 

Farwell,  A.  G. 

Orcutt,  Nathan 

Foster,  Abram 

Paine,  Henry 

Gilbert,  Wanton  C. 

Paige,  James  W. 

Fowle,  Samuel 

Parris,  Jonathan 

Giles,  Joel 

Parker,  Adolphus  G. 

Freeman,  James  M. 

Partridge,  John 

Hale,  Nathan 

Plunkett,  William  C. 

French,  Charles  A. 

Penmman,  John 

Hammond,  A.  B. 

Preston,  Jonathan 

French,  Rodney 

Perkins,  Daniel  A. 

Hayward,  George 

Read,  James 

French,  Samuel 

Perkins,  Noah  C. 

Hillard,  George  S. 

Reed,  Sampson 

Frothingham,  R.,  Jr. 

Phinney,  Silvanus  B. 

Hinsdale,  William 

Sargent,  John 

Gardner,  Johnson 

Pierce,  Henry 

Houghton,  Samuel 

Sikes,  Chester 

Gates,  Elhridge 

Pool,  James  M. 

Hunt,  William 

Sleeper,  John  S. 

Gilbert,  Washington 

Powers,  Peter 

Hurlburt,  Samuel  A. 

Souther,  John 

Giles,  Charles  G. 

Putnam,  John  A. 

Jenkins,  John 

Stevens,  Charles  G. 

Gooding,  Leonard 

Pvantoul,  Robert 

Jenks,  Samuel  H. 

Tileston,  Edmund  P. 

Graves,  John  W. 

Rice,  David 

Kellogg,  Giles  C. 

Weeks,  Cyrus 

Green,  Jabez 

Richards,  Luther 

Ladd,  John  S. 

White,  Beniamin 

Greene,  William  B. 

Richardson,  Daniel 

Lincoln,  Frederic  W.,  Jr.  Wilder,  Joel 

GrisM'old,  Josiah  W. 

Richardson,  Nathan 

Livermore,  Isaac 

Wilkinson,  Ezra 

Griswold,  Whiting 

Richardson,  Samuel  H. 

Lothrop,  Samuel  K. 

Williams,  Henry 

Hadley,  Samuel  P. 

Ring,  Elkanah,  Jr. 

Marvin,  Theophilus  R. 

Wilson,  Milo 

Hall,  Charles  B. 

Rogers,  John 

Hallett,  B.  F. 

Ross,  David  S. 

ABSENT. 

Hapgood,  Seth 
Harmon,  Phineas 
Hathaway,  Elnathan  P. 
Hawkes,  Stephen  E. 
Hay  den,  Isaac 
Heath,  Ezra,  2d 
Hewes,  William  H. 
Hobart,  Henry 
Hood,  George 
Howland,  Abraham  H. 
Hoyt,  Henry  K. 
Hurlbut,  Moses  C. 
Hyde,  Benjamin  D. 
Ide,  Abijah  M.,  Jr. 
Jacobs,  John 
Kendall,  Isaac 
Knight,  Hiram 
Knight,  Joseph 
Knowlton,  J.  S.  C. 
Knowlton,  William  H. 
Knox,  Albert 
Ladd,  Gardner  P. 
Langdon,  Wilber  C. 
Lawton,  Job  G.,  Jr. 
Leland,  Alden 
Little,  Otis 
Marble,  William  P. 
Mason,  Charles 
Merritt,  Simeon 
Monroe,  James  L. 
Morton,  Elbridge  G. 
Morton,  Marcus,  Jr. 

Royce,  James  C. 
Sanderson,  Amasa 
Sherril,  John 
Simmons,  Perez 
Simonds,  John  W. 
Smith,  Matthew 
Spooner,  Samuel  W. 
Stevens,  Granville 
Stiles,  Gideon 
Strong,  Alfred  L. 
Taft,  Arnold 
Til  ton,  Abraham 
Tyler,  William 
Underwood,  Orison 
Vinton,  George  A. 
Wallace,  Frederick,  T. 
Wallis,  Freeland 
Walker,  Amasa 
Waters,  Asa  H. 
Weston,  Gershom  B. 
White,  George 
Whitney,  Daniel  S. 
Whitney,  James  S. 
Wilbur,  Daniel 
Williams,  J.  B. 
Wilson,  Henry 
Wilson,  Willard 
Winn,  Jonathan  B. 
Winslow,  Levi  M. 
Wood,  Charles  C. 
Wood,  Nathaniel 
Wood,  Otis 

Abbott,  Alfred  A.           Crowninshield,  F.  B. 
Abbott,  Josiah  G.            Cummings,  Joseph 
Adams,  Shubael  P.          Curtis,  Wilber 
Allen,  Charles                   Cushman,  Thomas 
Allen,  Parsons                  Cutler,  Simeon  N. 
Andrews,  Robert             Davis,  Charles  G. 
Appleton,  William          Davis,  Ebenezer 
Atwood,  David  C.           Davis,  John 
Ayres,  Samuel                 Dawes,  Henry  L. 
Ballard,  Alvah                 Day,  Gilman 
Banks,  Nathaniel  P.,  Jr.  Dehon,  William 
Bartlett,  Sidney                Deming,  Elijah  S. 
Bates,  Eliakim  A.            DeWitt,  Alexander 
Bell,  Luther  V.                Doane,  James  C. 
Bennett,  William,  Jr.      Dorman,  Moses 
Bennett,  Zephaniah         Duncan,  Samuel 
Bigelow,  Edward  B.        Easton,  James,  2d 
Blagden,  George  W.        Eaton,  Lilley 
Bliss,  Gad  O.                   Edwards,  Samuel 
Bliss,  William  C.            Ely,  Joseph  M. 
Bradford,  William  J.  A.  Eustis,  William  T. 
Braman,  Milton  P.          Fiske,  Emery 
Briiiley,  Francis               Fitch,  Ezekiel  W. 
Briggs,  George  N.            Fowler,  Samuel  P. 
Brown,  Alpheus  R.          French,  Charles  H. 
Brown,  Artemas               Gale,  Luther 
Buck,  Asahel                   Gardner,  Henry  J. 
Bullock,  Rufus                 Gooch,  Daniel  W. 
Bumpus,  Cephas  C.         Gould,  Robert 
Cady,  Henry                     Goulding,  Dalton 
Churchill,  J.  McKean      Goulding,  Jason 

Morton,  William  S. 
!JST<isli  Hirjun 

Wright,  Ezekiel 

Clark,  Henry 
Clarke,  Stillman 

Gray,  John  C. 
Greenleaf,  Simon 

Cleverly,  William 

Hale,  Artemas 

"V  AT"d 

Coggin,  Jacob 

Hapgood,  Lyman  W. 

JM  A  IB* 

Cogswell,  Nathaniel 

Haskell,  George 

Adams,  Benjamin  P. 

Bigelow,  Jacob 

Conkey,  Ithamar 

Haskins,  William 

Aldrich,  P.  Emory 

Bradbury,  Ebenezer 

Cook,  Charles  E. 

Hazewell,  C.  C. 

Aspinwall,  William 

Brewster,  Osymn 

Cooledge,  Henry  F. 

Heard,  Charles 

Barrows,  Joseph 

Carter,  Timothy  W. 

Copeland,  Benjamin  F. 

Henry,  Samuel 

Bartlett,  Russel 

Choate,  Rufus 

Cressy,  Oliver  S. 

Hersey,  Henry 

Beebe,  James  M. 

Crockett,  George  W. 

Crowell,  Seth 

Hewes,  James 

72d  day.] 


REVISED    CONSTITUTION. 


713 


Monday,] 


ABSENT — COLE. 


[August  1st. 


Heywood,  Levi 
Hobart,  Aaron 
Hobbs,  Edwin 
Holder,  Nathaniel 
Hooper,  Foster 
Hopkinson,  Thomas 
Howard,  Martin 
Hubbard,  William  J. 
Hunt,  Charles  E. 
Huntington,  Asahel 
Huntington,  Charles  P. 
Huntington,  George  H. 
Jackson,  Samuel 
James,  William 
Johnson,  John 
Kellogg,  Martin  R. 
Keyes,  Edward  L. 
Kimball,  Joseph 
Kingman,  Joseph 
Kinsman,  Henry  W. 
Knight,  Jefferson 
Knowlton,  Charles  L. 
Kuhn,  George  H. 
Lawrence,  Luther 
Lincoln,  Abishai 
Littlelield,  Tristram 
Loomis,  E.  Justin 
Lord,  Otis  P. 
Loud,  Samuel  P. 
Lowell,  John  A. 
Marcy,  Laban 
Marvin,  Abijah  P. 
Meader,  Reuben 
Mixter,  Samuel 
Moore,  James  M. 
Morss,  Joseph  B. 
Newman,  Charles 
Nichols,  William 
Norton,  Alfred 
Noyes,  Daniel 
Ober,  Joseph  E. 
Orne,  Benjamin  S. 
Park,  John  G. 
Parker,  Joel 
Parker,  Samuel  D. 
Parsons,  Samuel  C. 
Parsons,  Thomas  A. 
Payson,  Thomas  E. 
Peabody,  George 
Peabody,  Nathaniel 
Pease,  Jeremiah,  Jr. 
Perkins,  Jesse 


Perkins,  Jonathan  C. 
Phelps,  Charles 
Pomroy,  Jeremiah 
Prince,  F.  O. 
Putnam,  George 
Rawson,  Silas 
Rockwell,  Julius 
Rockwood,  Joseph  M. 
Sampson,  George  R. 
Sanderson,  Chester 
Schouler,  William 
Sheldon,  Luther 
Sherman,  Charles 
Sprague,  Melzar 
Stacy,  Eben  H. 
Stetson,  Caleb 
Stevens,  Joseph  L.,  Jr. 
Stevens,  William 
Stevenson,  J.  Thomas 
Storrow,  Charles  S. 
Stutson,  William 
Sumner,  Increase 
Sumner,  Charles 
Swain,  Alanson 
Taber,  Isaac  C. 
Talbot,  Thomas 
Taylor,  Ralph 
Thayer,  Joseph 
Thayer,  Willard,  2d 
Thomas,  John  W. 
Thompson,  Charles 
Tilton,  Horatio  W. 
Tower,  Ephraim 
Train,  C.  R. 
Turner,  David 
Turner,  David  P. 
Tyler,  John  S. 
Upham,  Charles  W. 
Upton,  George  B. 
Viles,  Joel 
Walcott,  Samuel  B. 
Wales,  Bradford  L. 
Walker,  Samuel 
Ward,  Andrew  H. 
Warner,  Marshal 
Warner,  Samuel,  Jr. 
Wetmore,  Thomas 
Wheeler,  William  F. 
Wilbur,  Joseph 
Wilkins,  John  H. 
Wood,  William  H. 
Woods,  Josiah  B. 


Absent,  and  not  voting,  188. 

So  proposition  numbered  "  one  "  was  passed. 

Pending  the  call 

Mr.  COLE,  of  Cheshire,  asked  the  indulgence 
of  the  Convention  to  explain  the  reasons  for  the 
vote  which  he  gave. 

[Many  voices.     "  No  !  "    "  No  !  "    "  No  !  "] 

The  PRESIDENT  decided  that  leave  could  ^e 
granted  only  by  unanimous  consent. 

The  first  proposition  having  thus  been  disposed 
of,  the  Secretary  read  the  second  proposition  and 
the  provision  of  the  Constitution  to  which  it  re 
ferred,  as  follows : — 

483 


II.  The  provision  respecting  the  granting  of 
the  writ  of  Habeas  Corpus,  as  a  proposition,  num 
bered  "two." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  the  provision  respecting  the 
Habeas  Corpus. 

The  following  is  the  provision  referred  to : — 

The  writ  of  habeas  corpus  shall  be  granted  as  of 
right  in  all  cases  in  which  a  discretion  is  not 
especially  conferred  upon  the  court  by  the  legis 
lature;  but  the  legislature  may  prescribe  forms 
of  proceeding  preliminary  to  the  obtaining  of  the 
writ. 

The  question  was  taken  upon  the  final  passage 
of  the  second  proposition,  and  there  were,  upon  a 
division — ayes,  169 ;  noes,  17. 

So  the  proposition  was  passed. 

The  third  proposition  was  next  read,  as  fol 
lows  : — 

III.  The  provision   respecting   the  rights   of 
juries  in  criminal  trials,  as  a  proposition,  num 
bered  "three." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  the  article  in  the  Declara 
tion  of  Rights,  respecting  the  rights  of  persons 
charged  with  crimes. 

The  following  is  the  provision  referred  to : — 

In  all  trials  for  criminal  offences,  the  jury,  after 
having  received  the  instruction  of  the  court,  shall 
have  the  right,  in  their  verdict,  of  guilty  or  not 
guilty,  to  determine  the  laAV  and  the  facts  of  the 
case,  but  it  shall  be  the  duty  of  the  court  to  su 
perintend  the  course  of  the  trials,  to  decide  upon 
the  admission  and  rejection  of  evidence,  and  upon 
all  questions  of  law  raised  during  the  trials,  and 
upon  all  collateral  and  incidental  proceedings ; 
and  also  to  allow  bills  of  exceptions.  And  the 
court  may  grant  a  new  trial  in  case  of  conviction. 

The  question  being  upon  the  passage  of  the 
third  proposition  it  was  put,  and  there  were — ayes, 
149 ;  noes,  56. 

So  the  proposition  was  passed. 

The  fourth  proposition  was  then  read,  as  fol 
lows  : — 

IV.  The   provision  respecting  claims  against 
the  Commonwealth,  as  a  proposition,  numbered 
"  four." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  Article  XL,  of  the  Decla 
ration  of  Rights. 

Proposition  numbered  "  four,"  is  as  follows : — 

Every  person  having  a  claim  against  the  Com 
monwealth,  ought  to  have  a  judicial  remedy 
therefor. 

The  question  was  then  taken  upon  the  passage 


14 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


DANA  —  HALLETT. 


[August  1st. 


of  the  fourth  proposition,  and  there  were— ayes, 
183 ;  noes,  6. 

So  the  proposition  was  passed. 

The  fifth  proposition  was  then  read,  as  fol 
lows  : — 

V.  The  provision  respecting  imprisonment  for 
debt,  as  a  proposition,  numbered  "  five." 

If  this  proposition  be  adopted,  it  shall  be  an 
addition  to  the  Article  in  the  Declaration  of 
Rights,  respecting  excessive  bail  and  fines. 

The  provision  referred  to,  is  as  follows  : — 

No  person  shall  be  imprisoned  for  any  debt 
hereafter  contracted,  unless  in  cases  of  fraud. 

The  question  was  taken  upon  the  passage  of 
the  fifth  proposition,  and  there  were — ayes,  153  ; 
noes,  16. 

So  the  proposition  was  passed. 

The  sixth  proposition  was  then  read,  as  fol 
lows  : — 

YI.  The  provision  respecting  sectarian  schools, 
as  a  proposition,  numbered  "  six." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  Article  IV.  of  Chapter 
XII.,  entitled,  "  The  University  at  Cambridge, 
The  School  Fund,  and  The  Encouragement  of 
Literature."  If  proposition  numbered  "  one  " 
shall  not  be  adopted,  it  shall  be  added  as  an 
amendment  to  the  Constitution. 

The  provision  referred  to,  is  as  follows  : — 

All  moneys  raised  by  taxation  in  the  towns  and 
cities,  for  the  support  of  public  schools,  and  all 
moneys  which  may  be  appropriated  by  the  State 
for  the  support  of  common  schools,  shall  be  ap 
plied  to  and  expended  in  no  other  schools  than 
those  which  are  conducted  according  to  law,  under 
the  order  and  superintendence  of  the  authorities 
of  the  town  or  city  in  which  the  money  is  to  be 
expended ;  and  such  moneys  shall  never  be  ap 
propriated  to  any  religious  sect,  for  the  mainte 
nance,  exclusively,  of  its  own  schools. 

Mr.  DANA.  Before  the  question  is  taken 
upon  the  passage  of  the  sixth  proposition,  I  move 
to  amend  it  by  striking  out  the  word  "  it "  in  the 
last  clause,  and  inserting  in  lieu  thereof,  the 
words,  "  number  six." 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

Mr.  HALLETT.  I  ask  for  the  yeas  and  nays 
upon  the  passage  of  the  sixth  proposition. 

The  yeas  and  nays  were  not  ordered,  one- fifth 
of  those  voting,  not  voting  therefor. 

The  question  was  then  taken  upon  the  passage 
of  the  sixth  proposition,  and  there  were,  upon  a 
division — ayes,  159  ;  noes,  24. 

So  the  proposition  was  passed. 


The  PRESIDENT.  The  next  proposition  is 
in  the  following  words  : — 

VII.  The  Legislature  shall  not  create  corpora 
tions  by  special  act,  when  the  object  of  the  incor 
poration  is  attainable  by  general  laws. 

This  proposition  was  adopted,  without  debate, 
on  a  division — ayes,  169  ;  noes,  16. 

The  PRESIDENT.  The  next  business  before 
the  Convention  is  the  eighth  proposition. 

The  Secretary  read  the  following,  previous  to 
reading  the  proposition  : — 

VIII.  The  provision  respecting  Banks   and 
Banking,  as  a  proposition,  numbered  "eight." 

If  the  propositions  numbered  "  seven "  and 
"eight"  be  ratified  and  confirmed,  they  shall  be 
added  as  separate  articles,  or  if  either  of  them  be 
ratified  and  confirmed,  as  an  article  in  Chapter 
XIII.,  entitled  "Miscellaneous  Provisions." 

If  proposition  numbered  "  one  "  be  not  rati 
fied  and  confirmed,  they  shall  be  added  as  amend 
ments  to  the  Constitution." 

The  eighth  proposition  was  then  read,  as  fol 
lows  : — 

The  Legislature  shall  have  no  power  to  pass 
any  act  granting  any  special  charter  for  banking 
purposes,  or  any  special  act  to  increase  the  capi 
tal  stock  of  any  chartered  bank ;  but  corpora 
tions  may  be  formed  for  such  purposes,  or  the 
capital  stock  of  chartered  banks  may  be  increased, 
under  general  laws. 

The  Legislature  shall  provide  by  law  for  the 
registry  of  all  notes  or  bills  authorized  by  general 
laws  to  be  issued  or  put  in  circulation  as  money ; 
and  shall  require  ample  security  for  the  redemp 
tion  of  such  notes,  in  specie. 

The  proposition  was  adopted,  on  a  division — 
ayes,  153  ;  noes,  36. 

The  question  next  recurred  upon  the  second 
resolution,  which  was  read,  as  follows  : — 

Resolved)  That  at  the  meetings  for  the  election 
of  Governor,  Senators,  and  Representatives  to  the 
General  Court,  to  be  holden  on  the  second  Mon 
day  of  November,  in  the  year  one  thousand  eight 
hundred  and  fifty-three,  the  qualified  voters  of 
the  several  towns  and  cities  shall  vote  by  ballot 
upon  each  of  the  propositions  aforesaid,  for  or 
against  the  same,  which  ballots  shall  be  inclosed 
within  sealed  envelopes,  according  to  the  pro 
visions  of  an  Act  of  this  Commonwealth,  passed  on 
the  twenty-second  day  of  May,  in  the  year  eighteen 
hundred  and  fifty-one,  and  an  Act  passed  the 
twentieth  day  of  May,  in  the  year  eighteen  hun 
dred  and  fifty-two,  and  no  ballots  not  so  inclosed 
shall  be  received.  And  said  votes  shall  be  re 
ceived,  sorted,  counted,  declared,  and  recorded, 
in  open  meeting,  in  the  same  manner  as  is  by 
law  provided  in  reference  to  votes  for  governor, 
and  a  true  copy  of  the  record  of  said  votes,  at 
tested  by  the  selectmen  and  town  clerk  of  each 
of  the  several  towns,  and  the  mayor  and  alder 
men  and  city  clerk  of  each  of  the  several  cities, 


72d  day.] 


REVISED    CONSTITUTION. 


715 


Monday,] 


DANA — FKO THIN GUAM — KNOWLTON. 


[August  1st. 


shall  be  sealed  up  by  said  selectmen  and  mayor 
and  aldermen,  and  directed  to  the  Secretary  of 
the  Commonwealth,  with  a  superscription  ex 
pressing  the  purport  of  the  contents  thereof,  and 
delivered  to  the  sheriff  of  the  county  within  fif 
teen  days  after  said  meetings,  to  be  by  him  trans 
mitted  to  the  secretary's  office,  on  or  before  the 
third  Monday  of  December  next;  or,  the  said 
selectmen  and  mayor  and  aldermen  shall  them 
selves  transmit  the  same  to  the  secretary's  office, 
on  or  before  the  day  last  aforesaid. 

The  resolve  was  agreed  to. 
The   question    next  recurred  upon  the  third 
resolution,  which  Avas  read,  as  follows  : — 

Resolved,  That  the  Secretary  shall  deliver  said 
copies,  so  transmitted  to  him,  to  a  Committee  of 
this  Convention,  consisting  of 

who  shall  assemble  at  the  State 
House,  on  the  third  Monday  of  December  next, 
and  open  the  same,  and  examine  and  count  the 
votes  so  returned ;  and  if  it  shall  appear  that 
either  of  said  propositions  has  been  adopted  by  a 
majority  of  votes,  then  the  proposition  so  adopted 
shall  become  and  be  either  the  whole  or  a  portion 
of  the  Constitution  of  this  Commonwealth,  as 
hereinbefore  provided,  and  the  said  Committee 
shall  promulgate  the  results  of  said  votes  upon 
each  of  said  propositions,  by  causing  the  same  to 
be  published  in  those  newspapers  in  which  the 
laws  are  now  published ;  and  shall  also  notify 
the  Governor  and  Legislature,  as  soon  as  may  be, 
of  the  said  results  ;  and  the  Governor  shall  forth 
with  make  public  proclamation  of  the  fact  of  the 
adoption  of  either  or  all  of  said  propositions,  as 
the  whole  or  as  parts  of  the  Constitution  of  this 
Commonwealth. 

Mr.  DANA  moved  to  amend  the  resolution, 
by  providing  that  the  blank  be  filled  with  the 
name  of  the  President  of  the  Convention,  and 
the  names  of  twenty  other  persons,  whom  he 
should  nominate. 

The  amendment  was  agreed  to,  and  the  ques 
tion  recurring  on  the  passage  of  the  resolve,  as 
amended, 

The  resolve  was  passed. 

The  question  then  recurred  upon  the  fourth 
resolution,  which  was  read,  as  follows  : — 

Resolved,  That  each  of  said  propositions  shall 
be  considered  as  a  whole  by  itself,  to  be  adopted 
in  the  whole,  or  rejected  in  the  whole.  And 
every  voter  may  vote  on  each  proposition,  by  its 
appropriate  number,  without  specifying  in  his 
ballot  any  reference  to  the  subject  of  the  propo 
sition,  and  by  writing  opposite  to  the  number  of 
each  proposition,  the  word  Yes  or  No ;  but  the 
vote  on  all  of  the  propositions  shall  be  written  or 
printed  on  one  ballot,  in  substance  as  follows  : — 

Constitutional  Propositions. 
Proposition  No.  I.,        .         .         Yes  or  No. 
Proposition  No.  II.,      .         .         Yes  or  No. 
Proposition  No.  III.,    .         .         Y"es  or  No. 
And  to  Proposition  No.  VIII. ,      Yes  or  No. 


Mr.  FROTHINGHAM,  of  Charlestown.  I 
have  an  amendment  to  propose  to  this  resolve ; 
and  without  questioning  the  eminent  ability 
which  has  marked  the  course  of  the  Committee 
in  reference  to  preparing  their  Report  and  doing 
full  justice  to  it,  I  yet  think  there  may  be  an 
amendment  here  which  will  perhaps  relieve  the 
voters  of  considerable  trouble  at  the  polls.  The 
proposition  as  it  now  stands,  states  that 

Every  voter  may  vote  on  each  proposition  by 
its  appropriate  number,  without  specifying  in  his 
ballot  any  reference  to  the  subject  of  the  proposi 
tion,  and  by  writing  opposite  to  the  number  of 
each  proposition  the  word  Yes  or  No ;  but  the 
vote  on  all  of  the  propositions  shall  be  written  or 
printed  on  one  ballot,  in  substance  as  follows  : — 

Constitutional  Propositions. 

Proposition  No.  I.,        .         .  Yes  or  No. 

Proposition  No.  II.,      .         .  Yes  or  No. 

Proposition  No.  III.,    .         .  Yes  or  No. 

And  to  Proposition  No.  VIII.,  Y'es  or  No. 

Now,  it  seems  to  me  that  the  ballot  ought  to 
specify  each  proposition.  These  pamphlets  which 
we  shall  send  out  will,  in  all  probability,  be  lost 
before  the  people  come  to  the  polls ;  and  when 
they  are  there  the  inquiry  will  be  :  "  "What  does 
number  one  mean?  what  does  number  two 
mean  ?  or  what  does  number  three  mean : " 
throughout  the  whole  propositions.  And  then 
again  the  object  is  to  prepare  the  ballot ;  and, 
after  all,  the  ballot  will  not  be  specific.  "With 
these  few  remarks,  I  submit  the  following  amend 
ment,  which  is  to  strike  out  all  after  the  word 
"  whole,"  in  the  second  line,  and  insert  the  fol 
lowing  : — 

Indicating  on  his  ballot  the  subject  of  the  prop 
osition,  and  writing  or  printing  the  word  Yes  or 
No  opposite  to  each  proposition. 

Mr.  KNO  WLTON,  of  Worcester.  As  a  mem 
ber  of  the  Committee  on  Revision,  I  give  the 
amendment  of  the  gentleman  from  Charlestown 
my  support.  I  think  it  is  plainer  than  the  propo 
sition  of  the  Committee,  and  I  hope  it  will  be 
adopted. 

Mr.  DANA,  for  Manchester.  I  was  about  to 
suggest,  when  I  yielded  the  floor  to  the  gentle 
man  for  Wilbraham,  that  it  seems  to  me  the 
proposition  of  the  gentleman  from  Charlestown  is 
a  very  proper  one,  and  better  than  that  which  we 
had  submitted ;  because,  if  the  propositions  were 
only  designated  by  numbers,  a  mistake  in  those 
numbers,  either  from  accident  or  design,  would 
frustrate  the  intentions  of  the  voters  ;  but  if  we 
have  both  the  number  and  the  indication  of  the 
subject,  there  could  be  scarcely  a  possibility  of 


716 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


HALLETT  —  EARLE  —  JENKS  —  BOUTWELL  —  STETSON  —  MARVIN.        [August  1st. 


mistake.  The  amendment  was  submitted  by  the 
gentleman  from  Charlestown  to  the  chairman  of 
the  Committee,  and  to  some  other  members,  be 
fore  he  offered  it,  and  I  believe  it  met  with  gen 
eral  approbation.  Perhaps  it  would  be  more 
grammatical  to  say  "in"  than  to  say  "and." 
When  a  man  votes,  I  do  not  suppose  that  any 
inquiry  will  be  made  as  to  whether  he  wrote  his 
ballot,  or  whether  his  wife  wrote  it  for  him  at 
home,  or  whether  it  was  printed. 

Mr.  HALLETT,  for  Wilbraham.  It  is  just  as 
easy  to  express  it  in  language  that  every-body 
will  understand,  as  it  is  to  express  it  in  doubtful 
language.  If  the  word  "in"  will  perfect  the 
language,  I  move  to  substitute  "in"  instead  of 
"  and,"  so  that  it  shall  read:  "indicating  on  his 
ballot  the  subject  of  the  proposition  in  writing  or 
printing,  opposite  each  proposition." 

Mr.  EAIILE,  of  Worcester.  It  appears  to  me, 
that  it  is  very  well  as  it  is  ;  and  in  answer  to  the 
objection  which  has  been  raised  by  the  gentleman 
for  Manchester  and  the  gentleman  for  Wilbraham, 
I  can  say  that  I  do  not  suppose  there  will  be  any 
difficulty  about  this  matter.  It  is  not  presumed 
that  the  voters  are  going  to  the  polls,  and  to  sit 
down  and  write  their  ballots  when  they  vote. 
Unquestionably  these  propositions  will  all  be 
printed — one  set  with  yeas  arid  another  set  with 
nays  opposite  to  each  proposition  ;  and  then  each 
voter  could  select  that  which  corresponds  the 
nearest  to  the  way  he  wishes  to  vote,  and  alter  it 
to  suit  himself.  If  he  votes  "yes"  on  the  ma- 
•joritv  of  the  propositions,  and  there  are  two  or 
three  which  he  does  not  like,  he  can  take  his 
pencil  and  mark  "  no"  opposite  to  them,  erasing 
the  word  "  yes."  I  am  in  favor  of  the  amend 
ment  as  it  now  stands  ;  I  think  there  will  be  no 
difficulty  arising  from  it. 

Mr.  JENKS,  of  Boston.  This  seems  to  me  to 
be  merely  a  verbal  dispute.  It  stands  very  well 
as  the  gentleman  for  \Viibraham  proposes  it,  and 
it  is  much  more  plain  and  explicit.  I  presume 
the  meaning  is,  that  each  voter  shall  state  by  a 
written  or  printed  declaration ;  and  perhaps  that 
would  be  a  good  form  in  which  to  express  it,  in 
stead  of  saying  that  he  shall  either  write  or  print 
it. 

Mr.  HALLETT.  I  should  be  sorry  to  have 
tlus  go  out  in  a  wrong  form  ;  and  I  will  farther 
suggest  that  the  word  "stating"  be  substituted 
for  "  indicating,"  so  that  it  will  read  as  folio ws  : 

And  every  voter  shall  vote  on>  each  proposi 
tion  by  its  appropriate  number,  stating  on  his 
ballot  the  subject  of  the  proposition,  in  writing  or 
printing,  and  the  word  yes  or  no  opposite  to 
each  proposition. 

The  question  being  then  taken  on  the  amend 


ment  to  the  amendment,  it  was  agreed  to ;  and 
the  amendment,  as  amended,  was  then  adopted. 

The  resolve,  as  amended,  was  then  agreed  to. 

The  question  was  then  stated  on  agreeing  to 
the  fifth  resolve : — 

Resolved,  That  a  printed  copy  of  these  resolu 
tions,  with  the  several  constitutional  propositions 
annexed,  shall  be  attested  by  the  Secretaries  of 
the  Convention,  and  transmitted  by  them,  as  soon 
as  may  be,  to  the  selectmen  of  each  town,  and 
the  mayor  and  aldermen  of  each  city,  in  the  Com 
monwealth,  whose  duty  it  shall  be  to  insert  a 
proper  article  in  reference  to  the  Aroting  upon  said 
propositions,  in  the  warrant  calling  the  meetings 
aforesaid,  on  the  second  Monday  of  November 
next. 

Mr.  BOUTWELL  moved  to  amend  by  insert 
ing  after  the  words  "attested  by,"  the  words 
"the  President  and,"  so  that  it  would  read 
"  shall  be  attested  by  the  President  and  Secreta 
ries  of  the  Convention,"  &c. 

The  amendment  was  agreed  to. 

Mr.  STETSON,  of  Braintree.  I  should  like 
to  ask  the  chairman  of  the  Committee,  if  it  is  in 
tended  that  the  same  plan  shall  be  pursued  in  the 
printing  of  the  Constitution,  which  is  pursued  in 
the  printing  of  these  copies  that  have  been  dis 
tributed  here.  A  part  of  this  Constitution  is  set 
in  open  type,  a  part  in  close  type,  and  a  part 
in  Italics.  What  I  want  is  this  :  that  in  order 
that  the  people  may  understand  what  part  of  the 
Constitution  is  new  and  what  part  is  old,  it  should 
be  printed  with  all  that  is  new  inserted  in  Italics, 
and  the  old  part  in  Roman.  In  that  case,  when  it 
goes  out  to  the  people,  they  will  not  have  to  study 
and  compare  in  order  to  find  out  what  changes 
the  Convention  have  made.  I  move  that  the 
Committee  who  have  this  matter  in  charge,  direct 
all  the  new  portion  to  be  printed  in  Italics. 

Mr.  BUTLER,  of  Lowell.  I  wish  to  inform 
the  gentleman  from  Braintree,  that  the  new  parts 
are  already  differently  printed  from  the  old,  so 
that  they  can  be  very  well  distinguished.  How 
ever  that  may  be,  I  had  supposed  that  it  was  no 
part  of  the  duty  of  the  Committee  on  Revision  to 
superintend  the  printing. 

Mr.  MARVIN,  of  Boston.  I  think  some  plan 
should  be  adopted  to  carry  out  the  view  of  the 
gentleman  from  Braintree — either  that  which  he 
has  suggested,  or,  perhaps  it  may  be  well  to  have 
the  new  portions  of  the  Constitution  enclosed  in 
brackets,  as  is  frequently  done  in  such  cases. 
Every  man  who  knows  anything  about  printing, 
will  agree  with  me  in  the  opinion,  that  three- 
quarters  of  the  men  in  the  Commonwealth  would 
not  readily  discern  the  difference  between  solid 
and  leaded  matter— I  speak  as  a  practical  printer. 
I  think  there  should  bo  some  obvious  distinction 


72d  day.] 


REVISED   CONSTITUTION. 


717 


Monday,] 


EARLE  —  BUTLER  —  MARVIN  —  STETSON  —  WHITNEY  —  DANA.          [August  1st. 


to  the  eye  between  what  is  new  and  what  is 
old. 

Mr.  EARLE.  These  suggestions  may  all  be 
very  well,  but  I  think  we  had  better  leave  this  to 
be  attended  to  by  the  Committee,  and  not  take 
any  action  on  it  now. 

Mr.  BUTLER.  I  beg  leave  to  make  a  single 
suggestion  farther.  I  think  those  gentlemen  who 
have  been  instructing  us  so  long,  how  much  the 
people  are  to  be  trusted,  and  throwing  brickbats 
at  us  for  not  trusting  them,  are  putting  them 
selves  to  unnecessary  trouble  in  inserting  brackets 
and  Italics  in  order  that  the  people  may  know 
what  this  Convention  have  been  doing.  I  have  no 
fear  but  that  the  people  can  find  out  where  the 
changes  are,  without  having  them  put  in  Italics. 
I  believe  in  the  people  enough  for  that. 

The  question  being  taken,  the  resolve  was 
agreed  to. 

Mr.  MARVIN.  I  move  to  instruct  the  Com 
mittee,  whose  duty  it  is  to  provide  for  printing 
the  resolutions,  that  the  several  propositions  an 
nexed,  which  are  new  portions  of  the  Constitution, 
be  printed  in  brackets. 

Mr.  STETSON.  I  trust  that  this  Convention 
will  adopt  the  motion  of  the  gentleman  from  Bos 
ton,  for  this  reason.  I  will  venture  to  say  that 
no  member  of  this  Convention  can  tell  in  two 
hours,  what  part  of  this  revised  Constitution  is 
old  and  what  part  is  new ;  and  I  believe,  that 
without  any  orders,  the  Committee  who  have  had 
this  Constitution  under  revision,  have  made  some 
changes  in  regard  to  matters  which  have  never 
been  under  consideration  by  this  Convention  at 
all.  I  think  the  people  have  a  right  to  know 
what  portion  of  the  Constitution  which  is  sent 
out  to  them  for  their  sanction  is  new  and  what 
portion  is  not ;  and  they  never  will  know  if  they 
have  it  printed  in  the  way  that  this  is. 

Mr.  WHITNEY,  of  Boylston,  (interposing). 
I  understood  the  gentleman  to  say,  that  no  mem 
ber  could  find  out  in  two  hours  what  was  new 
and  what  was  old.  I  wish  to  inquire  if  he  is 
going  to  make  a  statement  to  occupy  that  length 
of  time,  in  order  that  we  can  try  the  experiment. 
[Laughter.] 

Mr.  STETSON.  I  can  assure  the  gentleman 
in  the  gallery  that  he  has  never  seen  me  asleep  in 
this  Convention,  and  he  probably  will  not.  I 
take  it,  Mr.  President,  that  the  people  have  a 
right  to  know  precisely  what  alterations  have 
been  made  in  the  Constitution  which  we  send 
out  to  them,  before  they  vote  for  its  adoption.  I 
think,  therefore,  that  it  is  no  more  than  proper, 
in  sending  out  a  proposition  of  so  much  import 
ance  as  a  new  Constitution,  that  the  people  should 
know  how  to  distinguish  between  that  which  is 


new  and  that  which  is  old.  I  trust,  Mr.  Presi 
dent,  that  this  Convention  will  pass  the  resolution 
of  the  gentleman  from  Boston,  unless  they  mean 
to  deceive  the  people  by  putting  a  proposition 
before  them  which  they  know  that  they  cannot 
understand.  I  do  not  want  to  throw  bricks  at  a 
man's  head,  or  brick  dust  into  his  eyes  so  that  he 
cannot  see.  All  that  I  ask  is  that  the  proposition 
may  go  forth  to  the  people  in  such  a  shape  and 
manner  that  they  can  understand  it.  I  think  that 
if  it  should  be  printed  in  the  form,  in  which  this 
has  been  printed  for  us  here,  there  is  not  one  man 
in  ten  that  could  tell  what  he  was  voting  on — 
whether  a  particular  proposition  was  a  part  of  the 
old  Constitution  or  whether  it  was  something 
new.  I  believe  that  the  people  of  Massachusetts 
are  as  well  enlightened,  and  understand  their 
rights  as  well  as  the  people  of  any  other  State  in. 
this  Union.  There  is  not  a  State  which  has  a 
more  enlightened  constituency  than  we  have  in 
this  Commonwealth ;  but,  Sir,  I  believe,  notwith 
standing  that  they  are  so  intelligent  they  would 
be  apt  to  get  puzzled  with  this  document,  printed 
in  this  way ;  for  it  requires  a  very  astute  man  to 
understand  all  that  is  new  and  all  that  is  old  in 
this  Constitution. 

Mr.  DANA,  for  Manchester.  It  is  proposed, 
as  I  understand  it,  that  all  the  new  parts  of  the 
Constitution  submitted  to  the  people,  shall  be 
printed  in  brackets  to  distinguish  them  from  the 
old  Constitution.  Now  there  will  be  one  great 
difficulty  in  that.  Some  amendments  are  merely 
in  the  way  of  transposing  words,  some  where  the 
same  substance  remains  with  very  little  variation 
of  form.  The  Committee  found  it  necessary  to 
adopt  three  modes  of  printing — common  type, 
leaded  type,  and  brackets.  I  do  not  believe  it 
possible  that  by  mere  brackets  amendments  can 
be  sufficiently  distinguished  so  as  not  to  mislead 
the  people. 

Another  difficulty.  If  it  shall  be  issued  in  the 
form  of  brackets,  we  shall  be  held  responsible  for 
their  accuracy,  for  the  people  will  rely  upon  them. 
I  should  not  like  to  trust  to  the  accuracy  with 
which  any  person  could  do  that  work.  It  would 
be  a  matter  of  difference  of  opinion  what  should 
be  placed  in  brackets,  and  how.  I  do  not  think 
the  gentleman  from  Braintree,  (Mr.  Stetson,) 
really  thinks  the  people  have  an  inalienable  right 
to  brackets.  Will  he  permit  me  to  ask  him 
whether  it  would  not  suit  him  to  have  a  part  in 
crotchets  ?  [Laughter.] 

Mr.  KNO WLTON,  of  Worcester.  I  think 
the  proposition  is  susceptible  of  improvement.  I 
therefore  move  to  strike  out  all  after  the  word 
"  brackets,"  and  insert  in  lieu  thereof  the  words 
"  in  such  form  as  to  distinguish,  as  far  as  possible, 


718 


REVISED    CONSTITUTION. 


[72d  day. 


Monday,] 


MARVIN  —  HATHAWAY  —  BOUTWELL  —  LIVERMORE. 


[August  1st. 


the  amendments  from  the  text  of  the  Constitu 
tion." 

Mr.  MARVIN,  of  Boston.  I  accept  the  amend 
ment.  I  take  it  that  if  the  main  amendments, 
that  is  those  which  are  entire  paragraphs,  are  put 
in  brackets,  and  the  less  important  alterations  are 
put  in  Italics,  the  amendments  would  be  perfectly 
obvious  to  every-body.  I  trust  that  the  Commit 
tee  will  take  that  course. 

The  question  was  then  taken  upon  the  motion 
of  Mr.  Marvin,  as  modified  by  the  motion  of  Mr. 
Knowlton,  and  it  was  decided  in  the  affirmative. 

Mr.  HATHAWAY,  of  Freetown.  I  desire  to 
call  the  attention  of  the  Committee  which  reported 
these  resolutions,  to  the  proposition  made  here  in 
reference  to  article  second,  chapter  first,  which  is 
as  follows : — 

ART.  2.  The  political  year  shall  begin  on  the 
first  Wednesday  in  January ;  and  the  General 
Court  shall  assemble  every  year  on  the  said  first 
Wednesday  in  January,  and  shall  be  dissolved  on 
the  day  next  preceding  the  first  Wednesday  in 
January  following,  without  any  proclamation  or 
other  act  of  the  governor.  But  nothing  herein 
contained  shall  prevent  the  General  Court  from 
assembling  at  such  other  times  as  they  shall  judge 
necessary,  or  when  called  together  by  the  gover 
nor. 

The  last  paragraph  of  that  article  was  passed 
over  for  the  purpose  of  giving  the  Committee  time 
to  make  an  examination  of  that  matter,  and  giving 
an  answer  to  the  inquiry  which  was  made  in  ref 
erence  to  it,  and  that  was,  whether  the  Convention 
had  passed  upon  that  very  proposition,  and  agreed 
to  have  it  stricken  out.  I  should  like  to  know 
whether  the  Committee  have  satisfied  themselves 
in  reference  to  that  matter  ?  Can  the  Committee 
answer  now,  whether  the  Convention  have  acted 
upon  it,  and  whether  they  have  struck  it  out  or 
retained  it  ? 

Mr.  BOUTWELL,  for  Berlin.  The  Conven 
tion  have  not  passed  upon  it.  It  stands  as  it  ever 
has  in  the  articles  of  amendment  to  the  old  Con 
stitution.  It  was  struck  out  of  the  original  Con 
stitution  of  1780,  but,  by  a  provision  inserted 
with  great  care  in  the  amendments,  and  which 
annulled  a  part  of  the  article  with  which  this  pro 
vision  was  connected,  and  this  provision  was  pre 
served,  and  has  not  been  acted  upon  by  the  Con 
vention.  There  is  nothing  upon  the  record  which 
shows  that  it  has  been  acted  upon. 

Mr.  LIYERMORE,  of  Cambridge.  A  part 
of  the  same  words  were  struck  out  by  a  Report  of 
the  Committee  on  the  Frame  of  Government,  or  at 
least  they  left  out  that  part  of  it.  The  Report 
was  to  substitute  something  for  the  article  as  it 
then  stood,  and  the  part  relating  to  the  governor 
having  the  power  to  call  the  legislature  together, 


was  not  stricken  out.  But  the  whole  has  been 
inserted  into  this  article,  after  the  old  article  had 
been  amended,  by  striking  out  a  part,  and  a  new 
article  substituted  for  it.  It  was  left  out,  but  the 
Revising  Committee  found  it  in  another  part  of  the 
Constitution,  and  put  it  in  here. 

The  PRESIDENT.  It  can  only  be  reached 
by  a  motion  to  reconsider. 

Mr.  LIVERMORE.  I  shall  not  make  a  mo 
tion  in  regard  to  it. 

Mr.  BOUTWELL.  The  Committee  on  the 
Frame  of  Government  made  no  reference  what 
ever  to  that  provision  in  the  Constitution  in  which 
this  clause  was  found.  No  reference  whatever. 

The  PRESIDENT.  It  appears  that  no  amend 
ment  has  been  made  in  reference  to  this  matter. 

Mr.  BOUTWELL.  The  Committee  on  the 
subject  of  Revising  the  Amendments  to  the  Con 
stitution,  were  also  charged  with  the  matter  of 
preparing  an  Address  to  the  people  of  the  Com 
monwealth  ;  and,  with  the  consent  of  the  Chair, 
and  of  the  Convention,  I  will  read  the  Address 
which  the  Committee  has  instructed  me  to  report. 

The  Convention  of  Delegates,  assembled  by 
your  authority,  and  directed  to  revise  the  Consti 
tution  of  the  Commonwealth,  has  now  closed  its 
labors  ;  and  it  seeks  only  to  commend  and  com 
mit  the  result  to  your  consideration  and  final 
judgment.  The  necessity  for  the  Convention  was 
great,  and  its  labors  have  been  arduous  and  pro 
tracted.  As  your  delegates,  we  have  sought  for 
the  principles  of  freedom  in  the  ancient  institu 
tions  of  the  State ;  but  we  have  thought  it  wise 
also  to  accept  the  teachings  and  experience  of 
nearly  a  century  of  independent  existence.  It  has 
then  been  our  purpose  to  unite  in  one  system  of 
organic  law  the  principles  of  American  republican 
institutions,  and  the  experiences  of  other  free 
States,  all  contemplated  in  the  light  derived  from 
the  history  and  usages  of  Massachusetts. 

And  first  of  all,  we  think  it  proper  to  present  for 
your  consideration  a  complete  system  of  organic 
law.  The  present  Constitution  was  adopted  in 
1780,  and  there  have  since  been  added  thirteen 
important  amendments.  By  these  amendments, 
much  of  the  original  text  is  already  annulled,  and 
it  is  only  bv  a  careful  and  critical  analysis  and 
comparison  that  the  existing  provisions  can  be 
determined.  This  ought  not  to  be.  Constitu 
tional  laws  should  be  plain,  that  they  may  be 
impartially  interpreted  and  faithfully  executed — 
"  that  every  man  may  at  all  times  find  his  secu 
rity  in  them."  We  have  not,  then,  thought  it 
wise,  or  even  proper,  to  preserve,  as  a  part  of  the 
Constitution,  provisions  which  have  long  since 
been  annulled ;  nor  do  we  feel  justified  in  pro 
posing  new  specific  amendments  whose  adoption 
will  render  the  fundamental  law  of  the  Common 
wealth  more  difficult  to  be  understood  and  less 
certain  in  its  requirements. 

We  have,  therefore,  taken  what  remains  un 
changed  of  the  Constitution  of  1780,  and  the 


72d  day.] 


REVISED   CONSTITUTION. 


719 


Monday,] 


ADDRESS. 


[August  1st. 


subsequent  amendments,  preserving  the  original 
language  wherever  it  appeared  practicable,  as  the 
basis  of  a  new  Constitution,  and  incorporated 
therewith  such  of  the  resolutions  of  this  Conven 
tion  as  are  necessary  to  give  to  the  whole,  at  once, 
a  comprehensive  and  concise  character.  This  has 
been  our  purpose ;  and  if  our  view  of  duty  is 
correct,  we  are  entirely  justified  in  submitting  so 
much  of  our  work  as  will  give  to  the  people  of 
Massachusetts  a  complete  system  of  organic  law, 
as  one  proposition,  for  your  adoption  and  ratifica 
tion.  It  is  undoubtedly  true,  that  when  amend 
ments  are  specific  and  not  numerous,  they  should 
be  separately  submitted  to  the  judgment  of  the 
people ;  but  this  mode  becomes  impracticable  in 
the  formation  of  a  new  government,  or  the  thor 
ough  revision  of  an  old  one.  Our  attention  has 
been  necessarily  directed  to  every  provision  of  the 
Constitution,  and  but  one  chapter  is  preserved  in 
its  original  form.  It  only  remained  for  us  either 
to  submit  our  work,  to  be  added  to  the  old  Con 
stitution  as  specific  amendments,  with  the  convic 
tion  that  their  ratification,  would  render  your 
form  of  government  more  complicated  than  it 
now  is,  or  else  to  embody  all  of  the  old  and  new 
that  appears  necessary  to  the  safe  and  harmonious 
action  of  the  system,  and  present  it  as  "  the  Con 
stitution  of  Massachusetts." 

This  we  now  do,  and  we  invite  you  to  consider 
that,  while  government  is  essential  to  the  safety 
and  happiness  of  each  individual,  it  must  neces 
sarily  happen  that  it  cannot  be  in  every  part  alike 
acceptable  to  all.  "  We  may  not  expect,"  said 
the  founders  of  the  Commonwealth,  "  to  agree  in 
a  perfect  system  of  government ;  this  is  not  the 
lot  of  mankind.  The  great  end  of  government  is 
to  promote  the  supreme  good  of  human  society." 
We  commend  the  new  Constitution  to  you,  not 
as  being  perfect,  but  as  greatly  to  be  preferred  to 
the  existing  frame  of  government.  It  declares 
the  rights  and  liberties  essential  to  the  freedom  of 
the  people ;  it  contains,  as  we  believe,  a  frame 
work  arranged  according  to  reason  and  correct 
analogies,  and  it  embodies  all  the  fundamental 
provisions  necessary  to  a  just  administration  of 
every  department  of  the  government. 

You  will  naturally  examine  with  care  the  char 
acter  of  the  changes  we  have  proposed.  We  have 
thought  it  necessary  to  make  a  provision  for  the 
purpose  of  limiting  the  sessions  of  the  General 
Court  to  one  hundred  days,  and  to  require  that 
the  pay  of  its  members  shall  be  fixed  by  standing 
laws. 

At  present  the  members  of  the  Senate  are  cho 
sen  by  the  several  counties  which  elect  from  one 
to  six  senators,  upon  a  general  ticket.  We  have 
provided  for  the  division  of  the  State  into  forty 
districts,  of  equal  population,  and  each  entitled  to 
elect  one  senator. 

The  basis  of  the  House  of  Representatives  has 
been  a  subject  of  careful  and  anxious  deliberation. 
Differences  of  opinion  existed  among  us  ;  'but  a 
majority  of  more  than  one  hundred  members  de 
termined  to  preserve  the  system  of  town  repre 
sentation,  under  which  Massachusetts  has  existed 
so  long  and  prospered  so  well.  We  have,  then, 
based  the  House  of  Representatives  upon  the  mu 
nicipal  institutions  of  the  State,  having  reference, 


so  far  as  practicable,  to  their  relative  population. 
By  the  proposed  system,  towns  containing  less 
than  one  thousand  inhabitants  are  entitled  to 
elect  a  representative  for  the  year  when  the  valu 
ation  of  estates  is  settled,  and  one  in  addition, 
annually,  for  five  years  out  of  every  decennial 
period.  Towns  having  a  population  of  one  thou 
sand  and  not  more  than  four  thousand  inhabit 
ants,  are  entitled  to  elect  a  representative  every 
year ;  towns  of  more  than  four  thousand  and  less 
than  eight  thousand,  will  elect  two  representa 
tives  ;  towns  of  eight  thousand  and  less  than 
twelve  thousand,  will  elect  three  representatives, 
while  towns  and  cities  of  twelve  thousand  inhab 
itants,  will  elect  four  representatives,  and  one 
additional  representative  for  each  addition  of  four 
thousand  to  their  population.  We  do  not  claim, 
that  this  system,  separately  considered,  is  pre 
cisely  equal ;  but  if  it  is  in  some  degree  favorable 
to  the  rural  districts,  the  loss  sustained  by  the 
large  towns  and  cities  is  in  a  fair  measure  com 
pensated  by  the  manifest  advantages  accorded  to 
them  in  the  constitution  of  the  Council  and  the 
Senate.  The  inequality  of  representation  between 
particular  towns,  when  tested  solely  by  popula 
tion,  may  in  some  cases  apparently  be  great ;  but 
when  the  rights  of  different  interests  and  different 
sections  of  the  Commonwealth  are  considered  in 
connection  with  the  whole  system  of  elective 
government,  the  basis  of  the  House  cannot  be 
deemed  unequal  or  unjust.  The  Senate  and 
Council  are  based  upon  population  rather  than 
voters,  by  which  the  inhabitants  of  the  cities  and 
large  towns  have  influence  in  these  two  important 
departments  of  the  government  quite  dispropor 
tionate  to  their  just  elective  power. 

No  human  government  can  attain  to  theoretic 
accuracy ;  and  in  a  state  where  pursuits,  habits, 
and  interests  are  various,  it  certainly  is  not  the 
part  of  wisdom  to  place  unlimited  power  in  the 
hands  of  any.  We  invite  you  to  consider  that  the 
Governor  represents  the  voters  of  the  State ;  that 
the  Council  and  Senate  represent  population,with- 
o\\t  any  reference  to  voters,  and  as  a  consequence, 
that  these  two  departments  of  the  government 
will  eventually  be  in  the  control  of  the  cities  and 
chief  towns ;  and  finally,  that  we  have  sought 
only  to  secure  to  the  several  districts  and  to  the 
agricultural  and  mechanical  population  and  inter 
ests  a  reasonable  share  of  power  in  one  branch  of 
the  Legislature.  This  influence  gives  to  this  por 
tion  of  the  people  power  to  assent  to,  but  never  to 
dictate,  the  policy  of  the  government.  The  Con 
vention  of  1780  declared  that  "an  exact  repre 
sentation  would  be  impracticable  even  in  a  system 
of  government  arising  from  the  state  of  nature, 
and  much  more  so  in  a  State  already  divided  into 
nearly  three  hundred  corporations."  We  have 
encountered  the  same  difficulty,  and  hope  that  we 
have  overcome  it  in  our  day  as  well  as  they  over 
came  it  in  their  day. 

But  our  deliberations  have  not  been  confined 
to  the  proposed  system.  Many  of  your  delegates 
are  of  opinion  that  the  State  should  be  divided 
into  districts  for  the  election  of  representatives, 
according  to  the  number  of  voters  in  each.  In 
this  opinion  a  large  majority  of  the  Convention 
do  not  concur ;  but  we  think  it  our  duty  first  to 


720 


REVISED   CONSTITUTION. 


[72d  day. 


Monday,] 


ADDRESS. 


[August  1st. 


interpret  the  people's  will,  and  then  to  give  a  fair 
opportunity  for  its  expression  upon  all  questions 
of  importance  whenever  such  a  course  is  practi 
cable.  We  have,  therefore,  made  a  constitutional 
provision  that  the  Legislature  of  1856,  under  the 
census  to  be  taken  in  1855,  shall  present  a  district 
system,  which  may  be  then  substituted  for  the 
one  recommended  by  the  Convention,  if,  in  the 
judgment  of  the  whole  people,  it  is  wise  to  make 
the  change. 

We  have  also  provided  that  the  cities  and  large 
towns  shall  be  so  districted  for  the  choice  of  rep 
resentatives  that  no  district  shall  be  entitled  to 
elect  more  than  three  members.  In  the  judg 
ment  of  the  Convention  the  election  of  many 
officers  on  a  single  general  ticket  is  not  compati 
ble  with  the  freedom  and  purity  of  the  represen 
tative  system. 

The  property  qualification  of  the  Governor  and 
Lieutenant- Governor  has  been  abolished. 

The  Council  has  been  made  elective  by  the 
people  in  single  districts,  and  the  records  of  that 
body  are  hereafter  to  be  subject  to  public  exami 
nation. 

We  have  provided  that  the  Attorney- General, 
the  Secretary  of  the  Commonwealth,  the  Auditor 
and  the  Treasurer,  officers  now  appointed  by  the 
Governor,  or  chosen  by  the  Legislature,  shall 
hereafter  be  elected  annually  by  the  people  ;  and 
that  the  Judges  of  Probate,  Registers  of  Probate, 
Sheriffs,  Clerks  of  the  Courts,  Commissioners  of 
Insolvency,  and  District- Attorneys,  officers  now 
appointed  by  the  Executive  or  the  Courts,  shall 
also  be  elected  by  the  people  for  terms  of  three 
years. 

We  have  also  provided  that  the  Justices  of  the 
Supreme  Judicial  Court  and  of  the  Court  of 
Common  Pleas,  hereafter  appointed,  shall  hold 
their  offices  for  the  term  of  ten  years.  In  a  free 
government,  the  people  should  be  relieved  in  a 
reasonable  time,  and  by  the  ordinary  course  of 
affairs,  from  the  weight  of  incompetent  or  un 
faithful  public  servants.  Under  the  present  Con 
stitution  a  Judge  can  only  be  removed  by  the 
difficult  and  unpleasant  process  of  impeachment, 
or  of  address.  Such  remedies  will  be  resorted  to 
only  in  the  most  aggravated  cases.  Under  the 
proposed  system  we  have  no  apprehension  but 
that  faithful  and  competent  Judges  will  be  re 
tained  in  the  public  service  ;  while  those  whose 
places  can  be  better  filled  with  other  men,  will 
retire  to  private  life  without  violence  or  ungra 
cious  circumstances,  and  scarcely  with  observation. 

It  is  proposed  that  Justices  of  the  Peace  shall 
be  divided  into  two  classes.  Those  whose  duties 
are  chiefly  ministerial,  will  be,  as  heretofore,  ap 
pointed  by  the  Governor  and  Council ;  while 
those  intrusted  with  judicial  authority  are  to  be 
elected  by  the  people  and  to  hold  by  a  tenure  of 
three  years. 

Under  the  original  Constitution,  voters  and 
public  officers  were  required  to  possess  property 
qualifications.  These  have  heretofore  been  re 
moved  in  part,  and  we  now  recommend  the  entire 
abolition  of  the  property  qualification  in  the  voter 
for  all  national  and  all  state  officers  mentioned  in 
the  Constitution.  The  obligations  of  citizens  to 


contribute  to  the  public  expenses  by  assessment 
of  taxes  are  not  in  any  degree  changed. 

Provision  is  also  made  for  the  secrecy  of  the 
ballot.  By  the  ballot  the  citizen  at  the  same 
time  declares  his  opinion  on  public  affairs,  and 
asserts  his  equality  with  every  other  citizen. 

Freedom  of  opinion,  and  freedom  in  the  ex 
pression  of  opinion,  are  individual  rights,  to  be  lim 
ited  or  controlled  only  by  a  public  necessity.  We 
see  no  public  necessity  which  ought  to  deprive 
the  citizen  of  these  rights,  and  we  have  therefore 
made  provision  for  their  protection. 

We  also  provide,  absolutely,  that  in  many  elec 
tions,  persons  having  the  highest  number  of  votes 
shall  be  chosen.  This  rule  has  been  applied  prin 
cipally  to  the  elections  in  counties  and  districts, 
where  the  trouble  of  frequent  trials  is  great. 
The  Governor,  Lieutenant- Govern  or,  Secretary 
of  the  Commonwealth,  Attorney- General,  Treas 
urer,  Auditor,  Representatives  to  the  General 
Court,  and  town  officers,  are  exceptions  to  the 
rule.  In  case  of  a  failure  to  elect  either  of  the 
first  six  named,  the  election  is  referred  to  the 
General  Court ;  while  subsequent  trials  may  be 
had  for  the  choice  of  Representatives  and  munici 
pal  officers.  We  have,  therefore,  as  we  think, 
retained  the  majority  rule  where  its  application 
will  be  least  burdensome  to  the  people.  At  the 
same  time  we  have  provided  that  the  Legislature 
may  substitute  the  plurality  rule  whenever  the 
public  will  shall  demand  it,  with  a  condition  that 
no  act  for  that  purpose  shall  take  effect  until  one 
year  after  its  passage.  Thus  we  have  given  an 
opportunity  to  test  the  wisdom  of  the  plurality 
system,  by  experience,  and  power  to  apply  it  to 
every  popular  election  in  the  Commonwealth, 
whenever  the  deliberate  judgment  of  the  people 
shall  require  it. 

The  various  provisions  relating  to  the  militia 
have  been  revised,  some  important  changes  have 
been  made,  and  that  department  of  the  govern 
ment  will  rest  more  firmly  than  ever  on  a  consti 
tutional  basis. 

Changes  are  proposed  concerning  the  University 
at  Cambridge,  and  the  General  Court  is  instruct 
ed  to  take  means  for  the  enlargement  of  the  school 
fund,  until  it  shall  amount  to  a  sum  not  less  than 
two  millions  of  dollars. 

Although  the  Constitution  has  always  asserted, 
in  the  strongest  terms,  the  right  of  the  people,  at 
all  times,  to  alter,  reform,  or  totally  change  their 
frame  of  government,  yet  it  has  been  contended 
by  some,  that  the  operation  and  effect  of  the  spe 
cific  provisions  for  amendments,  contained  there 
in,  have  been  such  as  practically  to  impair  or 
render  doubtful  this  great  right.  We  ha^e,  there 
fore,  thought  it  wise,  while  we  recognize  and 
retain  the  modes  of  exercising  the  right  practised 
hitherto  in  this  Commonwealth,  to  introduce  ad 
ditional  provisions,  to  meet  possible  future  exi 
gencies,  and  to  enable  the  people,  without  contro 
versy,  to  hold  periodical  Conventions  that  shall 
not  be  subject  to,  or  restricted  by,  any  previous 
or  subsequent  act  of  the  Legislature. 

Trusting  that  you  will  examine  with  care  the 
proceedings  of  the  Convention,  and  the  result  to 
which  it  has  come,  we  deem  it  unnecessary  to 


72d  day.] 


REVISED  CONSTITUTION,  &c. 


721 


Monday,] 


HALLETT  —BUTLER  —  BIRD  —  WEEKS  —  CUSHMAN. 


[August  1st. 


explain  several  less  prominent  changes  proposed 
in  the  Constitution  of  the  Commonwealth. 

We  also  submit  seven  distinct  amendments, 
which  are  presented  separately  for  your  ratifica 
tion.  Some  of  them  are  new,  and  all  of  them 
are  independent  of  the  frame- work  of  the  govern 
ment,  and  may  either  be  adopted  or  rejected  with 
out  disturbing  the  system  or  harmony  of  the 
Constitution.  They  have  all,  however,  been  sus 
tained  by  decisive  majorities  of  your  delegates, 
and  embrace  important  essential  principles  in 
popular  government.  The  formation  or  the  re 
vision  of  a  popular  constitution  is  an  epoch  in 
the  history  of  a  free  people. 

We  are  sensible  of  the  magnitude  of  the  trust 
which  you  have  confided  to  us,  but  it  is  not  more 
important  than  the  just  decision  of  the  question 
which  we  submit  to  you.  We  have  no  doubt 
that  your  decision  will  secure  a  result  beneficial 
to  Massachusetts,  and,  under  Divine  Providence, 
will  render  more  and  more  illustrious  our  ancient 
Common  wealth . 

The  question  wras  then  taken  upon  adopting 
the  Address,  and  it  was  agreed  to  without  a  di 
vision. 

Mr.  HALLETT,  for  Wilbraham.  I  move  that 
the  Address  which  has  been  read  and  accepted  by 
the  Convention,  be  signed  by  the  President  and 
Secretary  of  the  Convention,  and  published. 

Mr.  BUTLER,  of  Lowell.  Will  the  gentle 
man  for  Wilbraham  allow  me  to  suggest  an 
amendment  to  his  motion.  In  addition  to  the 
printing,  I  suggest  that  the  same  number  be 
printed  as  we  have  ordered  of  the  Revised  Con 
stitution,  and  that  it  be  circulated  among  the 
people— that  is  100,000  copies — and  bound  with 
them. 

Mr.  HALLETT.  I  presume  the  Address,  under 
that  resolution,  would  be  published  in  connec 
tion  with  the  Constitution. 

Mr.  BIRD,  of  Walpole.  I  will  read  an  order 
which  I  have  drawn  up,  which  covers  that  mat 
ter,  and  also  another  matter  : — 

Ordered,  That  the  Resolves  contained  in  docu 
ment  No.  128,  and  the  Address  to  the  People, 
signed  by  the  President  and  the  Secretary,  be 
printed  in  connection  with  copies  of  the  Revised 
Constitution  ordered  to  be  printed  for  distribu 
tion  ;  and  that  35,000  additional  copies  of  said 
Constitution,  with  the  Resolves  and  Address,  be 
printed  for  distribution  in  accordance  with  orders 
already  adopted. 

The  latter  clause  of  the  order  is  a  distinct  sub 
ject,  and  it  is  for  this  reason,  that  since  the  pas 
sage  of  the  resolve  ordering  the  printing-  of 
100,000  copies,  we  learn  that  last  winter  the 
legislature  ordered  the  printing  of  100,000  copies 
of  the  old  Constitution,  and  it  was  found  by  them, 
after  distributing  the  100,000  copies,  they  were 
35,000  copies  short,  and  they  were  obliged  to 


order  that  number  of  copies  more,  costing  about 
as  much  as  the  original  edition  of  100,000  copies. 
It  was  thought  best,  therefore,  to  order  that  the 
same  number  of  the  new  Constitution  should  be 
printed.  It  will  be  cheaper  to  do  so  now  than 
hereafter. 

Mr.  WEEKS,  of  Harwich.  Where  did  the 
gentleman  get  his  information. 

Mr.  BIRD.  From  the  printer,  the  sergeant- 
at-arms,  and  others. 

Mr.  WEEKS.  I  had  the  honor  to  offer  the 
resolution  myself,  and  it  provided  for  30,000 
copies. 

Mr.  BIRD.  Then  there  were  130,000  copies, 
in  all,  ordered. 

The  PRESIDENT.  The  Chair  would  suggest 
that  the  question  can  be  first  taken  upon  signing 
the  Address,  and  then  upon  the  other  matter. 

Mr.  HALLETT,  for  Wilbraham.  I  so  modify 
my  motion. 

The  question  was  then  taken  upon  Mr.  Hal- 
lett's  motion,  and  it  was  agreed  to. 

The  question  was  then  taken  upon  the  motion 
offered  by  Mr.  Bird,  and  it  was  decided  in  the 
affirmative. 

So  the  motion  was  agreed  to. 

Pay  Roll. 

Mr.  CUSHMAN,  of  Bernardston.  I  now 
move  that  the  resolve  for  the  payment  of  mem 
bers  be  taken  from  the  table  and  acted  upon. 

The  question  was  taken,  and  the  motion  was 
agreed  to. 

The  Report  of  the  Committee  on  the  Pay  Roll 
was  then  taken  up,  and  read  by  the  Secretary,  as 
follows  :— 

COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  August  1,  1853. 
The  Committee  on  the  Pay  Roll,  in  compliance 
with  an  order  of  the  Convention,  directing  them 
to  make  up  the  pay  roll,  have  attended  to  that 
duty,  in  accordance  with  a  resolve  passed  on  the 
28th  day  of  June  last,  and  report  the  sum  here 
with,  amounting  to  $114,092,  and  also  report  the 
acccompanying  order. 

For  the  Committee, 

ISAAC  LIVERMORE,  Chairman. 

Ordered,  That  the  Pay  Roll  of  the  Convention, 
as  reported  by  the  Committee,  in  accordance  with 
the  resolve  of  the  28th  of  June  last,  and  the  order 
of  July  29th,  be  transmitted  by  the  Secretary,  to 
the  Auditor  of  Accounts,  and  that  he  be  requested 
to  obtain  from  the  Governor  a  warrant  upon  the 
treasury  of  the  Commonwealth,  to  authorize  the 
payment  thereof,  and  notify  the  Convention  when 
the  warrant  has  been  drawn. 


722 


DISTRIBUTION   OF   DOCUMENTS. 


[72d  day. 


Monday,] 


GREENE  —  WALKER —  LIVERMORE  — BATES  —  LELAND. 


[August  1st. 


Mr.  GREENE,  of  Brookfield.  At  the  proper 
time  I  should  like  to  hear  the  pay  roll  read.  It 
must  prove  an  interesting  document. 

The  question  was  taken  upon  the  acceptance 
and  adoption  of  the  Report  of  the  Committee,  and 
it  was  decided  in  the  affirmative. 

Distribution  of  Documents. 

Mr.  WALKER,  of  North  Brookfield.  I  move 
that  the  Report  of  the  Special  Committee  on  the 
distribution  of  documents,  be  taken  up  at  the 
present  time. 

Mr.  GREENE.  Before  that  matter  is  gone 
into,  I  should  like  to  hear  the  pay  roll  read.  But 
if  the  Convention  does  not  want  to  hear  it,  I  will 
not  urge  the  matter. 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  it  would  not  be  in  order  to  do  so  at  this  time. 

Mr.  LIVERMORE,  from  Cambridge.  I  would 
suggest  the  course  indicated  by  the  gentleman 
from  Worcester,  (Mr.  Earle,)  that  it  be  read  by 
its  title.  [Laughter.] 

The  question  was  then  taken  on  Mr.  Walker's 
motion,  and  it  was  agreed  to. 

The  Secretary  then  read  the  Report,  as  fol 
lows  : — 

1.  Resolved,  That  White  &  Potter  be  instructed 
to  deliver,  without  additional  charge,  the  remain 
ing  numbers  of  the  quarto  edition  of  the  Jour 
nal  of  Debates,  at  such  places  in  Boston,  as  the 
members  shall  respectively  order. 

2.  Resolved,  That  each  member  of  this  Conven 
tion  be  furnished  with  one  copy  of  the  Journal 
of  the  Debates,  of  the  octavo  edition,  additionally 
to  the  one  heretofore  ordered. 

3.  Resolved,  That  the  Messenger  be  directed  to 
deliver,  without  additional  cost,  the  copies  of  the 
Debates  aforesaid,  together  with  the  Journal  of 
the  Convention,  heretofore  ordered,  with  the  com 
pleted  file  of  the  documents  belonging  to   each 
member,  at  such  place  in  Boston  as  the  members 
shall   respectively  order.     And  also  to  send,  in 
the  usual  manner,  the  copies  of  the  Journal  and 
Debates  to  the  towns,  cities,  and  public  bodies,  as 
ordered  by  the  Convention,  and  also  to  send  to 
each  town  or  city,  its  quota,  in  proportion  to  pop 
ulation,  of  copies  of  the  New  Constitution,  here 
tofore  ordered  to  be  published. 

The  PRESIDENT.  To  that  Report  the  gen 
tleman  from  Worcester,  (Mr.  Earle,)  moves  to 
add  the  following  words  :  "  That  no  member 
shall  be  entitled  to  more  than  three  copies." 

Mr.  BATES,  of  Plymouth.  Before  the  Con 
vention  in  this  stage  of  its  session  pass  a  vote  to 
give  each  member  of  the  Convention  three  copies, 
amounting  to  fifteen  or  eighteen  dollars  to  each 
member,  I  hope  they  will  stop  and  look  at  it. 
Besides  that,  it  enjoins  upon  these  persons  to  do 
certain  work,  without  pay  hereafter.  I  suppose 


by  the  Act  calling  this  Convention,  the  Conven 
tion  is  to  provide  its  own  expenses.  They  have 
no  more  authority  to  order  this  Messenger  to  do 
any  work  without  pay,  than  we  have  to  order 
the  Governor  to  do  so. 

Mr.  WALKER,  of  North  Brookfield.  It  has 
been  my  misfortune  on  several  occasions,  while 
acting  as  chairman  of  a  Committee,  to  present 
reports,  with  some  of  the  propositions  of  which  I 
did  not  agree.  That  is  the  case  in  the  present 
instance.  The  Report  was  almost  unanimously 
adopted  in  Committee,  though  I  dissented  from 
the  second  resolve  which  provides  that  three 
copies  of  the  octavo  edition  shall  be  furnished 
to  members  in  addition  to  what  they  already 
have.  I  presume  that  the  resolve  introduced  at 
the  beginning  of  the  session  by  the  gentleman  from 
Cambridge,  was  a  mistake,  because  under  the 
resolve,  it  would  have  required  nine  thousand 
copies  of  the  Debates  to  supply  all  the  members, 
if  they  had  elected  to  take  as  many  as  they  were 
entitled  to  under  that  order.  That  being  the  case, 
we  are  brought  into  the  condition  in  which  we 
now  are,  with  one  hundred  members  of  this  Con 
vention  without  a  copy  of  the  quarto  edition, 
and  this  second  resolve  says  that  all  alike  shall 
receive  three  copies  of  the  quarto  edition.  That 
did  not  strike  me  as  just.  It  seemed  to  me  that 
those  who  had  taken  more  of  the  other,  should 
have  but  one  copy  of  the  quarto  form.  I  think 
the  operation  of  that  second  resolve  would  not 
look  well  under  the  circumstances  which  sur 
round  the  case,  and  therefore,  I  hope  the  amend 
ment  will  prevail.  Otherwise,  the  Report  is  cor 
rect  in  every  respect,  in  my  judgment. 

In  regard  to  the  duties  which  we  impose  upon 
the  Messenger,  I  will  say  that  we  waited  upon 
him  upon  the  subject,  and  he  consented  to  per 
form  all  those  duties.  The  duties  must  be  per 
formed  by  somebody,  or  else  the  documents  will 
not  be  distributed. 

Mr.  LELAND,  of  Holliston.  When  this  sub 
ject  was  under  discussion  on  a  former  occasion, 
the  gentleman  from  Worcester,  (Mr.  Earle,)  said 
that  I  had  received  twenty-one  copies. 

Mr.  EARLE,  of  Worcester.  I  rise  to  call  the 
gentleman  to  order  for  misstating  what  I  said. 
I  made  no  such  statement. 

Mr.  LELAND.  I  do  not  know  what  point  of 
order  there  is  in  that.  All  I  can  say  is,  that  I 
understood  the  gentleman  to  say,  at  the  time 
referred  to,  that  I  had  received  twenty- one  copies, 
and  that  I  now  wanted  three  copies  more.  I  did 
say  that  I  thought  it  but  fair  that  if  one  member 
was  to  receive  three  copies  of  the  bound  Reports, 
it  was  but  fair  that  all  should  receive  them. 

Mr.  BATES,  of  Plymouth.     The  Convention, 


72d  day.] 


DISTRIBUTION   OF   DOCUMENTS. 


723 


Monday,] 


EARLE  —  BATES  —  ALVORD  —  BIRD  —  UNDERWOOD  —  ADAMS. 


[August  1st. 


by  two  several  orders,  have  directed  what  should 
be  done  with  every  copy.  If  the  Convention 
passes  this  resolve,  they  must  direct  the  Commit 
tee  what  to  do,  and  make  all  needful  provisions 
to  enable  them  to  do  it. 

Mr.  EARLE.  My  proposition  does  not  enlarge 
the  distribution,  but  restricts  it.  By  an  order  of 
the  Convention,  the  members  were  entitled  to 
receive  a  certain  number  of  copies  of  these  Reports. 
Three-fourths  of  the  members  have  received  them, 
while  the  other  fourth  have  not  got  any,  and  it  is 
imperative  upon  the  Secretary  to  furnish  them. 
This  amendment  proposes  to  limit  the  distribution 
to  three  copies  to  each  member,  including  the  one 
copy  which  all  the  members  are  to  receive.  So 
that  the  members  will  get  but  two  copies  as  an 
offset  to  the  twenty- one  copies  the  other  members 
have  already  got.  If  they  have  not  got  them  they 
have  got  their  equivalent  in  newspapers.  It  ap 
pears  to  me  that  there  is  nothing  but  what  is  per 
fectly  fair  in  this  proposition.  I  did  not  suppose 
that  there  was  a  man  in  the  Convention  who 
would  raise  a  voice  against  it. 

Mr.  BATES.  I  move  that  when  the  question 
is  taken  it  be  taken  by  yeas  and  nays. 

Mr.  ALVORD,  for  Montague.  I  move  that 
the  whole  subject  be  indefinitely  postponed. 

Mr.  BIRD,  of  Walpole.  Gentlemen  ought  to 
remember  that  there  is  a  great  deal  more  to  do 
than  the  mere  distribution  of  these  Reports.  But 
I  believe  that  both  the  Messenger  and  the  State 
printer  agree  to  do  this  work  without  any  extra 
pay,  and  I  think,  therefore,  that  no  question 
ought  to  be  raised  on  that  head. 

Mr.  ALVORD.  I  listened  attentively  to  the 
reading  of  the  resolves,  and  I  understood  them 
merely  to  refer  to  the  distribution  of  the  Reports. 
If  the  Messenger  is  willing  to  do  this  work  with 
out  any  extra  pay,  I  can  have  no  possible  objec 
tion. 

Mr.  UNDERWOOD.  I  am  not  well  pleased, 
either  with  the  Report  of  the  Committee  or  the 
amendment.  If  I  understood  the  latter,  it  pro 
poses  to  give  three  copies  of  the  bound  Reports  to 
each  member. 

Mr.  EARLE.  Only  to  those  who  have  not 
already  got  any  copies. 

Mr.  ADAMS,  of  Lowell.  I  understand  that 
at  an  early  period  of  the  session  many  members 
of  the  Convention  availed  themselves  of  the  privi 
lege  of  the  order  presented  by  the  gentleman  from 
Cambridge,  and  passed  by  the  Convention,  of 
taking  two,  three,  or  half  a  dozen  copies.  I 
understood  the  proposition  of  the  gentleman  from 
Worcester  to  be  that  those  who  had  received  three 
or  six  copies  of  the  quarto  form,  were  not  to  re 
ceive  any  of  the  octavo.  I  understand  that  the 


Debates  as  circulated  in  the  quarto  form,  without 
binding,  are  to  cost  $1.50  per  copy,  and  that  the 
bound  octavo  volumes  will  cost  $5  per  copy,  and 
that  those  who  have  not  subscribed  for  the  quarto 
copies  will  be  entitled  to  $15  worth  of  the  octavo. 

Mr.  EARLE.  The  statement  that  has  just 
been  made  is  calculated  to  deceive.  In  fact  there 
is  no  truth  in  it.  [Loud  cries  of  "  Order,  Order."] 
I  do  not  mean  to  say  that  the  statement  is  not 
true,  as  the  gentleman  made  it,  [laughter,]  but 
that  in  point  of  fact,  there  is  no  truth  in  it.  [Cries 
of  "  Order,  Order."]  The  State  printers  have 
stated  the  matter  to  me  thus  :  The  whole  amount 
of  type  setting  they  have  charged,  in  making  up 
their  account,  upon  the  octavo  form,  and  have 
charged  nothing  for  composition  upon  the  quarto. 
That  makes  the  octavo  form  nominally  cost  a 
good  deal  more.  If  there  is  any  difference  it  is 
in  favor  of  the  octavo  form.  But  there  is  no  dif 
ference  about  it.  The  composition  is  the  same 
and  the  press  work  is  the  same. 

Now  I  understand  that  even  if  this  order  is 
adopted,  the  State  will  still  have  fifteen  hundred 
volumes,  or  more,  left  at  the  disposal  of  the  legisla 
ture.  That  body  will  probably  place  them  at  the 
disposal  of  the  governor  and  council,  who,  again, 
will  probably  distribute  them  amongst  their 
friends. 

[Loud  cries  of  "  Question,  Question."] 

Mr.  DAVIS,  of  Worcester.  By  this  order,  if  it  is 
amended  as  proposed  by  my  colleague,  and  adopt 
ed  by  the  Convention,  every  member  will  receive 
one  copy  of  the  bound  Reports,  andn  one  can  re 
ceive  more  than  three  copies. 

Mr.  UNDERWOOD.  I  would  like  to  know 
how  you  are  going  to  get  back  the  copies  from 
those  who  have  got  their  twenty  copies  ? 

Mr.  EARLE.  The  order  relates  only  to  the 
octavo  edition. 

The  question  was  then  taken  on  the  amend 
ment,  and  it  was  rejected,  on  a  division — ayes, 
107  ;  noes,  G7. 

Mr.  BATES,  of  Plymouth.  I  wish  simply  to 
state  one  fact  in  this  connection.  Each  member 
has  voted  himself  one  copy  already,  of  the  octavo 
edition — that  is  upon  the  journal — and  now  it  is 
proposed  to  give  each  member  two  copies  more, 
as  the  motion  is  that  the  number  shall  not  exceed 
three  copies  ;  so  that  if  this  passes,  each  member 
will  have  voted  himself  three  copies,  or  six  vol 
umes,  amounting  to  fifteen  dollars  in  value, 
which  will  be  rung  from  one  end  of  Massachu 
setts  to  the  other. 

Mr.  EARLE.  If  there  is  any  apprehension 
that  members  by  that  vote  are  depriving  them- 
elves  of  one  copy,  it  is  very  easy  to  add  the 
words,  "  under  this  order." 


724 


DISTRIBUTION   OF   DOCUMENTS,  dec. 


[72d  day. 


Monday,] 


HALLETT  —  CARRUTHERS  —  PAIGE  —  CHAPIN  —  EARLE  —  STETSON.      [August  1st. 


Mr.  HALLETT,  for  Wilbraham.  Is  the  ques 
tion  susceptible  of  division  ? 

The  PRESIDENT.  The  Chair  is  of  opinion 
that  the  question  on  the  several  resolves  may  be 
taken  separately. 

Mr.  HALLETT.  Then  I  call  for  a  division. 
I  want  that  part  which  relates  to  voting  three 
copies,  put  separately.  We  have  each  got  one 
copy,  and  I  think  we  ought  to  be  satisfied  with 
that. 

Mr.  CARRUTHERS,  of  Salisbury.  I  wish  to 
ask  a  question,  in  order  to  obtain  a  little  informa 
tion  about  this  matter.  If  a  delegate  has  sub 
scribed  for,  and  received  his  twenty- one  news 
papers,  he  is  to  have  three  copies  of  the  Reports, 
as  I  understand  it ;  but  if  he  has  only  subscribed 
for  fifteen  newspapers,  and  has  made  up  the  re 
mainder  with  documents,  is  he  not  to  have  any 
extra  ?  I  want  to  have  that  matter  plainly  under 
stood,  whether  we  are  going  to  vote  three  copies 
to  those  who  have  had  their  twenty- one  news 
papers,  and  are  not  to  vote  any  copies  to  those 
who  have  had  no  newspapers. 

Mr.  PAIGE,  of  Boston.  As  I  am  one  of  those 
who  have  not  subscribed  for  newspapers,  I  may 
perhaps  vote  on  this  subject  with  as  good  grace 
as  anybody.  I  understand  that  we  have  already 
voted  one  copy  to  each  member — that  each  mem 
ber  should  have  one  copy  of  the  octavo  edition, 
and  that  should  be  the  end  of  it,  whether  he  had 
received  newspapers  or  not.  If  a  man  has  had 
twenty- one  copies  already,  which  he  has  taken  in 
the  place  of  newspapers,  he  had  a  right  so  to  do ; 
and  I  see  no  difficulty  in  putting  the  proposition 
fairly.  We  have  already  voted  to  give  each 
member  one  copy  in  the  octavo  form — my  propo 
sition  is  to  give  each  member  one  more,  so  that 
each  member  shall  have  two  copies,  whether  he 
has  had  newspapers  or  not.  We  cannot  go  back 
and  undo  what  has  already  been  done. 

Mr.  CHAPIN,  of  Worcester.  I  like  the 
amendment  which  has  been  offered  by  the  gentle 
man  from  Boston.  Some  persons  were  not  quite 
so  keenly  anxious  as  others  for  these  Reports, 
and  subscribed  for  newspapers,  while  others 
thought  that  they  would  take  these  instead  of 
newspapers.  Some  members  were  "green" 
enough  not  to  see  this  until  after  they  had  sub 
scribed  for  their  newspapers ;  and  those  who  were 
sharper  than  the  rest  of  us,  will  of  course  have 
the  profit  of  it. 

Mr.  EARLE.  I  have  not  made  the  motion 
which  I  did,  because  I  cared  about  having  a  copy 
of  this  work  in  addition  to  the  copy  to  which  I 
am  already  entitled  ;  but  I  did  so  simply  to  see 
if  the  Convention  would  do  an  act  of  justice.  I 
wanted  to  see  if  those  members  who  had  received 


their  copies  of  the  work  under  a  vote  of  this 
Convention,  would  now  allow  those  who  were 
entitled  under  the  same  vote  to  other  copies  but 
who  could  not  obtain  them,  to  have  partial  jus 
tice  done  to  them — whether  they  would  not  be 
willing  to  furnish  the  Secretary  with  the  means 
of  carrying  out  in  part,  their  own  vote.  If  they 
are  not  disposed  to  do  that,  I,  for  one,  shall  vote 
against  the  amendment  proposed  by  the  gentle 
man  from  Boston  ;  for  that,  instead  of  doing 
justice,  is  giving  to  those  who  have  not  received 
anything,  only  just  as  much  as  it  gives  to  those 
who  have  already  received  from  ten  to  twenty 
copies. 

Mr.  OLIVER,  of  Lawrence,  moved  the  previ 
ous  question,  which  was  ordered. 

The  question  being  taken  on  the  amendment 
of  Mr.  Paige,  it  was  agreed  to  ;  and  the  question 
was  then  stated  on  ordering  the  resolves  to  a 
second  reading,  as  amended. 

Mr.  EARLE  asked  for  a  division  of  the  ques 
tion  ;  and  the  question  being  put  on  ordering  the 
first  and  third  resolves  to  a  second  reading,  it 
was  agreed  to. 

The  question  then  recurred  on  ordering  the 
second  resolve  to  a  second  reading  ;  which  resolve 
provided  that  each  member  of  the  Convention 
should  be  furnished  with  an  additional  copy  of 
the  octavo  edition. 

Mr.  BOUT  WELL,  for  Berlin,  moved  that  the 
resolve  lie  upon  the  table,  which  was  not  agreed  to. 

The  question  then  being  taken,  the  resolve  was 
ordered  to  a  second  reading. 

Rights  of  Colored  Citizens. 

Mr.  STETSON,  of  Braintree,  moved  a  recon 
sideration  of  the  vote  by  which  the  Convention 
ordered  the  protest  of  William  C.  Nell  and  oth 
ers  to  be  entered  upon  the  journal  of  the  Con 
vention. 

The  PRESIDENT.  The  motion  lies  over 
until  to-morrow,  under  the  rule.  [Laughter.] 

Mr.  STETSON.  I  move  a  suspension  of  the 
rule. 

Mr.  HALLETT,  for  Wilbraham.  I  rise  to  a 
question  of  privilege,  in  regard  to  this  matter.  I 
should  not,  on  my  own  account  or  interest  have 
called  up  the  subject  which  the  gentleman  from 
Braintree  has  moved  to  reconsider  ;  but  it  being 
presented,  I  think  it  my  duty  to  refer  to  this  pro 
test,  because  I  suppose  that  it  was  intended  to 
bear  upon  myself,  and  others  much  more  dis 
tinguished  gentlemen  than  myself 

Mr.  BIRD,  of  Walpole.  Mr.  President,  I  rise 
to  a  question  of  order.  The  point  which  I  make 
is,  that  the  gentleman  must  state  his  question  of 
privilege,  before  he  speaks  upon  it. 


72d  day.] 


RIGHTS    OF   COLORED    CITIZENS. 


725 


Monday,] 


HA.LIETT  —  BIRD  —  BUTLER. 


[August  1st. 


Mr.  HALLETT.  That  is  just  what  I  am 
doing.  The  Convention  have  ordered  to  be 
entered  upon  the  journal  of  this  body,  a  state 
ment  in  the  form  of  a  protest,  which  places  some 
of  the  members  of  the  Convention  in  a  false 
position,  and  attributes  language  to  them  which 
they  did  not  utter.  I  take  it  that  that  is  a  ques 
tion  of  privilege. 

Mr.  BIRD.  I  ask  for  the  ruling  of  the  Chair 
upon  that  point. 

Mr.  HALLETT.  Certain  statements  were 
made  upon  this  floor  in  debate  with  regard  to  the 
admission  of  colored  persons  into  the  militia  of 
the  United  States,  and  I  find  that  in  a  protest 
which  has  been  received  and  acted  on  while  I  was 
absent,  there  is  a  statement  manifestly,  though 
not  by  name,  attributed  to  me,  which  I  never 
made.  The  Convention,  I  presume,  without 
understanding  the  matter  at  the  moment,  by  a 
party  vote,  ordered  that  statement  to  go  upon  its 
records.  It  is  wholly  immaterial  to  me  whether 
the  Convention  choose  to  persist  in  that  course  or 
not,  as  respects  myself;  but  before  the  question 
is  decided,  I  want  it  fully  understood  that  the 
protest  which  they  have  ordered  to  be  entered 
upon  their  journal  contains  intimations  against 
two  of  the  members  of  this  body ;  I  want  the 
Convention  also  to  know  what  they  are  charged 
with  as  a  body,  in  that  protest,  so  that  they  may 
knowingly  decide  whether  they  are  ready  to  cause 
to  be  placed  upon  their  records  a  statement  that 
they  have  done  an  act  which  is  unconstitutional, 
and  also  that  in  their  opinion,  a  law  of  the  United 
States  is  imconstitutional.  That  protest  farther 
says,  among  other  things,  that  a  member  of  this 
Convention,  in  a  speech  made  to  this  Convention, 
declared  that  if  a  colored  person  were  to  be  elected 
governor  of  Massachusetts,  the  United  States 
would  interpose  to  prevent  his  acting  as  com- 
mander-in-chief  of  the  Commonwealth.  Now, 
Sir,  110  such  thing  was  said  by  any  member,  and 
I  do  not  want  that  class  of  our  fellow- citizens, 
who  very  honestly,  I  dare  say,  make  this  protest, 
and  whose  rights  I  respect  as  much  as  any  body, 
to  labor  under  a  misapprehension  on  that  subject, 
for  I  have  no  doubt  they  were  misled  by  some 
false  report.  I  said  all  that  was  directly  said  upon 
that  topic  except  the  similar  opinion  given  by  the 
member  from  Boston,  (Mr.  Choate,)  and  what  I 
did  say  was  precisely  this 

Mr.  BIRD,  (interposing).  Mr.  President: 
This  discussion  is  entirely  out  of  place  at  this 
time,  for  the  gentleman  from  Wilbraham  is  not 
alluded  to  by  name,  or  in  any  way  that  would 
lead  any  one  to  suppose  he  was  alluded  to  at  all, 
in  that  document. 

The  PRESIDENT.    The  Chair  will  take  the 


liberty  to  state  that  as  this  is  the  last  day  of  the 
session,  and  the  motion  for  reconsideration  must 
be  entertained  now  or  it  never  can  be  entertained, 
the  Chair  will  admit  the  motion  without  putting 
the  question  on  a  suspension  of  the  rules.  The 
question  is,  therefore,  upon  the  motion  of  the 
gentleman  from  Braintree  that  the  vote  of  the 
Convention  be  reconsidered,  by  which  the  peti 
tion  of  William  C.  Nell  and  others  was  ordered 
to  be  entered  upon  the  journal. 

Mr.  BUTLER.  Upon  the  motion  of  recon 
sideration  I  move  the  previous  question. 

Mr.  HALLETT.  I  hope  the  gentleman  will 
have  the  courtesy  to  withdraw  that  motion  and 
allow  me  to  finish  my  statement. 

Mr.  BUTLER.     I  certainly  will. 

Mr.  HALLETT.  The  language  attributed  in 
that  petition  to  a  member  of  this  Convention, 
although  it  was  not  what  I  said,  yet  evidently 
could  be  attributed  to  no  one  but  me,  because 
that  was  the  line  of  argument  which  I  used, 
although  the  statement  which  I  made  was  entirely 
different.  It  was  in  reply  to  a  question  of  the 
gentleman  from  Natick,  who  now  occupies  the 
chair,  (Mr.  Wilson,)  when  the  resolutions  in  re 
lation  to  the  militia  were  under  discussion,  as  to 
what  would  be  the  powers  of  the  governor  of  this 
Commonwealth  under  the  Constitution  of  the 
United  States,  if  the  person  who  should  be  elected 
governor  of  this  Commonwealth  should  happen 
to  be  a  person  of  color  ;  and  my  exact  language, 
as  reported  at  the  time,  I  now  quote. 

What  I  said  in  answer  to  that  question  was  : — 

"  That  while  the  Commonwealth  of  Massachu 
setts  by  her  Constitution  makes  no  distinction  of 
color  in  the  choice  of  governor,  yet  the  Constitu 
tion  of  the  United  States  gives  the  power  to  con 
gress  to  declare  what  shall  constitute  the  militia ; 
and  in  the  exercise  of  that  power  congress  has 
said  that  it  shall  be  ichite  citizens.  Consequently 
although  a  colored  citizen  might  be  the  governor 
of  the  Commonwealth  of  Massachusetts,  and  by 
virtue  of  that  office,  commander-in-chief,  yet  he 
can  never  be  enrolled  as  a  soldier  in  the  militia  or 
be  an  officer  of  the  militia  of  the  United  States ; 
and  if,  under  such  circumstances,  the  governor 
should  be  a  colored  man,  you  must  find  some  one 
else  to  command  the  militia,  if  you  mean  to  con 
form  to  the  supreme  law  of  the  land  for  organiz 
ing  and  disciplining  the  militia." 

Now,  Sir,  that  was"what  I  said,  and  it  is  en 
tirely  different  from  the  language  attributed  in 
the  protest.  It  rests  simply  upon  this  ground  : 
The  Constitution  has  given  to  Congress  power  to 
say  who  shall  constitute  the  militia,  and  they  have 
said  that  male  white  citizens  shall  constitute  that 
body.  But  Congress  has  made  no  such  distinction 
as  to  the  army  or  the  navy,  and  a  colored  person 


726 


CLOSING   REMARKS,  &c. 


[72d  day. 


Monday,] 


DAVIS  —  HALLETT  —  BIRD  —  WILSON  —  LOTHROP. 


[August  1st. 


may  be  commander-in-chief  of  the  army,  or  a 
commodore  in  the  navy.  But  congress,  in  the 
full  exercise  of  constitutional  power,  has  declared 
that  white  citizens  alone  shall  belong  to  the 
militia,  and,  therefore,  this  Convention  has  no 
power  to  compose  the  militia  of  such  persons  ;  and 
hence,  a  protest  against  the  Convention  for  not 
doing  what  it  has  no  power  to  do,  is  simply  an 
absurdity  to  enter  upon  the  records. 

Mr.  DAVIS,  of  Fall  River.  I  would  inquire 
whether,  upon  a  question  of  privilege,  the  main 
question  can  be  argued  ? 

Mr.  HALLETT.  I  was  making  a  privileged 
explanation,  and,  if  the  gentleman  had  preserved 
his  politeness  for  a  few  minutes  longer,  he  would 
have  saved  himself  the  trouble  of  this  interrup 
tion.  I  am  aware  of  the  state  of  feeling  existing 
with  some  members  in  this  Convention,  upon 
this  subject  of  color,  but  I  desire  to  stand  right 
in  every  matter  touching  the  Union  of  the  States, 
and  to  place  myself  upon  constitutional  ground  ; 
and  if  the  Convention  see  fit  to  place  me  falsely 
upon  their  record,  and  put  what  is  an  untruth 
there,  with  them  the  responsibility  will  rest,  and 
discredit  does  not  attach  to  me. 

Mr.  BIIID.     1  move  the  previous  question. 

The  previous  question  was  ordered. 

The  question  first  recurred  upon  the  motion  to 
reconsider  the  vote,  by  which  the  protest  was 
ordered  to  be  placed  upon  the  records  of  the 
Convention,  and,  being  put,  it  was  decided  in  the 
affirmative  ;  there  being,  on  a  division — ayes,  91 ; 
noes,  57. 

The  question  then  being  upon  the  motion  to 
enter  the  protest  upon  the  journal  of  the  Con 
vention 

Mr.  BIRD  moved  to  lay  the  protest  upon  the 
table,  which  motion  was  agreed  to. 

So  it  was  laid  upon  the  table. 

The  PRESIDENT  here  announced  the  Com 
mittee  heretofore  ordered  to  examine  and  count 
the  return  of  votes  on  the  several  Constitutional 
Propositions,  to  consist  of  the  following  gentle 
men  : — 

Messrs.  Bout  well,  for  Berlin, 

Dana,         "    Manchester, 
Giles,        of    Boston, 
Morton,     "    Andover, 
Upham,     "    Salem, 
Butler,      "    Lowell, 
Wilson,     "    Natick, 
Griswold,  for  Erving, 
Frothingham,  of  Charlestown, 
Wood,  "  Middleborough, 

Willard,          "  Boston, 
Aspinwall,       "  Brookline, 


Chapin, 

Sleeper, 

Allen, 

French, 

Oliver, 

Eames, 

Phinney, 

White, 


of  Springfield, 
"  Roxbury, 
"  Worcester, 
"  New  Bedford, 
"  Lawrence, 
"  Washington, 
for  Chatham,  and 
of  Quincy. 


Mr.  WILSON.  I  would  inquire  of  the  Chair 
if  there  is  any  more  business  before  the  Conven 
tion? 

The  PRESIDENT.  The  Chair  is  not  aware 
of  any  unfinished  business. 

Closing  RemarJis. 

Mr.  LOTIIROP,  of  Boston.  I  should  like  to 
inquire  if  the  Chair  has  been  notified  of  a  vote 
passed  by  the  Convention  on  Saturday  last,  pre 
senting  to  him  the  thanks  of  this  body  for  the 
manner  in  which  he  has  discharged  the  duties  of 
the  Chair  ? 

I  hope,  Mr.  President,  we  shall  not  separate 
without  a  few  words  from  some  gentleman  and 
from  the  Chair,  suitable  and  appropriate  to  the 
close  of  the  highly  important  duties  in  which  we 
have  been  engaged.  I,  for  one,  Sir,  may  take 
this  occasion  to  say,  perhaps,  that  I  regretted  that 
the  subject  upon  which  we  acted  on  Saturday 
last,  was  brought  forward  at  that  precise  time.  I 
think  it  would  have  been  much  better,  more  ap 
propriate,  and  more  interesting  to  all  of  us,  if  it 
had  been  deferred  until  we  approached  the  closing 
hours  of  the  session,  and  of  our  official  connection 
as  members  of  this  Convention.  It  may  not  be 
improper  for  me,  also  to  say,  that  for  one,  I  re 
gretted  the  precise  phraseology  of  that  vote.  Gen 
tlemen  know  very  well  that  I  am  no  party  poli 
tician.  I  am  here  with  political  opinions  and 
convictions  more  in  harmony  with  one  party  than 
another  ;  and  to  those  convictions  I  have  aimed 
to  be  true,  and  presume  we  all  have  had  a  similar 
him.  But  I  am  also  here,  with  those  views,  feel 
ings  and  relations,  which  my  profession  disposes 
me  to  cherish  towards  all  men  of  all  parties.  I 
know  not  that  I  am  competent  to  judge  of  this 
matter,  but  it  does  seem  to  me  that  men  of  all 
parties  here,  should  be  ready  to  give  a  hearty,  full, 
and  generous  response  to  a  vote  of  thanks  to  our 
presiding  officer.  It  does  seem  to  me  that  we, 
all  of  us,  owe  to  him  that  expression  of  feeling. 
I  have  never  before  been  a  member  of  a  delib 
erative  assembly,  and  am  not,  therefore,  able  to 
judge  by  comparison  and  contrast,  but  I  presume 
every  man  here,  to  whatever  political  party  he 
belongs,  and  however  large  his  legislative  expe 
rience,  and,  although  he  may,  occasionally  have 


72d  day.] 


CLOSING   REMARKS. 


727 


Monday,] 


LOTIIROP  —  EAMES  —  HILLARD  —  HALLETT. 


[August  1st. 


differed  from  or  disliked  the  rulings  of  the  Chair, 
will  yet — when  he  considers  all  the  difficulties  of 
the  position — the  duties,  always  arduous  and  often 
delicate  that  devolve  upon  it— be  disposed  to  admit 
that  the  distinguished  gentleman  who  has  filled 
the  Chair,  h  ,s  presided  over  the  deliberations  of 
this  assembly  with  eminent  ability,  with  great 
impartiality,  with  a  patient  courtesy,  and  constant 
and  assiduous  fidelity.  This  is  very  strongly  my 
own  impression,  and  I  think  that  we  owe  it  very 
much  to  him,  that  we  have  been  able  to  conduct 
our  discussions  and  complete  our  business  with 
so  much  harmony — with  the  introduction  of  so 
little  that  was  personal,  improper  or  unparlia 
mentary. 

I  hope,  Sir,  to  hear  on  the  part  of  other  gentle 
men,  an  expression  of  similar  sentiments,  and  I 
hope  that  the  Chair  will  be  disposed  to  say  to  us 
some  kind,  appropriate  and  touching  words  before 
we  depart  from  these  halls  for  the  last  time,  that 
we  may  all  go  to  our  homes  feeling  kindly  dis 
posed  to  each  other,  inspired  with  a  loftier  pa 
triotism  and  a  deeper  interest  in  the  good  old 
Commonwealth  of  Massachusetts,  which  we  have 
all  been  here  endeavoring  to  serve,  according  to 
our  honest  convictions  and  to  the  best  of  our 
ability,  and  whose  glory  and  prosperity  we  would 
have  ever  increasing  and  perpetual. 

Mr.  EAMES,  of  Washington.  I  can  say  for 
one,  that  I  have  been  much  gratified  with  the 
manner  in  which  the  Chair  has  conducted  and 
managed  the  business  of  this  Convention.  This 
is  the  second  Convention  for  revising  tha  Consti 
tution  of  which  I  have  had  the  honor  of  being  a 
member,  and  I  can  say  for  one,  that  I  have  felt 
much  gratified  at  the  unanimity  of  feeling  which 
has  generally  pervaded  our  deliberations. 

I  was  much  pleased  with  the  remarks  which 
fell  from  the  gentleman  from  Pittsfield,  (Mr. 
Briggs,)  on  Saturday  last,  and  I  can  say  that  my 
feelings  correspond  with  the  sentiments  which  he 
then  expressed.  It  is  not  any  way  likely,  accord 
ing  to  the  course  of  human  events,  that  we  shall 
all  meet  again.  There  are  only  six  of  us  who 
were  members  of  the  Convention  of  1820,  and  it 
is  seldom  that  any  of  us  meet  in  two  Conventions 
to  amend  the  organic  law.  I  had  the  impression 
that  in  the  Convention  of  1820  there  was  but  one 
individual  who  had  been  a  member  of  the  Con 
vention  of  1780.  But  I  have  been  told  that  there 
were  two.  The  Hon.  John  Quincy  Adams  was 
one.  For  one,  I  can  say,  I  part  with  my  asso 
ciates  here  in  perfect  friendship,  and  shall  ever 
meet  them  hereafter  with  the  same  feeling. 

Mr.  HILLARD,  of  Boston.  I  certainly  re 
spond  most  cordially  and  sincerely  to  all  that  has 
fallen  from  my  valued  friend  from  Boston,  (Mr. 


Lothrop,)  and,  indeed,  were  I  to  express  my  full 
sense  of  the  ability  with  which  the  duties  of  the 
Chair  have  been  performed,  and  of  the  obligations 
we  are  under  to  the  President,  I  should — that 
gentleman  being  present — consider  myself  as 
passing  beyond  the  limits  of  decorum  and  good 
taste.  I  can  only  say,  in  recalling  the  conduct 
and  bearing  of  the  gentleman  who  has  presided 
over  our  deliberations,  I  cannot  bring  to  my 
thoughts  any  person  in  the  Convention  or  out  of 
it,  whom  we  could  have  substituted  for  him,  and 
been  gainers  in  the  exchange.  In  looking  back 
upon  our  discussions,  we  have  a  right  to  say  that 
they  have  been  characterized  by  a  more  than 
common  degree  of  decorum  and  propriety,  con 
sidering  the  nature  of  the  topics  and  the  zeal  of 
the  speakers.  Of  course  it  is  impossible,  in  colli 
sion  of  strong  convictions  and  strong  feelings, 
that  occasional  sparks  of  excitement  should  not 
have  flashed  forth.  But  I  submit,  that  in  com 
parison  with  similar  bodies,  we  may  look  back 
with  satisfaction  and  pride  at  the  course  of  our 
debates,  and  especially  at  the  harmonious  feelings 
with  which  our  deliberations  are  brought  to  a 
close. 

To  those  who  have  had  experience  in  such 
bodies,  I  need  not  say  how  much  we  are  indebted 
to  the  spirit  which  has  presided  over  us,  to  the 
spirit  of  mingled  firmness,  tact,  and  moderation, 
that  has  overshadowed  us  from  the  beginning  ; 
and  I,  for  one,  am  ready  to  make  acknowledg 
ment  in  the  fullest  and  amplest  terms. 

Mr.  HALLETT,  for  Wilbraham.  I  think  we 
cannot  separate  without  reflecting  with  some  de 
gree  of  interest  and  intenseness,  upon  that  very 
important  relation  which  has  existed  between 
you,  Sir,  as  the  presiding  officer  of  this  body,  and 
ourselves,  individually,  as  its  members.  Sir, 
while  all  the  people  of  this  earth — consisting  now 
of  some  nine  hundred  millions  of  souls — are  un 
der  different  forms  of  government,  which  have 
existed  from  time  immemorial,  this  spot  upon 
God's  earth,  the  United  States  of  America,  com 
posed  of  twenty- three  or  twenty- four  millions  of 
people,  is  the  only  place,  and  this  the  only  people, 
in  which  such  a  Convention  as  this  could  assem 
ble  for  such  a  purpose  as  that  for  which  it  was 
called.  Now,  that  in  the  simple  exercise  of  the 
peaceful  right  of  citizens,  as  delegates  of  the  peo 
ple  of  the  Commonwealth,  we  have  come  here 
unmolested  and  quietly  to  frame  a  constitutional 
government  to  be  submitted  to  the  people,  upon 
which  they  are  to  say  "  yes"  or  "  no,"  and  which, 
if  they  say  "  yes,"  is  to  take  the  place  of  the  old 
government,  by  as  easy  a  transition  as  takes  place 
in  ordinary  affairs,  and  that  this  can  be  done  and 
that  we  are  the  agents,  is  certainly  a  thing  that 


728 


CLOSING   REMARKS. 


[72d  day. 


Monday,] 


MARVIN  —  WILSON  —  LOTHROP  —  WALKER  —  BANKS. 


[August  1st. 


can  never  pass  from  our  minds.  It  is  a  link  that 
should  bind  us  together  as  brethren  while  we 
live.  Let  us  never  forget,  if  we  should  hereafter 
be  brought  in  any  conflict  with  each  other,  that 
here,  in  this  Convention,  we  stood  together,  del 
egates  of  the  people,  with  this  great  power  of 
proposing  a  form  of  government  for  their  adop 
tion. 

Sir,  that  the  proceedings  of  this  Convention 
have  been  conducted  so  harmoniously,  and  that 
its  results  have  thus  far  been  so  successful  and 
satisfactory,  and  will  terminate,  as  I  think,  so  use 
fully  to  the  Commonwealth,  has  been,  in  a  great 
measure,  owing  to  the  manner  in  which  you  have 
exercised  the  authority  with  which  the  Conven 
tion  invested  you.  I  am  sure  that  every  heart 
will  feel,  and  every  voice  will  respond  to  the 
resolution  of  thanks  for  the  manner  in  which 
you  have  presided  over  us. 

Mr.  MARVIN,  of  Boston.  Before  any  re 
marks  are  made  by  the  President,  I  hope  that 
some  gentleman  will  close  our  session  with  prayer. 
I  feel  that  we  are  all  indebted  to  the  kind  provi 
dence  of  Almighty  God,  for  having  preserved  us, 
•with  one  exception,  in  life  and  health.  We  be 
gan  by  imploring  the  blessing  of  God ;  let  us 
close  our  labors  by  rendering  him  thanks,  and 
giving  him  praise. 

Mr.  WILSON,  of  Natick.  The  hours  of  this 
Convention  are  numbered.  Our  duties  here  are 
performed.  To  the  people  we  have  committed 
the  results  of  our  deliberations  and  labors.  Af 
ter  ninety  days  of  toil  together,  we  are  about  to 
part,  to  meet  not  again  in  this  world  of  vicis 
situde  and  death.  In  this  closing  hour  it  is 
proper  for  us  to  turn  our  thoughts  to  that 
Being  who  has  preserved  us.  I  move  that  the 
Convention  invite  the  Rev.  Dr.  Lotlirop  to  close 
our  session  with  prayer. 

The  PRESIDENT.  The  Chair  will  assume 
the  consent  of  the  Convention,  and  invites  the 
Rev.  Mr.  Lothrop  to  perform  that  duty. 

Mr.  LOTHROP  then  took  the  President's  desk, 
and  offered  the  following 

Prayer. 

Almighty  God !  We  began  our  labors  by  in 
voking  Thy  blessing;  we  would  close  them  by 
again  invoking  that  blessing,  by  lifting  up  devout 
and  grateful  hearts  to  Thee,  the  God  of  our  fa 
thers,  and  thanking  Thee  for  all  Thy  mercies  in 
past  generations,  and  for  all  Thy  goodness  to  us, 
here  present,  in  preserving  our  lives,  and  in 
enabling  us  to  attend  faithfully  to  the  duties 
that  have  devolved  upon  us.  We  thank  Thee, 
O  God,  for  all  the  harmony  and  good  feeling,  for 
all  the  mutual  respect  and  kindness  that  have 


prevailed  through  our  deliberations.  We  thank 
Thee  that,  guided  and  sustained  by  Thy  good 
providence,  we  have  now  been  enabled  to  bring 
these  deliberations  to  a  close ;  and  we  would 
commend  ourselves,  and  the  great  work  on  which 
we  have  been  engaged,  and  all  the  high  and 
important  interests  of  this  ancient  and  honorable 
Commonwealth,  to  Thy  divine  disposal,  to  Thy 
protection  and  care,  and  to  Thy  parental  provi 
dence.  May  we,  O  God — may  all  the  people  of 
the  Commonwealth — continue  to  adore,  and  rev 
erence,  and  love,  and  serve  Thee,  the  God  of  our 
fathers,  and  so  walk  in  the  ways  of  virtue,  of 
uprightness,  of  all  Christian  grace  and  godliness, 
that  we  may  continue  to  be  a  name  and  a  praise 
among  the  communities  of  the  earth — that  the 
blessing  of  the  Lord  our  God  may  be  upon  us, 
even  as  it  was  upon  our  fathers.  May  Thy  peace 
abide  in  all  our  hearts,  Thy  blessing  be  upon  all 
our  families,  Thy  goodness  and  favor  attend  us, 
now  and  forever.  We  ask  these  mercies  through 
Him  who  loved  us,  and  gave  Himself  for  us,  to 
whom  be  glory,  in  His  church,  forever. 

Mr.  WALKER,  of  North  Brookfield,  moved 
that  the  Convention  do  now  adjourn  sine  die. 

The  motion  was  agreed  to. 

President's  Address. 

The  PRESIDENT.  Gentlemen  of  the  Con 
vention.  Availing  myself  of  the  privilege  usually 
afforded  those  who  stand  in  the  position  I  now 
occupy,  before  I  speak  that  word  which  severs 
our  official  relations  with  each  other,  and  with 
the  Commonwealth,  I  return  you  my  sincere 
thanks  for  the  generous  kindness  with  which  you 
have  received  the  limited  measure  of  fidelity  and 
capacity  I  have  been  able  to  bring  to  the  dis 
charge  of  my  duties. 

There  are  many  reasons  why  this  generosity 
should  be  grateful  to  me.  But  none  is  stronger 
than  that  which  arises  from  the  high  character  of 
the  assembly  to  whose  indulgence  I  am  so  large 
a  debtor.  For  patient  investigation,  assiduous, 
unremitting,  and  conscientious  devotion  to  labo 
rious  duties,  in  a  most  oppressive  season,  I  be 
lieve  110  representative  assembly  ever  surpassed 
that  whose  labors  are  now  about  to  close.  It  is 
not  for  me  to  distrust  the  wisdom  of  the  counsels 
by  which  you  have  been  guided.  I  am  impressed 
with  the  conviction  that  your  labors  will  be  ap 
proved  ;  that  the  results  you  have  reached  will 
be  ratified  by  the  people  of  the  Commonwealth. 
The  moment  that  fortune  has  assigned  you  for 
their  submission  to  the  people  you  represent,  is 
auspicious.  Although  the  silent  dial  before  us 
indicates  a  brief  moment  beyond,  yet  we  have 
not  closed  the  day  which  is  the  anniversary  of 


72d  day.] 


CLOSING   REMARKS. 


729 


Monday,] 


BANKS. 


[August  1st. 


the  embarkation  of  the  Pilgrim  Fathers ;  of  the 
inauguration  of  that  series  of  sublime  events  that 
has  resulted  in  the  consummation  of  constitu 
tional  liberty,  and  permanent  popular  govern 
ments. 

Whatever  destiny  may  be  in  store  for  our  re 
public — whether  it  be  amid  the  convulsions  of 
distant  empires,  to  sway  the  sceptre  of  earth's 
seas,  or  with  an  expansive  power  hitherto  un 
known,  to  absorb  and  consolidate  in  a  single 
state,  of  limited  powers,  the  territory  of  conti 
nents,  or  to  achieve  a  nobler  triumph  in  the  do 
main  of  industry,  science  and  art — I  trust  that 
Massachusetts,  true  to  the  instincts  of  her  nature, 
as  colony  or  commonwealth,  may  still  stand  at 
the  head  of  the  column  of  progressive  States  ;  her 
Constitution  without  fault,  and  her  people  with 
out  fear. 

I  am  sure  I  do  not  misinterpret  the  feelings  of 
your  hearts,  in  saying  that  we  cannot  separate 
without  chastening  our  anticipated  joys  by  recall 
ing  the  memory  of  one,  whose  seat  to-night  is 
vacant,  whose  life  was  distinguished  by  the  virtues 
which  adorn  human  nature,  but  who  in  health 
and  high  hopes  has  been  swept  from  among  us 
by  the  hand  of  death.  We  cannot  separate  with 
out  a  tear  of  sympathy  and  consolation  for  the 


happy  family  by  this  bereavement  made  desolate  ; 
nor  yet  without  a  consciousness  that  the  loss 
which  is  ours,  is  the  gain  of  our  brother  who  is 
gone ;  that  it  is  for  us  to  mourn  for  the  living 
only,  and  not  for  the  dead.  We  cannot  separate 
without  grateful  and  fervent  acknowledgments 
for  the  Divine  goodness  that  has  preserved  so 
many  of  us  from  suffering,  sickness,  and  death. 

But  the  delays  of  the  day's  session,  the  tedi- 
ousness  of  the  parting  act  and  word,  have  already 
detained  you  too  long  from  the  invigorating  ocean 
air,  and  the  sweet  and  pure  breeze  of  inland  and 
highland ;  from  the  loved  sights  and  sounds  of 
home;  the  congratulations  of  friends,  and  the 
applause  of  satisfied  constituencies,  that  must 
revive  your  exhausted  energies,  and  enable  you 
to  recall,  without  pain,  the  laborious  and  anxious 
days  we  have  passed  together ;  joys  that  might 
almost  renew  a  life  under  the  hand  of  death. 
No  act  or  word  of  mine  shall  add  to  the  unwel 
come  detention.  Health,  happiness,  honor,  to 
you  all,  gentlemen.  Your  kindness  is  engraven 
on  my  heart,  where,  every  day,  I  will  turn  the 
leaf  to  read  it. 

It  remains  for  me  but  to  announce  that  the 
Convention  of  1853  is  adjourned,  without 
day. 


49; 


APPENDIX, 


of 


In  the  Year  of  our  Lord  One  Thousand  Eight  Hundred  and  Fifty-Two. 


AN   ACT 


RELATING  TO  THE  CALLING  A  CONVENTION  OF  DELEGATES  OF  THE  PEOPLE, 
FOR  THE  PURPOSE  OF  REVISING  THE  CONSTITUTION. 

Be  it  Enacted  by  the  Senate  and  House  of  representatives,  in   General  Court  assembled,  and  by  ths 
authority  of  the  same,  as  folloics  : — 


SECTION  1.  The  inhabitants  of  the  several 
cities,  towns,  districts,  and  places  within  this 
Commonwealth,  qualified  to  vote  for  senators  or 
representatives  in  the  general  court,  shall,  on  the 
second  Monday  of  November  next,  at  the  meet 
ings  to  be  then  held  in  the  several  cities  and  towns 
in  the  Commonwealth,  for  the  choice  of  governor, 
lieutenant-governor,  senators  and  representatives 
in  the  general  court,  an  article  for  this  purpose 
being  inserted  in  the  warrants  calling  said  meet 
ings,  give  in  their  votes  by  ballot  on  this  ques 
tion  :  "  Is  it  expedient  that  delegates  should  be 
chosen  to  meet  in  convention  for  the  purpose  of 
revising  or  altering  the  constitution  of  government 
of  this  Commonwealth?"  And  the  vote  upon 
said  question  shall  be  in  open  meeting,  and  the 
votes  in  the  several  cities  and  towns  in  the  Com 
monwealth  shall  be  received,  sorted,  counted, 
declared,  and  transmitted  to  the  Secretary  of  the 
Commonwealth,  in  the  same  manner  as  the  votes 
for  governor,  lieutenant-governor,  and  senators 
are  now  received,  sorted,  counted,  declared  and 
transmitted  by  the  constitution  and  laws  of  the 
Commonwealth;  and  all  returns  not  thus  made 
shall  be  rejected  in  the  counting.  And  the  Gov 
ernor  and  Council  shall  open  and  examine  the 
returns,  made  as  aforesaid,  and  count  the  votes 
given  on  the  said  question ;  and  the  governor 
shall,  by  public  proclamation,  to  be  made  on  or 
before  the  first  Wednesday  in  January  next, 
make  known  the  result,  by  declaring  the  number 
appearing  in  favor  of  choosing  delegates  for  the 
purpose  aforesaid,  and  the  number  of  votes  ap 
pearing  against  the  same ;  and  if  it  shall  appear 
that  a  majority  of  the  votes  given  in  and  returned 


as  aforesaid  are  in  favor  of  choosing  delegates  as 
aforesaid,  the  same  shall  be  deemed  and  taken  to 
be  the  will  of  the  people  of  the  Commonwealth, 
that  a  Convention  should  meet  accordingly ;  and 
in  case  of  such  majority,  the  governor  shall  call 
upon  the  people  to  elect  delegates  to  meet  in 
Convention,  in  the  manner  hereinafter  provided. 
SECT.  2.  If  it  shall  be  declared  by  the  said 
proclamation,  that  the  majority  of  votes,  as  afore 
said,  is  in  favor  of  choosing  delegates,  as  above- 
mentioned,  the  inhabitants  of  the  several  cities 
and  towns  within  the  Commonwealth,  now  en 
titled  any  one  year  to  send  one  or  more  repre 
sentatives  to  the  general  court,  shall,  on  the  first 
Monday  of  March,  in  the  year  one  thousand  eight 
hundred  and  fifty- three,  assemble  in  their  several 
meetings,  to  be  duly  notified  by  warrant  from  the 
selectmen  of  the  several  towns  and  the  mayor  and 
aldermen  of  the  several  cities,  and  shall  elect  one 
or  more  delegates,  not  exceeding  the  number  of 
representatives  to  which  each  town  or  city  was 
entitled  last  year,  it  being  the  year  in  which  the 
valuation  of  estates  in  the  Commonwealth  was 
settled,  to  meet  delegates  from  other  towns  and 
cities  in  Convention,  for  the  purposes  hereinafter 
expressed.  And  at  such  meetings  of  the  inhabit 
ants,  every  person  entitled  to  vote  for  representa 
tives  in  the  general  court,  shall  have  a  right  to 
vote  in  the  choice  of  delegates,  and  the  same  offi 
cers,  in  the  several  cities  and  towns  in  the  Com 
monwealth,  shall  preside  at  such  elections,  as 
now  preside  in  the  choice  of  representatives  to 
the  general  court ;  and  the  votes  for  said  delegates 
shall  be  received,  sorted,  counted,  declared,  re 
corded,  and  copies  thereof  delivered  to  the  dele- 


732 


APPENDIX. 


[1852. 


ABSTRACT  OF  VOTES. 


gates  chosen,  in  the  same  manner  as  is  now  pro 
vided  for  in  the  case  of  representatives  to  the  gen 
eral  court.  And  all  laws  now  in  force,  regulating 
the  duty  and  conduct  of  town  and  city  officers, 
sheriffs,  magistrates,  and  electors,  in  the  election 
of  governor,  lieutenant-governor,  senators  and 
representatives,  shall,  as  far  as  applicable,  apply, 
and  be  in  full  force  and  operation,  as  to  all  meet 
ings  holden,  and  elections  and  returns  made,  un 
der  this  act,  or  which  by  this  act  are  required  to 
be  holden  or  made,  and  upon  the  like  forfeitures 
and  penalties. 

SECT.  3.  The  persons  so  elected  delegates 
shall  meet  in  Convention  in  the  State  House,  in 
Boston,  on  the  first  Wednesday  in  May,  in  the 
year  one  thousand  eight  hundred  and  fifty- three  ; 
and  they  shall  be  the  judges  of  the  returns  and 
elections  of  their  own  members,  and  may  adjourn 
from  time  to  time ;  and  one  hundred  of  the  per 
sons  elected  shall  constitute  a  quorum  for  the 
transaction  of  business ;  and  they  shall  proceed, 
as  soon  as  may  be,  to  organize  themselves  in 
Convention,  by  choosing  a  president  and  such 
other  officers  as  they  may  deem  expedient,  and  by 
establishing  proper  rules  of  proceeding  ;  and 
when  organized,  they  may  take  into  consideration 
the  propriety  and  expediency  of  revising  the  pres 
ent  Constitution  of  government  of  this  Common 
wealth,  or  the  propriety  and  expediency  of  mak 
ing  any,  and  if  any,  what  alterations  or  amend 
ments,  in  the  present  Constitution  of  government 


of  this  Commonwealth.  And  such  alterations  or 
amendments,  when  made  and  adopted  by  the  said 
Convention,  shall  be  submitted  to  the  people  for 
their  ratification  and  adoption,  in  such  manner  as 
the  said  Convention  shall  direct^  and  if  ratified 
by  the  people  in  the  manner  directed  by  the  said 
Convention,  the  Constitution  shall  be  deemed 
and  taken  to  be  altered  or  amended  accordingly  ; 
and  if  not  so  ratified,  the  present  Constitution 
shall  be  and  remain  the  Constitution  of  Govern 
ment  of  this  Commonwealth. 

SECT.  4.  The  said  Convention  shall  establish 
the  pay  or  compensation  of  its  officers  and  mem 
bers,  and  the  expense  of  its  session ;  and  his 
exellency  the  governor,  by  and  with  the  advice 
and  consent  of  the  Council,  is  authorized  to  draw 
his  warrant  on  the  treasury  therefor. 

SECT.  5.  The  Secretary  of  the  Commonwealth 
is  hereby  directed  forthwith,  after  the  passage 
thereof,  to  transmit  printed  copies  of  this  Act  to 
the  selectmen  of  each  town,  and  the  mayor  and 
aldermen  of  each  city  within  the  Commonwealth ; 
and  whenever  the  governor  shall  issue  his  procla 
mation,  calling  upon  the  people  to  elect  delegates, 
to  meet  in  Convention  as  aforesaid,  the  said  sec 
retary  shall  also,  immediately  thereafter,  transmit 
printed  copies  of  said  proclamation,  attested  by 
himself,  to  the  selectmen  of  each  town,  and  the 
mayor  and  ealdrmen  of  each  city,  in  the  Com 
monwealth. 

[Approved,  May  7,  1852.] 


ABSTRACT  OF  THE  RETURNS  OF  VOTES 

For  and  against  calling  a  Convention  to  Revise  the  Constitution,  under  the  Ad  of  May  7,  1852. 


ELECTION,  NOVEMBER  8,  1852. 


COUNTY  OF  SUFFOLK. 


COUNTY  OF  ESSEX. 


TOWNS. 

Whole  No. 

For. 

Against. 

TOWNS. 

Whole  No. 

For. 

Against. 

Boston,     . 
Chelsea,    . 
North  Chelsea, 
Winthrop, 

4  Towns,      . 

9,974 
790 
66 
37 

3,458 
420 
18 
21 

6,456 
370 
38 
16 

Amesbury, 
Andover, 
Beverly,    . 
B  oxford,  . 
Bradford, 
Danvers,  . 
Essex, 

545 

721 
885 
173 
218 
1,274 
241 

323 
439 
490 
34 
127 
638 
160 

222 

282 
395 
139 
91 
636 
81 

10,859 

3,977 

6,880 

1852.] 


APPENDIX. 


733 


ABSTRACT  OF  VOTES. 


COUNTY  OF  ESSEX-Cox. 

COUNTY  OF  MIDDLESEX—  CON. 

4 

TOWNS. 

Whole  No. 

For. 

Against. 

TOWNS. 

Whole  No. 

For. 

Against, 

Georgetown, 

353 

194 

159 

Newton,   . 

581 

245 

336 

Gloucester, 

708 

395 

313 

Pepperell, 

234 

110 

124 

Groveland, 

243 

151 

92 

Reading,  . 

557 

281 

276 

Hamilton, 

164 

94 

70 

Sherborn, 

141 

44 

97 

Haverhill, 

1,108 

644 

464 

Shirley,     . 

197 

116 

81 

Ipswich,    . 

424 

251 

173 

Somerville, 

380 

174 

206 

Lawrence, 

1,046 

556 

490 

South  Reading, 

388 

218 

170 

Lynn, 

1,834 

1,006 

828 

Stoneham, 

388 

276 

112 

Lynnfield, 

92 

69 

23 

Stowe, 

139 

82 

57 

Manchester, 

219 

157 

62 

Sudbury, 

215 

136 

79 

Marblehead, 

596 

397 

199 

Tewksbury, 

156 

62 

94 

Methuen, 

334 

149 

185 

Townsend, 

281 

190 

91 

Middleton, 

126 

94 

32 

Tyngsborough, 

91 

50 

41 

Newbury, 

148 

39 

109 

Waltham, 

600 

310 

290 

Newburyport,  . 

1,227 

463 

764 

Water  town, 

341 

154 

187 

Ilockport,  . 

387 

245 

142 

Wayland, 

194 

109 

85 

Rowley,    . 

155 

22 

133 

West  Cambridge, 

268 

124 

144 

1  806 

686 

1,120 

Westford, 

235 

130 

105 

Salisbury, 

338 

206 

132 

Weston,    . 

152 

76 

76 

Saugus,     . 

251 

191 

60 

Wilmington, 

124 

75 

49 

Swampscott, 

99 

86 

13 

Winchester, 

259 

112 

147 

Topsfield,  . 

189 

57 

132 

Woburn,  . 

568 

427 

141 

"V\7*}vi  K  o  i-*-* 

1  OQ 

07 

Q  1 

T  T    (_  11  Iltllll  j                             •                        * 

West  Newbury, 

loo 

235 

y  / 
107 

y  i 
128 

50  Towns,      . 

20,804 

10,755 

10,049 

31  Towns,     . 

16,327 

8,567 

7,760 

COUNTY  OF  WORCESTER. 

COUNTY  OF  MIDDLESEX. 

Ashbumham,    . 

338 

220 

118 

Athol,       . 

370 

217 

153 

Acton, 

256 

197 

59 

Auburn,   . 

125 

102 

23 

Ashby,      . 

330 

92 

138 

Barre, 

535 

253 

282 

Ashland,  .         .         . 

185 

83 

102 

Berlin,       . 

130 

101 

29 

Bedford,   . 

166 

135 

31 

Blackstone, 

332 

242 

90 

Billerica,  . 

289 

144 

145 

Bolton, 

218 

117 

101 

Boxborough,     . 

72 

44 

28 

Boylston,  . 

129 

90 

39 

Brighton, 

215 

14 

201 

Brookfield, 

307 

235 

72 

Burlington, 

77 

66 

11 

Charlton,  . 

354 

300 

54 

Cambridge, 

1,659 

551 

1,108 

Clinton.    . 

364 

184 

180 

Carlisle,    . 

103 

72 

31 

Dana, 

140 

72 

68 

Charlestown,     . 

1,783 

686 

1,097      Douglas,  . 

335 

214 

121 

Chelmsford, 

260 

159 

101 

Dudley,    . 

214 

157 

57 

Concord,  . 

270 

164 

106 

Fitch  burg, 

847 

561 

286 

Dracut,     . 

246 

153 

93 

Gardner,  . 

285 

199 

86 

D  unstable, 

126 

69 

57 

Graf'ton,    . 

503 

307 

196 

Framingham,    . 

554 

199 

355 

Hard  wick, 

318 

185 

133 

Groton,     .         . 

305 

159 

146 

Harvard,  . 

273 

180 

93 

Holliston,  . 

324 

213 

111 

Holden,     . 

327 

203 

124 

Hopkinton, 

381 

291 

90 

Hubbardston,    . 

322 

250 

72 

Lexington, 

261 

101 

160 

Lancaster, 

231 

54 

177 

Lincoln,    . 

105 

44 

61 

Leicester,  . 

389 

281 

108 

Littleton, 

155 

91 

64 

Leominster, 

588 

377 

211 

Lowell,     . 
Maiden,     . 

4,100 
492 

2,253 
251 

1,847 
241 

Lunenburg, 
Mendon,   . 

238 
182 

159 
141 

79 
41 

Marlborough,    . 

464 

357 

107 

Miltbrd,     . 

657 

466 

191 

Medford,  . 

594 

298 

296 

Millbury,  . 

412 

294 

118 

Melrose,    . 

209 

151 

58 

New  Braintree, 

120 

51 

69 

Natick,      . 

434 

217 

217 

Northborough, 

298 

184 

114 

734 


APPENDIX. 


[1852. 


ABSTRACT  OF  VOTES. 


COUNTY  OF  WORCESTER—  CON. 

COUNTY  OF   HAMPDEN. 

TOWNS. 

Whole  No. 

For. 

Against. 

TOWNS. 

Whole  No. 

For. 

Against. 

Northbridge, 
North  Brookfield,      . 
Oakham,  . 

272 
319 
145 

150 
249 
102 

122 
70 
43 

Blandford, 
Brimfield, 

284 
245 

183 
139 

101 
106 

Oxford,     . 

401 

272 

129 

Chester,    . 

248 

132 

116 

Paxton,     .         . 

161 

126 

35 

Chicopee,  . 

824 

357 

467 

Petersham, 

270 

160 

110 

Granville, 

239 

147 

92 

Phillipston, 
Princeton, 
Royalston, 

136 
227 

229 

48 
141 
66 

88 
86 
163 

Holland,   . 
Hoi  yoke,  . 
Longmeadow,    . 

42 
336 
188 

196 

77 

42 
140 
111 

Rutland,  . 

172 

132 

40 

Ludlow,    . 

207 

121 

86 

Shrewsbury, 
Southborough,  . 

320 
211 

229 
155 

91 
56 

Monson,    . 
Montgomery,    . 

374 

83 

202 
76 

172 

7 

Southbridge, 
Spencer,    . 

411 
473 

261 
248 

150 
225 

Palmer,     . 
Russell,     . 

427 
92 

239 

76 

188 
16 

Sterling,    . 

327 

138 

189 

Southwick, 

212 

153 

59 

Sturbridge, 

330 

217 

113 

Springfield, 

1,659 

862 

797 

Sutton,      . 

360 

298 

62 

Tolland,    . 

101 

58 

43 

Templeton, 

368 

236 

132 

Wales,      . 

82 

47 

35 

Upton,      .         . 

333 

213 

120 

Westfield, 

772 

512 

260 

Uxbridge, 

322 

211 

111 

West  Springfield, 

473 

197 

276 

Warren,    . 

"TTT      V        * 

256 

140 

116 

Wilbraham, 

320 

212 

108 

Webster,  . 
Westborough,   . 

336 
367 

200 
215 

136 
152 

20  Towns,     . 

7,208 

3,986 

3,222 

West  Boylston, 

269 

221 

48 

West  Brookfield, 

226 

158 

68 

Westminster,     . 

356 

214 

142 

Winchendon,    . 

400 

230 

170 

Worcester, 

2,908 

2,027 

881 

COUNTY  OF  FRANKLIN. 

58  Towns,     . 

20,786 

13,453 

7,333 

Ashfield,  . 
Bernardston, 

271 
212 

162 
118 

109 
94 

COUNTY  OF  HAMPSHIRE. 

Buckland, 

224 

147 

77 

Amherst,  . 

501 

180 

321 

Charlemont,      .         . 

220 

130 

90 

Belcher  town,     . 

411 

244 

167 

Coleraine, 

281 

136 

145 

Chesterfield,      . 

231 

141 

90 

Conway,  . 

386 

207 

179 

Cummington,    . 

272 

138 

134 

Deerfield, 

423 

233 

190 

Easthampton,    . 

205 

93 

112 

Erving, 

55 

49 

6 

Enfield,     . 

163 

34 

129 

Gill, 

124 

62 

62 

Goshen,    . 

121 

27 

94 

Greenfield, 

520 

256 

264 

Granby,    . 

155 

28 

127 

Hawley,    . 

129 

62 

67 

Greenwich, 

158 

105 

53 

Heath, 

127 

75 

52 

Hatfield,   . 

194 

83 

111 

Leverett,  . 

170 

116 

54 

Hadley,     . 

321 

57 

264 

Leyden,    . 

118 

82 

36 

Middlefield,       . 

107 

44 

63 

Monroe,    . 

42 

32 

10 

Northampton,   . 

883 

463 

420 

Montague, 

240 

151 

89 

Norwich,  . 

150 

93 

57 

New  Salem, 

217 

126 

91 

Pelham,    . 

138 

102 

36 

Northfield, 

297 

190 

107 

Plainfield, 

141 

29 

112 

Orange,     . 

234 

131 

103 

Prescott,   . 

108 

45 

63 

Rowe, 

121 

46 

75 

South  Hadley,  . 

275 

93 

182 

Shelburne, 

241 

102 

139 

Southampton,   . 

257 

132 

125 

Shutesbury, 

178 

141 

37 

Ware,        . 

522 

266 

256 

Sunderland,       .         . 

202 

95 

107 

Westhampton,  . 

136 

53 

83 

Warwick, 

197 

128 

69 

Williamsburg,  . 

311 

185 

126 

Wendell,  . 

143 

106 

37 

Worthington,    . 

213 

94 

119 

Whately,  . 

256 

118 

138 

23  Towns,     . 

5,973 

2,729 

3,244 

26  Towns,     . 

5,628 

3,201 

2,427 

1852.] 


APPENDIX. 


735 


ABSTRACT  OF  VOTES. 


COUNTY  OF  BERKSHIRE. 

TOWNS. 

Whole  No. 

For. 

Against. 

Adams,     . 

885 

439 

446 

Alford,      . 

92 

68 

24 

Becket,      . 

185 

87 

98 

Cheshire,  . 

218 

214 

4 

Clarksburg, 

61 

28 

33 

Dalton,     . 

166 

118 

48 

Egremont, 

233 

113 

120 

Florida,     . 

78 

46 

32 

Great  Barrington, 

- 

- 

- 

Hancock, 

116 

65 

51 

Hinsdale,  . 

164 

38 

126 

Lanesborough,  . 

237 

127 

110 

Lee  

526 

250 

276 

Lenox, 

279 

169 

110 

Monterey, 

145 

105 

40 

Mount  Washington,  . 

36 

30 

6 

New  Ashford,  . 

43 

30 

13 

New  Marlborough,    . 

310 

170 

140 

Otis, 

192 

109 

83 

Peru, 

96 

34 

62 

Pittsfield, 

875 

435 

440 

Richmond, 

117 

97 

20 

Sandisfield, 

246 

153 

93 

Savoy, 

178            154 

24 

Sheffield,  . 

348 

198 

150 

Stockbridge, 

310 

180 

130 

Tyringham, 
Washington, 

119 

87 

74 

50 

45 
37 

West  Stockbridge,     . 
Williamstown,  . 

200 
398 

89 
232 

111 
166 

Windsor,  . 

177 

104 

73 

31  Towns,     . 

7,117 

4,006  |    3,111 

COUNTY  OF  NORFOLK. 

Bellingham, 

168 

138 

30 

Braintree, 

434 

176 

258 

Brookline,         . 

290 

87 

203 

Canton,     . 

323            145 

178 

Coh  asset,  . 

132  1           43 

89 

Dedham,  . 

607 

278 

329 

Dorchester, 

961 

468 

493 

Dover, 

93 

41 

52 

Foxborough,     . 

306 

186 

120 

Franklin,  . 

274 

152 

122 

Medfield,  . 

112 

76 

36 

Medway,  .        .         .  |         380 

230 

150 

Milton,      . 

228 

133 

115 

Needham, 

230 

145 

85 

Quincy,     . 

623 

343 

280 

Randolph, 

601 

242 

359 

Roxbury, 

1,273 

424 

849 

Sharon,     . 

183 

111 

72 

Stoughton, 

464 

249 

215 

Walpole,  . 

300 

161 

~139 

Wey  mouth, 

810 

459 

351 

West  Roxbury, 

308 

63 

245 

Wrentham, 

360 

219 

141 

23  Towns,     . 

9,480 

4,569 

4,911 

COUNTY  OF  BRISTOL. 


TOWNS. 

Whole  No. 

For. 

Against. 

Attleborough,    . 

673 

388 

285 

Berkley,    . 

140 

96 

44 

Dartmouth, 

526 

281 

245 

Dighton,  . 

226 

136 

90 

Easton, 

414 

235 

179 

Fairhaven, 

602 

335 

267 

Fall  River, 

936 

526 

410 

Freetown, 

185 

136 

49 

Mansfield, 

280 

235 

45 

New  Bedford,  . 

1,934 

873 

1,061 

Norton,     . 

266 

159 

107 

Pawtucket, 

365 

215 

150 

Raynham, 

206 

139 

67 

Rehoboth, 

282 

185 

97 

Seekonk,  . 

316 

220 

96 

Somerset,  . 

194 

113 

81 

Swanzey,  . 

210 

117 

93 

Taunton,  . 

1,430 

601 

829 

Westport, 

244 

176 

68 

19  Towns,     . 

9,429 

5,166 

4,263 

COUNTY  OF  PLYMOUTH. 


Abington, 

826 

562 

264 

Bridgewater, 

458 

206 

252 

Carver, 

208 

96 

112 

Duxbury, 

438 

271 

167 

East  Bridgewater, 

469 

254 

215 

Halifax,    . 

134 

81 

53 

Hanover,  . 

234 

165 

69 

Hanson,    . 

73 

39 

34 

Hingham, 

609 

233 

376 

Hull, 

17 

2 

15 

Kingston, 

239 

132 

107 

Marion,     .         . 

— 

— 

— 

Marshfield, 

207 

119 

88 

Middleborough, 

715 

437 

278 

North  Bridgewater,  . 

771 

395 

376 

Pembroke, 

228 

122 

106 

Plymouth, 

830 

450 

380 

Plympton, 

166 

52 

114 

Rochester, 

441 

203 

238 

Scituate, 

242 

173 

69 

South  Scituate, 

244 

101 

143 

Wareham, 

391 

127 

264 

West  Bridgewater,    . 

281 

148 

133 

23  Towns,     . 

8,221 

4,368  1    3,853 

COUNTY  OF  BARNSTABLE. 


Barnstable, 
Brewster, . 
Chatham, 


457 
117 
134 


285 
64 
65 


172 
53 
69 


736 


APPENDIX. 


[1852. 


ABSTRACT  OP  VOTES. 

COUNTY  OF  BABNSTABLE—  CON. 

RECAPITULATION. 

TOWNS. 

Whole  No. 

For. 

Against. 

COUNTIES. 

Whole  No. 

For. 

Against 

Dennis,     . 
Eastham,  , 
Falmouth, 
Harwich,  . 
Orleans,    . 
Provincetown,  . 
Sandwich, 
Truro, 
Wellfleet, 
Yarmouth, 

13  Towns,     . 

164 
71 
287 
120 
92 
231 
449 
73 
98 
220 

73 
40 
71 
37 
16 
123 
191 
28 
38 
32 

91 
31 
216 
83 
76 
108 
258 
45 
60 
188 

Suffolk,     . 
Essex, 
Middlesex, 
Worcester, 
Hampshire, 
Hampden, 
Franklin,  . 
Berkshire, 
Norfolk,    . 
Bristol, 
Plymouth, 
Barnstable, 
Nantucket, 
Dukes  County, 

14  Counties,  . 

10,857 
16,327 
20,804 
20,786 
5,973 
7,208 
5,628 
7,117 
9,480 
9,429 
8,221 
2,513 
683 
502 

3,977 
8,567 
10,755 
13,453 
2,729 
3,986 
3,201 
4,006 
4,569 
5,166 
4,368 
1,063 
348 
228 

6,880 
7,760 
10,049 
7,333 
3,244 
3,222 
2,427 
3,111 
4,911 
4,263 
3,853 
1,450 
335 
274 

2,513 

1,063 

1,450 

COUNTY  OF  NANTUCKET. 

Nantucket, 

683 

348 

335 

COUNTY  OF  DUKES  COUNTY. 

Chilmark, 
Edgartown, 
Tisbury,    . 

3  Towns, 

78 
250 
174 

58 
108 
62 

20 
142 
112 

502 

228 

274 

125,528 

66,416 

59,112 

1853.] 


APPENDIX. 


737 


CONSTITUTIONAL  PROPOSITIONS. 


CONSTITUTIONAL  PROPOSITIONS 

Adopted  by  the  Convention  of  Delegates,  assembled  at  Boston,  on  the  first  Wednesday  of  May,  A.  D.  1853, 
and  submitted  to  the  People  for  their  Ratification,  with  an  Address  to  the  People  of  Massachusetts.* 


The  Convention  presented  the  following  Propositions,  which  were  submitted  to  the  People,  Nov.  14, 1853. 


COMMONWEALTH  OF  MASSACHUSETTS. 


In  the  Year  One  Thousand  Eight  Hundred  and  Ffty-Three. 

RESOLVES. 

In  the  Convention  of  the  Delegates  of  the  people 
assembled  in  Boston,  on  the  tirst  Wednesday  of 
May,  in  the  year  1853,  for  the  purpose  of  re 
vising  and  amending  the  Constitution  of  this 
Commonwealth. 

Resolved,  That-  the  revised  Constitution,  pro 
posed  by  said  Convention,  be  submitted  to  the 
people  of  the  Commonwealth  for  their  ratifica 
tion  and  adoption,  in  the  manner  following, 
viz. : — 

I.  The    Preamble  ;    A    Declaration   of    the 
Rights  of  the  Inhabitants  of  the  Commonwealth 
of   Massachusetts;  The  Frame  of   Government, 
with  its  Preamble  and  Chapters  numbered  One, 
Two,  Three,  Four,  Five,  Six,  Seven,  Eight,  Nine, 
Ten,  Eleven,  Twelve,  Thirteen,    and  Fourteen, 
entitled,  respectively — General  Court, — Senate, — 
House  of  Representatives, — Governor, — Lieuten 
ant-  Governor, —  Council, —  Secretary,  —  Treasur 
er,    Attorney- General,    Auditor,    District- Attor 
ney,   and   County   Officers,  —  Judiciary    Power, 
— Qualifications  of  Voters  and  Elections, — Oaths 
and  Subscriptions, — Militia, — The  University  at 
Cambridge,  the  School  Fund  and  the  Encourage 
ment  of  Literature, — Miscellaneous  Provisions, — 
Revisions  and  Amendments  of  the  Constitution 
— as  a  distinct  Proposition,  numbered  "  One." 

If  this  proposition,  so  submitted,  shall  be  rati 
fied  and  adopted  by  a  majority  of  the  legal  voters 
of  the  Commonwealth,  present  and  voting  there 
on,  at  meetings  duly  called,  then  the  same  shall 
be  the  Constitution  of  the  Commonwealth  of 
Massachusetts. 

II.  The  provision  respecting  the  granting  of 
the  writ  of  Habeas  Corpus,  as  a  Proposition,  num 
bered  "  Two." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  the  provision  respecting  the 
Habeas  Corpus. 

*  Amendments  adopted  by  the  Convention,  which  stand 
as  separate  articles  or  paragraphs,  are  enclosed  in  brack 
ets,  to  distinguish  them  from  existing  provisions  of  the 
Constitution.  Where  an  amendment  has  been  made,  by 
adding  words  to  an  article  or  paragraph  in  the  existing  Con 
stitution,  the  amendment  is  printed  in  Italia. 


III.  The  provision  respecting  the  rights   of 
juries  in  criminal  trials,  as  a  Proposition,  num 
bered  "  Three." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  the  article  in  the  Declara 
tion  of  Rights,  respecting  the  rights  of  persons 
charged  with  crimes. 

IV.  The   provision  respecting  claims  against 
the  Commonwealth,  as  a  Proposition,  numbered 
"  Four." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  Article  XL,  of  the  Decla 
ration  of  Rights. 

V.  The  provision  respecting  imprisonment  for 
debt,  as  a  Proposition,  numbered  "  Five." 

If  this  proposition  be  adopted,  it  shall  be  an 
addition  to  the  Article  in  the  Declaration  of 
Rights,  respecting  excessive  bail  and  fines. 

VI.  The  provision  respecting  sectarian  schools, 
as  a  Proposition,  numbered  "  Six." 

If  this  proposition  be  ratified  and  adopted,  it 
shall  be  an  addition  to  Article  IV.  of  Chapter 
XII.,  entitled,  "The  University  at  Cambridge, 
The  School  Fund,  and  The  Encouragement  of 
Literature."  If  proposition  numbered  "  One  " 
shall  not  be  adopted,  the  proposition  numbered 
"  Six,"  shall  be  added  as  an  amendment  to  the 
Constitution. 

VII.  The  provision  respecting  corporations,  as 
a  Proposition,  numbered  "  Seven." 

VIII.  The   provision   respecting    banks   and 
banking,  as  a  Proposition,  numbered  "Eight." 

If  the  Propositions  numbered  "  Seven  "  and 
"  Eight"  be  ratified  and  confirmed,  they  shall  be 
added  as  separate  articles,  or  if  either  of  them  be 
ratified  and  confirmed,  as  an  article  in  Chapter 
XIII.,  entitled  "Miscellaneous  Provisions." 

If  Proposition  numbered  "One  "  be  not  rati 
fied  and  confirmed,  they  shall  be  added  as  amend 
ments  to  the  Constitution. 

Resolved,  That  at  the  meetings  for  the  election 
of  Governor,  Senators,  and  Representatives  to  the 
General  Court,  to  be  holden  on  the  second  Mon 
day  of  November,  in  the  year  one  thousand  eight 


738 


APPENDIX. 


[1853. 


CONSTITUTIONAL  PROPOSITIONS. 


hundred  and  fifty-three,  the  qualified  voters  of 
the  several  towns  and  cities  shall  vote  by  ballot 
upon  each  of  the  propositions  aforesaid,  for  or 
against  the  same,  which  ballots  shall  be  inclosed 
within  sealed  envelopes,  according  to  the  pro 
visions  of  an  Act  of  this  Commonwealth,  passed  on 
the  twenty-second  day  of  May,  in  the  year  eighteen 
hundred  and  fifty-one,  and  an  Act  passed  the 
twentieth  day  of  May,  in  the  year  eighteen  hun 
dred  and  fifty-two,  and  no  ballots  not  so  inclosed 
shall  be  received.  And  said  votes  shall  be  re 
ceived,  sorted,  counted,  declared,  and  recorded, 
in  open  meeting,  in  the  same  manner  as  is  by 
law  provided  in  reference  to  votes  for  governor, 
and  a  true  copy  of  the  record  of  said  votes,  at 
tested  by  the  selectmen  and  town  clerk  of  each 
of  the  several  towns,  and  the  mayor  and  alder 
men  and  city  clerk  of  each  of  the  several  cities, 
shall  be  sealed  up  by  said  selectmen  and  mayor 
and  aldermen,  and  directed  to  the  Secretary  of 
the  Commonwealth,  with  a  superscription  ex 
pressing  the  purport  of  the  contents  thereof,  and 
delivered  to  the  sheriff  of  the  county  within  fif 
teen  days  after  said  meetings,  to  be  by  him  trans 
mitted  to  the  secretary's  office,  on  or  before  the 
third  Monday  of  December  next;  or,  the  said 
selectmen  and  mayor  and  aldermen  shall  them 
selves  transmit  the  same  to  the  secretary's  office, 
on  or  before  the  day  last  aforesaid. 

Resolved,  That  the  Secretary  shall  deliver  said 
copies,  so  transmitted  to  him,  to  a  Committee  of 
this  Convention,  consisting  of  the  President  of 
the  Convention,  and  twenty  other  members,  to  be 
by  him  designated,  who  shall  assemble  at  the  State 
House,  on  the  third  Monday  of  December  next, 
and  open  the  same,  and  examine  and  count  the 
votes  so  returned ;  and  if  it  shall  appear  that 
either  of  said  propositions  has  been  adopted  by  a 
majority  of  votes,  then  the  proposition  so  adopted 
shall  become  and  be  either  the  whole  or  a  portion 
of  the  Constitution  of  this  Commonwealth,  as 
hereinbefore  provided,  and  the  said  Committee 
shall  promulgate  the  results  of  said  votes  upon 
each  of  said  proposition?,  by  causing  the  same  to 
be  published  in  those  newspapers  in  which  the 
laws  are  now  published ;  and  shall  also  notify 
the  Governor  and  Legislature,  as  soon  as  may  be, 
of  the  said  results  ;  and  the  Governor  shall  forth 
with  make  public  proclamation  of  the  fact  of  the 
adoption  of  either  or  all  of  said  propositions,  as 
the  whole  or  as  parts  of  the  Constitution  of  this 
Commonwealth. 

Resolved,  That  each  of  said  propositions  shall 
be  considered  as  a  whole  by  itself,  to  be  adopted 
in  the  whole,  or  rejected  in  the  whole.  And 
every  voter  shall  vote  on  each  proposition,  by  its 
appropriate  number,  indicating  upon  his  ballot 
the  subject  of  the  proposition,  and  expressing  in 
writing  or  printing,  opposite  to  each  proposition, 
the  word  Yes  or  No  ;  but  the  propositions  shall 
all  be  written  or  printed  on  one  ballot,  iu  sub 
stance,  as  follows : — 

CONSTITUTIONAL  PROPOSITIONS. 

Shall  Proposition  NUMBER  ONE,  containing  the 

Preamble,  Declaration  of  Rights  and  Frame  of 

Government,  stand  as  the   Constitution  of  the 

Commonwealth  of  Massachusetts }    Yes  or  No. 


Shall  Proposition  NUMBER  Two,  respecting  the 
Habeas  Corpus,  stand  as  part  of  the  Constitu 
tion  ? Yes  or  No. 

Shall  Proposition  NUMBER  THRER,  respecting  the 
Rights  of  Juries,  stand  as  part  of  the  Constitu 
tion  ? Yes  or  No. 

Shall  Proposition  NUMBER  FOUR,  respecting 
Claims  against  the  Commonwealth,  stand  as  part 
of  the  Constitution  ?  -  -  -  Yres  or  No. 

Shall  Proposition  NUMBER  FIVE,  respecting  Im 
prisonment  for  Debt,  stand  as  part  of  the  Con 
stitution  ?  -  -  -  -  -  Yes  or  No. 

Shall  Proposition  NUMBER  Six,  respecting  Sec 
tarian  Schools,  stand  as  part  of  the  Constitu 
tion  ?  -  Yes  or  No. 

Shall  Proposition  NUMBER  SEVEN,  respecting  the 
Creation  of  Corporations,  stand  as  part  of  the 
Constitution  ?  -  -  Yes  or  No. 

Shall  Proposition  NUMBER  EIGHT,  respecting  the 
Formation  of  Banks,  and  requiring  Security 
for  Bank  Bills,  stand  as  part  of  the  Constitu 
tion  ? Yes  or  No. 

Resolved,  That  a  printed  copy  of  these  resolu 
tions,  with  the  several  constitutional  propositions 
annexed,  shall  be  attested  by  the  President  and 
Secretaries  of  the  Convention,  and  transmitted  by 
them,  as  soon  as  may  be,  to  the  selectmen  of  each 
town,  and  the  mayor  and  aldermen  of  each  city, 
in  the  Commonwealth,  whose  duty  it  shall  be 
to  insert  a  proper  article  in  reference  to  the  voting 
upon  said  propositions,  in  the  warrant  calling  the 
meetings  aforesaid,  on  the  second  Monday  of 
November  next. 


Proposition  Number  One. 

CONSTITUTION, 

Or  Form  of  Government  of  the   Commonwealth  of 
Massach  usetts . 

PREAMBLE. 

The  end  of  the  institution,  maintenance,  and 
administration  of  government,  is  to  secure  the 
existence  of  the  body  politic  ;  to  protect  it ;  and 
to  furnish  the  individuals  who  compose  it,  with 
the  power  of  enjoying,  in  safety  and  tranquillity, 
their  natural  rights  and  the  blessings  of  Hie  :  and 
whenever  these  great  objects  are  not  obtained,  the 
people  have  a  right  to  alter  the  government,  and 
to  take  measures  necessary  for  their  safety,  pros 
perity,  and  happiness. 

The  body  politic  is  formed  by  a  voluntary  as 
sociation  of  individuals  ;  it  is  a  social  compact,  by 
which  the  whole  people  covenants  with  each 
citizen,  and  each  citizen  with  the  whole  people, 
that  all  shall  be  governed  by  certain  laws  for  the 
common  good.  It  is  the  duty  of  the  people, 
therefore,  in  framing  a  Constitution  of  govern 
ment,  to  provide  for  an  equitable  mode  of  making 
laws,  as  well  as  for  an  impartial  interpretation, 
ind  a  faithful  execution  of  them,  that  every  man 
may,  at  all  times,  find  his  security  in  them. 

We,  therefore,  the  people  of  Massachusetts,  ac- 


1853.] 


APPENDIX. 


739 


CONSTITUTIONAL  PROPOSITIONS. 


knowledging,  with  grateful  hearts,  the  goodness 
of  the  great  Legislator  of  the  universe,  in  affording 
us,  in  the  course  of  his  providence,  an  oppor 
tunity,  deliberately  and  peaceably,  without  fraud, 
violence,  or  surprise,  of  entering  into  an  original, 
explicit,  and  solemn  compact  with  each  other ; 
and  of  forming  a  new  Constitution  of  civil  gov 
ernment  for  ourselves  and  posterity ;  and  de 
voutly  imploring  his  direction  in  so  interesting  a 
design,  do  agree  upon,  ordain,  and  establish,  the 
following  Declaration  of  Rights  and  Frame  of 
Government)  as  the  CONSTITUTION  of  the  COMMON 
WEALTH  OF  MASSACHUSETTS. 


A   DECLARATION 

Of  the  Rights  of  the  Inhabitants  of  the  Common 
wealth  of  Massaclmsetts. 

ARTICLE  1.  All  men  are  born  free  and  equal, 
and  have  certain  natural,  essential,  and  unaliena- 
hle  rights  ;  among  which  may  be  reckoned  the 
right  of  enjoying  and  defending  their  lives  and 
liberties ;  that  of  acquiring,  possessing,  and  pro 
tecting  property  ;  in  fine,  that  of  seeking  and  ob 
taining  their  safety  and  happiness. 

ART.  2.  It  is  the  right  as  well  as  the  duty  of 
all  men  in  society,  publicly,  and  at  stated  seasons, 
to  worship  the  SUPREME  BEING,  the  great  Creator 
and  Preserver  of  the  universe.  And  no  subject 
shall  be  hurt,  molested,  or  restrained,  in  his  per 
son,  liberty,  or  estate,  for  worshipping  God  in  the 
manner  and  season  most  agreeable  to  the  dictates 
of  his  own  conscience ;  or  for  his  religious  profes 
sion  or  sentiments ;  provided  he  doth  not  disturb 
the  public  peace,  or  obstruct  others  in  their  re 
ligious  worship. 

ART.  3.  As  the  public  worship  of  God,  and 
instructions  in  piety,  religion,  and  morality,  pro 
mote  the  happiness  and  prosperity  of  a  people, 
and  the  security  of  a  republican  government ; 
therefore,  the  several  religious  societies  of  this 
Commonwealth,  whether  corporate  or  unincor- 
porate,  at  any  meeting  legally  warned  and  holden 
for  that  purpose,  shall  ever  have  the  right  to  elect 
their  pastors  or  religious  teachers,  to  contract  with 
them  for  their  support,  to  raise  money  for  erect 
ing  and  repairing  houses  for  public  worship,  for 
the  maintenance  of  religious  instruction,  and  for 
the  payment  of  necessary  expenses  :  And  all  per 
sons  belonging  to  any  religious  society  shall  be 
taken  and  held  to  be  members,  until  they  shall 
file  with  the  clerk  of  such  society  a  written  notice 
declaring  the  dissolution  of  their  membership,  and 
thenceforth  shall  not  be  liable  for  any  grant  or 
contract  which  may  be  thereafter  made  or  entered 
into  by  such  society  :  And  all  religious  sects  and 
denominations,  demeaning  themselves  peaceably, 
and  as  good  citizens  of  the  Commonwealth,  shall 
be  equally  under  the  protection  of  the  law  ;  and 
no  subordination  of  any  one  sect  or  denomination 
to  another  shall  ever  be  established  by  law.  . 

ART.  4.  The  people  of  this  Commonwealth 
have  the  sole  and  exclusive  right  of  governing 
themselves,  as  a  free,  sovereign,  and  independent 
State  ;  and  do,  and  forever  hereafter  shall,  exer 
cise  and  enjoy  every  power,  jurisdiction,  and 
right,  which  is  not,  or  may  not  hereafter,  be  by 


them  expressly  delegated  to  the  United  States  of 
America,  in  Congress  assembled. 

ART.  5.  All  power  residing  originally  in  the 
people,  and  being  derived  from  them,  the  several 
magistrates  and  officers  of  government,  vested 
with  authority,  whether  legislative,  executive,  or 
judicial,  are  their  substitutes  and  agents,  and  are 
at  all  times  accountable  to  them. 

ART.  6.  No  man,  nor  corporation,  nor  asso 
ciation  of  men,  have  any  other  title  to  obtain  ad 
vantages,  or  particular  and  exclusive  privileges, 
distinct  from  those  of  the  community,  than  what 
arises  from  the  consideration  of  services  rendered 
to  the  public ;  and  this  title  being  in  nature 
neither  hereditary,  nor  transmissible  to  children, 
or  descendants,  or  relations  by  blood,  the  idea  of 
a  man  being  born  a  magistrate,  lawgiver,  or 
judge,  is  absurd  and  unnatural. 

ART.  7.  Government  is  instituted  for  the  com 
mon  good  ;  for  the  protection,  safety,  prosperity, 
and  happiness  of  the  people  ;  and  not  for  the 
profit,  honor,  or  private  interest  of  any  one  man, 
family,  or  class  of  men  :  Therefore  the  people 
alone'  have  an  incontestible,  unalienable,  and  in 
defeasible  right  to  institute  government ;  and  to 
reform,  alter,  or  totally  change  the  same,  when 
their  protection,  safety,  prosperity,  and  happiness 
require  it. 

ART.  8.  In  order  to  prevent  those,  who  are 
vested  with  authority,  from  becoming  oppressors, 
the  people  have  a  right,  at  such  periods,  and  in 
such  manner  as  they  shall  establish  by  their  frame 
of  government,  to  cause  their  public  officers  to 
return  to  private  life  ;  and  to  fill  up  vacant  places 
by  certain  and  regular  elections  and  appointments. 

ART.  9.  All  elections  ought  to  be  free ;  and 
all  the  inhabitants  of  this  Commonwealth,  having 
such  qualifications  as  they  shall  establish  by  their 
frame  of  government,  have  an  equal  right  to  elect 
officers,  and  to  be  elected,  for  public  employ 
ments. 

ART.  10.  Each  individual  of  the  society  has  a 
right  to  be  protected  by  it  in  the  enjoyment  of  his 
life,  liberty,  and  property,  according  to  standing 
laws.  He  is  obliged,  consequently,  to  contribute 
his  share  to  the  expense  of  this  protection ;  to 
give  his  personal  service,  or  an  equivalent,  when 
necessary :  but  no  part  of  the  property  of  any 
individual  can,  with  justice,  be  taken  from  him, 
or  applied  to  public  uses,  without  his  own  con 
sent,  or  that  of  the  representative  body  of  the 
people.  In  fine,  the  people  of  this  Common 
wealth  are  not  controllable  by  any  other  laws, 
than  those  to  which  their  constitutional  represen 
tative  body  have  given  their  consent.  And  when 
ever  the  public  exigencies  require  that  the  prop 
erty  of  any  individual  should  be  appropriated  to 
public  uses,  he  shall  receive  a  reasonable  compen 
sation  therefor. 

ART.  11.  Every  subject  of  the  Commonwealth 
ought  to  find  a  certain  remedy,  by  having  re 
course  to  the  laws,  for  all  injuries  or  wrongs 
which  he  may  receive  in  his  person,  property,  or 
character.  He  ought  to  obtain  right  and  justice 
freely,  and  without  being  obliged  to  purchase  it ; 
completely,  and  without  any  denial ;  promptly, 
and  without  delay  ;  conformably  to  the  laws. 


740 


APPENDIX. 


[1853. 


CONSTITUTIONAL  PROPOSITIONS. 


ART.  12.  The  privilege  and  benefit  of  the 
writ  of  habeas  corpus  shall  be  enjoyed,  in  this 
Commonwealth,  in  the  most  free,  easy,  cheap,  ex 
peditious,  and  ample  manner  ;  and  shall  not  be 
suspended  by  the  Legislature,  except  upon  the 
most  urgent  and  pressing  occasions,  and  for  a 
limited  time  not  exceeding  twelve  months. 

ART.  13.  No  subject  shall  be  held  to  answer 
for  any  crimes  or  offence,  until  the  same  is  fully 
and  plainly,  substantially  and  formally,  described 
to  him ;  or  be  compelled  to  accuse,  or  furnish 
evidence  against  himself:  and  every  subject  shall 
have  a  right  to  produce  all  proofs,  that  may  be 
favorable  to  him ;  to  meet  the  witnesses  against 
him  face  to  face,  and  to  be  fully  heard  in  his 
defence  by  himself  or  his  counsel,  at  his  election  : 
and  no  subject  shall  be  arrested,  imprisoned,  de 
spoiled,  or  deprived  of  his  property,  immunities, 
or  privileges,  put  out  of  the  protection  of  the  law, 
exiled,  or  deprived  of  his  life,  liberty,  or  estate, 
but  by  the  judgment  of  his  peers,  or  the  law  of 
the  land.  And  the  legislature  shall  not  make  any 
law  that  shall  subject  any  person  to  a  capital  or 
infamous  punishment,  excepting  for  the  govern 
ment  of  the  army  and  navy,  without  trial  by 

jury. 

ART.  14.  In  criminal  prosecutions,  the  verifi 
cation  of  facts  in  the  vicinity  where  they  happen, 
is  one  of  the  greatest  securities  of  the  life,  liberty 
and  property  of  the  citizen. 

ART.  15.  Every  subject  has  a  right  to  be  se 
cure  from  all  unreasonable  searches  and  seizures 
of  his  person,  his  houses,  his  papers,  and  all  his 
possessions.  All  warrants,  therefore,  are  contrary 
to  this  right,  if  the  cause  or  foundation  of  them 
be  not  previously  supported  by  oath  or  affirma 
tion;  and  if  the  order  in  the  warrant  to  a  civil 
officer,  to  make  search  in  suspected  places,  or  to 
arrest  one  or  more  suspected  persons,  or  to  seize 
their  property,  be  not  accompanied  with  a  special 
designation  of  the  persons  or  objects  of  search, 
arrest,  or  seizure ;  and  no  warrant  ought  to  be 
issued  but  in  cases,  and  with  the  formalities,  pre 
scribed  by  the  laws. 

ART.  16.  In  all  controversies  concerning  prop 
erty,  and  in  all  suits  between  two  or  more  per 
sons,  except  in  cases  in  which  it  has  heretofore 
been  otherways  used  and  practised,  the  parties 
have  a  right  to  a  trial  by  jury  ;  and  this  method 
of  procedure  shall  be  held  sacred,  unless,  in  causes 
arising  on  the  high  seas,  and  such  as  relate  to 
mariners'  wages,  the  Legislature  shall  hereafter 
find  it  necessary  to  alter  it. 

ART.  17.  The  liberty  of  the  press  is  essential 
to  the  security  of  freedom  in  a  state :  it  ought  not, 
therefore,  to  be  restrained  in  this  Commonwealth. 

ART.  18.  The  people  have  a  right  to  keep  and 
to  bear  arms  for  the  common  defence  :  and,  as  in 
time  of  peace,  armies  are  dangerous  to  liberty, 
they  ought  not  to  be  maintained  without  the  con 
sent  of  the  Legislature  ;  and  the  military  power 
shall  always  be  held  in  an  exact  subordination  to 
the  civil  authority,  and  be  governed  by  it. 

ART.  19.  A  frequent  recurrence  to  the  funda 
mental  principles  of  the  Constitution,  and  a  con 
stant  adherence  to  those  of  piety,  justice,  moder 
ation,  temperance,  industry,  and  frugality,  are 


absolutely  necessary  to  preserve  the  advantages  of 
liberty,  and  to  maintain  a  free  government.  The 
people  ought,  consequently,  to  have  a  particular 
attention  to  all  those  principles,  in  the  choice  of 
their  officers  and  representatives  ;  and  they  have 
a  right  to  require  of  their  lawgivers  and  magis 
trates,  an  exact  and  constant  observance  of  them, 
in  the  formation  and  execution  of  the  laws  neces 
sary  for  the  good  administration  of  the  Common 
wealth. 

ART.  20.  The  people  have  a  right,  in  an 
orderly  and  peaceable  manner,  to  assemble  to  con 
sult  upon  the  common  good ;  give  instructions  to 
their  representatives  ;  and  to  request  of  the  legis 
lative  body,  by  the  way  of  addresses,  petitions,  or 
remonstrances,  redress  of  the  wrongs  done  them, 
and  of  the  grievances  they  suffer. 

ART.  21.  The  power  of  suspending  the  laws, 
or  the  execution  of  the  laws,  ought  never  to  be 
exercised  but  by  the  Legislature,  or  by  authority 
derived  from  it,  to  be  exercised  in  such  particular 
cases  only  as  the  Legislature  shall  expressly  pro 
vide  for. 

ART.  22.  The  freedom  of  deliberation,  speech 
and  debate,  in  either  House  of  the  Legislature,  is 
so  essential  to  the  rights  of  the  people,  that  it 
cannot  be  the  foundation  of  any  accusation  or 
prosecution,  action  or  complaint,  in  any  other 
court  or  place  whatsoever. 

ART.  23.  The  Legislature  ought  frequently  to 
assemble  for  the  redress  of  grievances,  for  correct 
ing,  strengthening,  and  confirming  the  laws,  and 
for  making  new  laws,  as  the  common  good  may 
require. 

ART.  24.  No  subsidy,  charge,  tax,  impost,  or 
duties,  ought  to  be  established,  fixed,  laid,  or 
levied,  under  any  pretext  whatsoever,  without  the 
consent  of  the  people,  or  their  representatives  in 
in  the  Legislature. 

ART.  25.  Laws  made  to  punish  for  actions 
done  before  the  existence  of  such  laws,  and  which 
have  not  been  declared  crimes  by  preceding  laws, 
are  unjust,  oppressive,  and  inconsistent  with  the 
fundamental  principles  of  a  free  government. 

ART.  26.  No  subject  ought,  in  any  case,  or  in 
any  time,  to  be  declared  guilty  of  treason  or 
felony  by  the  Legislature. 

ART.  27.  No  magistrate  or  court  of  law  shall 
demand  excessive  bail  or  sureties,  impose  exces 
sive  fines,  or  inflict  cruel  or  unusual  punish 
ments. 

ART.  28.  In  time  of  peace,  no  soldier  ought 
to  be  quartered  in  any  house  without  the  consent 
of  the  owner  ;  and  in  time  of  war,  such  quarters 
ought  not  to  be  made  but  by  the  civil  magistrate, 
in  a  manner  ordained  by  the  Legislature. 

ART.  29.  No  person  can  in  any  case  be  sub 
jected  to  law  martial,  or  to  any  penalties  or  pains, 
by  virtue  of  that  law,  except  those  employed  in 
the  army  or  navy,  and  except  the  militia  in  actual 
service,  but  by  authority  of  the  Legislature. 

ART.  30.  It  is  essential  to  the  preservation  of 
the  rights  of  every  individual,  his  life,  liberty, 
property  and  character,  that  there  be  an  impartial 
interpretation  of  the  laws,  and  administration  of 
justice.  It  is  the  right  of  every  citizen  to  be  tried 
by  judges  as  free,  impartial  and  independent,  as 


1853.] 


APPENDIX. 


741 


CONSTITUTIONAL  PROPOSITIONS. 


the  lot  of  humanity  will  admit.  It  is  therefore 
not  only  the  best  policy,  but  for  the  security  of 
the  rights  of  the  people,  and  of  every  citizen,  that 
the  Judges  of  the  Supreme  Judicial  Court  should 
hold  their  offices  by  tenures  established  by  the  Con 
stitution^  and  should  have  honorable  salaries, 
which  shall  not  be  diminished  during  their  continu 
ance  in  office. 

AHT.  31.  In  the  government  of  this  Com 
monwealth,  the  legislative  department  shall  never 
exercise  the  executive  and  judicial  powers,  or 
either  of  them  :  the  executive  shall  never  exer 
cise  the  legislative  and  judicial  power,  or  either  of 
them  :  the  judicial  shall  never  exercise  the  legis 
lative  and  executive  powers  or  either  of  them :  to 
the  end  it  may  be  a  government  of  laws  and  not 
of  men. 


THE  FRAME  OF  GOVERNMENT. 

THE  people  inhabiting  the  territory  formerly 
called  the  Province  of  Massachusetts  Bay,  do 
hereby  solemnly  and  mutually  agree  with  each 
other,  to  form  themselves  into  a  free,  sovereign 
and  independent  body  politic  or  state,  by  the 
name  of  THE  COMMONWEALTH  OF  MAS 
SACHUSETTS. 

CHAPTER  I. 
General    Court. 

ARTICLE  1.  The  department  of  legislation  shall 
be  styled  the  General  Court  of  Massachusetts. 
It  shall  consist  of  two  branches,  a  Senate  and  a 
House  of  Representatives,  each  of  which  shall 
have  a  negative  upon  the  other. 

ART.  2.  The  political  year  shall  begin  on  the  first 
Wednesday  in  January  ;  and  the  General  Court 
shall  assemble  every  year  on  the  said  first  Wed 
nesday  in  January,  and  shall  be  dissolved  on  the 
day  next  preceding  the  first  Wednesday  in  Jan 
uary  following,  without  any  proclamation  or  other 
act  of  the  governor.  But  nothing  herein  con 
tained  shall  prevent  the  General  Court  from  as 
sembling  at  such  other  times  as  they  shall  judge 
necessary,  or  when  called  together  by  the  gov 
ernor. 

[ART.  3.  The  compensation  of  members  of 
the  General  Court  shall  be  established  by  stand 
ing  laws ;  but  no  act  increasing  the  compensation 
shall  apply  to  the  General  Court  which  passes  such 
act ;  and  no  compensation  shall  be  allowed  for 
attendance  of  members  at  any  one  session  for  a 
longer  time  than  one  hundred  days.] 

ART.  4.  No  bill  or  resolve  of  the  Senate  or 
House  of  Representatives  shall  become  a  law, 
and  have  force  as  such,  until  it  shall  have  been 
laid  before  the  governor  for  his  revisal :  and  if  he, 
upon  such  revision,  approve  thereof,  he  shall 
signify  his  approbation  by  signing  the  same.  But 
if  he  have  any  objection  to  the  passing  of  such 
bill  or  resolve,  he  shall  return  the  same,  together 
with  his  objections  thereto,  in  writing,  to  the 
Senate  or  House  of  Representatives,  in  whichso 
ever  the  same  shall  have  originated ;  who  shall 
enter  the  objections  sent  down  by  the  governor, 


at  large,  on  their  records,  and  proceed  to  recon 
sider  the  said  bill  or  resolve  :  but  if,  after  such 
reconsideration,  two- thirds  of  the  said  Senate  or 
House  of  Representatives,  present,  shall,  notwith 
standing  the  said  objections,  agr.ee  to  pass  the 
same,  it  shall,  together  with  the  objections,  be  sent 
to  the  other  branch  of  the  Legislature,  where  it 
shall  also  be  reconsidered,  and  if  approved  by 
two- thirds  of  the  members  present,  shall  have  the 
force  of  a  law :  but,  in  all  such  cases,  the  votes  of 
both  Houses  shall  be  determined  by  yeas  and 
nays ;  and  the  names  of  the  persons  voting  for, 
or  against,  the  said  bill  or  resolve,  shall  be  entered 
upon  the  public  records  of  the  Commonwealth. 

And  in  order  to  prevent  unnecessary  delays,  if 
any  bill  or  resolve  shall  not  be  returned  by  the 
governor,  within  five  days  after  it  shall  have  been 
presented  to  him,  the  same  shall  have  the  force  of 
a  law. 

But  if  any  bill  or  resolve  shall  be  objected  to 
and  not  approved  by  the  governor,  and  if  the 
General  Court  shall  adjourn  within  five  days  after 
the  same  shall  have  been  laid  before  the  governor 
for  his  approbation,  and  thereby  prevent  his  re 
turning  it,  with  his  objections,  as  provided  by  the 
Constitution,  such  bill  or  resolve  shall  not  become 
a  law,  nor  have  force  as  such. 

ART.  5.  The  General  Court  shall  forever  have 
full  power  and  authority  to  erect  and  constitute 
judicatories  and  courts  of  record,  or  other  courts* 
to  be  held  in  the  name  of  the  Commonwealth,  for 
the  hearing,  trying,  and  determining  of  all  manner- 
of  crimes,  offences,  pleas,  processes,  plaints,  ac 
tions,  matters,  causes  and  things,  whatsoever, 
arising  or  happening  within  the  Commonwealth, 
or  between  or  concerning  persons  inhabiting,  or 
residing,  or  brought  within  the  same ;  whether 
the  same  be  criminal  or  civil,  or  whether  the  said 
crimes  be  capital  or  not  capital,  and  whether  the 
said  pleas  be  real,  personal  or  mixt ;  and  for  the 
awarding  and  making  out  of  execution  there 
upon  :  to  which  courts  and  judicatories  are  hereby 
given  and  granted  full  power  and  authority,  from 
time  to  time,  to  administer  oaths  or  affirmations, 
for  the  better  discovery  of  truth  in  any  matter  in 
controversy,  or  depending  before  them. 

[ART.  6.  The  General  Court  shall  have  power 
to  make  laws  regulating  marriage,  divorce  and 
alimony,  but  shall  in  no  case  decree  a  divorce,  or 
hear  and  determine  any  causes  touching  the  va 
lidity  of  the  marriage  contract.] 

ART.  7.  And  further,  full  power  and  author 
ity  are  hereby  given  and  granted  to  the  said  Gen 
eral  Court,  from  time  to  time,  to  make,  ordain, 
and  establish,  all  manner  of  wholesome  and  rea 
sonable  orders,  laws,  statutes,  and  ordinances, 
directions  and  instructions,  either  with  penalties 
or  without ;  so  as  the  same  be  not  repugnant  or 
contrary  to  this  Constitution,  as  they  shall  judge 
to  be  for  the  good  and  welfare  of  this  Common 
wealth,  and  for  the  government  and  ordering 
thereof,  and  of  the  subjects  of  the  same,  and  for 
the  necessary  support  and  defence  of  the  govern 
ment  thereof;  and  to  name  and  settle  annually, 
or  provide,  by  fixed  laws,  for  the  naming  and 
settling  all  civil  officers  within  the  said  Common 
wealth,  the  election  and  constitution  of  whom 


742 


APPENDIX. 


[1853. 


CONSTITUTIONAL  PROPOSITIONS. 


are  not  hereafter  in  this  form  of  government 
otherwise  provided  for  ;  and  to  set  forth  the  sev 
eral  duties,  powers  and  limits,  of  the  several  civil 
and  military  officers  of  this  Commonwealth,  and 
the  forms  of  such  oaths  or  affirmations  as  shall  be 
respectively  administered  unto  them  for  the  ex 
ecution  of  their  several  offices  and  places,  so  as 
the  same  be  not  repugnant  or  contrary  to  this  Con 
stitution  ;  and  to  impose  and  levy  proportional  and 
reasonable  assessments,  rates,  and  taxes,  upon  all 
the  inhabitants  of,  and  persons  resident,  and 
estates  lying,  within  the  said  Commonwealth  ; 
and  also  to  impose,  and  levy,  reasonable  duties 
and  excises  upon  any  produce,  goods,  wares,  mer 
chandise,  and  commodities,  whatsoever,  brought 
into,  produced,  manufactured,  or  being  within  the 
same  ;  to  be  issued  and  disposed  of  by  warrant, 
under  the  hand  of  the  governor  of  this  Common 
wealth  for  the  time  being,  with  the  advice  and 
consent  of  the  Council,  for  the  public  service,  in 
the  necessary  defence  and  support  of  the  govern 
ment  of  the  said  Commonwealth,  and  the  pro 
tection  and  preservation  of  the  subjects  thereof, 
according  to  such  acts  as  are  or  shall  be  in  force 
within  the  same.] 

ART.  8.  The  General  Court  shall  have  full 
power  and  authority  to  erect  and  constitute  mu 
nicipal  or  city  governments  in  any  corporate  town 
or  towns  in  this  Commonwealth,  and  to  grant  to 
the  inhabitants  thereof  such  power,  privileges 
and  immunities,  not  repugnant  to  the  Constitu 
tion,  as  the  General  Court  shall  deem  necessary 
or  expedient  for  the  regulation  and  government 
thereof,  and  to  prescribe  the  manner  of  calling 
and  holding  public  meetings  of  the  inhabitants 
in  wards,  or  otherwise,  for  the  election  of  officers 
under  the  Constitution,  and  the  manner  of  re 
turning  the  votes  given  at  such  meetings  :  pro 
vided,  that  no  such  government  shall  be  erected 
or  constituted  in  any  town  not  containing  twelve 
thousand  inhabitants  ;  nor  unless  it  be  with  the 
tonsent  and  on  the  application  of  a  majority  of 
che  inhabitants  of  such  town,  present  and  voting 
thereon,  pursuant  to  a  vote  at  a  meeting  duly 
•warned  and  holden  for  that  purpose  :  and  pro 
vided,  also,  that  all  by-laws,  made  by  such  mu 
nicipal  or  city  government,  shall  be  subject,  at  all 
times,  to  be  annulled  by  the  General  Court. 

ART.  9.  Each  branch  of  the  General  Court 
shall  have  authority  to  punish,  by  imprisonment, 
every  person,  not  one  of  its  members,  who  shall 
be  guilty  of  disrespect  thereto,  by  any  disorderly 
or  contemptuous  behavior,  in  its  presence ;  or 
who,  in  the  town  or  city  where  the  General 
Court  is  sitting,  and  during  the  time  of  its  sitting, 
shall  threaten  harm  to  the  body  or  estate  of  any 
of  its  members  ;  or  assault  any  of  them  for  any 
thing  said  or  done  in  its  session  ;  or  shall  assault, 
or  arrest,  any  witness,  or  other  person,  ordered  to 
attend  it,  in  his  way  in  going,  or  returning ;  or 
who  shall  rescue  any  person  arrested  by  its  order : 
provided,  that  no  imprisonment,  on  its  warrant  or 
order,  for  either  of  the  above  described  offences, 
shall  be  for  a  term  exceeding  thirty  days ;  and  the 
governor  and  Council  shall  have  the  same  author 
ity  to  punish  in  like  cases.  And  no  member, 
during  his  going  to,  returning  from,  or  attending, 


the  General  Court,  shall  be  arrested,  or  held  to 
bail,  on  mesne  process, 

ART.  10.  Each  branch  of  the  General  Court 
may  try,  and  determine  all  cases  where  their 
rights  and  privileges  are  concerned,  and  which, 
by  the  Constitution,  they  have  authority  to 
try  and  determine,  by  committees  of  their  own 
members,  or  in  such  other  way  as  they  may  re 
spectively  think  best. 

ART.  11.  Each  branch  shall  be  the  final  judge 
of  the  elections,  returns,  and  qualifications,  of  its 
members,  as  pointed  out  in  the  Constitution ; 
shall  choose  a  presiding  officer  from  among  its 
members ;  appoint  its  other  officers  ;  and  settle 
its  rules  and  orders  of  proceeding;  and  shall 
have  power  to  adjourn,  provided,  such  adjourn 
ment  shall  not  exceed  three  days  at  a  time. 

ART.  12.  And  whereas  the  elections  appointed 
to  be  made  by  this  Constitution,  on  the  first 
Wednesday  in  January  annually,  by  the  two 
Houses  of  the  Legislature,  may  not  be  completed 
on  that  day,  the  said  elections  may  be  adjourned 
from  day  to  day  until  the  same  shall  be  com 
pleted. 

[ART.  13.  In  all  elections  by  the  General 
Court,  or  either  branch  thereof,  a  majority  of 
votes  shall  be  required,  and  the  members  shall 
vote  viva  vocc.] 

ART.  14.  The  enacting  style,  in  making  and 
passing  all  acts,  statutes  and  laws,  shall  be  :  BB 

IT  ENACTED  BY  THE  GENERAL  COURT  OF  MASSA 
CHUSETTS. 


CHAPTER  II. 

Senate. 

[ARTICLE  1.  There  shall  be  annually  elected 
by  the  inhabitants  of  this  Commonwealth,  quali 
fied  as  in  this  Constitution  is  provided,  forty  per 
sons  to  be  senators,  for  the  year  ensuing  their 
election ;  and  the  Senate  shall  be  the  first  branch 
of  the  General  Court.  For  this  purpose,  the 
General  Court,  holden  next  after  the  adoption  of 
this  Constitution,  and  next  after  each  decennial 
census  thereafter,  shall  divide  the  Commonwealth 
into  forty  districts,  composed  of  contiguous  terri 
tory,  and  as  nearly  equal  in  population  as  may  be : 
provided,  that  no  town  or  ward  of  a  city  be  di 
vided  therefor.  Each  district  shall  be  entitled  to 
elect  one  serator,  who  shall  have  been  an  inhabi 
tant  of  this  Commonwealth  for  five  years  immedi 
ately  preceding  his  election,  and  at  the  time  of  his 
election  shall  be  an  inhabitant  of  the  district  for 
which  he  is  chosen.] 

ART.  2.  There  shall  be  a  meeting  on  the  Tues 
day  next  after  the  first  Monday  in  November,  an 
nually,  forever,  of  the  inhabitants  of  each  town 
and  city  in  this  Commonwealth,  to  be  called  and 
warned  in  due  course  of  law,  at  least  seven  days 
before  the  day  of  such  meeting,  for  the  purpose  of 
electing  senators  ;  and  at  such  meetings  every 
qualified  voter  shall  have  a  right  to  give  in  his 
vote  for  a  senator  for  the  district  of  which  he  is  an 
inhabitant. 

The  selectmen  of  the  several  towns  shall  pre 
side  at  the  town  meetings  impartially  ;  and  shall 


1853.] 


APPENDIX. 


743 


CONSTITUTIONAL  PROPOSITIONS. 


receive  the  votes  of  all  the  inhabitants  of  such 
towns  present  and  qualitied  to  vote  for  a  senator, 
and  shall  sort  and  count  them  in  open  town  meet 
ing,  and  in  presence  of  the  town  clerk,  who  shall 
make  a  fair  record,  in  presence  of  the  select 
men,  and,  in  open  town  meeting,  of  the  name  of 
every  person  voted  for,  and  of  the  number  of 
votes  against  his  name ;  and  a  fair  copy  of  this 
record  shall  be  attested  by  the  selectmen  and  the 
town  clerk,  and  shall  be  sealed  up,  directed  to  the 
Secretary  of  the  Commonwealth  for  the  time 
being,  with  a  superscription  expressing  the  pur 
port  of  the  contents  thereof,  and  delivered  by  the 
town  clerk  of  said  towns  to  the  sheriff  of  the 
county  in  which  such  town  lies,  thirty  days  at 
least  before  the  first  Wednesday  in  January  an 
nually  ;  or  it  shall  be  delivered  into  the  Secretary's 
office  seventeen  days  at  least  before  the  said  first 
Wednesday  in  January ;  and  the  sheriff  of  each 
county  shall  deliver  all  such  certificates,  by  him 
received,  into  the  Secretary's  office,  seventeen  days 
before  the  said  first  Wednesday  in  January. 

And  the  inhabitants  of  plantations  unincor 
porated,  qualified  as  this  Constitution  provides, 
shall  have  the  same  privilege  of  voting  for  a  sena 
tor,  in  the  plantations  where  they  reside,  as  town 
inhabitants  have  in  their  respective  towns  ;  and 
the  plantation  meetings  for  that  purpose  shall  be 
held  annually  on  the  same  Tuesday  next  after  the 
first  Monday  in  November,  at  such  place  in  the 
plantations  respectively  as  the  assessors  thereof 
shall  direct;  which  assessors  shall  have  like 
authority  for  notifying  the  voters,  collecting  and 
returning  the  votes,  as  the  selectmen  and  town 
clerks  have  in  their  several  towns,  by  this  Consti 
tution.  And  all  other  persons  living  in  places 
unincorporated,  (qualified  as  aforesaid,)  shall  have 
the  privilege  of  giving  in  their  votes  for  a  senator, 
in  the  town  where  the  inhabitants  of  such  unin 
corporated  places  shall  be  assessed,  and  be  no 
tified  of  the  place  of  meeting  by  the  selectmen 
of  the  said  town  for  that  purpose,  accordingly. 

[ART.  3.  The  Governor  and  Council  shall,  as 
soon  as  may  be,  examine  the  returned  copies  of 
the  record  provided  for  in  article  second  of  this 
chapter,  and  ascertain  who  shall  have  received  the 
largest  number  of  votes  in  each  of  the  several  sena 
torial  districts,  and  the  person  who  has  so  received 
the  largest  number  of  votes  in  each  of  said  districts 
shall  be  a  senator  for  the  following  political  year  ; 
and  the  governor  shall  cause  each  of  said  persons, 
so  appearing  to  be  elected,  to  be  notified  at  least 
fourteen  days  before  the  first  Wednesday  in  Jan 
uary  of  each  year,  to  attend  on  that  day,  and  take 
his  seat  accordingly. 

ART.  4r.  Not  less  than  twenty- one  members 
shall  constitute  a  quorum  for  doin.g  business ;  but 
a  less  number  may  organize,  adjourn  from  day  to 
day,  and  compel  the  attendance  of  absent  mem 
bers.] 

ARTT  5.  The  Senate  shall  be  a  court  with  full 
authority  to  hear  and  determine  all  impeachments 
made  by  the  House  of  Representatives  against 
any  officer  or  officers  of  the  Commonwealth,  for 
misconduct  and  maladministration  in  their  offices  ; 
but,  previous  to  the  trial  of  every  impeachment, 
the  members  of  the  Senate  shall  respectively  be 
sworn,  truly  and  impartially  to  try  and  determine 


the  charge  in  question,  according  to  eviderce 
Their  judgment,  however,  shall  not  extend  far 
ther  than  to  removal  from  office  and  disqualifica 
tion  to  hold  or  enjoy  any  place  of  honor,  trust,  or 
profit,  under  this  Commonwealth  :  but  the  party 
so  convicted,  shall  be,  nevertheless,  liable  to  in 
dictment,  trial,  judgment  and  punishment,  ac 
cording  to  the  laws  of  the  land. 


CHAPTER  III. 
House  of  Representatives. 

ARTICLE  1.  There  shall  be,  in  the  legislature 
of  this  Commonwealth,  a  representation  of  the 
people,  annually  elected,  and  founded  upon  the 
principle  of  equality. 

ART.  2.  And  in  order  to  provide  for  a  repre 
sentation  of  the  citizens  of  this  Commonwealth, 
founded  upon  the  principle  of  equality,  every 
corporate  town  containing  [less  than  one  thou 
sand  inhabitants,  may  elect  one  representative  in 
the  year  when  the  valuation  of  estates  shall  be 
settled,  and,  in  addition  thereto,  one  representa 
tive  five  years  in  every  ten  years.  Every  town 
containing*  one  thousand  inhabitants  and  less  than 
four  thousand,  may  elect  one  representative. 
Every  town  containing  four  thousand  inhabitants 
and  less  than  eight  thousand,  may  elect  two  rep 
resentatives.  Every  town  containing  eight  thou 
sand  inhabitants  and  less  than  twelve  thousand, 
may  elect  three  representatives.  Every  city  or 
town  containing  twelve  thousand  inhabitants, 
may  elect  four  representatives.  Every  city  or 
town  containing  over  twelve  thousand  inhabi 
tants,  may  elect  one  additional  representative 
for  every  four  thousand  inhabitants  it  shall 
contain  over  twelve  thousand.  Any  two  towns, 
each  containing  less  than  one  thousand  inhabi 
tants,  may,  by  consent  of  a  majority  of  the 
legal  voters  present  at  a  legal  meeting,  in  each 
of  said  towns  respectively,  called  for  that  pur 
pose,  form  themselves  into  a  representative  dis 
trict,  to  continue  for  the  term  of  not  less  than 
two  years ;  and  such  district  shall  have  all  the 
rights,  in  regard  to  representation,  which  be 
long  to  a  town  having  one  thousand  inhabitants. 
And  this  apportionment  shall  be  based  upon  the 
census  of  the  year  one  thousand  eight  hundred 
and  fifty,  until  a  new  census  shall  be  taken. 

ART.  3.  The  Senate  at  its  first  session  after 
this  Constitution  shall  have  been  adopted,  and 
at  its  first  session  after  the  next  State  census  shall 
have  been  taken,  and  at  its  first  session  next  after 
each  decennial  State  census  thereafterwards,  shall 
apportion  the  number  of  representatives  to  which 
each  town  and  city  shall  be  entitled,  and  shall 
cause  the  same  to  be  seasonably  published  ;  and 
in  all  apportionments  after  the  first,  the  numbers 
which  shall  entitle  any  town  or  city,  to  two,  three, 
four,  or  more  representatives,  shall  be  increased 
or  diminished  in  the  same  proportion  as  the 
population  of  the  whole  Commonwealth  shall 
have  increased  or  decreased  since  the  last  preced 
ing  apportionment. 

ART.  4.    No  town  hereafter  incorporated,  con- 


744 


APPENDIX. 


[1853. 


CONSTITUTIONAL  PROPOSITIONS. 


taining  less  than  fifteen  hundred  inhabitants,  shall 
be  entitled  to  choose  a  representative. 

ART.  5.  Each  city  in  this  Commonwealth, 
shall  be  divided,  by  such  means  as  the  Legislature 
may  provide,  into  districts  of  contiguous  territory, 
as  nearly  equal  in  population  as  may  be,  for  the 
election  of  representatives,  which  districts  shall 
not  be  changed  oftener  than  once  in  five  years  : 
provided,  however,  that  no  one  district  shall  be  en 
titled  to  elect  more  than  three  representatives.] 

AKT.  6.  The  members  of  the  House  of  Rep 
resentatives  shall  be  chosen  on  the  Tuesday  next 
after  the  first  Monday  in  November,  annually  ;  but 
meetings  may  be  adjourned,  if  necessary,  for  the 
choice  of  representatives,  to  the  next  day,  and 
again  to  the  next  succeeding  day,  but  no  farther : 
but  in  case  a  second  meeting  shall  be  necessary 
for  the  choice  of  representatives,  such  meetings 
shall  be  held  on  the  fourth  Monday  of  the  same 
month  of  November. 

ART.  7.  The  House  of  Representatives  shall 
have  power,  from  time  to  time,  to  impose  fines 
upon  such  towns  as  shall  neglect  to  choose  and 
return  members  to  the  same,  agreeably  to  this 
Constitution. 

ART.  8.  Every  member  of  the  House  of  Rep 
resentatives  shall  have  been  for  one  year,  at  least, 
next  preceding  his  election,  an  inhabitant  of  the 
town  he  shall  be  chosen  to  represent. 

ART.  9.  The  House  of  Representatives  shall 
be  the  grand  inquest  of  this  Commonwealth ;  and 
all  impeachments  made  by  them  shall  be  heard 
and  tried  by  the  Senate. 

ART.  10.  All  money  bills  shall  originate  in 
the  Hoiise  of  Representatives  ;  but  the  Senate 
may  propose  or  concur  with  amendments,  as  on 
other  bills. 

ART.  11.  Not  less  than  one  hundred  members 
of  the  House  of  Representatives  shall  constitute  a 
quorum  for  doing  business. 


CHAPTER  IV. 
Governor. 

ARTICLE  1.  There  shall  be  a  supreme  execu 
tive  magistrate,  who  shall  be  styled,  THE  GOVER 
NOR  OF  THE  COMMONWEALTH  OF  MASSACHUSETTS. 

ART.  2.  The  governor  shall  be  a  citizen  of 
Massachusetts,  and  shall  be  chosen  annually,  by 
the  inhabitants  of  the  toicns  and  cities  of  this  Com- 
momoealth,  on  the  Tuesday  next  after  the  first  Mon 
day  in  November.  He  shall  hold  his  office  for 
one  year  next  following  the  first  Wednesday  of 
January,  and  until  another  is  chosen  and  qualified 
in  his  stead.  And  no  person  shall  be  eligible  to 
this  office,  unless,  at  the  time  of  his  election,  he 
shall  have  been  an  inhabitant  of  this  Common 
wealth  for  seven  years  next  preceding. 

ART.  3.  Those  persons  who  shall  be  qualified 
to  vote  for  senators  and  representatives,  within 
the  several  towns  of  this  Commonwealth,  shall, 
at  a  meeting  to  be  called  for  that  purpose,  on  the 
Tuesday  next  after  the  first  Monday  in  November, 
annually,  give  in  their  votes  for  a  governor,  to 
the  selectmen,  who  shall  preside  at  such  meeting, 
and  the  town  clerk,  in  the  presence  and  with  the 
assistance  of  the  selectmen,  shall,  in  open  town 


meeting,  sort  and  count  the  votes,  and  form  a  list 
of  the  persons  voted  for,  with  the  number  of  votes 
for  each  person  against  his  name  ;  and  shall  make 
a  fair  record  of  the  same  in  the  town  books,  and 
a  public  declaration  thereof  in  the  said  meeting  ; 
and  shall,  in  the  presence  of  the  inhabitants,  seal 
up  copies  of  the  said  list,  attested  by  him  and  the 
selectmen,  and  transmit  the  same  to"  the  sheriff  of 
the  county,  thirty  days  at  least  before  the  first 
Wednesday  in  January;  and  the  sheriff  shall 
transmit  the  same  to  the  secretary's  office  seven 
teen  days  at  least  before  the  said  first  Wednesday 
in  January  ;  or  the  selectmen  may  cause  returns 
of  the  same  to  be  made  to  the  office  of  the  secre 
tary  of  the  Commonwealth  seventeen  days  at 
least  before  the  said  day  ;  and  the  secretary  shall 
lay  the  same  before  the  Senate  and  the  House  of 
Representatives,  on  the  first  Wednesday  in  Jan 
uary,  to  be  by  them  examined  ;  and  in  case  of  an 
election,  the  choice  shall  be  by  them  declared  and 
published. 

ART.  4.  The  governor  shall  have  authority, 
from  lime  to  time,  at  his  discretion,  to  assemble 
and  call  together  the  councillors  of  this  Common 
wealth  for  the  time  being ;  and  the  governor, 
with  the  said  councillors,  or  five  of  them  at  least, 
shall,  and  may,  from  time  to  time,  hold  and  keep 
a  Council,  for  the  ordering  and  directing  the 
affairs  of  the  Commonwealth,  agreeably  to  the 
Constitution  and  the  laws  of  the  land. 

ART.  5.  The  governor,  with  advice  of  Council, 
shall  have  full  power  and  authority,  during  the 
session  of  the  General  Court,  to  adjourn  or  pro 
rogue  the  same  to  any  time  the  two  Houses  shall 
desire ;  and  in  the  recess  of  the  said  Court,  to 
prorogue  the  same  from  time  to  time,  not  exceed 
ing  ninety  days  in  any  one  recess  ;  and  to  call  it 
together  sooner  than  the  time  to  which  it  may  be 
adjourned  or  prorogued,  if  the  welfare  of  the 
Commonwealth  shall  require  the  same;  and  in 
case  of  any  infectious  distemper  prevailing  in  the 
place  where  the  said  Court  is  next,  at  any  time 
to  convene,  or  any  other  cause  happening,  where 
by  danger  may  arise  to  the  health  or  lives  of  the 
members  from  their  attendance,  he  may  direct  the 
session  to  be  held  at  some  other,  the  most  conve 
nient  place  within  the  State. 

ART.  6.  In  cases  of  disagreement  between  the 
two  Houses,  with  regard  to  the  necessity,  expe 
diency  or  time  of  adjournment,  or  prorogation, 
the  governor,  with  advice  of  the  Council,  shall 
have  a  right  to  adjourn  or  prorogue  the  General 
Court,  not  exceeding  ninety  days,  as  he  shall  de 
termine  the  public  good  shall  require. 

ART.  7.  The  power  of  pardoning  offences,  ex 
cept  such  as  persons  may  be  convicted  of  before 
the  Senate,  by  an  impeachment  of  the  House, 
shall  be  in  the  governor,  by  and  with  the  advice 
of  Council ;  but  no  charter  of  pardon,  granted  by 
the  governor,  with  advice  of  the  Council,  before 
conviction,  shall  avail  the  party  pleading  the  same, 
notwithstanding  any  general  or  particular  ex 
pressions  contained  therein,  descriptive  of  the 
offence  or  offences  intended  to  be  pardoned. 

ART.  8.  Notaries  public  shall  be  appointed  by 
the  governor,  in  the  same  manner  as  judicial  offi 
cers  are  appointed,  and  shall  hold  their  offices 
during  seven  years,  unless  sooner  removed  by  the 


1853.] 


APPENDIX. 


745 


CONSTITUTIONAL  PROPOSITIONS. 


governor,  with  the  consent  of  the  Council,  upon 
the  address  of  both  Houses  of  the  General  Court. 

ART.  9.  Coroners  shall  be  nominated  and  ap 
pointed  by  the  governor,  by  and  with  the  advice 
and  consent  of  the  Council ;  and  every  such  nom 
ination  shall  be  made  by  the  governor,  and  made 
at  least  seven  clays  prior  to  such  appointment. 

ART.  10.  No  moneys  shall  be  issued  out  of 
the  treasury  of  this  Commonwealth  and  disposed 
of,  (except  such  sums  as  may  be  appropriated  for 
the  redemption  of  bills  of  credit  or  treasurer's 
notes,  or  for  the  payment  of  interest  arising  there 
on,)  but  by  warrant  under  the  hand  of  the  gov 
ernor  for  the  time  being,  with  the  advice  and  con 
sent  of  the  Council,  for  the  necessary  defence  and 
support  of  the  Commonwealth  ;  and  for  the  pro 
tection  and  preservation  of  the  inhabitants  thereof, 
agreeably  to  the  acts  and  resolves  of  the  General 
Court. 

ART.  11.  All  public  boards,  the  commissary- 
general,  all  superintending  officers  of  public  mag 
azines  and  stores,  belonging  to  this  Common 
wealth,  and  all  commanding  officers  of  forts  and 
garrisons  within  the  same,  shall,  once  in  every 
three  months,  officially  and  without  requisition, 
and  at  other  times,  when  required  by  the  gover 
nor,  deliver  to  him  an  account  of  all  goods, 
stores,  provisions,  ammunition,  cannon  with  their 
appendages,  and  small  arms  with  their  accoutre 
ments,  and  of  all  other  public  property  whatever 
under  their  care,  respectively  ;  distinguishing  the 
quantity,  number,  quality  and  kind  of  each,  as 
particularly  as  may  be  ;  together  with  the  condi 
tion  of  such  forts  and  garrisons  ;  and  the  said 
commanding  officer  shall  exhibit  to  the  governor, 
when  required  by  him,  true  and  exact  plans  of 
such  forts,  and  of  the  land  and  sea,  or  harbor  or 
harbors,  adjacent. 

And  the  said  boards,  and  all  public  officers, 
shall  communicate  to  the  governor,  as  soon  as 
may  be  after  receiving  the  same,  all  letters,  des 
patches,  and  intelligences  of  a  public  nature, 
which  shall  be  directed  to  them  respectively. 

ART.  12  As  the  public  good  requires  that  the 
governor  should  not  be  under  the  undue  influence 
of  any  of  the  members  of  the  General  Court,  by 
a  dependence  on  them  for  his  support — that  he 
should,  in  all  cases,  act  with  freedom  for  the  ben 
efit  of  the  public — that  he  should  not  have  his 
attention  necessarily  diverted  from  that  object  to 
his  private  concerns — and  that  he  should  main 
tain  the  dignity  of  the  Commonwealth  in  the 
character  of  its  chief  magistrate — it  is  necessary 
that  he  should  have  a:\  honorable  stated  salary, 
of  a  fixed  and  permanent  value,  amply  sufficient 
for  those  purposes,  and  established  by  standing 
laws  :  and  it  shall  be  among  the  first  acts  of  the 
General  Court,  after  the  commencement  of  this 
Constitution,  to  establish  such  salary  by  law  ac 
cordingly. 


CHAPTER  V. 
Lieutenant-  Governor. 

ARTICLE  1.     There  shall  be  annually  elected  a 
Lieutenant- Governor  of  the   Commonwealth  of 

503 


Massachusetts,  who  shall  be  qualified  in  the  same 
manner  with  the  governor ;  and  the  day  and 
manner  of  his  election,  the  qualifications  of  the 
voters,  the  return  of  the  votes,  and  the  declaration 
of  the  election,  shall  be  the  same  as  in  the  election 
of  a  governor. 

[And  the  lieutenant-governor  shall  hold  his 
office  for  one  year  next  following  the  first 
Wednesday  of  January,  and  until  another  is 
chosen  and  qualified  in  his  stead.] 

ART.  2.  The  governor,  and  in  his  absence, 
the  lieutenant-governor,  shall  be  president  of  the 
Council,  but  shall  have  no  vote  in  Council ;  and 
the  lieutenant-governor  shall  always  be  a  member 
of  the  Council,  except  when  the  chair  of  the  gov 
ernor  shall  be  vacant. 

ART.  3.  Whenever,  by  reason  of  sickness  or 
absence  from  the  Commonwealth,  or  otherwise, 
the  governor  shall  be  unable  to  perform  his  offi 
cial  duties,  the  lieutenant-governor,  for  the  time 
being,  shall  have  and  exercise  all  the  powers  and 
authorities,  and  perform  all  the  duties  of  governor; 
and  whenever  the  chair  of  the  governor  shall  be 
vacant,  by  reason  of  his  resignation,  death,  or 
removal  from  office,  the  lieutenant-governor  shall 
bs  governor  of  the  Commonwealth. 


CHAPTER  VI. 
Council. 

ARTICLE  1.  There  shall  be  a  Council  for  ad 
vising  the  governor  in  the  executive  part  of  the 
government,  to  consist  of  eight  persons  besides 
the  lieutenant-governor,  whom  the  governor  for 
the  time  being,  shall  have  full  power  and  author- 
it)',  from  time  to  time,  at  his  discretion,  to  assem 
ble  and  call  together  ;  and  the  governor,  with  the 
said  councillors,  or  five  of  them  at  least,  shall 
and  may,  from  time  to  time,  hold  and  keep  a 
Council,  for  the  ordering  and  directing  the  affairs 
of  the  Commonwealth,  according  to  the  laws  of 
the  land. 

[ART.  2.  Eight  councillors  shall  be  annually 
chosen  by  the  people ;  and  for  that  purpose  the 
State  shall  be  divided  by  the  General  Court  into 
eight  districts,  each  district  to  consist  of  five  con 
tiguous  senatorial  districts,  and  entitled  to  elect 
one  councillor,  who  shall  hold  his  office  for  one 
year  next  following  the  first  Wednesday  in  Jan 
uary,  and  until  a  successor  is  chosen  and  quali 
fied  in  his  stead.] 

ART.  3.  No  person  shall  be  elected  a  council 
lor  who  has  not  been  an  inhabitant  of  this  Com 
monwealth  for  the  term  of  five  years  immediately 
preceding  his  election. 

[ART.  4.  The  day  and  manner  of  the  election 
of  councillors,  the  qualifications  of  the  voters,  the 
return  of  the  votes,  and  the  declaration  of  the 
elections,  shall  be  the  same  as  are  required  in  the 
election  of  senators ;  and  the  person  having  the 
highest  number  of  votes  shall  be  declared  to  be 
elected. 

ART.  5.  No  councillor,  during  the  time  for 
which  he  is  elected,  shall  be  appointed  on  any 
commission  or  to  any  place  and  receive  compen 
sation  therefor.] 


746 


APPENDIX. 


[1853. 


CONSTITUTIONAL  PROPOSITIONS. 


ART.  6.  The  councillors,  in  the  civil  arrange 
ments  of  the  Commonwealth,  shall  have  rank 
next  after  the  lieutenant-governor. 

ART.  7.  The  resolutions  and  advice  of  the 
Council  shall  be  recorded  in  a  register,  and  signed 
by  the  members  present ;  and  any  member  of  the 
Council  may  insert  his  opinion  contrary  to  the 
resolution  of  the  majority.  This  record  shall 
always  be  subject  to  public  examination,  and  may 
be  called  for  by  either  House  of  the  Legisla 
ture. 

AKT.  8.  Whenever  the  office  of  the  governor 
and  lieutenant-governor  shall  be  vacant,  by  rea 
son  of  death,  absence,  or  otherwise,  then  the 
Council,  or  the  major  part  of  them,  shall,  during 
such  vacancy,  have  full  power  and  authority,  to 
do,  and  execute  all  and  every  such  acts,  matters 
and  tilings,  as  the  governor  or  the  lieutenant-gov 
ernor  might  or  could,  by  virtue  of  this  Constitu 
tion,  do  or  execute,  if  they,  or  either  of  them, 
were  personally  present. 


CHAPTER  VII. 

Secretary,    Treasurer,   Attorney- General,   Auditor, 
District- Attorney,  and  County  Officers. 

[ARTICLE  1.  The  secretary,  treasurer,  auditor 
and  attorney- general,  shall  be  chosen  by  the  peo 
ple,  annually  on  the  Tuesday  next  after  the  first 
Monday  in  November ;  and  they  shall  hold  their 
offices,  respectively,  for  one  year  next  following 
the  first  Wednesday  in  the  succeeding  January, 
and  until  their  successors  are  chosen  and  qualified 
in  their  stead. 

The  day  and  manner  of  their  election,  the 
qualifications  of  the  voters,  the  return  of  the  votes, 
and  the  declaration  of  the  elections,  shall  be  the 
same  as  are  required  in  the  election  of  governor.] 

ART.  2.  No  man  shall  be  eligible  as  treasurer, 
more  than  five  years  successively. 

ART.  3.  The  records  of  the  Commonwealth 
shall  be  kept  in  the  office  of  the  secretary,  who 
may  appoint  his  deputies,  for  whose  conduct  he 
shall  be  accountable;  and  he  shall  attend  the 
governor  and  Council,  the  Senate  and  House  of 
Itepresentatives,  in  person,  or  by  his  deputies,  as 
they  shall  respectively  require. 

[ART.  4.  Judges  of  probate,  registers  of  pro 
bate,  sheriffs,  clerks  of  the  courts,  commissioners 
of  insolvency,  district-attorneys,  registers  of  deeds, 
county  treasurers,  and  county  commissioners, 
shall  be  elected  triennially  by  the  people  of  their 
respective  counties  and  districts,  on  the  Tuesday 
next  after  the  first  Monday  in  November,  and 
shall  hold  their  offices,  respectively,  for  three  years 
next  following  the  first  Wednesday  in,  the 
succeeding  January,  and  until  their  respective 
successors  are  chosen  end  qualified  in  their 
stead. 

The  manner  of  their  election,  the  qualifications 
of  the  voters,  the  return  of  the  votes,  and  the 
declaration  of  the  elections,  shall  be  the  same  as 
are  required  in  the  election  of  senators  ;  and  the 
person  having  the  highest  number  of  votes  shall 
be  elected.] 


CHAPTER  VIII. 
Judiciary    Power. 

[ARTICLE  1.  The  judicial  power  of  the  Com 
monwealth  shall  be  vested  in  a  Supreme  Judicial 
Court,  and  such  other  courts  as  the  legislature 
may  from  time  to  time  establish.] 

ART.  2.  The  tenure  that  all  commission  officers 
shall  by  law  have  in  their  offices,  shall  be  ex 
pressed  in  their  respective  commissions. 

All  judicial  officers,  duly  appointed,  commis 
sioned  and  sworn,  shall  hold  their  offices  for  the 
term  of  ten  years,  excepting  such  concerning 
whom  there  is  different  provision  made  in  this 
Constitution.  And  upon  the  expiration  of  siich 
term  they  may  be  reappointed  ;  and  all  judicial 
officers  for  whose  appointment  a  different  provision 
is  not  made  in  this  Constitution,  shall  be  nominated 
and  appointed  by  the  governor,  by  and  with  the 
advice  and  consent  of  the  Council,  and  they  may  be 
removed  by  the  governor,  with  consent  of  the 
Council,  upon  the  address  of  both  Houses  of  the 
Legislature. 

[ART.  3.  The  present  justices  of  the  Supreme 
Judicial  Court  shall  hold  their  offices  according  to 
their  respective  commissions ;  and  the  present 
justices  of  the  Court  of  Common  Pleas  shall  hold 
their  offices  by  the  same  tenure,  while  the  law 
establishing  the  said  Court  of  Common  Pleas 
shall  continue.  All  nominations  of  judicial  offi 
cers,  whose  term  of  office  is  by  this  Constitution 
limited  to  ten  years,  shall  be  publicly  announced 
at  least  seven  days  before  their  appointment ;  and 
no  person  who  shall  have  been  commissioned  after 
the  tenth  day  of  August,  in  the  year  one  thousand 
eight  hundred  and  fifty- three,  shall  hold  by  any 
longer  tenure  of  office  than  the  term  of  ten  years. 

ART.  4.  Neither  the  governor  and  Council, 
nor  the  two  branches  of  the  Legislature,  or  either 
of  them,  shall  hereafter  propose  questions  to 
justices  of  the  Supreme  Judicial  Court,  and  re 
quire  their  opinions  thereon.] 

ART.  o.  The  judges  of  probate  of  wills,  and 
for  granting  letters  of  administration,  shall  hold 
their  courts  at  such  place  or  places,  on  fixed  days, 
as  the  convenience  of  the  people  shall  require ; 
and  the  Legislature  shall  from  time  to  time,  here 
after,  appoint  such  times  and  places  ;  until  which 
appointments,  the  said  courts  shall  be  holden  at 
the  times  and  places  which  the  respective  judges 
shall  direct. 

[ART.  6.  Justices  of  the  peace,  justices  of  the 
peace  and  quorum,  justices  of  the  peace  through 
out  the  Commonwealth,  and  commissioners  to 
qualify  civil  officers,  may  be  appointed  by  the 
governor  and  Council  for  a  term  of  seven  years  ; 
and  upon  the  expiration  of  any  commission,  the 
same  may  be  renewed ;  and  those  now  in  office 
shall  continue  therein  according  to  the  tenure  of 
their  respective  commissions  :  provided,  that  the 
jurisdiction  of  the  justices  named  in  this  article, 
shall  not  extend  to  the  hearing  or  trial  of  any 
causes,  or  the  issuing  of  warrants  in  criminal 
cases. 

ART.  7.  Trial  justices  shall  be  elected  by  the 
legal  voters  of  the  several  towns  and  cities,  where, 
at  the  time  of  such  election  there  is  no  Police 
Court  established  by  law,  who  shall  hold  their 


1853.] 


APPENDIX. 


747 


CONSTITUTIONAL  PROPOSITIONS. 


offices  for  a  term  of  three  years,  and  have  the 
same  jurisdiction,  powers,  and  duties,  as  are  now 
exercised  by  justices  of  the  peace,  or  such  as  may 
hereafter  be  established  by  law.  Every  city  or 
town,  authorized  as  herein  provided,  shall  e^ct  a 
trial  justice,  and  may  elect  one  additional  for  each 
two  thousand  inhabitants  therein,  according  to 
the  next  preceding  decennial  census  :  provided, 
however,  that  any  trial  justice  who  shall  remove 
from  the  city  or  town  in  which  he  was  elected 
shall  thereby  vacate  his  office. 

ART.  8.  Justices  and  clerks  of  the  Police 
Courts  of  the  several  cides  and  towns  of  the 
Commonwealth  shall  be  elected  by  the  legal 
voters  thereof,  respectively,  for  a  term  of  three 
years.] 


CHAPTER  IX. 

Qualifications  of  Voters,  and  Elections. 

ARTICLE  1.  Every  male  citizen,  of  twenty- one 
years  of  age  and  upwards,  (excepting  paupers  and 
persons  under  guardianship,)  who  shall  have  re 
sided  within  the  Commonwealth  one  year,  and 
within  the  town  or  district,  in  which  he  may  claim 
a  right  to  vote,  six  calendar  months  next  pre 
ceding  any  election  of  any  national  officer,  or  any 
Slate  officer  required  by  this  Constitution  to  be  elect 
ed  by  the  people,  shall  have  a  right  to  vote  in  such 
election  ;  and  no  other  person  shall  have  such  right. 

[ART.  2.  All  ballots  required  by  law  to  be 
given  at  any  national,  state,  county,  district,  or 
city  election,  including  elections  for  representa 
tives  and  trial  justices,  justices  and  clerks  of  Police 
Courts,  shall  be  deposited  in  sealed  envelopes  of 
uniform  size  and  appearance,  to  be  furnished  by 
the  Commonwealth. 

ART.  3.  Lists  of  the  names  of  qualified  voters 
shall  be  used  at  all  elections  required  by  this 
Constitution.  They  shall  be  made  out  and  used 
in  such  manner  as  shall  be  by  law  provided. 
The  presiding  officers  at  such  elections  shall  re 
ceive  the  votes  of  all  persons  whose  names  are 
borne  on  such  lists,  and  shall  not  be  held  answer 
able  for  refusing  the  votes  of  any  persons  whose 
names  are  not  borne  thereon. 

ART.  4.  All  meetings  for  the  choice  of  national, 
state,  county,  or  district  officers,  including  rep 
resentatives,  trial  justices,  clerks  and  justices  of 
Police  Courts,  by  the  people,  shall  be  held  on  the 
Tuesday  next  after  the  first  Monday  in  Novem 
ber,  annually ;  and  they  shall  be  called  by  the 
mayor  and  aldermen  of  the  cities,  and  the  select 
men  of  the  towns,  and  warned  in  due  course  of 
law.  The  manner  of  calling  and  holding  public 
meetings  in  cities,  for  the  election  of  officers  under 
this  Constitution,  and  the  manner  of  returning 
the  votes  given  at  such  meetings,  shall  be  as  now 
prescribed,  or  as  shall  hereafter  be  prescribed  by 
the  Legislature. 

ART.  5.  A  majority  of  all  the  votes  given 
shall  be  necessary  to  the  election  of  governor, 
lieutenant-governor,  secretary,  treasurer,  auditor, 
and  attorney- general,  of  the  Commonwealth, 
until  otherwise  provided  by  law,  but  no  such 
law  providing  that  such  officers,  or  either  of 


them,  or  representatives  to  the  General  Court, 
shall  be  elected  by  plurality,  instead  of  a  majority 
of  votes  given,  shall  take  effect  until  one  year 
after  its  passage ;  and  if  at  any  time  after  any 
such  law  shall  have  taken  effect,  it  shall  be  re 
pealed,  such  repeal  shall  not  become  a  law  until 
one  year  after  the  passage  of  the  repealing  act ;  and 
in  the  absence  of  any  such  law,  if  at  any  election 
of  either  of  the  above-named  officers,  except  the 
representatives  to  the  General  Court,  no  person 
shall  have  a  majority  of  the  votes  given,  the 
House  of  Representatives  shall  elect  two  out  of 
three  persons  then  eligible,  who  had  the  highest 
number  of  votes,  if  so  many  shall  have  been  voted 
for,  and  return  the  persons  so  elected  to  the  Sen 
ate,  from  whom  the  Senate  shall  choose  one  who 
shall  be  the  officer  thus  to  be  elected. 

ART.  6.  A  majority  of  votes  shall  be  required 
in  all  elections  of  representatives  to  the  General 
Court,  until  otherwise  provided  by  law. 

ART.  7.  In  the  election  of  all  city  or  town 
officers,  such  rule  of  election  shall  govern  as  the 
Legislature  may  by  law  prescribe. 

ART.  8.  In  all  elections  of  councillors  and 
senators,  and  in  all  elections  of  county  or  district 
officers,  the  person  having  the  highest  number  of 
votes  shall  be  elected. 

ART.  9.  Whenever,  in  any  election  where 
the  person  having  the  highest  number  of  votes 
may  be  elected,  there  is  a  failure  of  election  be 
cause  two  persons  have  an  equal  number  of  votes, 
subsequent  trials  may  be  had  at  such  times  as 
may  be  prescribed  by  the  Legislature.] 


CHAPTER  X. 

OatJis  and  Subscriptions  ;  Incompatibility  of  and 
Exclusion  from  Offices ;  Continuation  of  Offi 
cers  ;  Commissions ;  Writs ;  Confirmation  of 
Laivs. 

ARTICLE  1.  The  following  oath  shall  be  taken 
and  subscribed  by  every  person  chosen  or  ap 
pointed  to  any  office,  civil  or  military,  under  the 
government  of  the  Commonwealth,  before  he 
shall  enter  upon  the  duties  of  Ms  office,  to 
wit  :— 

"  I,  A.  B.,  do  solemnly  swear  that  I  will  bear 
true  faith  and  allegiance  to  the  Commonwealth  of 
Massachusetts,  and  will  support  the  Constitution 
thereof;  and  that  I  will  faithfully  and  impartially 
discharge  and  perform  all  the  duties  incumbent 
on  me  as  [here  insert  the  office],  according  to  the 
best  of  my  abilities  and  understanding,  agreeably 
to  the  Constitution  and  laws  of  the  Common 
wealth.  So  help  me  God." 

[Provided,  that  when  any  person,  chosen  or 
appointed  as  aforesaid,  shall  be  conscientiously 
scrupulous  of  taking  and  subscribing  an  oath, 
and  shall  for  that  reason  decline  taking  the  above 
oath,  he  shall  make  and  subscribe  his  affirmation 
in  the  foregoing  form,  omitting  the  word  "  swear," 
and  substituting  the  word  "  affirm  ;"  and  omit 
ting  the  words  "  So  help  me  God,"  and  subjoin 
ing  instead  thereof  the  words  "  And  this  I  do 
under  the  pains  and  penalties  of  perjury."] 


748 


APPENDIX. 


[1853. 


CONSTITUTIONAL  PROPOSITIONS. 


And  the  said  oaths  or  affirmations  shall  be  taken 
and  subscribed,  by  the  governor  and  liexitenant- 
governor  before  the  president  of  the  Senate,  in 
presence  of  the  two  Houses  in  convention ;  and 
by  councillors  before  the  president  of  the  Senate 
and  in  presence  of  the  Senate;  and  by  the  sena 
tors  and  representatives  before  the  governor  and 
Council  for  the  time  being ;  and  by  the  residue 
of  the  officers  aforesaid  before  such  persons,  and 
in  such  manner,  as  shall  from  time  to  time  be  pre 
scribed  by  law. 

ART.  2.  No  governor,  lieutenant-governor,  or 
judge  of  the  Supreme  Judicial  Court  or  Court,  of 
Common  Pleas,  shall  hold  any  other  office  under 
the  authority  rf  this  Commonwealth,  except  such 
as  by  this  Constitution  they  are  admitted  to  hold, 
saving  that  the  judges  of  the  said  courts  may 
hold  the  offices  of  justices  of  the  peace  through 
the  State  ;  nor  shall  they  hold  any  other  office,  or 
receive  any  pension  or  salary  from  any  other 
State,  or  government,  or  power  whatever,  except 
that  they  may  be  appointed  to  take  depositions,  or 
acknowledgments  of  deeds,  or  other  legal  instru 
ments,  by  the  authority  of  other  States  or  coun 
tries. 

[No  person  shall  hold  or  exercise  at  the  same 
time  more  than  one  of  the  following  offices,  to 
wit:  the  office  of  governor,  lieutenant-governor, 
senator,  representative,  judge  of  the  Supreme 
Judicial  Court,  or  Court  of  Common  Pleas,  sec 
retary  of  the  Commonwealth,  attorney- general, 
treasurer,  auditor,  councillor,  judge  of  probate, 
register  of  probate,  register  of  deeds,  sheriff  or  his 
deputy,  clerk  of  the  Supreme  Judicial  Court,  or 
Court  of  Common  Pleas,  clerk  of  the  Senate  or 
House  of  Representatives  ;  and  any  person  holding 
either  of  the  above  offices  shall  be  deemed  to  have 
vacated  the  same  by  accepting  a  seat  in  the  con 
gress  of  the  United  States,  or  any  office  under  the 
authority  of  the  United  States,  the  office  of  post 
master  excepted.  And  no  person  shall  be  capable 
of  holding  at  the  same  time  more  than  two  offices, 
•which  are  held  by  appointment  of  the  governor,  or 
governor  and  Council,  or  the  Senate,  or  the  House 
of  Representatives,  military  offices,  and  the  offices 
of  justices  of  the  peace,  justices  of  the  peace  and 
quorum,  notaries  public,  and  commissioners  to 
qualify  civil  officers,  excepted.] 

ART.  3.  And  no  person  shall  ever  be  admitted 
to  hold  a  seat  in  the  legislature,  or  any  office  of 
trust  or  importance  under  the  government  of  this 
Commonwealth,  who  shall,  in  the  due  course  of 
law,  have  been  convicted  of  bribery  or  corruption, 
in  obtaining  an  election  or  appointment. 

ART.  4.  All  commissions  shall  be  in  the  name 
of  the  Commonwealth  of  Massachusetts,  signed 
by  the  governor,  and  attested  by  the  secretary  or 
his  deputy,  and  have  the  great  seal  of  the  Com 
monwealth  affixed  thereto. 

ART.  5.  All  writs,  issuing  out  of  the  clerk's 
office  in  any  of  the  courts  of  law,  shall  be  in  the 
name  of  the  Commonwealth  of  Massachusetts  ; 
they  shall  be  under  the  seal  of  the  court  from 
whence  they  issue,  and  be  signed  by  the  clerk  of 
such  court. 

ART.  6.  All  the  laws,  which  have  heretofore 
been  adopted,  used,  and  approved  in  the  Province, 


Colony,  State  or  Commomoealth  of  Massachusetts, 
and  usually  practised  on  in  the  courts  of  law, 
shall  still  remain  and  be  in  full  force,  until  altered 
or  repealed  by  the  legislature  ;  such  parts  only 
excepted  as  are  repugnant  to  the  rights  and  liber 
ties  contained  in  this  Constitution. 


CHAPTER  XI. 
Militia. 

ARTICLE  1.  The  governor  shall  be  the  com- 
mander-in-chief  of  the  army  and  navy  of  the 
Commonwealth,  and  of  the  Militia  thereof,  except 
ing  when  these  forces  shall  be  actually  in  the  ser 
vice  of  the  United  States  ;  and  shall  have  power  to 
call  out  any  part  of  the  military  force  to  aid  in  the 
execution  of  the  laws,  to  suppress  insurrection,  and 
to  repel  invasion. 

[ART.  2.  All  citizens  of  this  Commonwealth 
liable  to  military  service,  except  such  as  may  by 
law  be  exempted,  shall  be  enrolled  in  the  militia, 
and  held  to  perform  such  military  duty  as  by  law 
may  be  required. 

ART.  3.  The  militia  may  be  divided  into  con 
venient  divisions,  brigades,  regiments,  squadrons, 
battalions,  and  companies ;  and  officers  with  ap 
propriate  rank  and  titles  may  be  elected  to  com 
mand  the  same.  And  the  discipline  of  the 
militia  shall  be  made  to  conform,  as  nearly  as 
practicable,  to  the  discipline  of  the  army  of  the 
United  States. 

ART.  4.  The  governor  shall  appoint  an  adju 
tant-general,  a  quartermaster-general,  and  such 
other  general  staff- officers  as  shall  be  designated 
by  law  ;  who  shall  be  commissioned  by  him  for 
the  term  of  one  year,  and  until  their  successors 
shall  be  commissioned  and  qualified.  And  the 
adjutant- general  and  quartermaster- general  shall 
have  salaries  fixed  by  law,  which  shall  be  in  full 
for  all  services  rendered  by  them  in  their  several 
offices. 

ART.  5.  The  major- generals  shall  be  elected 
by  the  votes  of  the  brigadier-generals  and  field- 
officers  of  the  brigades,  regiments,  squadrons, 
and  battalions  of  the  respective  divisions. 

ART.  6.  The  brigadier-generals  shall  be  elect 
ed  by  the  votes  of  the  field-officers  of  the  regi 
ments,  squadrons,  and  battalions,  and  captains  of 
companies,  of  the  respective  brigades. 

ART.  7.  The  field- officers  of  regiments,  squad 
rons,  and  battalions,  shall  be  elected  by  the  votes 
of  the  captains  and  subalterns  of  companies  of 
the  respective  regiments,  squadrons,  and  bat 
talions. 

ART.  8.  The  captains  and  subalterns  shall  be 
elected  by  the  members  of  the  respective  com 
panies. 

ART.  9.  All  elections  of  military  officers  shall 
be  by  a  majority  of  the  written  votes  of  those 
present  and  voting,  and  no  person,  within  the 
description  of  a  voter  as  hereinbefore  specified, 
shall  be  disqualified  by  reason  of  his  being  a 
minor. 

ART.  10.  The  Legislature  shall  prescribe  the 
time  and  manner  of  convening  the  electors  here- 


1853  ] 


APPENDIX. 


749 


CONSTITUTIONAL  PROPOSITIONS. 


inbefore  named,  of  conducting  the  elections,  and 
of  certifying  to  the  governor  the  names  of  the 
officers  elected. 

ART.  11.  The  several  officers  elected  shall  be 
forthwith  commissioned  by  the  governor  for  the 
term  of  three  years  from  the  dates  of  their  respec 
tive  commissions,  and  until  their  successors  shall 
be  commissioned  and  qualified. 

ART.  12.  If  the  electors  of  the  several  offi 
cers  before  named  shall  refuse  or  neglect  to  make 
an  election,  for  the  space  of  three  months  after 
legal  notice  of  a  meeting  for  that  purpose,  the 
governor  shall  appoint  and  commission  for  three 
years  a  suitable  person  to  fill  the  vacant  office, 
with  the  advice  of  the  Council  if  the  vacancy  be 
that  of  a  major-general,  or  with  the  advice  of  the 
major-general  of  the  division  in  which  the 
appointment  is  to  be  made,  if  the  vacancy  be  of 
an  inferior  grade. 

ART.  13.  Major-generals,  brigadier- generals, 
and  commandants  of  regiments,  squadrons,  and 
battalions,  shall  severally  appoint  such  staff- offi 
cers  as  shall  be  designated  by  law  in  their  respect 
ive  commands. 

ART.  14.  All  non-commissioned  officers, 
whether  of  staff  or  company,  and  all  musicians, 
shall  be  appointed  in  such  manner  as  may  be  pre 
scribed  by  law. 

ART.  15.  All  officers  of  the  militia  may  be 
removed  from  office  by  sentence  of  court-martial, 
or  by  such  other  modes  as  may  be  prescribed  by 
law.] 


CHAPTER  XII. 

The   University  at  Cambridge ;  the  School  Fund ; 
and  the  Encouragement  of  Literature. 

ARTICLE  1.  Whereas  our  wise  and  pious  ances 
tors,  so  early  as  the  year  one  thousand  six  hundred 
and  thirty-six,  laid  the  foundation  of  Harvard  Col 
lege,  in  which  university  many  persons  of  great 
eminence  have,  by  the  blessing  of  GOD,  been  in 
itiated  in  those  arts  and  sciences  which  qualified 
them  for  public  employments,  both  in  church  and 
state ;  and  whereas  the  encouragement  of  arts 
and  sciences,  and  all  good  literature,  tends  to  the 
honor  of  God,  the  advantage  of  the  Christian 
religion,  and  the  great  benefit  of  this,  and  the 
other  United  States  of  America — it  is  declared, 
that  the  PRESIDENT  AND  FELLOWS  OF  HARVARD 
COLLEGE,  in  their  corporate  capacity,  and  their 
successors  in  that  capacity,  their  officers  and  ser 
vants,  shall  have,  hold,  use,  exercise  and  enjoy, 
all  the  powers,  authorities,  rights,  liberties,  privi 
leges,  immunities  and  franchises,  which  they  now 
have,  or  are  entitled  to  have,  hold,  use,  exercise 
and  enjoy  ;  and  the  same  are  hereby  ratified  and 
confirmed  unto  them,  the  said  President  and  Fel 
lows  of  Harvard  College,  and  to  their  successors, 
and  to  their  officers  and  servants,  respectively,  for 
ever.  But  the  Legislature  shall  always  have  full 
power  and  authority,  as  may  be  judged  needful  for  the 
advancement  of  learning,  to  grant  any  farther  powers 
to  the  President  and  Felloios  of  Harvard  College,  or 
to  alter,  limit,  annul,  or  restrain,  any  of  the  powers 
now  vested  in  them :  provided,  the  obligation  of 


contracts  shall  not  be  impaired  ;  and  shall  have  the 
like  poicer  and  authority  over  all  corporate 
franchises  hereafter  granted,  for  the  purposes  of 
education,  in  this  Commonwealth. 

ART.  2.  And  whereas  there  have  been,  at 
sundry  times,  by  divers  persons,  gifts,  grants, 
devises  of  houses,  lands,  tenements,  goods,  chat 
tels,  legacies  and  conveyances,  heretofore  made, 
either  to  Harvard  College  in  Cambridge,  in  New 
England,  or  to  the  President  and  Fellows  of 
Harvard  College,  or  to  the  said  College  by  some 
other  description,  under  several  charters  succes 
sively  ;  it  is  declared,  that  all  the  said  gifts,  grants, 
devises,  legacies  and  conveyances,  are  hereby  for 
ever  confirmed  unto  the  President  and  Fellows  of 
Harvard  College,  and  to  their  successors,  in  the 
capacity  aforesaid,  according  to  the  true  intent 
and  meaning  of  the  donor  or  donors,  grantor  or 
grantors,  devisor  or  devisors. 

ART.  3.  And  whereas  by  an  Act  of  the  Gen 
eral  Court  of  the  Colony  of  Massachtisetts  Bay, 
passed  in  the  year  one  thousand  six  hundred  and 
forty-two,  the  governor  and  deputy- governor,  for 
the  time  being,  and  all  the  magistrates  of  that 
jurisdiction,  were,  with  the  president,  and  a  num 
ber  of  the  clergy  in  the  said  Act  described,  con- 
stitxited  the  overseers  of  Harvard  College  ;  and  it 
being  necessary,  in  this  new  constitution  of  gov 
ernment,  to  ascertain  who  shall  be  deemed  suc 
cessors  to  the  said  governor,  deputy- governor, 
and  magistrates  ;  it  is  declared  that  the  governor, 
lieutenant-governor,  Council  and  Senate  of  this 
Commonwealth  are,  and  shall  be  deemed,  their  suc 
cessors  ;  who,  with  the  president  of  Harvard  Col 
lege,  for  the  time  being,  together  with  the  ministers 
of  the  congregational  churches  in  the  towns  of 
Cambridge,  Watertown,  Charlestown,  Boston, 
lloxbury,  and  Dorchester,  mentioned  in  the  said 
Act,  shall  be,  and  hereby  are,  vested  with  all  the 
powers  and  authority  belonging,  or  in  any  way 
appertaining,  to  the  overseers  of  Harvard  College : 
provided,  that  nothing  herein  shall  be  construed 
to  prevent  the  Legislature  of  this  Commonwealth 
from  making  such  alterations  in  the  government 
of  the  said  University,  as  shall  be  conducive  to  its 
advantage,  and  the  interest  of  the  republic  of  let 
ters,  in  as  full  a  manner  as  might  have  been  done 
by  the  Legislature  of  the  late  Province  of  the 
Massachusetts  Bay. 

[AiiT.  4.  It  shall  be  the  duty  of  the  Legisla 
ture,  as  soon  as  may  be,  to  provide  for  the  en 
largement  of  the  School  Fund  of  the  Common 
wealth,  until  it  shall  amount  to  a  sum  not  less 
than  two  millions  of  dollars ;  and  the  said  fund 
shall  be  preserved  inviolate,  and  the  income  there 
of  shall  be  annually  appropriated  for  the  aid  and 
improvement  of  the  common  schools  of  the  State, 
and  for  no  other  purpose.] 

ART.  5.  Wisdom  and  knowledge,  as  well  as 
virtue,  diffused  generally  among  the  body  of  the 
people,  being  necessary  for  the  preservation  of 
their  rights  and  liberties  ;  and  as  these  depend  on 
spreading  the  opportunities  and  advantages  of 
education  in  the  various  parts  of  the  country,  and 
among  the  different  orders  of  the  people,  it  shall 
be  the  duty  of  Legislatures  and  magistrates,  in 
all  future  periods  of  this  Commonwealth,  to  cher 
ish  the  interests  of  literature  and  the  sciences,  and 


750 


APPENDIX. 


[1853, 


CONSTITUTIONAL  PROPOSITIONS. 


all  seminaries  of  them  ;  especially  the  University 
at  Cambridge,  public  schools,  and  grammar  schools 
in  the  towns  ;  to  encourage  private  societies,  and 
public  institutions,  rewards  and  immunities,  for 
the  promotion  of  agriculture,  arts,  sciences,  com 
merce,  trades,  manufactures,  and  a  natural  history 
of  the  country  ;  to  countenance  and  inculcate  the 
principles  of  humanity  and  general  benevolence, 
public  and  private  charity,  industry  and  frugality, 
honesty  and  punctuality  in  their  dealings  ;  sin 
cerity,  good  humor,  and  all  social  affections,  and 
generous  sentiments  among  the  people. 


CHAPTER  XIII. 
Miscellanea  us  Pro  v  isions . 

ARTICLE  1 .  A  census  of  the  inhabitants  of  each 
city  and  town  in  the  Commonwealth,  on  the  first 
day  of  May  in  the  year  one  thousand  eight  hun 
dred  and  fifty-five,  and  on  the  first  day  of  May 
of  each  tenth  year  thereafter,  shall  be  taken  and 
returned  into  the  secretary's  office,  on  or  before 
the  last  day  of  the  June  following  the  said  first 
day  of  May  in  each  of  said  years  ;  and  while  the 
public  charges  of  government,  or  any  part  thereof, 
shall  be  assessed  on  polls  and  estates,  in  the  man 
ner  that  has  hitherto  been  practised,  in  order  that 
such  assessments  may  be  made  with  equality, 
there  shall  be  a  valuation  of  estates  within  the 
Commonwealth  taken  anew  once  in  every  ten 
years  at  least,  and  as  much  oftener  as  the  General 
Court  shall  order. 

[ART.  2.  Persons  holding  office  by  election  or 
appointment,  when  this  Constitution  takes  effect, 
shall  continue  to  discharge  the  duties  thereof  un 
til  their  term  of  office  shall  expire,  or  officers  au 
thorized  to  perform  their  duties,  or  any  part 
thereof,  shall  be  elected  and  qualified,  pursuant 
to  the  provisions  of  this  Constitution ;  when  all 
powers  not  reserved  to  them  by  the  provisions  of 
this  Constitution  shall  cease :  provided,  however, 
that  justices  of  the  peace,  justices  of  the  peace  and 
of  the  quorum,  and  commissioners  of  insolvency, 
shall  be  authorized  to  finish  and  complete  all  pro 
ceedings  pending  before  them  at  the  time,  when 
their  powers  and  duties  shall  cease,  or  be  altered 
as  aforesaid.  All  laws  in  force  when  this  Consti 
tution  goes  into  effect,  not  inconsistent  therewith, 
shall  continue  in  force  until  amended  or  repealed. 

ART.  3.  The  Legislature  shall  provide,  from 
time  to  time,  the  mode  in  which  commissions  or 
certificates  of  election  shall  be  issued  to  all  officers 
elected  pursuant  to  the  Constitution,  except  in 
cases  where  provision  is  made  therein. 

ART.  4.  The  governor,  by  and  with  the  con 
sent  of  the  Council,  may  at  any  time,  for  inca 
pacity,  misconduct  or  maladministration  in  their 
offices,  remove  from  office,  clerks  of  courts,  com 
missioners  of  insolvency,  judges  and  registers  of 
probate,  district- attorneys,  registers  of  deeds,  coun 
ty  treasurers,  county  commissioners,  sheriffs,  trial 
justices,  and  justices  and  clerks  of  police  courts  : 
provided,  that  the  cause  of  their  removal  be  en 
tered  upon  the  records  of  the  Council,  and  a 
copy  thereof  be  furnished  to  the  party  to  be  re 


moved,  and  a  reasonable  opportunity  be  given 
him  for  defence.  And  the  governor  may  at  any 
time,  if  the  public  exigency  demand  it,  either  be 
fore  or  after  such  entry  and  notice,  suspend  any 
of  said  officers,  and  appoint  substitutes,  who  shall 
hold  office  until  the  final  action  upon  the  question 
of  removal. 

ART.  5.  Whenever  a  vacancy  shall  occur  in 
any  elective  office,  provided  for  in  this  Constitu 
tion,  except  that  of  governor,  lieutenant-governor, 
councillor,  senator,  member  of  the  House  of  Rep 
resentatives,  and  town  and  city  officers,  the  gov 
ernor  for  the  time  being,  by  and  with  the  advice 
and  consent  of  the  Council,  may  appoint  some 
suitable  person  to  fill  such  vacancy,  until  the 
next  annual  election,  when  the  same  shall  be  filled 
by  a  new  election,  in  the  manner  to  be  provided 
by  law :  provided,  however,  that  trial  justices  shall 
not  be  deemed  to  be  town  officers  for  this  purpose. 

ART.  6.  All  elections  provided  to  be  had  un 
der  this  Constitution  shall,  unless  otherwise  provi 
ded,  be  first  held  on  the  Tuesday  next  after  the 
first  Monday  of  November,  in  the  year  one  thou 
sand  eight  hundred  and  fifty-four. 

ART.  7.  This  Constitution  shall  go  into  ope 
ration  on  the  first  Monday  in  February,  in  the 
year  one  thousand  eight  hundred  and  fifty- four. 

ART.  8.  The  terms  of  all  elective  officers,  not 
otherwise  provided  for  in  this  Constitution,  shall 
commence  on  the  first  Wednesday  in  January 
next  after  their  election.] 

ART.  9.  In  order  to  remove  all  doubt  of  the 
meaning  of  the  word  "  inhabitant,"  in  this  Con 
stitution,  every  person  shall  be  considered  as  an 
inhabitant,  for  the  purpose  of  electing  and  being 
elected  into  any  office  or  place  within  this  State, 
in  that  town,  district,  or  plantation,  where  he 
dwelleth,  or  hath  his  home. 

ART.  10.  This  form  of  government  shall  be 
enrolled  on  parchment,  and  deposited  in  the  sec 
retary's  office,  and  be  a  part  of  the  laws  of  the 
land  ;  and  printed  copies  thereof  shall  be  prefixed 
to  the  book  containing  the  laws  of  this  Common 
wealth,  in  all  future  editions  of  the  said  laws. 


CHAPTER  XIV. 

Revision  and  Amendments  of  the  Constitution. 

[ARTICLE  1.  A  Convention  to  revise  or  amend 
this  Constitution  may  be  called  and  held  in  the 
following  manner :  At  the  general  election  in  the 
year  one  thousand  eight  hundred  and  seventy- 
three,  and  in  each  twentieth  year  thereafter,  the 
qualified  voters  in  State  elections  shall  give  in 
their  votes  upon  the  question,  "  Shall  there  be  a 
Convention  to  revise  the  Constitution?"  which 
votes  shall  be  received,  counted,  recorded,  and 
declared,  in  the  same  manner  as  in  the  election  of 
Governor ;  and  a  copy  of  the  record  thereof  shall, 
within  one  month,  be  returned  to  the  office  of 
the  Secretary  of  State,  who  shall,  thereupon,  ex 
amine  the  same,  and  shall  officially  publish  the 
number  of  yeas  and  nays  given  upon  said  ques 
tion,  in  each  town  and  city,  and  if  a  majority  of 
said  votes  shall  be  in  the  affirmative,  it  shall  be 


1853.] 


APPENDIX. 


'51 


CONSTITUTIONAL  PROPOSITIONS. 


deemed  and  taken  to  be  the  will  of  the  people 
that  a  Convention  shall  meet  accordingly ;  and, 
thereafter,  on  the  first  Monday  of  March  ensuing, 
meetings  shall  be  held,  and  delegates  shall  be  cho 
sen,  in  all  the  towns,  cities,  and  districts,  in  the 
Commonwealth,  in  the  manner  and  number  then 
provided  bylaw  for  the  election  of  the  largest  num 
ber  of  representatives  which  the  towns,  cities,  and 
districts  shall  then  be  entitled  to  elect  in  any  year 
of  that  decennial  period.  And  such  delegates 
shall  meet  in  Convention  at  the  State  House,  on 
the  first  Wednesday  of  May  next  ensuing,  and 
when  organized,  shall  have  all  the  powers  neces 
sary  to  execute  the  purpose  for  which  such  Con 
vention  was  called  ;  and  may  establish  the  com 
pensation  of  its  officers  and  members,  and  the 
expense  of  its  session,  for  which  the  Governor, 
with  the  advice  and  consent  of  the  Council,  shall 
draw  his  warrant  on  the  treasury.  And  if  such 
alterations  and  amendments,  as  shall  be  proposed 
by  the  Convention,  shall  be  adopted  by  the  peo 
ple  voting  thereon  in  such  manner  as  the  Conven 
tion  shall  direct,  the  Constitution  shall  be  deemed 
and  taken  to  be  altered  or  amended  accordingly. 
And  it  shall  be  the  duty  of  the  proper  officers,  and 
persons  in  authority,  to  perform  all  acts  necessa 
ry  to  carry  into  effect  the  foregoing  provisions. 

ART.  2.  Whenever  towns  or  cities  containing 
not  less  than  one-third  of  the  qualified  voters  of 
the  Commonwealth,  shall  at  any  meeting  for  the 
election  of  State  officers,  request  that  a  Conven 
tion  be  called  to  revise  the  Constitution,  it  shall 
be  the  duty  of  the  legislature,  at  its  next  session, 
to  pass  an  Act  for  the  calling  of  the  same,  and 
submit  the  question  to  the  qualified  voters  of  the 
Commonwealth,  whether  a  Convention  shall  be 
called  accordingly  :  provided,  that  nothing  herein 
contained  shall  impair  the  power  of  the  Legisla 
ture  to  take  action  for  calling  a  Convention,  with 
out  such  request,  as  heretofore  practised  in  the 
Commonwealth.] 

ART.  3.  If,  at  any  time  hereafter,  any  specific 
and  particular  amendment  or  amendments  to  the 
Constitution  be  proposed  in  the  General  Court, 
and  agreed  to  by  a  majority  of  the  senators  and 
two-thirds  of  the  members  of  the  House  of  Rep 
resentatives,  present  and  voting  thereon,  such 
proposed  amendment  or  amendments  shall  be  en 
tered  on  the  journals  of  the  two  Houses,  with 
the  yeas  and  nays  taken  thereon,  and  referred  to 
the  General  Court  then  next  to  be  chosen,  and 
shall  be  published  ;  and  if,  in  the  General  Court 
next  chosen,  as  aforesaid,  such  proposed  amend 
ment  <5r  amendments  shall  be  agreed  to  by  a  ma 
jority  of  the  senators  and  two-thirds  of  the 
members  of  the  House  of  Representatives,  pres 
ent  and  voting  thereon  ;  then  it  shall  be  the  duty 
of  the  General  Court  to  submit  such  proposed 
amendment  or  amendments  to  the  people ;  and  if 
they  shall  be  approved  and  ratified  by  a  majority 
of  the  qualified  voters,  voting  thereon,  at  meet 
ings  legally  warned  and  holden  for  that  purpose, 
they  shall  become  part  of  the  Constitution  of  this 
Commonwealth. 

[ART.  4.  The  Legislature  which  shall  be  chosen 
at  the  general  election  on  the  Tuesday  next  after 
the  first  Monday  in  November,  in  the  year  one 
thousand  eight  hundred  and  fifty- five,  shall 


divide  the  State  into  forty  single  districts  for  the 
choice  of  senators,  such  districts  to  be  of  con 
tiguous  territory,  and  as  nearly  equal  as  may  be 
in  the  number  of  qualified  voters  resident  in  each ; 
and  shall  also  divide  the  State  into  single  or  dou 
ble  districts,  to  be  of  contiguous  territory,  and  as 
nearly  equal  as  may  be  in  the  number  of  qualified 
voters  resident  in  each,  for  the  choice  of  not  less 
than  two  hundred  and  forty,  nor  more  than 
three  hundred  and  twenty  representatives ;  with 
proper  provisions  for  districting  the  Common 
wealth  as  aforesaid,  in  the  year  one  thousand 
eight  hundred  and  sixty -six,  and  every  tenth  year 
thereafter ;  and  with  all  other  provisions  neces 
sary  for  carrying  such  system  of  districts  into 
operation  ;  and  shall  submit  the  same  to  the  peo 
ple  at  the  general  election  to  be  held  in  the  year 
one  thousand  eight  hundred  and  fifty- six,  for 
their  ratification ;  and  if  the  same  shall  be  ratified 
and  adopted  by  the  people,  it  shall  become  a  part 
of  this  Constitution  in  place  of  the  provisions 
contained  in  this  Constitution  for  the  apportion 
ment  of  senators  and  representatives.] 


Proposition  Number  Two. 

The  writ  of  habeas  corpus  shall  be  granted  as  of 
right  in  all  cases  in  which  a  discretion  is  not 
especially  conferred  upon  the  court  by  the  Legis 
lature  ;  but  the  Legislature  may  prescribe  forms 
of  proceeding  preliminary  to  the  obtaining  of  the 
writ. 


Proposition  Number  Three. 

In  all  trials  for  criminal  offences,  the  jury,  after 
having  received  the  instruction  of  the  court,  shall 
have  the  right,  in  their  verdict,  of  guilty  or  not 
guilty,  to  determine  the  law  and  the  facts  of  the 
case,  but  it  shall  be  the  duty  of  the  court  to  su 
perintend  the  course  of  the  trials,  to  decide  upon 
the  admission  and  rejection  of  evidence,  and  upon 
all  questions  of  law  raised  during  the  trials,  and 
upon  all  collateral  and  incidental  proceedings ; 
and  also  to  allow  bills  of  exceptions.  And  the 
court  may  grant  a  new  trial  in  case  of  conviction. 


Proposition  Number  Fo-r. 

Every  person  having  a  claim  against  the  Com 
monwealth,  ought  to  have  a  judicial  remedy 
therefor. 


Proposition  Number  Five, 

No   person  shall  be  imprisoned  for  any  debt 
hereafter  contracted,  unless  in  cases  of  fraud. 


752 


APPENDIX. 


[1853. 


CONSTITUTIONAL  PnorosrnoNS. 


Proposition  Number  Six. 

All  moneys  raised  by  taxation  in  the  towns  and 
cities,  for  the  support  of  public  schools,  and  all 
moneys  which  may  be  appropriated  by  the  State 
for  the  support  of  common  schools,  shall  be  ap 
plied  to  and  expended  in  no  other  schools  than 
those  which  are  conducted  according  to  law,  under 
the  order  and  superintendence  of  the  authorities 
of  the  town  or  city  in  which  the  money  is  to  be 
expended ;  and  such  moneys  shall  never  be  ap 
propriated  to  any  religious  sect,  for  the  mainte 
nance,  exclusively,  of  its  own  schools. 


Proposition  ITumber  Seven. 

The  Legislature  shall  not  create  corporations  by 
special  act  when  the  object  of  the  incorporation  is 
attainable  by  general  laws. 


Proposition  dumber  Eight. 

The  Legislature  shall  have  no  power  to  pass 
any  act  granting  any  special  charter  for  banking 
purposes,  or  any  special  act  to  increase  the  capi 
tal  stock  of  any  chartered  bank ;  but  corpora 
tions  may  be  formed  for  such  purposes,  or  the 
capital  stock  of  chartered  banks  may  be  increased, 
under  general  laws. 

The  Legislature  shall  provide  by  law  for  the 
registry  of  all  notes  or  bills  authorized  by  general 
laws  tD  be  issued  or  put  in  circulation  as  money ; 
and  shall  require  ample  security  for  the  redemp 
tion  of  such  notes  in  specie. 


COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  August  1,  1853. 

A  true  copy  of  the  resolutions  adopted  by  the 
Convention  and  of  the  several  Constitutional 
Propositions  annexed.  Attest : 

N.  P.  BANKS,  Ju.,  President. 

W.  S.  ROBINSON, 
JAS.  T.  HOBINSON, 


Secretaries. 


COMMONWEALTH  OF  MASSACHUSETTS. 

In  Convention,  August  1,  1853. 

The  Committee  which  was  directed  to  prepare 
an  Address  to  the  People  of  Massachusetts,  ask 
leave  to  report  the  form  of  such  Address. 

For  the  Committee, 

GEO.  S.  BOUTWELL,  Chairman. 


ADDRESS. 

To  the  People  of  Massachusetts  : — 

The  Convention  of  Delegates,  assembled  by 
your  authority,  and  directed  to  revise  the  Consti 
tution  of  the  Commonwealth,  has  now  closed  its 
labors ;  and  it  seeks  only  to  commend  and  com 
mit  the  result  to  your  consideration  and  final 
judgment.  The  necessity  for  the  Convention  was 
great,  and  its  labors  have  been  arduous  and  pro 
tracted.  As  your  delegates,  we  have  sought  for 
the  principles  of  freedom  in  the  ancient  institu 
tions  of  the  State ;  but  we  have  thought  it  wise 
also  to  accept  the  teachings  and  experience  of 
nearly  a  century  of  independent  existence.  It  has 
then  been  our  purpose  to  unite  in  one  system  of 
organic  law  the  principles  of  American  republican 
institutions,  and  the  experiences  of  other  free 
States,  all  contemplated  in  the  light  derived  from 
the  history  and  usages  of  Massachusetts. 

And  first  of  all,  we  think  it  proper  to  present  for 
your  consideration  a  complete  system  of  organic 
law.  The  present  Constitution  was  adopted  in 
1780,  and  there  have  since  been  added  thirteen 
important  amendments.  By  these  amendments, 
much  of  the  original  text  is  already  annulled,  and 
it  is  only  by  a  careful  and  critical  analysis  and 
comparison  that  the  existing  provisions  can  be 
determined.  This  ought  not  to  be.  Constitu 
tional  laws  should  be  plain,  that  they  may  be 
impartially  interpreted  and  faithfully  executed — 
"  that  every  man  may  at  all  times  find  his  secu 
rity  in  them."  We  have  not,  then,  thought  it 
wise,  or  even  proper,  to  preserve,  as  a  part  of  the 
Constitution,  provisions  which  have  long  since 
been  annulled ;  nor  do  we  feel  justified  in  pro 
posing  new  specific  amendments  whose  adoption 
will  render  the  fundamental  law  of  the  Common 
wealth  more  difficult  to  be  understood  and  less 
certain  in  its  requirements. 

We  have,  therefore,  taken  what  remains  un 
changed  of  the  Constitution  of  1780,  and  the 
subsequent  amendments,  preserving  the  original 
language  wherever  it  appeared  practicable,  as  the 
basis  of  a  new  Constitution,  and  incorporated 
therewith  such  of  the  resolutions  of  this  Conven 
tion  as  are  necessary  to  give  to  the  whole,  at  once, 
a  comprehensive  and  concise  character.  This  lias 
been  our  purpose;  and  if  our  view  of  duty  is 
correct,  we  are  entirely  justified  in  submitting  so 
much  of  our  work  as  will  give  to  the  people  of 
Massachusetts  a  complete  system  of  organic  law, 
as  one  proposition,  for  your  adoption  and  ratifica 
tion.  It  is  undoubtedly  true,  that  when  amend 
ments  are  specific  and  not  numerous,  they  should 
be  separately  submitted  to  the  judgment  of  the 
people ;  but  this  mode  becomes  impracticable  in 


1853.] 


APPENDIX. 


753 


ADDIIESS. 


the  formation  of  a  new  government,  or  the  thor 
ough  revision  of  an  old  one.  Our  attention  has 
been  necessarily  directed  to  every  provision  of  the 
Constitution,  and  but  one  chapter  is  preserved  in 
its  original  form.  It  only  remained  for  us  either 
to  submit  our  work,  to  be  added  to  the  old  Con 
stitution  as  specific  amendments,  with  the  convic 
tion  that  their  ratification  would  render  your 
form  of  government  more  complicated  than  it 
now  is,  or  else  to  embody  all  of  the  old  and  the  new 
that  appears  necessary  to  the  safe  and  harmonious 
action  of  the  system,  and  present  it  as  The  Con 
stitution  of  Massachusetts. 

This  we  now  do,  and  we  invite  you  to  consider 
that,  while  government  is  essential  to  the  safety 
and  happiness  of  each  individual,  it  must  neces 
sarily  happen  that  it  cannot  be  in  every  part  alike 
acceptable  to  all.  "  We  may  not  expect,"  said 
the  founders  of  the  Commonwealth,  "  to  agree  in 
a  perfect  system  of  government ;  this  is  not  the 
lot  of  mankind.  The  great  end  of  government  is 
to  promote  the  supreme  good  of  human  society." 
We  commend  the  new  Constitution  to  you,  not 
as  being  perfect,  but  as  greatly  to  be  preferred  to 
the  existing  frame  of  government.  It  declares 
the  rights  and  liberties  essential  to  the  freedom  of 
the  people ;  it  contains,  as  we  believe,  a  frame 
work  arranged  according  to  reason  and  correct 
analysis,  and  it  embodies  all  the  fundamental 
provisions  necessary  to  a  just  administration  of 
every  department  of  the  government. 

You  will  naturally  examine  with  care  the  char 
acter  of  the  changes  we  have  proposed.  We  have 
thought  it  necessary  to  make  a  provision  for  the 
purpose  of  limiting  the  sessions  of  the  General 
Court  to  one  hundred  days,  and  to  require  that 
the  pay  of  its  members  shall  be  fixed  by  standing 
laws. 

At  present  the  members  of  the  Senate  are  cho 
sen  by  the  several  counties  which  elect  from  one 
to  six  senators,  upon  a  general  ticket.  We  have 
provided  for  the  division  of  the  State  into  forty 
districts,  of  equal  population,  and  each  entitled  to 
elect  one  senator. 

The  basis  of  the  House  of  Representatives  has 
been  a  subject  of  careful  and  anxious  deliberation. 
Differences  of  opinion  existed  among  us ;  but  a 
majority  of  more  than  one  hundred  members  de 
termined  to  preserve  the  system  of  town  repre 
sentation,  under  which  Massachusetts  has  existed 
so  long  and  prospered  so  well.  We  have,  then, 
based  the  House  of  Representatives  upon  the  mu 
nicipal  institutions  of  the  State,  having  reference, 
so  far  as  practicable,  to  their  relative  population. 
By  the  proposed  system,  towns  containing  less 
than  one  thousand  inhabitants  are  entitled  to 
elect  a  representative  for  the  year  when  the  valu 


ation  of  estates  is  settled,  and  one  in  addition, 
annually,  for  five  years  out  of  every  decennial 
period.  Towns  having  a  population  of  one  thou 
sand  and  not  more  than  four  thousand  inhabi 
tants,  are  entitled  to  elect  a  representative  every 
year ;  towns  of  more  than  four  thousand  and  less 
than  eight  thousand,  will  elect  two  representa 
tives  ;  towns  of  eight  thousand  and  less  than 
twelve  thousand,  will  elect  three  representatives, 
while  towns  and  cities  of  twelve  thousand  inhabi 
tants,  will  elect  four  representatives,  and  one 
additional  representative  for  each  addition  of  four 
thousand  to  their  population.  We  do  not  claim 
that  this  system,  separately  considered,  is  pre 
cisely  equal ;  but  if  it  is  in  some  degree  favorable 
to  the  rural  districts,  the  loss  sustained  by  the 
large  towns  and  cities  is  in  a  fair  measure  com 
pensated  by  the  manifest  advantages  accorded  to 
them  in  the  constitution  of  the  Council  and  the 
Senate.  The  inequality  of  representation  between 
particular  towns,  when  tested  solely  by  popula 
tion,  may  in  some  cases  apparently  be  great ;  but 
when  the  rights  of  different  interests  and  different 
sections  of  the  Commonwealth  are  considered  in 
connection  with  the  whole  system  of  elective 
government,  the  basis  of  the  House  cannot  be 
deemed  unequal  or  unjust.  The  Senate  and 
Council  are  based  upon  population  rather  than 
voters,  by  which  the  inhabitants  of  the  cities  and 
large  towns  have  influence  in  these  two  important 
departments  of  the  government  quite  dispropor 
tionate  to  their  just  elective  power. 

No  human  government  can  attain  to  theoretic 
accuracy ;  and  in  a  state  where  pursuits,  habits, 
and  interests  are  various,  it  certainly  is  not  the 
part  of  wisdom  to  place  unlimited  power  in  the 
hands  of  any.  We  invite  you  to  consider  that  the 
Governor  represents  the  voters  of  the  State ;  that 
the  Council  and  Senate  represent  population,with- 
out  any  reference  to  voters,  and  as  a  consequence, 
that  these  two  departments  of  the  government 
will  eventually  be  in  the  control  of  the  cities  and 
chief  towns ;  and  finally,  that  we  have  sought 
only  to  secure  to  the  rural  districts  and  to  the 
agricultural  and  mechanical  population  and  inter 
ests  a  reasonable  share  of  power  in  one  branch  of 
the  Legislature.  This  influence  gives  to  this  por 
tion  of  the  people  power  to  assent  to,  but  never  to 
dictate,  the  policy  of  the  government.  The  Con 
vention  of  1780  declared  that  "an  exact  repre 
sentation  would  be  impracticable  even  in  a  system 
of  government  arising  from  the  state  of  nature, 
and  much  more  so  in  a  State  already  divided  into 
nearly  three  hundred  corporations."  We  have 
encountered  the  same  difficulty,  and  hope  that  we 
have  overcome  it  in  our  day  as  well  as  they  over 
came  it  in  their  day. 


754 


APPENDIX. 


[1853. 


ADDRESS. 


But  our  deliberations  have  not  been  confined 
to  the  proposed  system.  Many  of  your  delegates 
are  of  opinion  that  the  State  should  be  divided 
into  districts  for  the  election  of  representatives, 
according  to  the  number  of  voters  in  each.  In 
this  opinion  a  large  majority  of  the  Convention 
do  not  concur ;  but  we  think  it  our  duty  first  to 
interpret  the  people's  will,  and  then  to  give  a  fair 
opportunity  for  its  expression  upon  all  questions 
of  importance  whenever  such  a  course  is  practi 
cable.  We  have,  therefore,  made  a  constitutional 
provision  that  the  Legislature  of  1856,  under  the 
census  to  be  taken  in  1855,  shall  present  a  district 
system,  which  may  be  then  substituted  for  the 
one  recommended  by  the  Convention,  if,  in  the 
judgment  of  the  whole  people,  it  is  wise  to  make 
the  change. 

We  have  also  provided  that  the  cities  and  large 
towns  shall  be  so  districted  for  the  choice  of  rep 
resentatives  that  no  district  shall  be  entitled  to 
elect  more  than  three  members.  In  the  judg 
ment  of  the  Convention,  the  election  of  many 
officers  on  a  single  general  ticket,  is  not  compati 
ble  with  the  freedom  and  purity  of  the  represen 
tative  system. 

The  property  qualification  of  the  Governor  and 
Lieutenant- Governor  has  been  abolished. 

The  Council  has  been  made  elective  by  the 
people  in  single  districts,  and  the  records  of  that 
body  are  hereafter  to  be  subject  to  public  exami 
nation. 

We  have  provided  that  the  Attorney- General, 
the  Secretary  of  the  Commonwealth,  the  Auditor 
and  the  Treasurer,  officers  now  appointed  by  the 
Governor,  or  chosen  by  the  Legislature,  shall 
hereafter  be  elected  annually  by  the  people  ;  and 
that  Judges  of  Probate,  Registers  of  Probate, 
Sheriffs,  Clerks  of  the  Courts,  Commissioners  of 
Insolvency,  and  District- Attorneys,  officers  now 
appointed  by  the  Executive  or  the  Courts,  shall 
also  be  elected  by  the  people  for  terms  of  three 
years. 

We  have  also  provided  that  the  Justices  of  the 
Supreme  Judicial  Court  and  of  the  Court  of 
Common  Pleas,  hereafter  appointed,  shall  hold 
their  offices  for  the  term  of  ten  years.  In  a  free 
government,  the  people  should  be  relieved  in  a 
reasonable  time,  and  by  the  ordinary  course  of 
affairs,  from  the  weight  of  incompetent  or  un 
faithful  public  servants.  Under  the  present  Con 
stitution  a  Judge  can  only  be  removed  by  the 
difficult  and  unpleasant  process  of  impeachment, 
or  of  address.  Such  remedies  will  be  resorted  to 
only  in  the  most  aggravated  cases.  Under  the 
proposed  system  we  have  no  apprehension  but 
that  faithful  and  competent  Judges  will  be  re 
tained  in  the  public  service  ;  while  those  whose 


places  can  be  better  filled  by  other  men,  will 
retire  to  private  life  without  violence  or  ungra 
cious  circumstances,  and  scarcely  with  observa 
tion. 

It  is  proposed  that  Justices  of  the  Peace  shall 
be  divided  into  two  classes.  Those  whose  duties 
are  chiefly  ministerial,  will  be,  as  heretofore,  ap 
pointed  by  the  Governor  and  Council ;  while 
those  intrusted  with  judicial  authority  are  to  be 
elected  by  the  people,  and  to  hold  by  a  tenure  of 
three  years. 

Under  the  original  Constitution,  voters  and 
public  officers  were  required  to  possess  property 
qualifications.  These  have  heretofore  been  re 
moved  in  part,  and  we  now  recommend  the  entire 
abolition  of  the  property  qualification  in  the  voter 
for  all  national  and  all  state  officers  mentioned  in 
the  Constitution.  The  obligations  of  citizens  to 
contribute  to  the  public  expenses  by  assessment 
of  taxes  are  not  in  any  degree  changed. 

Provision  is  also  made  for  the  secrecy  of  the 
ballot.  By  the  ballot  the  citizen  at  the  same 
time  declares  his  opinion  on  public  affairs,  and 
asserts  his  equality  with  every  other  citizen. 

Freedom  of  opinion,  and  freedom  in  the  ex 
pression  of  opinion,  are  individual  rights,  to  be  lim 
ited  or  controlled  only  by  a  public  necessity.  We 
see  no  public  necessity  which  ought  to  deprive 
the  citizen  of  these  rights,  and  we  have  therefore 
made  provision  for  their  protection. 

We  also  provide,  absolutely,  that  in  many  elec 
tions,  persons  having  the  highest  number  of  votes 
shall  be  chosen.  This  rule  has  been  applied  prin 
cipally  to  the  elections  in  counties  and  districts, 
where  the  trouble  of  frequent  trials  is  great. 
The  Governor,  Lieutenant- Governor,  Secretary 
of  the  Commonwealth,  Attorney- General,  Treas 
urer,  Auditor,  Representatives  to  the  General 
Court,  and  town  officers,  are  exceptions  to  the 
rule.  In  case  of  a  failure  to  elect  either  of  the 
first  six  named,  the  election  is  referred  to  the 
General  Court ;  while  subsequent  trials  may  be 
had  for  the  choice  of  Representatives  and  munici 
pal  officers.  We  have,  therefore,  as  we  think, 
retained  the  majority  rule  where  its  application 
will  be  least  burdensome  to  the  people.  At;  the 
same  time  we  have  provided  that  the  Legislature 
may  substitute  the  plurality  rule  whenever  the 
public  will  shall  demand  it,  with  a  condition  that 
no  act  for  that  purpose  shall  take  effect  until  one 
year  after  its  passage.  Thus  we  have  given  an 
opportunity  to  test  the  wisdom  of  the  plurality 
system,  by  experience,  and  power  to  apply  it  to 
every  popular  election  in  the  Commonwealth, 
whenever  the  deliberate  judgment  of  the  people 
shall  require  it. 

The  various  provisions  relating  to  the  militia 


1853.] 


APPENDIX. 


755 


ADDRESS. 


have  been  revised,  some  important  changes  have 
been  made,  and  that  department  of  the  govern 
ment  will  rest  more  firmly  than  ever  on  a  consti 
tutional  basis. 

Changes  are  proposed  concerning  the  University 
at  Cambridge,  and  the  General  Court  is  instruct 
ed  to  provide  means  for  the  enlargement  of  the 
School  Fund,  until  it  shall  amount  to  a  sum  not 
less  than  two  millions  of  dollars. 

Although  the  Constitution  has  always  asserted, 
in  the  strongest  terms,  the  right  of  the  people,  at 
all  times,  to  alter,  reform,  or  totally  change  their 
frame  of  government,  yet  it  has  been  contended 
by  some,  that  the  operation  and  effect  of  the  spe 
cific  provisions  for  amendments,  contained  there 
in,  have  been  such  as  practically  to  impair  or 
render  doubtful  this  great  right.  We  have,  there 
fore,  thought  it  wise,  while  we  recognize  and 
retain  the  modes  of  exercising  this  right,  practised 
hitherto  in  this  Commonwealth,  to  introduce  ad 
ditional  provisions,  to  meet  possible  future  exi 
gencies,  and  to  enable  the  people,  without  contro 
versy,  to  hold  periodical  Conventions  that  shall 
not  be  subject  to,  or  restricted  by,  any  previous 
or  subsequent  act  of  the  Legislature. 

Trusting  that  you  will  examine  with  care  the 
proceedings  of  the  Convention,  and  the  result  to 
which  it  has  come,  we  deem  it  unnecessary  to 
explain  several  less  prominent  changes  proposed 
in  the  Constitution  of  the  Commonwealth. 


We  also  submit  seven  distinct  amendments, 
which  are  presented  separately  for  your  ratifica 
tion.  Some  of  them  are  new,  and  all  of  them 
are  independent  of  the  frame- work  of  the  govern 
ment,  and  may  either  be  adopted  or  rejected  with 
out  disturbing  the  system  or  harmony  of  the 
Constitution.  They  have  all,  however,  been  sus 
tained  by  decisive  majorities  of  your  delegates, 
and  embrace  important  and  essential  principles 
in  popular  government.  The  formation  or  re 
vision  of  a  popular  Constitution  is  an  epoch  in 
the  history  of  a  free  people. 

We  are  sensible  of  the  magnitude  of  the  trust 
which  you  have  confided  to  us,  but  it  is  not  more 
important  than  the  just  decision  of  the  questions 
which  we  submit  to  you.  We  have  no  doubt 
that  your  decision  will  secure  a  result  beneficial 
to  Massachusetts,  and,  under  Divine  Providence, 
will  render  more  and  more  illustrious  our  ancient 
Commonwealth. 


In  Convention,  August  1,  1853. 
Read  and  accepted. 

N.  P.  BANKS,  JR.,  President. 

WM.  S.  ROBINSON,     )  ~  . 

JAMES  T.  ROBINSON,  J  Sccr«ta™s' 


756 


APPENDIX. 


[1853. 


VOTE  ON  THE  CONSTITUTIONAL  PHOPOSITIONS. 


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1853.] 


APPENDIX. 


757 


VOTE  ON  THE  CONSTITUTIONAL  PHOPOSITIONS. 


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758 


APPENDIX. 


[1853. 


VOTE  ox  THE  CONSTITUTIONAL  PHOPOSITIONS. 


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1853.] 


APPENDIX. 


759 


VOTE  ON  THE  CONSTITUTIONAL  PROPOSITIONS. 


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G          •«  o        GOC^       ro^^tT'-o 


760 


APPENDIX. 


[1853. 


VOTE  ON  THE  CONSTITUTIONAL  PROPOSITIONS. 


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(Mt>-t>.CMOGOCOl>.OOOibrHiO(M^^<Cril>.t^C^COOC^GOC^-^l>-^t(^T''T< 
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rH  r- 1  CT^i  CMrH          rHrHrH          rH          i—(W  rH  rH 

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I I 

I      I       I       l       I       I       l       I       I      I       I       I       I       I       I       i       I       I       l       I       I      I       I       I       I      I       I       I       i       I       I       I 


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S(^^^OOpUrHrHPMr^P4a2a272CCa2cX2c72HPP 


1853.] 


APPENDIX. 


761 


VOTE  ox  THE  CONSTITUTIONAL  PROPOSITIONS. 


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o  ^  Ci  co  cr.  10 


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00  £J  CM!  CO  O  CO  CO  *O  Ci  00  O  O  ^f  i^  5)  I-  ^  Ci  — '  ^  1C  "^  Oi 


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aooj^coGococo^Ciaoioiooji>.o 

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Q    CCJ    *™^       W      4— '       «-*        (-1       S—i       ^      JJ      4—>       {->       7)     ^^       S-H 


762 


APPENDIX. 


[1853. 


VOTE  ON  THE  CONSTITUTIONAL  PROPOSITIONS. 


w 

Q 
Pk 

a 

<! 

w 


O 
O 


COO>OCOl>»*OrHOCOr>.OO*'HHO'-i-<3«CCC}O}O 

OOrHOJOC}COl^»Ot>.t>.rH»Oi-lCOCl         CO  -<  —  t-l 

PH.  rH  CO  r-  1  r-ti—  1  J>  CM  2*  r-  1 


—  '  —»  l>»  Cl  CO  —  CO  Ci 


CTGOl^ 
00—  «-H 


r-lr^i^-5>.^>-| 
FHr-iCO  —1  rl          i-l 


OrHr-l 
Ci  (7t  rH 


rH—  (OO^^r^o 

1—lrH          COrH          i—  1 


rH  i—  1          (M 


CO^ 

I—I  OS 


i—  I»OT—  lOOi         COO-HO 


rH  C5 


OOO)OCOl>»t>«OOC^COGiO'—  i 
00<M 


rr-' 

rHrH         COrH         rH         rHrH          O>1          i—lGi 


O)Cit>.Ot^l^COQOCOi>.O^^t  —  -^•^CO^CJ 

OOrHrHGiOjCOl>-'!Tl>'l>«'—  i  IO  rH  CO  O          CO  rH  i—  i 
r-i  ^H  CO  rH  rH          r-i  00  CM  O* 


rH  i—  1         CO  rH          i—  I         r-  1  rH         <M          rH 


lg) 


co" 


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o 


!>.  O  CO  53 


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I-H  00  ^  CS 


t^    1C    rH 

O  ^  Ot 


rH  CO  l^  — « 

t^  O  O  (M 


rH  O  OO  < 

01  C5 1> 


Tf  00  QOO? 
rH  QU  J>  O5 


ift  O 

rH  O^ 


-c  £  o  rf 

CO     O)     S  -fl 


1853.] 


APPENDIX. 


763 


VOTE  ON  THE  CONSTITUTIONAL  PROPOSITIONS. 


w 

Lof 

COOOClrHCCCbcOlOOCM         O 
rHrHrH  O*  rH 

ggg|«*S'e*:~;*»*8r 

i 

K  o  CN io  •*  Co  w  t>.  rn  t^  oi  Tt  ^  cc  o  ^.  o  o  5i  o  oo  co 

co" 

•^(MO-H-Hl^lOODCOaOt^rHioCOOiCOOS^ 

O<  rH  r-  rH  rH  rH          rH  rH      "  rH          rH 

CO" 

CM        OrHCiC^COlOrtiOCOCVCO 
rH  rH          r— I          rH          rH  rH 

<?<  O>    "     '    CM  """  "  "  rH  "  "~*  " 

£L 

co" 
,          -    -    -  *° 

_l 

co" 

rHOiOOtrHCOOOOCOOilOOO— IQOOOOIOCO-HCOCDIO 

^qaooirHOcpao»o»ocM      p^csw^to-^ococMcp 

^ 

rHCMCM      •      •   <?«      "•      rH"      --rtrHrHr^l     -rHr^"rH"r^         rH^ 

co" 


^  S    ~ 


• 


.g         S  s 


£    § 


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PQ 


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0 


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c?  S  S  S  t2  o  w 


00         rH 


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CO          rH  rH  rH          rH 


i—  IrHrHCO—  I 


iC^O 
CO         rH 


CO         rH 


I       I       I       I       I       I       I       i 


1      1      1      1      1      1       1      1 


l      1      l      l      l      i 


,  .  .    S3  ,  J-  , 

^  g  ^_s-       S 


764 


APPENDIX. 


[1853, 


VOTE  ON  THE  CONSTITUTIONAL  PROPOSITIONS. 


O 
O 


w 


H 

CQ 


ID 
O 
O 


OJ-^CCiCiOilCCOOO 

^^  —  otcocr.i^co 


(M!'* 
CO  «O 


CJ  —  OfOOOCriCiOi—  'OCCCOGOt^OCC 
Ol  CO  '-i  Oi  <M  ^  CO  TO  CO  -<*«  CO.©  "*  W  rf*  OO 

r-i  rt<          1-1  »-i  r-l  p-l  Oi 


'—^T—  il>QOJ>.OCTCiilC'!*J>CCCj 
CO  COOCOCOCMCOi-t  —  rHC 


CIO  C5  O  I-H     li>OOC^OCiCiC^lOCOCilOCO»OaO 
wi  Ci  CO  1-1  CO  CO»OCOi«CICOi-(i-ii-H5*COO>l>CO 


COOll 
—  CO 


GOtMOOCO— 

to  o  os  o  «  co 


orHcor-icoi>coi>*rHqiaooiW^t*^ocig>w5O 

iO  —  CO  COOCOCOCNt«OrHrHrHCOC0050i> 


—  iCOi-HCOOOi-'OO'^OOOJOOC 

CO-HCi(7i«^O^CC^CC)COlOtOTta 

T—  1  ^r-(rHi—  irH  Of 


CO 


of 


1 


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o 


-^  O  Ci  O 
Ot  O{  r-i  rH 


co  rt  ~-r  o 
m  o  1.-7  »--: 


C^  ^H  CJ  CO  — 


.g$ 


O  00  O  O  -^ 

cc  m  o  cc  co 


c^  o  o  in 


co 


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co  m  o  co  in 


oo  m  o  o*  -H 

TJ<  -f  00  O  O 
O{  O<  d  rH 


co  »n  m  in  m 


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rt1  TT  O  Ci  O 


m  m  rt  o 
m  o  m  m 


Iff  ~ 

be  ^3  ^3    c 
- 


1853.] 


APPENDIX. 


765 


VOTE  ON  THE  CONSTITUTIONAL  PROPOSITIONS. 


ro^Cc*»O'<*»-*Oii-* 

CM  ••*   1—11—1   CM   n  C 


CM   n  CM  CM  •**  i—  I  CM  r-  irr   n 


^r-^ 

O  01  IO  •"?  "S*  —  O  CO  —  '  1C  CO  CO  —  '  1C  O  -*  i^  "- 

^  -5      rHj-irHGNj^r-icOT  o-i  CM  CM  -*  co  C 


CM  TJ<          ri 


cocit^tvcit^CMi'OCicnooco 

-'Ci'-.cO  —  CO  n  —  i  CO  Ci  CO  l>» 

CM          n  CM  CM  *^  r-i  CO  —i  CO          1-1 


CT.  lOCOCOaOCOCOCi^-  00  CO  -H 


i-'- 

1.-7  CO  Tt  CV'  )^  1C  CV  O  »—  i  >O  ^f  1C  —  -  "*  T  r-  1  1>  i>. 
CM  T^         r-  (T—  1         CMni—  iCMCM^rHCOr-  I  Tt<          i—  i 


i  CO  CO  CM  r-  lOJOOlutQO—  '  Ci  -^t*  IO  C.  QOCC 

o  ^r  10  —  ^  o  *o  —  -rr  —  ,o  o  •*  o  ci  ^  o 
i—  i  ri  •—  ex  i—  <  r-.  cc  ^  o  i—!  ot  ot.  cc  cc  c^ 


OO—  (OCCOJt^OCl  —  rOrf^l^OIO 
CO  C7  1C  tO  —  O  -*  »-t  TC  ^0  -^  ^?  ^P  —  i  i^  i^ 


CO  t>»  O  IO  O  n  J>.  CO 

rrO^CMCM^COCM 


O  —  i 


r-irifiO{T-ii-lCOTti  Oi-i 


-xO—  'COi^ 
i-i  G^  C^  rt  CO 


'^  O  ri  CM  CM  Tf  CO 


T'^tl^~OCC^H>-'7'^rQC—  ^COO^Jt^O 
r-i  ri  i-(  CN  r-i  T-I  CO  -^  0^—  i  ^  CM  rfi  CO  CM 


co" 


1  1   1  1   1   1   1 


1   1   1   1   1   1   1 


^1  -    $ 


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PQ 
fo 

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0 

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—  oo—  'OcocO'-"-iaoaooo. 

CM  1-1  Oi  CO  IO      OO^i-l  r-i    i-i 


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co  i^  -=r  o  <?i  i—  co  o  35  c^  10  i^  rr  ^ 

CO    CMi-^^iCOO   i-li—  ii—  11—  (r^r^! 


'-t*^  —  00-^'C:OCO—  "-HOOOOCO 
CO    CM  i-^ 


CO  ^      COr-  r-l    ri 


W  1^»  ^T  ^t  W  —  CO  1C  O  C5  »O 

CO   CM  n  CM  CO  1C    CM  ri^ri 


&  ^  i^  ^  —  i^  '-c  co  co  o  co  co  cr?  co  ' 

Lt  rt  —  O  Ci  —  OJ  CO  rt  -H  -H  00  00  CO 
CO    CM  r-M-i  CO  O      CO^r-i  r-1    r-l  . 


co 

CO    CM  r-i  r-i  CO  -^       COr-^  ri    rH 


rHCMOCOOOCOCO—  < 
-*  1^  T  0  r\-  —  'O  O  O  O 
CO         C<  -i  7!  CO  1C          CM  C 


CO^rH  r-l         ri 


^  CM  S  CM  .CO  O  °  CM  2  S  M 


t^i^~aotoiooi>.co*ococo 
—  o  o  n  c:  co  co  —  I-HOCOOCO 

CO        CM  i—  i  CM  CO  -^  l*r~l  ""^        rH 


^OOCMCOGOOCOOOCipOlOaC 

co l>>  CM  2  §|  co  o  L^  CM  2  r? 


CO        CM  r-i  r-i  CO  'V  CO^n  n 


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CO         CM  r-l  CM  CO  LO  .       CM 


asooi^coor-.oo'*ioi>co^cMt>. 

CO^f  —  00  —  CT.  COCO-inCOOOCO 
CO        CM  n  CM  CO  ^  COn  n        n 


CM  n  (7<  TC  1O        Ci  r-^T 


-a 


=1IS: 


766 


APPENDIX. 


[1853. 


VOTE  ON  THE  CONSTITUTIONAL  PROPOSITIONS. 


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J3 

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r—1 

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1C  -*  CM  CO  l>. 

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CO^O^<O^TJ<COO      co^r^rirH  —  coco:c 

10rHr-i<^C^         rHrHCM         rn  •-•  CO  CO  rH  rt         rA  rH 


-r 

rH  rH  Ol  O?    rH  rH  O|    rH  rH  CO  CO  rH  Tf    rH  rH 


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COC^rHi—  I 


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01  rj«  0  00  in  —  COWCO 
rH  rH  CO  CO  rH  rt  rHrH 


rHrHCiC^         i-(  t-i  CM         rHrHCOCOrHTt          rHrH 


^CCOlCOOOOOOCOlCCOlOt>.CiCilO  —  CO 

•^cnoit^coi^QOicair-iccoi  —  OO-H  —  icao 

CO  CN  rH  rH  CM         CO    rH    CO  "3<  rH  rt  rH  CM 


icr-o^oocoaoo*r>.t>«co<c-H--*CT}O*^ioo 

CMCOOTT-i)l>rfCOO        CM^TOC:  —  —  COCOCO 
1C  rH  rH  CV{  CM         rH  rH  CM         rH  rH  CO  CO  r-  -^         r-i  rH 


tiii*j|iiiiii^r*iiiii 

fcD  o 

sf       ®  §  ^° 

B?     '     ^'     C    '     E"     ^  S^jf^rfff 

S  1  ^  &S  rf  1  e"  1     I  «  -g  ^  ^  S  2  s  5 

tyDai£=:pqS>0j=  "S-c—  P-  i;  o  &,  ai  es 
g  J"  gj  -g  ^  S  2  2  bfi-r  So  2  ^  "^  "a  p  £  "^  S 
31:  S  S  S^  §  i.S3.S  SS  S  §  £|«i| 


1853.] 


APPENDIX. 


767 


VOTE  ON  THE  CONSTITUTIONAL  PROPOSITIONS. 


£SS 

1 

8§S 

5 

Ci  OJ  -* 
00  Tf  LO 

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<?* 

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O  *r  (M 

1 

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00001 

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rHOJrH 

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00  O  CO 

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3outh  Scituate, 
Arareham,  - 
A^est  Bridgewater,  - 

22  Towns,  - 

w 


EH 
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0 
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^H-^c^i-^ioociCOC^irj^Cii^ 

IOCO  —  -^  -tf  i—  CO  J>  CO  CC  rf  O  •«* 


C* 


IO  CC  <—  i  —  ^t  —  ' 

rH          rH  I-H          CM 


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768 


APPENDIX. 


{1853, 


VOTE  ON  THE  CONSTITUTIONAL  PROPOSITIONS. 


QOI^^tQOCOOCiCOOt^Cii-H 
O*  i—  ilOGOGOCOO»O<«*i>l>.O 
OOOCOGiCiiOFHCOGiOJCO 

of     c-T     of     i>T     of     of     of     co~     »      rf     rf     rn~ 


C>* 
O* 


GOrHl>rHO 


*N 


c'- 


& 


GOrHOi 


C'?GOOGOCCC^QO 


CO"        C0~        r-T        i>T        Of        Of        Of        CO" 


!>•        <M!         <^?         O        O         CO         i—  i 
CO"       GO"       0        Oi        of       CO"       Cf 


t>.co 

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cT     cT     of     i>T     c^T     of     oF     co"     c-T 


Of        O        Ci        00        O        r-  lO 
O-^Oi^GOr-  IJ>. 

CO^       cT       of       C^r       CO"       CO"       CO" 


fe" 


1853.] 


APPENDIX. 


769 


ERRATA. 


E  R  R  A  T  A  . 


VOL.  I.,  page  532,  in  the  Yeas  and  Nays  on  the 
Council,  the  name  of  George  S.  Bout  well  should 
appear  among  the  Nays,  instead  of  the  Yeas,  he 
having  voted  against  the  proposition  of  the  mem 
ber  for  Manchester. 

Vol.  I.,  pages  778-780,  the  list  of  Yreas  and 
Nays  relating  to  the  Secretary,  Treasurer,  &c., 
were  inserted  before  being  revised  by  the  official 
copy,  which  was  corrected  after  the  names  were 
called.  The  following  is  correct : — 


YEAS. 

Adams,  Shubael  P. 

Cressy,  Oliver  S. 

Allen,  Charles 

Crittenden,  Simeon 

Allis,  Josiah 

Cross,  Joseph  W. 

Alvord,  D.  W. 

Cushman,  Thomas 

Baker.  Hillel 

Cutler,  Simeon  N. 

Ballard,  Alvah 

Davis,  Ebenezer 

Bancroft,  Alpheus 

Davis,  Isaac 

Barrett,  Marcus 

Dean,  Silas 

Bates,  Moses,  Jr. 

Denton,  Augustus 

Beach,  Erasmus  D. 

Dunham,  Bradish 

Beal,  John 

Durgin,  John  M. 

Bennett,  Zephaniah 

Easton,  James,  2d 

Bird,  Francis  W. 

Eaton,  Calvin  D. 

Bishop,  Henry  W. 

Eaton,  Lilley 

Bliss,  Gad  O. 

Edwards,  Elisha 

Booth,  William  S. 

Fellows,  Jatnes  K. 

Boutwell,  George  S. 

Fisk,  Lvman 

Bout  well,  Sewell 

Fiske,  Emery 

Bradford,  William  J.  A. 

Foster,  Aaron 

Breed,  Hiram  N. 

Foster,  Abram 

Bronson,  Asa 

Fowle,  Samuel 

Brown,  Adolphus  F. 

Freeman,  James  M. 

Brown,  Alpheus  R. 

French.,  Charles  A. 

Brown,  Hiram  C. 

French,  Samuel 

Brownell,  Joseph 

Gale,  Luther 

Bryant,  Patrick 

Gates,  Elbridge 

Buck,  Asahel 

Gilbert,  Washington 

Burlingame,  Anson 

Giles,  Charles  G. 

Carruthers,  William 

Gooding,  Leonard 

Chapin,  Daniel  E. 

Gourgas,  F.  R. 

Chapin,  Henry 

Green,  Jabez 

Childs,  Josiah 

Griswold,  Josiah  W. 

Churchill,  J.  McKean 

Hadlev,  Samuel  P. 

Clarke,  Still  man 

Hall,  Charles  B.  " 

Cleverly,  William 

Hallett,  B.  F. 

Coggin,  Jacob 

Harmon,  Phineas 

Cole,  Lansing  J. 

Haskell,  George 

Cole,  Sumner 

Hathaway,  Elnathan  P. 

Crane,  George  B. 

Hawkes,  Stephen  E. 

Hayden,  Isaac 
Heath,  Ezra,  2d 
Hewes,  James 
Ilewes,  William  H. 
Hobart,  Aaron 
I  Hobart,  Henry 
i  Hobbs,  Edwin 
|  Holder,  Nathaniel 
j  Hood,  George 
I  Hooper,  Foster 
1  Howard,  Martin 
j  Huntington,  Charles  P. 

Huiitiiigton,  George  H. 

Hurlbut,  Moses  C. 

Jacobs,  John 

Johnson,  John 

Kendall,  Isaac 

Kingruan,  Joseph 

Knight,  Hiram 

Knight,  Jefferson 

Knowlton,  Charles  L. 

Knowlton,  J.  S.  C. 
1  Knowlton,  William  II. 
!  Knox,  Albert 
]  Kuhn,  George  II. 

Ladd,  Gardner  P. 

Laiigdon,  Wilber  C. 

Law  ton,  Job  G.,  Jr. 

Leland,  Alden 
j  Lincoln,  Abishai 
J  Loomis,  E.  Justin 
|  Marble,  William  P. 
j  Marvin,  Abijah  P. 

Mason,  Charles 

Meader,  Reuben 

Merritt,  Simeon 

Moore,  James  M. 

Morton,  Elbridge  G. 

Morton,  Marcus 

Morton,  Marcus,  Jr. 

Newman,  Charles 

Nichols,  William 

Nute,  Andrew  T. 

Ober,  Joseph  E. 

Oliver,  Henry  K. 

Orne,  Benjamin  S. 

Packer,  E.  Wing 

Parker,  Adolphus  G. 

Parris,  Jonathan 

Parsons,  Samuel  C. 

Parsons,  Thomas  A. 

Partridge,  John 

Peabody,  Nathaniel 

Pease,  Jeremiah,  Jr. 


Penniman,  John 
Perkins,  Daniel  A. 
Perkins,  Jesse 
Perkins,  Noah  C. 
Phelps,  Charles 
Pierce,  Henry 
Pool,  James  M. 
Rantoul,  Robert 
Rawson,  Silas 
Read,  James 
Richardson,  Daniel 
Richardson,  Samuel  H. 
Rockwood,  Joseph  M. 
Rogers,  John 
Ross,  David  S. 
Sanderson,  Amasa 

Sanderson,  Chester 

Schouler,  William 

Sheldon,  Luther 

Sherril,  John 
Simonds,  John  W. 

Smith,  Matthew 

Souther,  John 

Sprague,  Melzar 

Spooner,  Samuel  W. 

Stacy,  Ebcn  H. 

Stevens,  Granville 

Stevens,  Joseph  L.,  Jr. 

Stevens,  William 

Stiles,  Gideon 

Sumner,  Charles 

Thayer,  Joseph 

Thayer,  Willard,  2d 

Thomas,  John  W. 

Tilton,  Abraham 

Tilton,  Horatio  W. 

Turner,  David 

Turner,  David  P. 

Tyler,  William 

Underwood,  Orison 

Viles,  Joel 

Wales,  Bradford  L. 

Walker,  Amasa 

Ward,  Andrew  H. 

Warner,  Samuel,  Jr. 

Weston,  Gershom  B, 

White,  Benjamin 

White,  George 

Whitney,  Daniel  S. 

Whitney,  James  S. 

Wilbur,  Joseph 

Williams,  Henry 

Wilson,  Henry 

Wilson,  Willard 


770 

APPENDIX.                                                 [1853. 

ERRATA. 

"VVinn,  Jonathan  B. 

Wood,  Nathaniel                  Keyes,  Edward  L.            Parker,  Joel 

Winslow,  Levi  M. 

Wood,  Otis 

Kimball,  Joseph               Payson,  Thomas  E. 

Wood,  Charles  C. 

Wright,  Ezekiel 

Kinsman,  Henry  W.       Peabody,  George 

Knight,  Joseph                 Perkins,  Jonathan  C. 

NAYS. 

Lawrence,  Luther            Phinney,  Sylvanus  B. 

Aspinwall,  William 
Atwood,  David  C. 
Barrows,  Joseph 
Bell,  Luther  V. 
Bradbury,  Ebene/er 
Brinley,  Francis 
Briggs,  George  N. 
Bullock,  Rufus 
Bumpus,  Cephas  C. 
Cogswell,  Nathaniel 
Cooledge,  Henry  F. 
Crosby,  Leander 
Davis,  Solomon 
Earues,  Philip 
Eustis,  William  T. 
Fowler,  Samuel  P. 
Gilbert,  Wanton  C. 
Gould,  Robert 
Goulding,  Dalton 
Hale,  Artemas 
Hammond,  A.  B. 
Heard,  Charles 
Hersey,  Henry 

Hopkinson,  Thomas 
Houghton,  Samuel 
Hunt,  William 
Jackson,  Samuel 
Kellogg,  Giles  C. 
Ladd,  John  S. 
Lincoln,  Fred.  W.,  Jr. 
Livermore,  Isaac 
Loud,  Samuel  P. 
Lowell,  John  A. 
Miller,  Seth,  Jr. 
Mixter,  Samuel 
Noyes,  Daniel 
Orcutt,  Nathan 
Park,  John  G. 
Parker,  Samuel  D. 
Sargent,  John 
Stevens,  Charles  G. 
Walcott,  Samuel  B. 
Weeks,  Cyrus 
Wilkins,  John  H. 
Wilson,  Milo 
Woods,  Josiah  B. 

Little,  Otis                        Plunkett,  William  C. 
Littlefield,  Tristram        Pomroy,  Jeremian, 
Lord,  Otis  P.                    Powers,  Peter 
Lothrop,  Samuel  K.         Preston,  Jonathan 
Marcy,  Laban                   Prince,  F.  O. 
Marvin,  Theophilus  R.    Putnam,  George 
Monroe,  James  L.            Putnam,  John  A. 
Morey,  George                 Reed,  Sampson 
Morss,  Joseph  B.              Rice,  David 
Morton,  William  S.         Richards,  Luther 
Nash,  Hiram                     Richardson,  Nathan 
Nayson,  Jonathan            Ring,  Elkanah,  Jr. 
Norton,  Alfred                 Rockwell,  Julius 
Osgood,  Charles               Royce,  James  C. 
Paige,  James  W.              Sampson,  George  R. 
Paine,  Benjamin              Sherman,  Charles 
Paine,  Henry                    Sikes,  Chester 
Davis,  Robert  T.              Simmons,  Perez 
Dawes,  Henry  L.             Sleeper,  John  S. 
Day,  Gilman                    Stetson,  Caleb 
Dehon,  William               Stevenson,  J.  Thomas 
Deming,  Elijah  S.            Storrow,  Charles  S. 
Dennison,  Hiram  S.        Strong,  Alfred  L. 
DeWitt,  Alexander        Stutson,  William 

Hinsdale,  William 

Doane,  James  C.              Sumner,  Increase 

Dornaan,  Moses                Swain,  Alanson 

ABSENT. 

Duncan,  Samuel              Taber,  Isaac  C. 

Earle,  John  M.                 Taft,  Arnold 

Abbott,  Alfred  A. 

Choate,  Rufus 

Easland,  Peter                  Talbot,  Thomas 

Abbott,  Josiah  G. 
Adams,  Benjamin  P 
Aldrich,  P.  Emory 
Allen,  James  B. 
Allen,  Joel  C. 

Clark,  Henry 
,       Clark,  Ransom 
Clark,  Salah 
Clarke,  Alpheus  B. 
Coiikey,  Ithamar 

Edwards,  Samuel             Taylor,  Ralph 
Ely,  Joseph  M.                 Thompson,  Charles 
Ely,  Homer                      Tileston,  Edmund  P. 
Farwell,  A.  G.                 Tower,  Ephraim 
Fav,  Sullivan                    Train,  Charles  R. 

Allen,  Parsons 
Alley,  John  B. 
Andrews,  Robert 
Appleton,  William 
Austin,  George 
Ayres,  Samuel 
Ball,  George  S. 
Banks,  Nathaniel  P., 
Bartlett,  Russel 
Bartlett,  Sidney 
Bates,  Eliakim  A. 

Cook,  Charles  E. 
Copeland,  Benjamin  F 
Crockett,  George  W. 
Crowell,  Seth 
Crownmshield,  F.  B. 
Cummings,  Joseph 
Curtis,  Wilbur 
Jr.  Cushman,  Henry  W. 
Dana,  Richard  H.,  Jr. 
Davis,  Charles  G. 
Davis,  John 

Fitch,  Exekiel  W.            Tyler,  John  S. 
French,  Charles  H.          Upham,  Charles  W. 
French,  Rodney               Upton,  George  B. 
Frothirgham,  R'd,  Jr.     Vinton,  George  A. 
Gardner,  Henry  J.           Wallace,  Frederick  T. 
Gardner,  Johnson            Wallis,  Freeland 
Giles,  Joel                         Walker,  Samuel 
Gooch,  Daniel  W.            Warner,  Marshal 
Goulding,  Jason               Waters,  Asa  H. 
Graves,  John  W.              Wetmore,  Thomas 
Gray,  John  C.                  Wheeler,  William  F. 

Beebe,  James  M. 
Bennett,  William,  Jr 
Bigelow,  Edward  B. 
Bigelow,  Jacob 
Blagden,  George  W. 
Bliss,  William  C. 

Hapgood,  Seth 
Haskins,  William 
Hayward,  George 
Henry,  Samuel 
Heywood,  Levi 
Hillard,  George  S. 

Greene,  William  B.         Wilbur,  Daniel 
Greenleaf,  Simon             Wilder,  Joel 
Griswold,  Whiting          Wilkinson,  Ezra 
Hale,  Nathan                    Williams,  J.  B. 
Hapgood,  Lyman  W.      Wood,  William  H. 

Braman,  Milton  P. 

Howland,  Abraham  H. 

Absent  and  not  voting,  180. 

Brewster,  Osmyii 

Hoyt,  Henry  K. 

Brown,  Artemas 

Hubbard,  William  J. 

Brown,  Hammond 

Hunt,  Charles  E. 

Vol.  III.,  page  123,  2d  column,   4th  line,  for 

Brownell,  Frederick 

Huntington,  Asahel 

"moderators"  read  monitors. 

Bullen,  Amos  H. 

Hurlburt,  Samuel  A. 

Butler,  Benjamin  F. 

Hyde,  Benjamin  D. 

Vol.  III.,  page  123,  1st  column,  13th  line  from 

Cady,  Henry 
Carter,  Timothy  W. 
Case,  Isaac 

Ide,  Abijah  M.,  Jr. 
James,  William 
Jenkins,  John 

the  bottom,  for  "  Mr.  Otis,  of  Sumner,"  read  Mr. 
Sumner,  for  Otis. 

Chandler,  Amariah 

Jenks,  Samuel  H. 

Chapin,  Chester  W. 

Kellogg,  Martin  R. 

Vol.  III.,  page  196,  1st  column,  6th  line  from 

1853.]                                                APPENDIX. 

771 

ERRATA. 

the  bottom,  for   "  Mr.  3forton,  of  Tisbury,"  read     Merritt,  Simeon 

Schouler,  William 

Mr.  JVorton,  of  Tisbury. 

Morey,  George 
Morton,  Elbridge  G. 

Simmons,  Perez 
Sprague,  Melzar 

Vol.  III.,  page  231,  2d  column,  last  three  lines, 
for  "  Mr.  Huntington,  of  Northampton,  moved 

Morton,  Marcus 
Morton,  Marcus,  Jr. 
Morton,  William  S. 

Spooner,  Samuel  "W. 
Stevens,  Charles  G. 
Stevenson,  J.  Thomas 

to  strike  out  the  word  '  seven,'  in  the  fifth  line, 

Nayson,  Jonathan 

Strong,  Alfred  L. 

and  insert  in  lieu  thereof,  the  word  '  ten,'  "  read  — 

Nute,  Andrew  T. 

Swain,  Alanson 

Mr.    Huntington,    of   Northampton,    moved  to 
strike  out  the  word  '  seven,'  in  the  fifth  line. 

Ober,  Joseph  E. 
Oliver,  Henry  K. 
Orcutt,  Nathan 

Trair,  Charles  R. 
Tyler,  William 
Underwood,  Orison 

Yol.  III.,  page  545,  2d  column,  27th  line,  in 
stead  of  a  division  upon  the  question  of  recon 

Osgood,  Charles 
Parker,  Adolphus  G. 
Parker,  Samuel  D. 

Upton,  George  B. 
Walker,  Amasa 
Ward,  Andrew  H. 

sidering  the  vote  by  which  the  resolves  upon  the 

Parris,  Jonathan 

Warner,  Samuel,  Jr. 

subject    of   Elections  by  Plurality  had  finally 

Partridge,  John 

Waters,  Asa  H. 

passed,  the  Yeas  and  Nays  were  taken,  and  re 

Phinney,  Silvanus  B. 

"Weston,  Gershom  B. 

sulted—yeas,  137  ;  nays,  48—  as  follows  :  — 

Pomroy,  Jeremiah 
Richards,  Luther 

White,  Benjamin 
Whitney,  James  S. 

Ring,  Elkanah,  Jr. 

Wilkinson,  Ezra 

YEAS. 

Rock  wood,  Joseph  M. 

"Wilson,  Henry 

Adams,  Benjamin  P.       Edwards,  Elisha 
Adams,  Shubael  P.         Edwards,  Samuel 

Ross,  David  S. 
Sanderson,  Amasa 

Wood,  Charles  C. 

Aldrich,  P.  Emory          Ely,  Homer 

Allen,  James  B.                Ely,  Joseph  M. 

NATS. 

Allen,  Parsons                 Fellows,  James  K. 
Alvord,  D.  W.                 Foster,  Abram 
Bancroft,  Alpheus           Freeman,  James  M. 
Bates,  Moses,  Jr.              French,  Charles  A. 
Beal,  John                         French,  Rodney 
Bennett,  Zephaniah         Frothingham,  R.,  Jr. 
Bigelow,  Jacob                 Gale,  Luther 
Bird,  Francis  W.              Gates,  Elbridge 
Boutwell,  George  S.        Gilbert,  Wanton  C. 
Bradbury,  Ebenezer        Giles,  Joel 
Breed,  Hiram  N.              Greene,  William  B. 
Brinley,  Francis               Griswold,  Josiah  W. 
Briggs,  George  N.            Griswold,  Whiting 
Brown,  Adolphus  F.       Hale,  Nathan 
Brown,  Hammond           Hallett,  B.  F. 
Brown,  Hiram  C.             Hapgood,  Lyman  W. 
Brownell,  Frederick        Hapgood,  Seth 
Brownell,  Joseph             Harmon,  Phineas 
Bryant,  Patrick                Hawkes,  Stephen  E. 
Bullock,  Rufus                 Heath,  Ezra,  2d 
Burlingame,  Anson        Hewes,  James 
Butler,  Benjamin  F.         Hillard,  George  S. 
Cady,  Henry                    Hobart,  Henry 
Carruthers,  William        Hood,  George 
Case,  Isaac                        Howland,  Abraham  H. 

Allen,  Joel  C. 
Alley,  John  B. 
Allis,  Josiah 
Baker,  Hillel 
Bartlett,  Russel 
Booth,  William  S. 
Boutwell,  Sewell 
Buck,  Asahel 
Bumpus,  Cephas  C. 
Clark,  Ransom 
Crittenden,  Simeon 
Dean,  Silas 
Denton,  Augustus 
Eaton,  Calvin  D. 
Fay,  Sullivan 
French,  Samuel 
Gardner,  Henry  J. 
Gilbert,  Washington 
Giles,  Charles  G. 
Green,  Jabez 
Hale,  Artemas 
Haskins,  William 
Hathaway,  Elnathan  P. 
Hinsdale,  William 

Hoyt,  Henry  K. 
Jenkins,  John 
Knowlton,  William  H. 
Knox,  Albert 
Ladd,  Gardner  P. 
Lawton,  Job  G.,  Jr. 
Marcy,  Laban 
Miller,  Seth,  Jr. 
Pemiiman,  John 
Perkins,  Daniel  A. 
Pierce,  Henry 
Rawson,  Silas 
Rice,  David 
Royce,  James  C. 
Sherril,  John 
Simonds,  John  W. 
Stiles,  Gideon 
Thompson,  Charles 
Tilton,  Horatio  W. 
Turner,  David  P. 
Wallace,  Frederick  T. 
Wallis,  Freeland 
Wilder,  Joel 
Winslow,  Levi  M. 

Chapin,  Chester  W.         Hubbard,  William  J. 

Childs,  Josiah                   Hunt,  William 

ABSENT. 

Churchill,  J.  McKean    Kellogg,  Giles  C. 

Abbott,  Alfred  A. 

Bates,  Eliakim  A. 

Clark,  Salah                      Kendall,  Isaac 

Abbott,  Josiah  G. 

Beach,  Erasmus  D. 

Clarke,  Alpheus  B.          Kingman,  Joseph 

Allen,  Charles 

Beebe,  James  M. 

Cleverly,  William            Knight,  Hiram 

Andrews,  Robert 

Bell,  Luther  V. 

Cole,  Lansing  J.               Knight,  Joseph 

Appleton,  William 

Bennett,  William,  Jr. 

Cushman,  Thomas           Knowlton,  Charles  L. 

Aspinwall,  William 

Bigelow,  Edward  B. 

Dana,  Richard  H.,  Jr.     Knowlton,  J.  S.  C. 

At  wood,  David  C. 

Bishop,  Henry  W. 

Davis,  Charles  G.             Langdon,  Wilber  C. 

Austin,  George 

Blagden,  George  W. 

Deming,  Elijah  S.            Little,  Otis 

Ayres,  Samuel 

Bliss,  Gad  O. 

Duncan,  Samuel              Livermore,  Isaac 

Ballard,  Alvah 

Bliss,  William  C. 

Dunham,  Bradish            Loomis,  Justin  E. 

Ball,  George  S. 

Bradford,  William  J,  A. 

Eames,  Philip                   Lothrop,  Samuel  K. 

Banks,  Nathaniel  P.,  Jr.  Braman,  Milton  P. 

Earle,  John  M.                 Marvin,  Abijah  P. 

Barrows,  Joseph 

Brewster,  Osymn 

Easland,  Peter                  Marvin,  Theophilus  R. 

Bartlett,  Sidney 

Bronson,  Asa 

Easton,  James,  2d           Mason,  Charles 

Barrett,  Marcus 

Brown,  Alpheus  R. 

772 

APPENDIX.                                                   [1853. 

EKIIATA. 

Brown,  Artemas 

Henry,  Samuel                     Plunkett,  William  C.      Talbot,  Thomas 

Bullen,  Amos  H. 

Hersey,  Henry 

Pool,  James  M.                Taylor,  Ralph 

Carter,  Timothy  W. 

Hewes,  William  II. 

Powers,  Peter                   Thayer,  Joseph 

Chandler,  Amariah 

Heywood,  Levi 

Preston,  Jonathan           Thayer,  Willard,  2d, 

Chapiii,  Daniel  E. 

Ho  bar  t,  Aaron, 

Prince,  F.  O.                    Thomas,  John  W. 

Chapin,  Henry 

Hobbs,  Edwin 

Putnam,  George              Tileston,  Edmund  P. 

Choate,  Rufus 

Holder,  Nathaniel 

Putnam,  John  A.            Tilton,  Abraham 

Clark,  Henry 
Clarke,  Stillman 

Hooper,  Foster 
Hopkinson,  Thomas 

Rantoul,  Robert               Tower,  Ephraim 
Read,  James                      Turner,  David 

Coggin,  Jacob 

Houghton,  Samuel 

Reed,  Sampson                 Tyler,  John  S. 

Cogswell,  Nathaniel 

Howard,  Martin 

Richardson,  Daniel          Upham,  Charles  W. 

Cole,  Sumner 

Hunt,  Charles  E. 

Richardson,  Nathan         Yiles,  Joel 

Conkey,  Ithamar 

Huntington,  Asahel 

Richardson,  Samuel  II.  Vinton,  George  A. 

Cook,  Charles  E. 

Huntington,  Charles  P. 

Rockwell,  Julius             Walcott,  Samuel  B. 

Cooledge,  Henry  F. 

Huntington,  George  H. 

Rogers,  John                     Wales,  Bradford  L. 

Copeland,  Benjamin  F. 

Hurlburt,  Samuel  A. 

Sampson,  George  R.        Walker,  Samuel 

Crane,  George  B. 

Hurlbut,  Moses  C. 

Sanderson,  Chester          Warner,  Marshal 

Cressy,  Oliver  S. 

Hyde,  Benjamin  D. 

Sargent,  John                   Weeks,  Cyrus 

Crockett,  George  W. 

Ide,  Abijah  M.,  Jr. 

Sheldon,  Luther               Wetmore,  Thomas 

Crosby,  Leander 

Jackson,  Samuel 

Sherman,  Charles             Wheeler,  William  F. 

Cross,  Joseph  "W. 

Jacobs,  John 

Sikes,  Chester                   White,  George 

Crowell,  Seth 

James,  William 

Sleeper,  John  S.               Whitney,  Daniel  S. 

Crowninshield,  F.  B. 

Jenks,  Samuel  H. 

Smith,  Matthew               Wilbur,  Daniel 

Cummings,  Joseph 

Johnson,  John 

Souther,  John                   Wilbur,  Joseph 

Curtis,  Wilber 

Kellogg,  Martin  II. 

Stacy,  Eben  II.                 Wilkins,  John  H. 

Cushman,  Henry  W. 

Keyes,  Edward  L. 

Stetson,  Caleb                  Williams,  Henry 

Cutler,  Simeon  N. 

Kimball,  Joseph 

Stevens,  Granville           Williams,  J.  B. 

Davis,  Ebenezer 

Kinsman,  Henry  W. 

Stevens,  Joseph  L.,  Jr.   Wilson,  Milo 

Davis,  Isaac 

Knight,  Jefferson 

Stevens,  William             Wilson,  Willard 

Davis,  John 

Kuhn,  George  H. 

Storrow,  Charles  S.         Winn,  Jonathan  B. 

Davis,  Robert  T. 

Ladd,  John  S. 

Stutson,  William             Wood,  Nathaniel 

Davis,  Solomon 

Lawrence,  Luther 

Sumrier,  Charles              Wood,  Otis 

Dawes,  Henry  L. 

Leland,  Aldeii 

Sumner,  Increase             Wood,  William  H. 

Day,  Gilman 

Lincoln,  Abishai 

Taber,  Isaac  C.                 Woods,  Josiah  B. 

Dehon,  William 

Lincoln,  Frederic  W.,  Jr. 

Taft,  Arnold                      Wright,  Ezekiel 

Denison,  Hiram  S. 

Littleh'eld,  Tristram 

DeWitt,  Alexander 

Lord,  Otis  P. 

Absent  and  not  voting,  234. 

Doane,  James  C. 

Loud,  Samuel  P. 

Dorm  an,  Moses 

Lowell,  John  A. 

Durgin,  John  M. 

Marble,  William  P. 

In  the  speech  of  Mr.  Parker,  of  Cambridge,  in 

Eaton,  Lilley 

Meader,  lleuben 

the  first  volume  :  — 

Eustis,  William  T. 

Mixter,  Samuel 

Tage  145,  1st  column,  7th  line  from  the  bottom, 

Farwell,  A.  G. 

Monroe,  James  L. 

For—"  whatever  other  law  might  have  been," 

Fisk,  Lyman 

Moore,  James  M. 

Read—  an  d  whatever  other  law  may  have  been. 

Fiske,  Emery 
Fitch,  Ezekicl  W. 

Morss,  Joseph  B. 
Nash,  Hiram 

Page  148,  2d  column,  17th  and  18th  lines  from  the  bottom, 
For—"  that  he  regarded  this  Act  of  1852,  as  a  charter,  that 

Foster,  Aaron 

Newman,  Charles 

it  was  a  contract," 

Fowle,  Samuel 

Nichols,  William 

Read  —  that  regarding  this  Act  of  1852  as  a  charter,  it  wat 

Fowler,  Samuel  P. 

Norton,  Alfred 

a  contract. 

French,  Charles  II. 

Noyes,  Daniel 

Same  page  and  column,  13th,  14th  and  15th  lines  from  the  bot 

Gardner,  Johnson 

Orne,  Benjamin  S. 

tom, 

Gooch,  Daniel  W. 
Gooding,  Leonard 

Packer,  E.'  Wing 
Paige,  James  W. 

For—  "  he  regarded  this  Act  of  1852,  as  the  Constitution 
of  this  body,  and  that  the  legislature  therefore  had  no 
power  " 

Gould,  Robert 
Goulding,  Dalton 

Paine,  Benjamin 
Paine,  Henry 

Head—  regarding  this  Act  0/1852  as  the  Constitution  of  this 
body,  the  legislature  had  no  power. 

Goulding,  Jason 
Graves,  John  W. 

Park,  John  G. 
Parker,  Joel 

Same  page  and  column,  2d,  3d  and  4th  lines  from  the  bottom. 
For—"  I  understood  them  to  be  maintained  by  him  as  sug 

Gray,  John  C. 

Parsons,  Samuel  C. 

gestions  which  had  been  made,  and  not  as  propositions 

Greenleaf,  Simon 

Parsons,  Thomas  A. 

of  his  own," 

Hadley,  Samuel  P. 
Hall,  Charles  B. 
Hammond,  A.  B. 

Payson,  Thomas  E. 
Peabody,  George 
Peabody,  Nathaniel 

Read—  /  understood  them  to  be  maintained  by  Mm  upon 
suggestions  which  had  been  made,  and  not  founded  upon 
propositions  of  his  own. 

Haskell,  George 
Hay  den,  Isaac 

Pease,  Jeremiah,  Jr. 
Perkins,  Jesse 

Page  149,  1st  column,  15th  and  16th  lines, 
For—  "Then  regarding  it  in  that  light,  the  conclusion  was 

Hayward,  George 
Hazewell,  Charles  C. 

Perkins,  Jonathan  C. 
Perkins,  Noah  C. 

drawn," 
Read—  Then  regarding  it  in  the  light  of  a  charter  the  conclit- 
sion  was  drawn. 

Heard,  Charles 

Phelps,  Charles 

Same  page  and  column,  30th  and  31st  lines, 

1853.] 


APPENDIX, 


773 


ERRATA. 


For—"  But  while  arguing  that  it  is  a  charter  the  gentle 
man  forgets," 

Read— But  while  arguing  upon  it  as  a  charter  the  gentleman 
forgot. 

Same  page  and  column,  44th  line, 
For—"  without  an  incorporation," 
Read — the  act  of  incorporation, 

Same  page  and  column,  47th  and  48th  lines, 
For— "And  now  in  relation  to  our  Constitution;  gentle 
men  say  that  the  Act," 

Read— And  now  in  relation  to  it  as  a  Constitution ;  the 
gentleman  says  that  if  the  Act. 

In  the  next  line  strike  out  "  and  ". 
Page  151, 1st  column,  7th  line, 
For— "  I  relate  this  anecdote  to  show  the  feeling  which 

existed," 

Read— This  anecdote  was  related  to  show  the  feeling  of  im 
portance  which  existed. 
And  in  the  10th  line,  read— But  the  reply. 
Page  158,  1st  column,  7th  and  8th  lines  from  the  bottom, 
For—"  The  response  of  the  people  has  given  a  character 
to  the  law.    It  has  affixed  to  it  something  beyond  the 
law," 

Read— Has  the  response  of  the  people  given  a  character  to 
the  law  ?  Has  it  affixed  to  it  sojncthing  different  from  a 
law? 

Page  159,  1st  column,  17th  line, 

For-"  But  let  us  admit  that  they  have  the  power," 

Read— But  the  people  have  the  power. 

The  reader  M'ill  observe  several  other  verbal  errors  in  that 
speech  more  or  less  apparent,  there  having  been  no  revision 
of  it  by  the  author. 

In  speeches  of  Mr.  Hallett,  for  Wilbraham,  in 
the  first  volume  : — 

Page  168,  2d  column,  4th  line  from  the  bottom, 
Read— "  The  people  have  a  right  to  make  their  [funda 
mental]  laws." 

Page  332, 1st  column,  20th  line, 

Strike  out  "  Lord  "  before  "Bacon." 
Page  367, 1st  column,  15th  line, 

For—"  United  States  Constitution," 

Read— State  Constitution. 

Page  437, 1st  column,  8th  line  from  the  bottom, 
For—"  IJhode  Island  had  a  council," 
Read— Mary  Ian  d. 

Page  439,  2d  column,  19th  line, 
For—"  The  two  boards  separately," 
Read— Separated. 

Page  497,  2d  column,  second  line, 
For—"  line  a  leaf," 
Read — live  a  leaf  in  history,  Sfc. 

Page  506,  2d  column,  24th  line, 
For—"  Shone  on,  and  shine  on," 
Read—  Shone  on  and  shone  on. 


Page  567,  1st  column,  28th  line, 

For—"  the  importation  of  these  foreigners  who  come  here 
to  become  citizens  in  a  single  year,  adds,"  <fec. 

Read — the  immigration  of  those  foreigners  who  come  here 
to  become  citizens : — in  a  single  year  adds  more  solid  cap 
ital,  «rc. 

Page  910, 1st  column,  21st  line, 
For— "doubt," 
Read— doubts. 

Same  page,  2d  column,  3d  line, 
Put  a  comma  after  "  eighteen  assistants." 

Page  911,  2d  column,  14th  line, 
After  "  we  hold."  put  a  comma  instead  of  a  period. 

Page  914, 1st  column,  28th  line, 
For— "every," 
Read— very. 

Page  921, 1st  column,  23d  line,  add  no  before  "  danger." 

In  the  speech  of  Mr.  Hathaway,  of  Freetown, 
in  the  first  volume  : — 
Page  81,  2d  column,  llth  line, 

For— "nothing,"  <fcc. 

Read— but  little,  if  anything  to  do,  «rc. 

Same  page  and  column,  28th  line  from  the  bottom, 
For—"  I  suppose  that  under  this  clause,"  &c. 
Head— I  do  not  suppose,  fyc.,  and  at  the  end  of  the  sen 
tence,  after  the  wozd  "vacancy,"  add,  but  would  have 
the  right  to  impose  a  fine. 

Same  page  and  column,  18th  line  from  the  bottom, 
After  the  word  "  represented"  add,  before  issuing  a  pre 
cept  to  such  town  to  fill  the  vacancy. 

Same  page  and  column,  15th  line  from  the  bottom, 
After  the  word  "  resigned,"  add— by  the  acceptance  of  an 
office  incompatible  with  the  office  of  a  representative. 

Same  page  and  column,  2d  line  from  the  bottom, 
Between  the  words  "office  which,"  insert  the  words, 
the  holding  of. 

Page  82, 1st  column,  6th  and  7th  lines, 
For—"  we  have  no  power  to  do  so,  because," 
Read— it  does  not  follow  that  we  have  power  to  do  it,  as. 

Same  page  and  column,  29th  line, 

At  the  end  of  Mr.  Hathaway's  remarks,  after  the  word 
"represented," 

Add— in  the  formation  of  an  organic  law  for  the  govern 
ment  of  the  people  of  which  such  toicnis  a  part. 

Mr.  Hathaway's  remarks  are,  in  this  matter,  very  imper 
fectly  reported,  probably  from  the  cause  of  the  difficulty  of 
hearing  in  the  Music  Hall,  where  these  remarks  were  made. 

In  the  speech  of  Mr.  Wilson,  of  Natick,  in  the 
third  volume : — 

Page  247,  2d  column,  8th  line  from  the  bottom, 
For— "  Governor  Leonard," 
Read—  Governor  St-ward. 


INDEX 


TO 


VOLUMES    I. ,11.    AND    III. 


ABBOTT,  JOSIAH  G. 
Contested  Seat  of  Delegate  for  Walpole,  Vol.  i. 

104-106,  112,  113. 

Declaration  of  Rights,  iii.  428,  429. 
House  of  Representatives,  ii.  374,  375,  626-628  ; 

iii.  585,  586. 
Judiciary,  iii.  210,  211. 
Memorials,  i.  88. 
Militia,  ii.  77,  78,  97,  98. 
Motions,  i.  139 ;   iii.  284. 
Plurality,  i.  286-289  ;  iii.  152,  153,  284. 
Qualifications  of  Voters,  i.  695-697. 
Reports  from  Committees,  i.  93,  130,  930,  931. 
Rights  of  the  Jury,  iii.  509,  510. 
Absence,  leave  of.     Vol.  i.  123,  234,  407,  509,  612, 

614,  629,  986 ;  ii.  162,  568 ;  iii.  196,  337,  474, 

570,  603. 

ADAMS,  SHUBAEL  P. 
Closing  Debate,  Vol.  iii.  100,  101. 
Council  and  Lieutenant-Governor,  i.  468, 471 ;  iii. 

271. 

Declaration  of  Rights,  iii.  483. 
Habeas  Corpus,  (see  Declaration  of  Rights.) 
House  of  Representatives,  ii.  198,  201,  205,  209. 
Judiciary,  iii.  180,  202. 
Limiting  Debate,  ii.  120,  121. 
Motions,  i.  488  ;  ii.  205,  220,  253;  iii.  84, 108,  131, 

180,271,402. 
New  Towns,  iii.  84. 
Orders,  ii.  99. 

Plurality,  i.  393,  394  ;  iii.  108,  131. 
Address  to  the  People.    Vol.  iii.  719,  721. 
Adjournment.     Vol.  i.  39-44, 123,  202,  213-216,  296, 

340,  448,  487,  488,  540,  748,  966 ;  ii.   162,  163, 

218,  221,  462, 463,  657 ;   iii.  520,  646,  647. 
Adjournment,  final.     Vol.  iii.  49,  50,  729. 
ALDRICH,  P.  EMORY. 
Closing  Debate,  Vol.  i.  651,  652. 
Distribution  of  Books,  iii.  436. 
Leave  of  Absence,  i.  407. 
Motions,  i.  626. 
Orders,  i.  971. 
Plurality,  iii.  561. 
Qualifications  of  Voters,  i.  651, 682,  683,  734,  739 ; 

ii.  117,  119,  273,  277,  278. 
ALLEN,   CHARLES. 
Adjournment,  Vol.  ii.  220,  221. 
Berlin  Vacancy,  i.  45,  49,  72,  73. 
Constitutional  Conventions,  iii.  350,  351,  530,531. 
Contested  Seat  of  the  Delegate  for  Walpole,  i. 

108, 109. 


Declaration  of  Rights,  iii.  416,  417. 

Frame  of  Government,  i.  790,  791,  805,  807,  809, 
861,  959,  960. 

House  of  Representatives,  ii.  317,  363,  377,  378, 
419,  420,  630,  632. 

Imprisonment  for  Debt,  iii.  411,  484. 

Judiciary,  iii.  181,  202,  203, 234. 

Limiting  Debate,  iii.  2,  130. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  666. 

Motions,  i.  33,  543,  544,  546,  650,  651,  797,  798, 
861 ;  ii.  267,  384,  385  ;  iii.  2,  40,  130,  531, 532. 

Petitioning  the  Legislature,  i.  544,  545. 

Plurality,  i.  262,  266,  284-286,  290,  419-421,  424, 
432,  433  ;  iii.  145, 146,  164. 

Reports  from  Committees,  i.  72,  104,  202,  424, 
425,  526,  650,  796 ;  ii.  266,  267. 

Rights  of  the  Jury,  iii.  454-456. 
ALLEN,   PARSONS.      Leave  of  Absence,  Vol. 

iii.  603. 
ALLEY,  JOHN  B. 

Corporations,  Vol.  ii.  265. 

House  of  Representatives,  ii.    144-148,  232,  233, 
420. 

Motions,  ii.  143. 

Personal  Explanation,  ii.  832,  833. 
ALVORD,  D.  W. 

Closing  Debate,  Vol.  iii.  520. 

Constitutional  Conventions,  iii.  524. 

Credentials,  i.  178. 

Distribution  of  Debates,  iii.  723. 

House  of  Representatives,  iii.  585. 

Judiciary,  iii.  231. 

Justices  of  the  Peace,  iii.  366,  370. 

Loan  of  the  State  Credit,  ii.  639,  644-647. 

Motions,  iii.  520,  547,  723. 

Orders,  i.  104. 

Plurality,  iii.  547,  554,  555. 

Question  of  Order,  iii.  551. 
Amendment  and  Enrolment.    Vol.  i.  160;  ii.  562- 

568,  714-724. 
APPLETON,  WILLIAM. 

Resignation  of  Mr.  Rogers,  Vol.  i.  103. 
Appendix  to  Debates.      Vol.  iii.  219,  265,  629. 
ASPINWALL,   WILLIAM. 

Amendments,  &c.,  Vol.  iii.  123. 

Choice  of  second  Secretary,  i.  9. 

Declaration  of  Rights,  iii.  375. 

House  of  Representatives,  i.  921. 

Limiting  Debate,  iii.  130,  265,  266. 

Militia,  ii.  114. 


776 


INDEX. 


[1853. 


MEMBERS  AND  SUBJECTS. 


Mode  of  Procedure,  i.  35,  36. 

Mode  of  submitting  the  Amended  Constitution 
to  the  People,  iii.  697. 

Motions,  i.  67,  701,  758 ;  iii.  523. 

New  Towns,  iii.  148,  242. 

Plurality,  i.  294,  295,  306,  377,  378,  416  ;  iii.  141. 

Question  of  Order,  iii.  540. 

Rights  of  the  Jury,  iii.  465. 

Rules  and  Orders,  i.  54. 

Secretary,  Treasurer,  &c.,  i.  705,  719,  720,  725-727. 
Assignment,  Special.      Vol.  i.   797 ;    ii.  556,  756  ; 

iii.  472,  474. 
ATWOOD,  DAVID  C. 

Leave  of  Absence,  Vol.  iii.  603. 
AUSTIN,  GEORGE. 

Motions,  Vol.  i.  340,  842. 

BALL,  GEORGE  S. 

Encouragement  of  Literature,  Vol.  iii.  622. 

Militia,  ii.  25,  26. 

Motions,  i.  842. 

Plurality,  i.  244. 

Question  of  Order,  iii.  554. 

Sectarian   Schools,  (see  Encouragement  of  Lit 
erature.) 

Ballot,  Freedom  of.    Vol.  i.  94,  746-758. 
BANKS,  NATHANIEL  P.,  JR. 

Address  on  taking  the  chair  of  the  Convention, 
Vol.  i.  9,10. 

Address  on  Final  Adjournment,  iii.  728,  729. 

Census,  ii.  388,  389. 

Elected  President  of  the  Convention,  i.  9. 

House  of  Representatives,  ii.  210-213 ;   iii.  598, 
599. 

Militia,  ii.  12-14,  26,  73. 

Plurality,  i.  420,  423. 
Banks  and  Banking.  Vol.  i.  144,  217,  974 ;  iii.  290, 

318-337,  351-360,  714. 
BARTLETT,   SIDNEY. 

Act  calling  the  Convention,  Vol.  i.  34. 

Amendments,  £c.,  ii.  566. 

Berlin  Vacancy,  i.  45,  79-81,  85,  91,  92. 

Corporations,  ii.  257. 

Council,  i.  533,  535. 

Declaration  of  Rights,  iii.  480. 

Habeas  Corpus,  (see  Declaration  of  Rights.) 

House  of  Representatives,  ii.  617,  619-626. 

Judiciary,  iii.  207,  222,  226-228,  384,  385. 

Justices  of  the  Peace,  iii.  399,  401. 

Militia,  ii.  96,  97. 

Motions,  i.  34, 45,  143. 

Order,  i.  32,  36. 

Place  of  Meeting,  i.  32,  36. 

Rules  and  Orders,  i.  34. 

Vacancy,  i.  143. 
BATES,  MOSES,  JR. 

Adjournment,  Vol.  i.  296,  359. 

Amendments,  &c.,  ii.  563. 

Appendix  to  Report  of  Debates,  iii.  219. 

Assignment  of  Seats,  i.  130. 

Berlin  Vacancy,  i.  45,  49,  183,  184. 

Closing  Debate,  i.  526  ;  ii.  793. 

Constitutional  Conventions,  iii.  494. 

Corporations,  iii.  73. 


Council,  iii.  273. 

Declaration  of  Rights,  iii.  436,  481. 

Distribution  of  Books,  iii.  437. 

Distribution  of  Report  of  Debates,  iii.  640,  641, 

722,  723. 
House  of  Representatives,  ii.  216,  236,  369,  377, 

395  ;  iii.  592-594. 
Imprisonment  for  Debt,  iii.  487. 
Judiciary,  ii.  793,  830  ;  iii.  628. 
Lieutenant-Governor,  i.  535,  538,  540. 
Motions,  i.  178,  213,  271,  296,  608,  690,  770,  795, 

966 ;  ii.  75,  556,  753,  777,  830. 
New  Towns,  iii.  240. 
Orders,  i.  13,  34,  87,  130,  217. 
Pay  Roll,  iii.  570. 
Per  Diem  of  Members,  i.  217. 
Place  of  Meeting,  i.  43. 
Plurality,  i.  271,  274,  422,  423 ;  iii.  140,  561,  566- 

568. 
Qualifications  of  Voters,  i.  559,  569,  669,  670,  690, 

692  ;  ii.  273,  274. 

Question  of  Order,  iii.  540,  541,  552. 
Quorum  of  the  House,  ii.  839. 
Reports,  i.  121 ;  ii.  332  ;  iii.  310,  569,  629. 
Secretary,  Treasurer,  &c.,  i.  706, 707,  712,  714, 715, 

719, 722,  727, 729, 759, 760,  764,  769,  770  ;  ii.  469, 

540. 

Senate,  i.  201. 
BEACH,  ERASMUS  D. 

House  of  Representatives,  Vol.  ii.  216,  459-461. 
Motions,  ii.  246,  461. 
Loan  of  the  State  Credit,  ii.  656. 
Berlin  Vacancy.     Vol.  i.  34,  44,  50,  72,  80-87,  94, 

103,  114,  124,  140,  144,   159,  162,  177,  178,  188, 

340. 

BIGELOW,  EDWARD  B. 
Corporations,  Vol.  iii.  73. 
New  Towns,  iii.  78. 
BIRD,  FRANCIS  W. 

Adjournment,  Vol.  i.  449,  558. 
Amendments,  &c.,  ii.  562,  564. 
Constitutional  Conventions,  iii.  307,  404. 
Corporations,  ii.  257,  258,  260,  266  ;  iii.  72. 
Council  and  Lieutenant-Governor,  i.  486. 
Death  of  Mr.  Gourgas,  ii.  740,  741. 
Declaration  of  Rights,  iii.  372,  376,  420,  470,  471. 
Distribution  of  the   Amended  Constitution,  iii. 

637-639. 
Distribution  of  the  Report  of  Debates,  iii.  638, 

639,  723. 

Encouragement  of  Literature,  ii.  546-549  ;  iii.  615. 
Frame  of  Government,  i.  955,  957- 
Governor,  i.  329. 
House  of  Representatives,   i.  936-941 ;  ii.    158, 

205,  206,  455,  591. 
Imprisonment    for   Debt,    (see    Declaration    of 

Rights.) 

Judiciary,  ii.  818-820,  830  ;  iii.  22-5,  628. 
Lieutenant-Governor,  i.  535,  536,  540. 
Loan  of  the  State  Credit,  ii.  665. 
Militia,  ii.  6,  7,  26-30,  249. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  683. 


1853.] 


INDEX. 


777 


MEMBERS  AND  SUBJECTS. 


Motions,  i.  493,  557,  700,  744,  761,  842,  875,  966; 

ii.  266,  324,  330,  455,  483,  484,  496,  552,  562,  703, 

830,  834,  840 ;  iii.  148,  263,  337,  371,  372,  489, 

533,  628,  629,  639,  723. 
New  Towns,  iii.  242. 
Oaths  and  Subscriptions,  i.  368 ;  ii.  552. 
Orders,  i.  178,  203 ;  iii.  721. 
Pay  Roll,  ii.  330. 
Pardoning  Power,  i.  969,  970. 
Petitioning  the  Legislature,  i.  546. 
Population  and  Representation,  i.  445-547. 
Preservation  of  Records,  iii.  275,  629. 
Plurality,  iii.  278,  279,  337, 546,  547, 557,  559,  569, 

578. 
Printing  of  the  Revised  Constitution,  &c.,  iii. 

721. 

Protest  of  Colored  Citizens,  iii.  724,  726. 
Qualifications  of  Voters,  i.  552,  700,  701. 
Quorum  of  the  House,  ii.  838. 
Reports  from  Committees,  iii.  148. 
Secretary,  Treasurer,  &c.,  i.  713,  714,  759,  761, 

778,  906. 

Sectarian  Schools,  (see  Encouragement  of  Lit 
erature.) 

Senators  in  Congress,  i.  384. 
University  at  Cambridge,  iii.  76,  77. 
BISHOP,  HENRY  W. 
Justices  of  the  Peace,  Vol.  i.  489-492 ;  iii.  361- 

363. 

Loan  of  the  State  Credit,  iii.  17,  20. 
Qualifications  of  Voters,  i.  676-678,  683  ;  ii.  498- 

501. 

Reports  from  Committees,  i.  489  ;  ii.  547. 
Secretary,  Treasurer,  &c.,  i.  489,  703-705,  707- 

709,  711,  712,  719,  721,  722,  763,  764,  766,  776, 

777  ;  ii.  469,  470,  475-478. 
BLAGDEN,  GEORGE  W. 
Encouragement  of  Literature,  Vol.  ii.  543,  546- 

548. 

Offered  Prayer,i.  13. 
BLISS,  WILLIAM  C. 
Time  of  Meeting,  Vol.  i,  733. 
Leave  of  Absence,  iii.  337. 
Books,  distribution  of.     Vol.  i.  14,  50,  87,  177,  234, 

249  ;  iii.  384,  436,  722,  724. 
Boston  Vacancy.    Vol.  i.  92,  103,  493. 
BOUTWELL,  GEORGE  S. 
Address  to  the  People  of  the  Commonwealth, 

Vol.  iii.  718,  721. 
Adjournment,  iii.  220. 
Amendments  and  Enrolment,  ii.  563-567. 
Appeared  as  Delegate  for  Berlin,  i.  340. 
Appendix  to  Report  of  Debates,  iii.  219. 
Asked  leave  to  submit  a  Report  in  print,  iii.  219. 
Closing  Debate,  ii.  435,  436,  792,  793. 
Council  and  Lieutenant-Governor,  i.  464-468,  543, 

544;  ii.  112-114;  iii.  268,274. 
Death  of  Mr.  Gourgas,  ii.  738,  739,  743. 
Declaration  of  Rights,  iii.  375,  376. 
Frame  of  Government,  i.  961,  962. 
Governor,  iii.  643. 
House  of  Representatives,  i.  891-899  ;  ii.  267,  268, 

378,  383,  462,  576,  577,  597-607,  613. 

52s 


Judiciary,  ii.  792-93  ;  iii.  214-216. 

Justices  of  the  Peace,  iii  372. 

Loan  of  the  State  Credit,  ii.  115. 

Militia,  ii.  76. 

Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  648, 650,  651,  653-658,  661-665, 

670-672,  681,  682,  685,  689-691,  693,  695,  700, 

708,  711,  716,  718. 
Motions,  i.  543,544  ;  ii.  33.59, 114,  383,  433,  468, 

534,  556,  656,  792 ;  iii.  47,  220,  372,  376,  648, 

724. 

Orders,  ii.  33. 
Qualifications  of  Voters,  i.  649,  650,  666-668, 671, 

680 ;  ii.  515. 

Question  of  Order,  iii.  644. 
Reports,  iii.  643,  648,  718. 
Resolutions,  iii.  648,  649. 
Uniformity  of  Receiving  Votes  at  Elections,  iii. 

388. 
University  at  Cambridge,  iii.  37,  43,  45-48,  75, 

247. 

BRADBURY,  EBENEZER. 
Closing  Debate,  Vol.  i.  508,  509  ;  ii.  37,  38,  244 ; 

iii.  100, 101. 

Constitutional  Conventions,  iii.  518,  520. 
Frame  of  Government,  i.  791,  792,  805. 
Governor,  i.  320,  321 . 
House  of  Representatives,  ii.  161,  207,  209,  210, 

233-236,  244. 
Judiciary,  iii.  209. 
Lieutenant-Governor,  i.  538. 
Militia,  ii.  70. 
Motions,  i.  626  ;  iii.  101. 
New  Towns,  iii.  85. 
Pardoning  Power,  i.  971,  973. 
Plurality,  i.  420,  429;  iii.  116-118,  165. 
Qualifications  of  Voters,  i.  626. 
Question  of  Order,  i.  626. 
Quorum  of  the  House,  ii.  839. 
Senate,  i.  229,  230. 
BRADFORD,  WILLIAM  J.  A. 
Constitutional  Conventions,  iii.  343,  344. 
Corporations,  ii.  125,  256. 
Declaration  of  Rights,  iii.  382,  383. 
Elections,  i.  103. 
Governor,  i.  322,  323. 
House  of  Representatives,  ii.  140-143. 
Judiciary,  ii.  701. 
Limitation  of  Debate,  ii.  121. 
Loan  of  the  State  Credit,  ii.  122. 
Militia,  ii.  3,  30,31,72. 
Motions,  i.  650  ;  ii.  701. 
Orders,  i.  122,  731. 
Qualifications  of  Voters,  i.  676. 
Rules  and  Orders,  i.  34,  54. 
Secretary,  Treasurer,  &c.,  i.  770. 
Senate,  i.  191,  192,  197,  201,  212,  213,  231. 
BRAMAN,  MILTON  P. 
Place  of  Meeting,  Vol.  i.  24. 
Qualifications  of  Voters,  i.  701. 
University  at  Cambridge,  iii.  36-44. 
BREED,  HIRAM  N. 
Judiciary,  Vol.  iii.  232. 


778 


INDEX. 


[1853. 


MEMBEBS  AND  SUBJECTS. 


Motions,  i.  796,  931 ;  ii.  121,   163,  332,  463,  496 ; 

iii.  49,  384,  414. 
BRINLEY,  FRANCIS. 

Closing  Debate,  Vol.  ii.  34. 

Frame  of  Government,  i.  780,  781. 

House  of  Representatives,  ii.  155,  161. 

Motions,  ii.  33,  59. 

Oaths  and  Subscriptions,  ii.  484, 485,  488,  550-552, 
555,  556. 

Plan  of  Representation,  i.  777. 

Secretary,  Treasurer,  &c.,  i.  712,  713. 
BRIGGS,  GEORGE  N. 

Adjournment,  Vol.  ii.  462,  463. 

Amendments  and  Enrolment,  iii.  267. 

Census,  ii.  388,  390-392. 

Closing  Debate,  ii.  36-38,  436,  437,  792,  793. 

Constitutional  Conventions,  iii.  297-299,  300-303, 
310,  312-314,  342-351. 

Corporations,  ii.  125. 

Council  and    Lieutenant-Governor,    i.    519-521, 
523  ;  iii.  270,  271,  273. 

Death  of  Mr.  Gourgas,  ii.  742. 

Declaration  of  Rights,  iii.  375,  378,  418,  424,  425, 
471. 

Distribution  of  Books,  iii.  436,  437. 

Encouragement  of  Literature,  iii.  131. 

Frame  of  Government,  i.  950,  960,  961. 

Governor,  i.  321,  322,  333,  341,  342. 

House  of  Representatives,  ii.   380,  381,  395-397, 
45iJ,  453,  612,  617  ;  iii.  604,  605. 

Imprisonment  for  Debt,  iii.  486,487,  497. 

Judiciary,  ii.  689-691,  792,  793  ;  iii.  211,  225. 

Justices  of  the  Peace,  iii.  337,  403. 

Militia,  ii.  14-16,  69,  70,  72,  73. 

Motions,  i.  614,  651,  653,  746,  862;  ii.  52,  162; 
iii.  40,  131,  310,  341,  484. 

Orders,  i.  33. 

Pay  Roll,  iii.  125,  128. 

Pardoning  Power,  i.  977,  980,  981. 

Petitions,  i.  614. 

Place  of  Meeting,  i.  67,  69,  70. 

Plurality,  i.  281-284,  287,  423,  429  ;  iii.  155,   157, 
165. 

Plan  of  Representation,  ii.  161. 

Preservation  of  the  Records,  iii.  275. 

Qualifications  of  Voters,  i.  608,  645,  646,  648,  650, 
653,  667-669,  672,  680. 

Question  of  Order,  iii.  539,  542,  543,  645. 

Quorum  of  the  House,  ii.  837. 

Reports,  i.  67  ;  ii.  121,  383,384,  433,  434. 

Resolutions,  i.  383  ;  iii.  643. 

Resolution  of  thanks  to  the  President  of  Con 
vention,  iii.  642,  643. 

Kules  and  Orders,  i.  33. 

Secretary,  Treasurer,  &c.,  i.  759,  760,  774-776 ;  ii. 
469. 

Sectarian  Schools,  (see  Encouragement  of  Lit 
erature.) 

Time  of  Meeting,  i.  796,  797. 

University  at  Cambridge,  ii.  683,  684 ;  iii.  45-47. 
BROWN,  ADOLPHUS  F. 

Banking,  Vol.  iii.  356. 

Motions,  i.  233,  340,  385,  571,  743,  769  ;  iii.  356. 


BROWN,  ALPHEUS  R. 
Contested  Seat  for  Walpole,  Vol.  i.  104. 
Constitutions  of  the  Several  States,  i.  87. 
Elections,  i.  102,  103. 
House  of  Representatives,  ii.  194-196. 
Motions,  i.  9. 
Orders,  i.  50,  94,  122. 
Qualifications  of  Voters,  i.  656-664. 
Reports,  i.  861. 
BROWN,  ARTEMAS. 
Death  of  Mr.  Gourgas,  Vol.  ii.  740. 
House  of  Representatives,  ii.  398;  iii.  603. 
Motions,  i.  448  ;  iii.  27,  80,  515,  603. 
Rights  of  the  Jury,  iii.  471. 
Withdrawal  of  a  Motion,  i.  449. 
BROWN,  HIRAM   C. 
Plurality,  Vol.  iii.  141. 
BUCK,  ASAHEL. 
Loan  of  the  State  Credit,  Vol.  ii.  664. 
Motions,  i.  571,  876. 
Plurality,  iii.  536. 
BUMPUS,  CEPHAS  C. 

Motions,  Vol.  i.  202 ;  ii.  194. 
BURLINGAME,  ANSON. 

Constitutional  Conventions,  Vol.  iii.  294-297. 
Death  of  Mr.  Gourgas,  ii.  739,  740. 
House  of  Representatives,  ii.  450. 
Qualifications  of  Voters,  i.  587-590,  637. 
Resolutions,  ii.  450. 
Rights  of  the  Jury,  iii.  437-441. 
Business,  Order  of.    Vol.  i.  177,  217. 
Business,  Preliminary.     Vol.  i.  10,  33. 
BUTLER,  BENJAMIN  F. 
Adjournment  for  two  weeks.  Vol.  i.  41,42. 
Adjournment,  i.  213-216,  297,  558;  ii.  219,223; 

iii.  645,  646. 

Amendments  and  Enrolment,  iii.  300,  301-334. 
Berlin  Vacancy,  i.  76-79,   82,  84,  87,  94-98,  125, 

183,  184. 

Closing  Debate,  i.  298,  408  ;  ii.  243-245,  793. 
Corporations,  ii.  257,  272. 
Council  and   Lieutenant-Governor,    i.   482-486, 

514,  521-523,  525  ;  ii.  113,  114. 
Declaration  of  Rights,  iii.  424,  431,  433,  434. 
Distribution  of  Books,  iii.  436. 
Encouragement  of  Literature,  iii.  613,  614,  620- 

622,  625, 626. 

Governor,  i.  317,  330-332,  337. 
House  of  Representatives,  ii.  45.  148,  184,  192, 

193,  202-235,  208,  209,  216,  246,  316,  323,  322, 

350,  358,   361,  364-367,  376-379,  382,  383,  427, 

428,  455,  458,  459,  461,  462  ;  iii.  590,  591. 
Imprisonment  for  Debt,  iii.  410,  411,  626. 
Judiciary,   ii.   684,  692,   693,  760,  787-793,   797, 

828,  830,  835 ;  iii.  181,  182,  185,  2'>4.  205,  207, 

239,  222,  223,  232,  234,  235,  310,  311,  364,  384, 

385,  634,  636. 
Justices  of  the  Peace,  iii.  340,  341,  363,  366,  388- 

391,  395,  397-399,  402,  403. 
Limitation  of  Debate,  iii.  1,  265,  266. 
Lieutenant-Governor,  i.  345,  351,  352,  541. 
Loan  of  the  State  Credit,  ii.  679,  680,  684. 
Militia,  ii.  22-24,  104,  106-109. 


1853.] 


INDEX. 


779 


MEMBERS  AND  SUBJECTS. 


Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  662,  663,  666,  670,  671,  684, 
696,  638,  705-707,  716,  717,  721. 

Motions,  i.  124,  188,  272,  274,  296,  337,  345,  352, 
353,  359,  406,  408,  424,  426,  514,  541,  544,  546, 
953;  ii.  192,  193,  243,  266,  267,  272,276,  314, 
657,  679,  681,  684,  830,  835 ;  iii.  1,  40,  86,  265, 
300,  363,  387,  388,  416,  431,  436,  569,  578,  626, 
646,  698. 

Oaths  and  Subscriptions,  i.  353-355,  357,  363- 
367. 

Orders,  i.  189,  272,  971 ;  iii.  86. 

Pay  Roll,  iii.  127. 

Pardoning  Power,  i.  972. 

Plan  of  Represen?ation,  ii.  267. 

Plurality,  i.  274-276,  3  )6,  308,  415,  416-419,  428, 
429,  432,  iii.  87,  107,  138,  55 J,  554,  5-37,558, 
569,  578. 

Population  and  Representation,  i.  436. 

Preliminary  Motions,  i.  317. 

Qualifications  of  Voters,  ii.  276. 

Question  of  Order,  iii.  54'),  5i2,  551-553. 

Quorum  of  the  House,  ii.  835,  838,  838. 

Reports  from  Committees,  i.  233-234  ;  ii.  278-280. 

Resolutions,  iii.  310. 

Rights  of  the  Jury,  iii.  457-460. 

•Secretary,  Treasurer,  £c.,  ii.  473-475. 

Sectarian  Schools,  (see  Encouragement  of  Liter 
ature.) 

Senate,  i.  195,  202. 

CADY,  HENRY. 

Berlin  Vacancy,  Vol.  i.  183. 

Encouragement  of  Literature,  iii.  618. 

House  of  Representatives,  ii.  381,  382. 

Judiciary,  iii.  386,  387. 

Leave  of  Absence,  iii.  603. 

Motions,  i.  551. 

Negligence  of  Railroad  Corporations,  iii.  466, 
467. 

Orders,  i.  178. 

Plurality,  i.  429,  430. 

Qualifications  of  Voters,  i.  551. 

Sectarian  Schools,  (see  Encouragement  of  Liter 
ature.) 
CARTER,  TIMOTHY  W. 

Qualifications  of  Voters,  Vol.  i.  700. 

Rules  and  Orders,  i.  54. 
CARRUTHERS,  WILLIAM. 

Distribution  of  Report  of  Debates,  Vol.  iii.  724. 
CASE,  ISAAC. 

Motion,  Vol.  i.  297. 

Census.      Vol.  i.  144,  271  ;  ii.  386-392  ;  iii.  699,700. 
CHANDLER,  AMARIAH. 

Declaration  of  Rtghts,  Vol.  iii.  416,  417,  421,  422. 

Encouragement  of  Literature,  ii.  545  ;  iii.  619, 
620. 

Justices  of  the  Peace,  iii.  369,  370. 

Motions,  i.  487. 

Petitions,  ii.  569. 

Rights  of  the  Jury,  iii.  503,  504. 

Sectarian  Schools,  (see  Eucouragement  of  Liter 
ature.) 


CHAPIN,  CHESTER  W. 

House  of  Representatives,  Vol.  ii.  242,  243. 

Motions,  ii.  126. 

Plan  of  Representation,  ii.  217. 
CHAPIN,  DANIEL  E. 

Declaration  of  Rights,  Vol.  iii.  417,  420,  424,  427, 
428. 

Distribution  of  Debates,  iii.  641. 

Encouragement  of  Literature,  iii.  618,  619. 

Frame  of  Government,  i.  788. 

House  of  Representatives,  iii.  577. 

Motion,  iii.  577. 

Sectarian  Schools,  (see  Encouragement  of  Liter 
ature.) 
CHAPIN,  HENRY. 

Corporations,  Vol.  iii.  166,  167,  169. 

Encouragement  of  Literature,  ii.  547. 

Frame  of  Government,  i.  788,  789. 

House  of  Representatives,  ii.  229-231. 

Judiciary,  iii.  235,  627,  632. 

Justices  of  the  Peace,  i.  491;  iii.  370-372,  394, 
395,  403,  404. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  700. 

Pay  Roll,  ii.  329. 

Qualifications  of  Voters,  i.  680  ;    ii.  498. 

Secretary,  Treasurer,  &c.,  i.  713;  ii.  469. 
GUILDS,  JOSIAH. 

Qualifications  of  Voters,  Vol.  i.  563. 
CHOATE,  RUFUS. 

Berlin  Vacancy,  Vol.  i.  116-121. 

Closing  Debate,  ii.  35. 

House  of  Representatives,  i.  876-891,  926,  927- 

Judiciary,  ii.  799-811. 

Militia,  ii.  88-90,  92. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  685-687,  690,  691. 

Pardoning  Power,  i.  968,  969. 
CHURCHILL,  J.  McKEAN. 

Adjournment,  Vol.  i.  232  ;  iii.  569. 

Amendments  and  Enrolment,  iii.  123. 

Council,  ii.  113;  iii.  267. 

Declaration  of  Rights,  iii.  471. 

Governor,  i.  337. 

House  of  Representatives,  ii.  237,  238;  iii.  587. 

Justices  of  the  Peace,  i.  492  ;  iii.  372. 

Militia,  ii.  26,  69,  70,  72. 

Motion,  i.  53,  359,  796,  809,907;  ii.  70,98,  112, 
433. 

New  Towns,  iii.  82,  243. 

Orders,  i.  94,  144,  188,  234,  486,  487. 

Pardoning  Power,  i.  9«7,  976,  977,  979. 

Place  of  Meeting,  i.  22. 

Plurality,  i.  245,  410,  411.  422  ;  iii.  108,  567. 

Qualifications  of  Voters,  i.  653,  554,  757,  758  ;  ii. 
117,  252. 

Secretary,  Treasurer,  &c.,  i.  722,  760. 

Senate,  i.  231. 
Claims  against  the  Commonwealth.  Vol.  i.  272;  iii 

713,  714. 
CLARKE,  ALPHEUS  B. 

Motions,  Vol.  i.  551. 

Qualifications  of  Voters,  i.  568,  572. 


780 


INDEX. 


[1853, 


MEMBERS  AND  SUBJECTS. 


COGGIN,  JACOB. 

Encouragement  of  Literature,  Vol.  ii.  574,  575. 
COGSWELL,  NATHANIEL. 
Encouragement  of  Literature,  Vol.  ii.  482,  483, 

569,  571 ;  iii.  619. 
Loan  of  the  State  Credit,  ii.  312. 
Sectarian  Schools,  (see  Encouragement  of  Liter 
ature.) 

COLE,  LANSING  J. 
Adjournment,  Vol.  i.  448,  487,  488. 
Amendments  and  Enrolment,  ii.  567 ;  iii.  299. 
Corporations,  ii.  126,  254,  255,  262,  263. 
Council  and  Lieut.  Governor,  i.  478-482. 
Judiciary,  ii.  830. 
Lieutenant-Governor,  i.  537,  538. 
Loan  of  the  State  Credit,  ii.  281-287,291,  299; 

313,  649,  650. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  713. 
Motions,  ii.  313,  830. 
Orders,  i.  122,  178,  234,  445,  448. 
Petitions,  i.  159. 
Qualifications  of  Voters,  i.  649. 
Quorum  of  the  House,  ii.  838,  839. 
Resolutions,  i.  160,  203 ;  ii.  569. 
Rules  and  Orders,  i.  53. 

Colored  Citizens,  Protest  of.  Vol.  iii.  647,  724-726. 
Committees,  appointment  of.  Vol.  i.  13,  36,  88,  103, 

123,  217,  234,  464 ;  ii.  99  ;  iii.  372. 
Standing,  i.  88. 
time  of  Meeting,  i.  103. 
Instructions  to,  i.  177,  731,  758 ;  ii.  1,  2. 
Committee  of  Conference.    Vol.  i.  50. 
Committee,  Report  of,  on  Credentials.    Vol.  i.  34. 
Report  of,  on  Elections,  i.  93,  99,  130,  930,  931. 
on  Rules  and  Orders,  i.  33,  34. 
on  Distribution  of  Documents,  iii.  647,648. 
on  Mode  of  Procedure,  i.  35,  36. 
on  Place  of  Meeting,  i.  67. 
on  Vacancies,  i.  104. 
on  Frame  of  Government,  i.  104,  202,  424, 

526,  650,  796  ;  ii.  266,  267. 
on  Seating  of  Members,  i.  121. 
on  Senate,  i.  122. 
on   Reporting  and  Printing,  i.   141,    142, 

777 ;  ii.  332 ;  iii.  310,  569. 
on  Governor,  i.  159,  819  ;  ii.  287. 
on   Lieutenant-Governor,  i.   177. 
on  Qualifications  of  Voters,  i.  189,  190,  9G6  ; 

ii.  71, 162,  434,  435,  521,  522. 
on  Oaths  and  Subscriptions,  i.  233,  234  ;  ii. 

279,  280. 
on   House  of  Representatives,  i.  273 ;  iii. 

125. 

on  Order  of  Business,  i.  296. 
on  the  Council,  i.  338. 
on  Corporations,  i.  425. 
on  Judiciary,  i.  447 ;  iii.  534. 
on  Secretary,  Treasurer,   &c.,   i.  489 ;  ii. 

248,  547. 

on  Pay  Roll,  i.  493 ;  iii.  86,  570,  647. 
on   Preamble  and  Bill  of  Rights,  ii.  638, 
639 ;  iii.  99. 


on  Militia,  i.  842,  987 ;  ii.  52,  71. 

on  Loan  of  the  State  Credit,  i.  861. 

on  Encouragement  of  Literature,  ii.  121, 

383,  384,  433,  434. 
on  Leave  of  Absence,  i.  407,  612,  629  ;  ii. 

162,  482 ;  iii.  289,  337,  363. 
on  University  at  Cambridge,  ii.  570,  603, 

724, 726. 

on  Plurality,  i.  159 ;  ii.  278,  279. 
on  Amendments  and  Enrolments,  ii.  280, 

281. 

on  Banking,  ii.  481 ;  iii.  99,  100. 
on  Railroad  Accidents,  iii.  86. 
on  Final  Adjournment,  iii.  100. 
on  Justices  of  the  Peace,  iii.  383,  384. 
on  Constitutional  Conventions,  iii.  404. 
on  Preservation  of  the  Records,  iii.  629. 
on  Revision  of  Amendments,  iii.  643,  645. 
Communication  from  Benjamin  Stevens.     Vol.  L 

13,  67. 

Henry  Wilson,  i.  13. 
President  Boston  Athenaeum,  i.  33. 
Rev.  Warren  Burton,  i.  33. 
James  T.  Robinson,  i.  50. 
Speaker  House  of  Representatives,  i.  87. 
Secretary  of  Commonwealth,  i.  272,  340,  629; 

ii.  482. 

Selectmen  of  Berlin,  i.  340. 
Samuel  A.  Eliot,  i.  217. 
President  Fitchburg  Railroad  Company,  ii. 

744. 

Superintendent  Merchants'  Exchange,  i.  50. 
Comptroller.    Vol.  i.  94. 
Constitution,  Amended,  Distribution  of.    Vol.  iii. 

630,  637-641. 
Form  of,  iii.  648-721. 
Mode  of  Submitting  to  the  People,  iii.  312, 

570-577,  580-613,  648,  650-714,  716. 
Amendments  of,  i.  122;  iii.  118-125,  489-496, 

517-534. 
Constitutions  of  the  several  States.    Vol.  i.  50,  87 ; 

iii.  426. 

Conventions,  Constitutional.  Vol.  i.  94;  ii.  562- 
568  ;  iii.  290-310,  312-318,  341-351, 489-496, 517, 
534,  701-709. 

Council.       Vol.  i.  189,  338,  339,  436-445,  449-486, 
494,  514,  526-535,  543  ;  ii.  33 ;  iii.  267-274,  682, 
683. 
Corporations.  Vol.  i.  144,  217,  271,  425 ;  ii.  122-126, 

253-266,  269-272,  287  ;  iii.  50-75,  166-179,  714. 
COOLEDGE,  HENRY  F. 

Secretary  Treasurer,  &c.,  Vol.  i.  767,  768. 
CRANE,  GEORGE  B. 

Motion,  Vol.  i.  751. 

Credentials.   Vol.  i.  7,  13,  34, 178,  288,  234 ;  iii.  125. 
CRESSY,  OLIVER  S. 
Motions,  Vol.  ii.  735,  736  ;  iii.  49,  99. 
Oaths  and  Subscriptions,  ii.  488,  489. 
Resolution,  i.  273. 
CROSBY,  LEANDER. 

New  Towns,  Vol.  iii.  242. 
CROSS,  JOSEPH  W. 
Death  of  Mr.  Gourgas,  Vol.  ii.  741,  742. 


1853.] 


INDEX. 


781 


MEMBERS  AND  SUBJECTS. 


CROWELL,  SETH. 

Leave  of  Absence,  Vol.  iii.  570. 

Motions,  i.  272 ;  ii.  243. 

Plurality,  i.  422. 
CROWNINSHIELD,  FRANCIS  B. 

Berlin  Vacancy,  Vol.  i.  45-49,  87- 

Constitutional  Conventions,  iii.  345,346,  348,851. 

Encouragement  of  Literature,  iii.  623. 

House  of  Representatives,  ii.  398-411,  455. 

Judiciary,  iii.  231,  €28. 

Loan  of  the  State  Credit,  iii.  25. 

Motions,  ii.  521 ;  iii.  25,  284. 

Oaths  and  Subscriptions,  i.  356-358. 

Pardoning  Power,  i.  981-984. 

Plurality,  i.  307,  420,  421,  424;  iii,  284. 

Qualifications  of  Voters,  i.  758. 

Rules  and  Orders,  i.  55,  56. 

Sectarian  Schools,  (see  Encouragement  of  Liter 
ature.) 
CUMMINGS,   JOSEPH. 

Qualifications  of  Voters,  Vol.  i.  609. 

Leave  of  Absence,  iii.  289. 
CUSHMAN,  HENRY  W. 

Closing  of  Debate,  Vol.  i.  488. 

Compensation  to  the  Officers  of  the  Convention, 
ii.  248. 

Justices  of  the  Peace,  i.  493  ;  iii.  196,  338-340. 

Lieutenant-Governor,  i.  177,  488,  514,  515,  517, 
518,  535,  537,  540  ;  iii.  166. 

Limiting  Debate,  iii.  1,  2. 

Loan  of  the  State  Credit,  ii.  664. 

Motions,  i.  449, 651,  899 ;  ii.  221, 2-33,  664 ;  iii.  166, 
267,  290,  721. 

Orders.i.  7,  12,  93,  159,  216,  493;  ii.  248,  793; 
iii.  312. 

Pay  Roll,  iii.  721. 

Reports,  i.  23,  177. 

Resolutions,  iii,  196. 
CUSHMAN,  THOMAS. 

Leave  of  Absence,  Vol.  i.  612. 

Secretary,  Treasurer,  &c.,  ii.  533,  534. 

DANA,  RICHARD  H.,  JR. 
Berlin  Vacancy,  Vol.  i.  185. 
Constitutional  Conventions,  iii.  494,  518. 
Council,  i.  525-427. 
Declaration  of  Rights,  iii.  376,  378-381,  418,  419, 

424,  433, 434,  451-454, 468-470, 475-478, 480, 481. 
Declination,  iii.  318. 
House  of  Representatives,  i.  941-949;    ii.  134, 

136,  185,  450,  452-454. 

Habeas  Corpus,  (See  Declaration  of  Rights). 
Judiciary,  ii.  701-703,  756-770,  788  ;  iii.  180-184, 

187,  190,  192,  207,  208,  219,  225,  228,  234,  235, 

626,  627, 629-632. 

Loan  of  the  State  Credit,  ii.  674-677. 
Militia,  ii.  27,  98-102. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  662,  665,  667,  673,  674,  682, 

687-689,  691,  692,  709,  714,  715,  717. 
Motions,  i.  383,  819  ;  ii.  98,  329,  481,  701 ;  iii.  515, 

626,  630,  709. 
Oaths  and  Subscriptions,  i.  356. 


Orders,  i.  272,  359. 

Pay  Roll,  ii.  326, 327. 

Plurality,  i.  385-393 ;  iii,  143-145,  275-277,  278, 
283,  284,  555. 

Qualifications  of  Voters,  i.  682,  684-688 ;  ii.  511- 
517. 

Question  of  Order,  iii.  551. 

Resolutions,  i.  708. 

Rights  of  the  Jury,  iii.  451,  454,  455,  507,  509. 

Secretary,  Treasurer,  &c.,  i.  705,  708-711,  719, 

875 ;  ii.  468-471,  481, 534,  539,  540. 
DAVIS,  CHARLES  G. 

Appointment  of  Members  of  the  Legislature  to 
Office,  Vol.  iii.  635. 

Closing  of  Debate,  i.  298. 

Governor,  i.  323-325,  332 ;  ii.  386. 

House  of  Representatives,  ii.  247,  367,  368,  392- 
395,  397,  420,  464,  630,  631 ;  iii.  587-589,  603. 

Imprisonment  for  Debt,  iii.  487-489. 

Judiciary,  iii.  231. 

Justices  of  the  Peace,  iii.  367,  368. 

Loan  of  the  State  Credit,  ii.  308. 

Motions,  i.  627,'  705  ;  ii.  384,  386 ;  iii.  484. 

Negligence  of  Railroad  Corporations,  iii.  467, 468. 

Orders,  i.  103. 

Order  of  Business,  iii,  642. 

Plurality,  i.  245,  306 ;  iii.  93,  94, 155,  536,  563  569. 

Qualifications  of  Voters,  i.  626,  683,  684. 

Question  of  Order,  iii.  542,  543,  552. 

Secretary,  Treasurer,  &c.,  i.  705. 
DAVIS,  EBENEZER. 

Orders,  Vol.  i.  339,  340. 
DAVIS,  ISAAC. 

Corporations,  Vol.  ii.  266,  270-272. 

Declaration  of  Rights,  iii.  483. 

Governor,  i.  316-319,  339 ;  ii.  386. 

Habeas  Corpus,  (see  Declaration  of  Rights.) 

House  of  Representatives,  iii.  609. 

Judiciary,  ii.  691 ;  iii.  631. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  682. 

Motions,  i.  316,  994 ;  ii.  256, 386, 482 ;  iii.  337,  570. 

Orders,  i.  160. 

Pardoning  Power,  i.  974,  975. 

Plurality,  i.  293,  294,  377. 

Qualifications  of  Voters,  i.  671,  672. 

Reports  from  Committees,  i.  9,  159,  819 ;  ii.  287. 

Secretary,  Treasurer,  &c.,  i.  723,  724. 
DAVIS,  ROBERT  T. 

Governor,  Vol.  i.  324. 

House  of  Representatives,  iii.  577. 

Militia,  ii.  3,  4. 

Place  of  Meeting,  i.  27. 

Protest  of  Colored  Citizens,  iii.  726. 
DAWES,  HENRY  L. 

Amendments  and  Enrolment,  Vol.  iii.  315-317 

House  of  Representatives,  ii.  38-52,  619. 

Judiciary,  iii.  385,  386. 

Justices  of  the  Peace,  iii.  368,  370,  395-397. 

Loan  of  the  State  Credit,  ii.  650-654,  655,  665. 

Plurality,  i.  422. 

Qualifications  of  Voters,  i.  621-624. 

Secretary,  Treasurer,  &c.,  i.  906. 


782 


INDEX. 


[1853. 


MEMBERS  AND  SUBJECTS. 


DAY,  OILMAN. 

Motions,  Vol.  iii.  244,  515. 

Rights  of  the  Jury,  iii.  515. 
Debates,  Report?  of.   Vol.  i.  12,  141-143,  160,  162, 

177;  ii.  322;  iii.  310,  569,  629,  638-641. 
Debate,  Closing  of.    Vol.  i.  298,  488,  508, 612,  651 ; 

ii.  657  ;  iii.  100, 101,  520,  603. 
Debate,  Limitation  of.  (See  "  Speeches,  Limitation 

of.") 
DEMING,  ELIJAH  S. 

Presented  Credentials,  Vol.  i.  188. 
DEJNTON,  AUGUSTUS. 

Amendments  and  Enrolment,  Vol.  iii,  346-348, 
351. 

Corporations,  iii.  72,  73. 

Judiciary,  iii.  237. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  684. 

Motions,  i.  759  ;  iii.  72,  351. 

Petitions,  ii.  70. 

Plurality,  iii.  108,  280. 

Qualifications  of  Voters,  ii.  755. 

Secretary,  Treasurer,  &c.,  i.  728,  729,  763,  765, 
766. 

Time  of  Meeting,  ii.  33. 
DEWITT,  ALEXANDER. 

Motions,  Vol.  i.  531. 

Banking,  iii.  358. 

Corporations,  iii.  50,  73. 
Documents,  Distribution  of.    Vol.  i.  44 ;  iii.  637, 

641,647,  648,722-724. 
DUNCAN,  SAMUEL. 

Assorting  and  Counting  Votes,  Vol.  i.  544. 

Justices  of  the  Peace,  iii.  391,  392. 

Loan  of  the  State  Credit.,  ii.  298-300. 

Motions,  i.  114,  122;  ii.  120,  217;  iii.  166,318, 
358. 

Qualifications  of  Voters,  ii.  121.  490-493,  494,  504, 
512,513,519. 

Resolutions,  i.  544  ;  iii.  S18. 

Time  of  Meeting,  i.  733,  734. 

Uniformity  of  Receiving  Votes  at  Elections,  iii. 

387,  388. 
DUNHAM,  BRADISH. 

Petitions,  Vol.  ii.  744. 
DURGIN,  JOHN  M. 

Amendments  and  Enrolment,  Vol.  i.  67. 

Berlin  Vacancy,  i.  74,  09. 

Council  and  Lieutenant-Governor,  i.  462-464. 

Death  of  Mr.  Gourgas,  ii.  741. 

Frame  of  Government,  i.  962. 

Governor,  i.  317. 

House  of  Representatives,  ii.  52-58  ;  iii.  580,  587. 

Lieutenant-Gorernor,  i.  543. 

Loan  of  the  State  Credit,  ii.  647-649. 

Motions,  i.  406,  486,  551 ;  ii.  52. 

Orders,  i.  204. 

Plurality,  i.  255-257;  iii.  131-134. 

Qualifications  of  Voters,  ii.  273. 
EAMES,  PHILIP. 

Adjournment,  Vol.  ii.220. 

Appendix  to  Report  of  Debates,  iii.  265. 

Final  Adjournment,  iii.  727. 


Frame  of  Government,  i.  781,  782. 

Governor,!.  317. 

House  of  Representatives,  ii.  231,  232,  363,  364 

iii.  474. 

Instructing  Committees,  ii,  1,  2. 
Lieutenant-Governor,  i.  347. 
Loan  of  the  State  Credit,  ii.  523. 
Motions,  i,  541,  543  ;  ii.  332, 523, 657  ;  iii.  474, 496. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  703,  704. 
Orders,  ii.  1,  2. 
Petitions,  ii.  247,  657. 
Qualifications  of  Voters,  i.  563,  564. 
Secretary,  Treasurer,  &c.,  i.  907. 
Time  of  Meeting,  ii.  33. 
EARLE,  JOHN  M. 

Adjournment,  Vol.  i.  50;  ii.  221 ;  iii.  100. 
Appendix  to  Report  of  Debates,  iiL  219. 
Banking,  iii.  356. 
Census,  ii.  386,  387,  389-391. 
Corporations,  ii.  125,  126. 
Credentials,  i.  87. 
Distribution  of  Books,  iii.  436. 

of  Report  of  Debates,  iii.  639,  640,  648,  722- 

724. 

Encouragement  of  Literature,  ii.  522. 
Frame  of  Government,  i.  955,  956. 
Governor,  i.  341 ;  ii.  59,  386. 
House  of  Representatives,  ii.  44,  196-198,   202, 

207,  456,  612,  632 ;  iii.  473,  612,  613. 
Judiciary,  ii.  688,  691-693,  696  ;  iii.  181,  208,  209, 

224. 

Justices  of  the  Peace,  iii.  390. 
Lieutenant-Governor,  i.  539-542. 
Limiting  of  Debate,  iii.  2,  267. 
Loan  of  the  State  Credit,  iii.  24. 
Militia,  i.  992-994. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  669,  670,  716,  717, 
Motions,  i.  33,  50,  234,  271,  344,  383,  508,  541, 

543,  544,  590,  614,  986  ;  ii.  194,  221,  386,  392, 

683  ;  iii.  337,  363,  388,  465,  612,  639. 
New  Towns,  iii.  81-85. 

Oaths  and  Subscriptions,  ii.  485-488,  552,  556. 
Orders,  i.  12,  14,  92,  93  ;  ii.  143;  iii.  639. 
Pardoning  Power,  i.980,  981. 
Petitioning  the  Legislature,  i.  545,  546. 
Place  of  Meeting,  i.  51,  52,  65. 
Plan  of  Representation,  i.  590,  591 ;  ii.  193. 
Plurality,  iii.  555,  556. 
Population  and  Representation,  i.  446. 
Printing,  i.  233. 
Qualifications  of  Voters,  i.  560. 
Question  of  Order,  iii.  552. 
Resolutions,  i.  93,  271. 
Rules  and  Orders,  i.  54,  55. 
Secretary,  Treasurer,  &c.,  ii.  534-536. 
Senate,  i.  192,  193,  198,  199,  213,  225,  226-228. 
EASTON,  JAMES,  2o. 

Leave  of  Absence,  Vol.  iii.t603. 
EDWARDS,  ELISHA. 
Council,  Vol.  iii.  274. 
House  of  Representatives,  ii.  160. 


1853.] 


INDEX. 


783 


MEMBERS  AXD  SUBJECTS. 


Motions,  i.  509,  627. 
Oaths  and  Subscriptions,  ii.  556. 
Orders,  i.  122. 
Pay  Roll,  iii.  127. 
Place  of  Meeting,  i.  36,  37. 
Plurality,  iii.  94,  95. 

Qualifications  of  Voters,  i.  552,  648,  691, 
ELIOT,  SAMUEL  A. 

Letter  of  Resignation,  Vol.  i.  217. 
Election  of  President,  Vol.  i.  9. 
of  First  Secretary,  i.  9. 
of  Second  Secretary,  i.  10. 
of  Chaplain,  i.  23. 
of  Messenger,  i.  33,  44,  53,  66. 
of  President  pro  tern.,  iii.  219. 
of  State  Officers,  i.  489. 
Elections,  General,  Vol.  i.  114,  178.  202,  344,  383, 

544,  651 ;  iii.  694,  697,  700. 
Voting  in,  iii.  694. 
ELY,  JOSEPH  M. 
Judiciary,  Vol.  iii.  238. 

Motions,  ii.  838,  840  ;  iii.  247,  266,  284,  388,  569. 
.New  Towns,  iii.  247. 
Plurality,  iii.  284. 
Qualifications  of  Voters,  i.  743. 
Question  of  Order,  iii.  552. 
Quorum  of  the  House,  ii.  838. 
Uniformity  of  Receiving  Votes,  iii.  388. 
EUSTIS,  WILLIAM  T. 

Leave  of  Absence,  Vol.  i.  509. 
Explanations,  Personal.    Vol.  ii.  832,  834. 

FARWELL,  A.  G, 

Loan  of  the  State  Credit,  Vol.  ii.  122. 
FAY,  SULLIVAN. 

On  Leave  of  Absence,  Vol.  iii.  603. 

Motions,  ii.  332 ;  iii.  289,  603. 

Reports  from  Committees,  i.  407,  612,629;  iii. 

289,  337,  363,  603. 
FOSTER,  AARON. 

Closing  Debate,  Vol.  i.  613. 

Frame  of  Government,  i.  800,  955. 

House  of  Representatives,  ii.  163-165,  200,  411- 
413. 

Loan  of  State  Credit,  ii.  293,  294. 

Militia,  ii.  68. 

Motion,  ii.  161. 

Orders,  i.  203. 

Plurality,  iii.  98. 

Qualifications  of  Voters,  i.  741-743,  746. 
FOWLER,  SAMUEL  P. 

Motions,  Vol.  i.  449. 
FREEMAN,  JAMES  M. 

House  of  Representatives,  Vol.  ii.  191,  192. 

Justices  of  the  Peace,  iii.  404. 

Motions,  i.  612,  759  ;  iii.  24. 

Rights  of  the  Jury,  iii.  465. 

Secretary,  Treasurer,  &c.,  i.  759. 
FRENCH,  CHARLES  A. 

Plurality,  Vol.  i.  244,  245. 
FRENCH,   RODNEY. 

Amendments  and  Enrolment,  Vol.  iii.  314,  315. 

Constitutional  Conventions,  iii.  534. 


Declaration  of  Rights,  iii.  422,  480-482. 

Habeas  Corpus,  (see  Declaration  of  Rights.) 

House  of  Representatives,  ii.  356,  360,  369,  381 ; 
iii.  609,  610. 

Imprisonment  for  Debt,  iii.  407. 

Judiciary,  ii.  785-787,  834,  835  ;  iii.  193-196,  198, 
199. 

Motions,  i.  177,   202,  424,  612 ;  ii.  381,  834 ;  iii. 
49,  264,  471,  534,  545. 

Oaths  and  Subscriptions,  i.  370,  371. 

Petitions,  i.  113,  114,  159,  160. 

Plurality,  i.  430. 

Qualifications  of  Voters,  i.  614-617,  628,  641. 

University  at  Cambridge,  iii.  47. 
FRENCH,  SAMUEL. 

Adjournment,  Vol.  ii.  220. 

Banking,  iii.  329,  330. 

Corporations,  ii.  125,  254 ;  iii.  72,  73,  173,  174. 

Council,  iii.  271. 

Frame  of  Government,  i.  786,  787. 

House  of  Representatives,  i.  904,  905 ;  ii.   320, 
611. 

Judiciary,  ii.  685,  686,  712,  774,  775. 

Loan  of  State  Credit,  ii.  293. 

Orders,  i.  340. 

Place  of  Meeting,  i.  70. 

Plurality,  i.  419  ;  iii.  115,  152,  165. 

Qualifications  of  Voters,  i.  563,  602,  603  ;  ii.  119. 

Secretary,  Treasurer,  &c.,  i.  721,  777,  778. 
FROTHINGHAM,  RICHARD,  JR. 

Adjournment,  Vol.  i.  215. 

Banking,  iii.  318-326,  336,  356-359. 

Berlin  Vacancy,  i.  91,  98. 

Boston  Vacancies,  i.  188. 

Choice  of  Messenger,  i.  44. 

Corporations,  ii.  255,  256  ;  iii.  55-57,  58,  72. 

Council  and  Lieutenant-Governor,  i.  471,  472. 

Encouragement  of  Literature,  ii.  544  ;  iii.  618. 

Explanation,  iii.  240. 

Frame  of  Government,  i.  802-804,  808. 

House  of  Representatives,  ii.  208,  213,  214. 

Judiciary,  ii.  688  ;  iii.  210,  212. 

Justices  of  the  Peace,  iii.  370. 

Lieutenant-Governor,  i.  347,  348,  351. 

Militia,  ii.  24,  27,  28. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  715. 

Motion*,  i.  143,  160,  339  ;  iii.  212,  239,  715. 

New  Towns,  iii.  78-80,  84. 

Oaths  and  Subscriptions,  ii.  486. 

Orders,  i.  144,  160. 

Petitions,  i.  758. 

Plurality,  i.  423,  430 ;  iii.  95,  164,  165. 

Qualifications  of  Voters,  i.  605-608,  624. 

Reporting  and  Printing,  i.  160,  161. 

Reports  from  Committees,  ii.  481,  482  ;  iii.  99, 100. 

Sectarian  Schools,  (see  Encouragement  of  Liter 
ature). 

GARDNER,  HENRY  J. 
Adjournment,  Vol.  iii.  520. 
House  of  Representatives,  ii.  241,  242 ;  iii.  591, 
592,  613. 


784 


INDEX. 


[1853. 


MEMBERS  AND  SUBJECTS. 


Judiciary,  iii.  211,  212. 

Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  673,  679. 
Motions,  iii.  80,  494. 
New  Towns,  iii.  80. 
Plurality,  iii.  647,  555,  556,  559,  560. 
Question  of  Order,  iii.  553. 
University  at  Cambridge,  iii.  76. 
GARDNER,  JOHNSON. 
Adjournment,  Vol.  i.  40,  41. 
Amendments,  i.  43. 

Council  and  Lieutenant-Goyernor,  i.  474,  475. 
Berlin  Vacancy,  i.  73,  74. 
Declaration  of  Rights,  iii.  376,  377,  425. 
Frame  of  Government,  i.  962,  963. 
House  of  Representatives,  ii.  231,  202,  238-240, 

369,  370,  397  ;  iii.  598. 
Judiciary,  ii.  696,  697. 
Militia,  ii.  103. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  667,  679. 
Motions,  i.  39,  423 ;  ii.  656  ;  iii.  463. 
New  Towns,  iii.  78. 
Orders,  i.  144. 

Petitioning  the  Legislature,  i.  514,  545. 
Plan  of  Representation,  ii.  143,  144,  238,  239. 
Place  of  Meeting,  i.  14,  39,  72. 
Plurality,  iii.  108,  153,  154. 
Rights  of  the  Jury,  iii.  463. 
Senate,  i.  195. 
General  Court.      Vol.  i.  122,  160,  178,  950-966; 

iii.  659-667. 
GILBERT,  WASHINGTON. 

Orders,  Vol.  i.  203. 
GILES,  JOEL. 
Amendments  and  Enrolment,  Vol.  ii.  722-724 ;  iii. 

122,  123. 

Constitutional  Conventions,  iii.  524,  527. 
Council,  i.  5  )7, 508, 509-513. 
House  of  Representatives,  ii.  356-360. 
Judiciary,  iii.  199-202. 
Loan  of  the  State  Credit,  ii.  679-681, 683  ;  iii.  21- 

24. 

Motions,  ii.  683. 
Senate,  i.  197,  198. 

University  at  Cambridge,  iii.  48,  49,  77. 
GOOCH,  DANIEL  W. 
Assignment  of  Seats,  Vol.  i.  133. 
Governor,  i.  336. 
Judiciary,  iii.  235. 
Justices  of  the  Peace,  iii.  401,  402. 
Motions,  iii.  402. 

Oaths  and  Subscriptions,  i.  371 ;  ii.  552,  553,  555. 
Plurality,  iii.  105-107,  279,  280. 
GOURGAS,  FRANCIS  R. 
Berlin  Vacancy,  Vol.  i.  177. 
Council  and  Lieutenant- Governor,  i.   445,  449, 

456-459. 

Credentials  of  the  Delegate  for  Berlin,  i.  340. 
Motions,  i.  10,  50,  53,  142,  190,  445. 
Oaths  of  Office  to  the  Secretaries  of  the  Coven- 

tion,  i.  50. 
Orders,  i.  13,  94,  177. 


Preservation  of  Records,  i.  13. 

Reporting  and  Printing,  i.  141,  142,  161,  162, 177. 

Reports  from  Committees,  i.  141,  142,  177,  777. 

Senate,  i.  218,  219. 
Governor!     Vol.  i.  122,  159,  316,  318-337,  341-344, 

383,487,  986  ;  ii.  59,  386  ;  iii.  679-682. 
Gourgas,  Francis  R.,  Death  of.     Vol.  ii.  738-744. 
Government,  Frame  of.     Vol.  i.  .04,  144,  160,  178, 
190,  203,  271,  344,  508,  650,  780-796,  798-809, 
966 ;  ii.  384,  385 ;  iii.  659. 
Government,  Seat  of.    Vol.  i.  425,  544. 
GRAY,  JOHN  C. 

Adjournment,  Vol.  i.  272,  297,  558. 

Berlin  Vacancy,  i.  184. 

Census,  ii.  391. 

Closing  Debate,  i.  298,  299,  407,  408. 

Corporations,  iii.  62,  63,  170-173. 

Declaration  of  Rights,  iii.  435,  436. 

Frame  of  Government,  i.  798-800. 

House  of  Representatives,  i.  870-875;    ii.  184, 
185-190, 198. 

Judiciary,  ii.  684,  687,  688 ;  iii.   182,  216-219,  225. 

Lieutenant-Governor,  i.  352,  539,  540,  542. 

Loan  of  the  State  Credit,  ii.  677-679,  683;  iii.  25. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  674,  675. 

Orders,  i.  144,  436. 

Place  of  Meeting,  i.  29,  30,  68. 

Plurality,  i.  2-52-255,  295,  296,  299-302,  306,  410, 
420 ;  iii.  108,  166,  536. 

Population  and  Representation,  i.  436,  446,  447. 

Question  of  Order,  iii.  538,  539,  547. 

Rights  of  the  Jury,  iii.  461-463. 

Rules  and  Orders,  i.  54,  56,  57,  59,  60. 

Secretary,  Treasurer,  &c.,  i.  729,  765,  766, 769,  770. 
GREENE,  WILLIAM  B. 

Berlin  Vacancy,  Vol.  i.  128-130,  170. 

Motions,  i.  216" ;  ii.  217,  792 ;  iii.  262. 

Pay  Roll,  iii.  722. 

Petitions,  i.  216,  359,  493,  612,  796,  842 ;  ii.  99, 
287. 

Qualifications  of  Voters,  ii.  726-732,  754,  755. 

Resolutions,  i.  123. 

Senate,  i.  200,  201. 

Woman's  Rights,  (see  Qualifications  of  Voters.) 
GREENLEAF,  SIMON. 

Judiciary,  Vol.  ii.  779-785. 

Rights  of  the  Jury,  iii.  497. 
GRISWOLD,  WHITING. 

Adjournment,  Vol.  i.  216,  487  ;  ii.  462,  463  ;  iii. 
520. 

Amendments  and  Enrolment,  iii.  267,  289,  290. 

Appendix  to  the  Report  of  Debates,  iii.  265. 

Banking,  iii.  356. 

Census,  ii.  387. 

Closing  Debate,  ii.  793 ;  iii.  360,  521. 

Constitutional  Conventions,  iii.  317, 404, 493. 

Council,  iii.  268,  274. 

Contested  Seat  of  Delegate  for  Walpole,  i.  103. 

Elections,  i.  103. 

Frame  of  Government,  i.  963,  964. 

House  of  Representatives,  i.  810-835,  838,  851, 
855 ;  ii.  179,  206,  207,  209,  210,  214,  216,  217, 


1853.] 


INDEX. 


785 


MEMBERS  AND  SUBJECTS. 


335,370-372,  333,  419;  446,  453-455,  616,617; 

iii.  607,  608. 

Imprisonment  for  Debt,  iii.  485. 
Judiciary,  ii.  777,  793. 

Justices  of  the  Peace,  iii.  337, 3G3,  366,  372. 
Leave  of  Absence,  iii.  603. 
Loan  of  the  State  Credit,  ii.  667  ;  iii.  3-7. 
Motions,  i.  233,  273,  693,  731,  930  ;  iiL  274,  312, 

318,  337,  272,  523,  612,  647. 
Orders,  i.  708. 

Place  of  Meeting,  i.  20,  21,  52. 
Plurality,  i.  256-271,  304,  305  ;  iii.  103, 
Population  and  Representation,  i.  445,  446, 
'Qualifications  of  Voters,  i.  690. 
Quorum  of  the  House,  ii.  835,  836, 
Question  ef  Order,  iii.  551. 

Reports  from  Committees,  i.  8-10,  273 ;  iii.  125. 
Time  of  Meeting,  i.  733, 

Habeas  Corpus.     Vol.  iii.  372,  437-484,  713. 
HALE,  ARTEMAS. 

Amendments  and  Enrolment,  Vol.  i.  414  ;  ii,  714, 

715,  721 ;  iii.  118,  119,  290,  297,  299,  330. 
Appointment  of  Members  of  the  Legislature  to 

Office,  iii.  635. 
Betlin  Vacancy,  i.  91. 
Census,  ii.  391. 
Closing  Debate,  i.  613;  ii.  34. 
Corporations,  iii.  62. 
Distribution  of  Amended  Constitution,  iii.  637, 

638. 

House  of  Representatives,  ii.  381. 
Imprisonment  for  Debt,  iii.  409. 
Judiciary,  iii.  636,  637. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  667. 
Motions,  L  12,  216, 272,  734,  891 ;  ii.  381,  391,  724  ; 

iii.  99. 

Plurality,  i.  422 ;  iii.  554,  555,  559. 
Question  of  Order,  iii.  543,  550. 
Secretary,  Treasurer,  £c.,  i.  708. 
HALE,  NATHAN. 

Closing  Debate,  Vol.  ii.  436,  437. 

Declination,  i.  190. 

House  of  Representatives,  i.  835-842;    ii.  466, 

637-639,  632,  633. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  667,  683. 
Motions,  i.  232;  ii.  466. 
Plurality,  i.  218,  232,  276,  277. 
Reporting  and  Printing,  i.  142,  143. 
Resolutions,  i.  218. 
HALL,  CHARLES  B. 
Banking,  Vol.  iii.  351-354,  356-359. 
Council  and  Lieutenant-Governor,  i.  474. 
Declination,  i.  780. 
Justices  of  the  Peace,  i.  490. 
Loan  of  the  State  Credit,  ii.  313. 
Motions,  i.  53,  250,  334,  538  ;  ii.  248,  251,  313,  314. 
Orders,  i.  11,  94. 
Plurality,  i.  251,  252,  286,  423. 
Reports  from  Committees,  i.  33  ;  ii.  247,  248,  547. 
Rules  and  Orders,  i.  34,  54,  56,  59. 

53 3 


HALLETT,  B,  F. 
Adjournment,  Vol.  i.  214,  232,  297. 
Amendments  and  Enrolment,  ii.    717-721,  724 ; 

iii.  118,  119-122,  289,290-294,  298,  299,  307-309, 

310,  314P  317,  318,  341,  342,  344. 
Berlin  Vacancy,  i.  46,  47,  131-141,  157,  165-169, 

170, 174. 

Closing  Debate,  ii.  436. 
Council,  i.  338,  339,  494-507,  531,  532,  534 ;  iii. 

274,  318,  351. 
Coun-cil  and  Lieutenant-Governor,  i.  436-445,  458, 

486. 
Consti-tutional  Conventions,   iii.    404,  493,  528, 

529,  533. 

Corporations,  iii.  50-54,  58,  177. 
Declination,  i.  50. 
Declaration  of  Rights,  iii.   375-378,  380-382,  383, 

422-431,  433,  435,  468-470,  474,  475,  477-479, 

483. 

Distribution  of  the  Report  of  Debates,  iii.  724. 
Encouragement  of  Literature,  iii.  615,  G16,  626. 
Final  Adjournment,  iii.  727,  728. 
Frame  of  Government,  i.  783,  789,  790,  953,  954. 
Governor,  i.  331-334,  336  ;  ii.  59,  63. 
Habeas  Corpus,  (see  Declaration  of  Rights.) 
House  of  Representatives,  i.  907-928,  933-936 ; 

ii.  325,  424-427, 436-442,  591,  592,  611-618  ;  iii. 

594-596. 

Imprisonment  for  Debt,  iii.  411,412,  484,  48o. 
Judiciary,  ii.  703,  775,  776,  827,  828;  iii.  188-193, 

232,  234,  628. 
Justices  of  the  Peace,  iii.  340-342,  381,  363,  367, 

371,  398,  339,  402. 
Lieutenant-Governor,  i.  349,  350. 
Loan  of  the  State  Credit,  ii.  669-673,  677. 
Militia,  i.  993 ;  ii.  20-22,  32,  92-96. 
Motions,  i.  14,  43,  436,  486  ;  iii.  118,  265,  274,  318, 

540,  626,  714,  721. 
Mode  of  Procedure,  i.  11. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  658,  683,  684,  687,  692,  693, 

695-697,  7U,  716,  721. 
Negligence  of  Railroad  Corporations,  iii.  86,  465, 

466. 

New  Towns,  iii.  82,  83,  241-243,  245-247. 
Oaths  and  Subscriptions,  i.  356-358,  360-364,367, 

368 ;  ii.  553,  555. 
Orders,  i.  12,  33. 
Pardoning  Power,  i.  977. 
Pay  Roll,  ii.  329,  330. 
Place  of  Meeting,  i.  16-20,  24,  32,  43. 
Plurality,  i.  290-293,  336,  421 ;  iii.  96-98,  166. 
Protest  of  Colored  Citizens,  iii.  724-726. 
Qualifications  of  Voters,  i.  564-588,  600,  609-612, 

644,  645,  648,  688-690 ;  ii.  515, 521. 
Question  of  Order,  iii.  540,  541. 
Quorum  of  the  House,  ii.  835-839. 
Reporting  and  Printing,  i.  11. 
Reports  from  Committees,  i.  338,  339;  iii.  86,  99, 

434. 

Resolutions,  i.  435  ;  ii.  683. 
Rights  of  the  Jury,  iii.  447-453,  456,  504,  509, 512. 
Senate,  i.  219-223. 


786 


INDEX. 


[1853. 


MEMBERS  AND  SUBJECTS. 


Secretary,',  Treasurer,  &c.,  i.  715-718,  728,  729, 

772-774. 

Sectarian  Schools,  (see  Encouragement  of  Liter 
ature). 

University  at  Cambridge,  iii.  253,  254. 
HAPGOOD,  LYMAN  W. 

Leave  of  Absence,  Vol.  iii.  603. 
HARMON,  PHINEAS. 
Orders,  Vol.  i.  160, 558. 
HASKELL,  GEORGE. 
House  of  Representatives,  Vol.  ii.  342-351 ;  iii. 

630,  601. 

Qualifications  of  Voters,  ii.  273,  276,  277. 
HATHAWAY,  ELNATHAN  P. 
Amendments  and  Enrolment,   Vol.  iii,  348-350. 
Berlin  Vacancy,  i.  46,  47,  81,  82. 
Closing  Debate,  i.  613. 
Council,  i.  535. 
Governor,  i.  319-321. 
House  of  Representatives,  ii.  216,  360,  362-364, 

376-378,  462-464 ;  iii.  595,  601-603. 
Judiciary,  ii.  694,  695. 
Justices  of  the  Peace,  i.   492,  493 ;  iii.  338-340, 

398,  399. 

Loan  of  State  Credit,  ii.  681 ;  iii.  11-15. 
Militia,  i.  992  ;  ii.  98-100,  106,  107. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  658,  659,  681,  694,  718. 
Motions,  i.  383  ;  ii.  466  ;  iii.  287,  603. 
Orders,  i.  122. 

Pardoning  Power,  i.  972,  973. 
Place  of  Meeting,  i.  27,  28,  65,  66. 
Plurality,  i.  401-406,423;  iii.  108,  136,  [137,  139, 

169,  287,  536,  568,  569. 
Qualifications  of  Voters,  i.  626,  627 ;  ii.  274-276, 

728. 

Secretary,  Treasurer,  &c.,  i.  906. 
Senators  in  Congress,  i.  383. 
Senate,  i.  199-201,  228,  229,  231. 
IIAZEWELL,  CHARLES  C. 
Appeared  and  took  seat  in  Convention,  as  Dele 
gate  from  Concord,  to  fill  the  vacancy  occa 
sioned  by  the  death  of  Mr.  Gourgas,  Vol.  iii. 
125. 
HENRY,  SAMUEL. 

Leave  of  Absence,  Vol.  iii.  363. 
HILLARD,  GEORGE  S. 

Amendments  and  Enrolment,  Vol.  iii.  351. 

Closing  Debate,  i.  408. 

Declaration  of  Rights,  iii.  420,  421,  424,  431. 

Final  Adjournment,  iii.  727. 

House  of  Representatives,  ii.  58,  59,  127-134. 

Imprisonment  for  Debt,  iii.  409,  412. 

Judiciary,  iii.  235,  212-214,  386. 

Loan  of  the  State  Credit,  ii.  306,  307. 

Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  663,  700,  707,  708. 
Negligence  of  Railroad  Corporations,  iii.  465. 
Pay  Roll,  ii.  328. 

Personal  Explanation,  ii.  833,  834. 
Plurality,  i.  277,  278,  411-414;  iii.   160,  161,  165, 

166,  557. 
Question  of  Order,  iii.  653,  645. 


Qualifications  of  Voters,  i.  611,  618-621,  697,698. 
Rights  of  the  Jury,  iii.  441-444,  504,  505. 
Secretary,  Treasurer,  &c.,  ii.  471-473,  528-532. 
Senate,  i.  195,  196,  198. 
HOBART,  AARON. 
Orders,  Vol.  i.  216. 
HOBBS,  EDWIN. 

Death  of  Mr.  Gourgas,  Vol.  ii.  740,  744. 
Motions,  ii.  744. 
Presented  Credentials  of  Delegate  from  Concord, 

iii.  I2b. 

HOLDER,  NATHANIEL. 
Closing  Debate,  Vol.  i.  298. 
Constitutional  Conventions,  iii.  523. 
Declaration  of  Rights,  iii.  425,  431. 
House  of  Representatives,  ii.  183,  184. 
Judiciary,  ii.  711,  712. 
Motions,  i.  298,  299 ;  iii.  523. 
Plurality,  i.  247,  296. 
Qualifications  of  Voters,  i.  743,  744. 
Senate,  i.  202. 

Homestead,  Free.    Vol.  i.  93. 
HOOD,  GEORGE. 
Adjournment,  Vol.  i.  232,  272. 
Berlin  Vacancy,  i.  181,  185. 
Concerning  First  Secretary  of  Convention,  i.  9. 
Governor,  i.  334,  337. 
House  of  Representatives,  ii.  247. 
Imprisonment  for  Debt,  iii.  486. 
Judiciary,  ii.  811-818;  iii.  207,  210. 
Motions,  i.  57,  87,  626,  744. 
New  Towns,  iii.  243,  244. 
Orders,  i.  177. 
Pay  Roll,  ii.  328,  330. 
Place  of  Meeting,  i.  87. 
Printing,  i.  233. 
Qualifications  of  Voters,  i.  552,553,  555,  556,569- 

571,  616-648,  680  ;  ii.  274. 
Reports,  i.  296. 
Rules  and  Orders,  i.  57-60. 
Senate,  i.  231. 
HOOPER,  FOSTER. 
Adjournment,  Vol.  i.  41,  558. 
Banking,  iii.  327-329,  336,  356. 
Choice  of  President,  i.  9. 
Choice  of  Secretaries,  i.  7-9. 
Choice  of  Messenger,  i.  53. 
Closing  Debate,  i.  298 ;  ii.  34,  35,  244. 
Constitutional  Conventions,  iii.  523,  526,  532,  533, 
Council,  i.  531. 

Distribution  c.  Debates,  iii.  638,  641. 
Governor,  i.  317,  ?18  ;  ii.  60. 
House  of  Representatives,   ii.  138-140,  192,  193, 

244,  368,  369,  395,  397,  633 ;  iii.  583-585. 
Judiciary,  ii.  687,  693,  696,  699-701,  70S,  708,  709, 
756,  777-779;  iii.  181,  196-198,  201,  211,229, 
234,  237,  637. 

Lieutenant-Governor,  i.  536,  537,  539,  540. 
Loan  of  the  State  Credit,  ii.  301,  302. 
Militia,  ii.  81. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  682. 
Mode  of  Procedure,  i.  10. 


1853.] 


INDEX. 


787 


MEMBERS  AND  SUBJECTS. 


Motions,  i.  7,  9, 10,  33,  50,  53,  130,  372,  590,  591, 

701,  708  ;  ii.  481,  703,  756,  777 ;  iii.  39,  40,  148, 

229,  240,  275. 

New  Towns,  iii.  77,  78,  89,  148,  240,  241-243,  247. 
Orders,  i.  13,  143,  189. 

Oaths  and  Subscriptions,  ii.  486, 487,  551,  552. 
Place  of  Meeting,  i.  21,  22,  52. 
Plurality,  i.  87,  90,  233,  236, 278-281,  419-423,  426, 

427,  433,  434 ;  iii.  137,  138,  140,  151,  152,  275, 

280, 281. 

Printing,  i.  233,  249. 
Qualifications  of  Voters,  i.  551,  552,554,  591-594, 

609,  701 ;  ii.  273,  754. 
Reports,  i.  159. 
Resolutions,  i.  87,  973,  974. 
Rules  and  Orders,  i.  34,  35,  59,  60. 
Senate,  i.  194. 
Time  of  Meeting,  i.  733. 
University  at  Cambridge,  iii.  39,  40. 
HOPKINSON,  THOMAS. 
Constitutional  Conventions,  VoL  iii.  494. 
Contested  Seat  of  Delegate  from  Walpole,  i.  106- 

108. 

Council  and  Lieutenant-Governor,  i.  458. 
Death  of  Mr.  Gourgas,  ii.  742,  743. 
Declaration  of  Rights,  iii.  377,  378. 
Governor,  i.  327,  328,  334-337- 
Imprisonment  for  Debt,  iii.  412-414. 
Judiciary,  iii.  311,  628,  629. 

Loan  of  the  State  Credit,  ii.  6:54-663,679;  iii.  5. 
Militia,  ii.  7-10,  14,  31,  106,  114,  115. 
Motions,  i.  508. 

Oaths  and  Subscriptions,  i.  372. 
Plurality,  i.  416  ;  iii.  165. 
Qualifications  of  Voters,  i.  751-753;  ii.  119. 
University  at  Cambridge,  iii.  48,  49. 
HOUGHTON,  SAMUEL. 
Leave  of  Absence,  Vol.  ii.  482. 
Motions,  ii.  218. 
Orders,  ii.  162. 

Qualifications  of  Voters,  i.  571 ;  ii.  119. 
House  of  Representatives.      Vol.  i.  89,  90,  93, 144- 

178, 189,  218,  273,  425,  436,  445,  448,  590,  591, 

651,  731,  777,  809-949 ;   ii.  33,  38-59,  127-218, 

221-218,  267-269,  314-325,  332-383,   384,  392- 

433,  437-468,  556-562,  569,  576-638,   835-840  ; 

iii.  290.  318,472-474,570-577,  580-613,  668-679. 
HOYT,  HENRY  K. 
Judiciary,  Vol.  ii.  712. 
Leave  of  Absence,  iii.  603. 
Motions,  i.  425. 
New  Towns,  iii.  81,  84,  85. 
Petitions,  i.  425,  907. 
HUBBARD,  WILLIAM  J. 
Constitutional  Conventions,  Vol.  iii.  533. 
Council  and  Lieutenant-Governor,  i.  472,  473, 482. 
Governor,  i.  317,  325,  326. 
House  of  Representatives,  ii.  240-242;  iii.  608, 

609. 

Judiciary,  iii.  181. 

Lieutenant-Governor,  i.   350-352,  538-540,  542. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  654,  694,  696. 


Motions,  i.  216. 

Oaths  and  Subscriptions,  i.  355,  356. 

Place  of  Meeting,  i.  15,  16,  66. 

Printing,  i.  67. 

Plurality,  i.  305,  409,  410,  420  ;  iii.  108,  569. 

Qualifications  of  Voters,  i.  554-557,  600-602,609. 

Reference  of  a  Petition,  i.  218. 

Rules  and  Orders,  i.  60. 

Senate,  i.  231. 

Secretary,  Treasurer,  &c.,  i.  723,724,  730. 

University  at  Cambridge,  iii.  75,  76. 
HUNTINGTON,  ASAHEL. 

Qualifications  of  Voters,  Vol.  ii.  506^508,  511. 

Rights  of  the  Jury,  iii.  512,  513. 
HUNT1NGTON,  CHARLES  P. 

Appointment  of  Members  of  the  Legislature  to 
Office,  Vol.  iii.  635. 

Berlin  Vacancy,  i.  126-128,  172. 

Corporations,  ii.  255,  257. 

House  of  Representatives,  ii.  246,  247,  325,  332- 
342,  351,  352  ;  iii.  472,  473. 

Imprisonment  for  Debt,  iii.  484,  485. 

Judiciary,  iii.  231. 

Justices  of  the  Peace,  iii.  391. 

Motions,  ii.  325  ;  iii.  635. 

Pardoning  Power,  i.  9/0,  971. 

Plan  of  Representation,  ii.  161,  162,  192,  193. 

Plurality,  i.  419,  420. 

Qualifications  of  Voters,  ii.  511,  512. 

Rights  of  the  Jury,  iii.  463,  499,  500. 

University  at  Cambridge,  iii.  255,  256. 
HUiYTINGTON,  GEORGE  H. 

Leave  of  Absence,  Vol.  iii.  474. 
HURLBURT,  SAMUEL  A. 

Plurality,  Vol.  i.  398. 
HURLBUT,  MOSES  C. 

Adjournment,  Vol.  i.  39. 

Loan  of  the  State  Credit,  ii.  300,  301. 

Motions,  i.  876  ;  ii.  194. 

Plurality,  iii.  281,  282,  565. 

Qualifications  of  Voters,  i.  693. 
HYDE,  BENJAMIN  D. 

Berlin  Vacancy,  Vol.  i.  124-126. 

Motions,  iii.  127. 

Pay  Roll,  iii.  126,  127. 

Plurality,  i.  247-249. 

IDE,  ABU  AH  M.,  JR. 

Orders,  Vol.  i.  178. 
Imprisonment  for  Debt.    Vol.  i.  92,  339,  558  ;  iii. 

405-416,  484-489,  714. 
Imprisonment,  False.     Vol.  i.  650. 

JAMES,  WILLIAM. 

Adjournment,  Vol.  ii.  219,  221. 

Loan  of  the  State  Credit,  ii.  313. 

Militia,  ii.  107,  109. 

Motions,  i.  731  ;  ii.  385,  617. 

New  Towns,  iii.  243. 

Plurality,  i.  731  ;  iii.  140,  141. 
JENKS,  SAMUEL  H. 

Declaration  of  Rights,  Vol.  iii.  425. 

Encouragement  of  Literature,  iii.  621. 


788 


INDEX. 


[1853. 


MEMBERS  AND  SUBJECTS. 


House  of  Representatives,  ii.  455,  456. 

Imprisonment  for  Debt,  iii.  485. 

Mode  of  submitting  the  Amended  Constitution 

to  the  People,  iii.  659,  663,  683. 
Motions,  ii.  455. 
Plan  of  Representation,  ii.  33. 
Question  of  Order,  iii.  552. 

Sectarian  Schools,  (see  Encouragement  of  Liter 
ature.) 
JENKINS,  JOHN. 

Constitutional  Conventions,  Vol.  iii.  518,  521. 
Judges,  List  of.     Vol.  ii.  162. 

Judiciary.    Vol.  i.  103,  122,  143,  144,  160,  189,  &59, 

447,  558,  973,  974;  ii.  70.  71, 143,  162,  385,  684- 

714,756-832;  iii.  179-239,  310,  311,  364,  384- 

387,  685-694. 

Jury.  Rights  of  the.     (See  "  Rights,  Declaration 

of.") 

Justices  of  the  Peace.     Vol.  i.  339,  489-493;  iii, 
337-341,  361-372,  388-404. 

KELLOGG,  GILES  C. 

Frame  of  Government,  Vol.  i.  809. 

Lieutenant-Governor,  i.  540,  541. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  658. 

Oaths  and  Subscriptions,  i.  358,  359. 

Orders,  i.  143,  144. 
KELLOGG,  MARTIN  R. 

Leave  of  Absence,  Vol.  i.  986 ;  iii.  337. 
KEYES,  EDWARD  L. 

Adjournment,  Vol.  i.  43,  215, 

Banking,  iii.  354-356. 

Berlin  Vacancy,  i.  92,  183. 

Choice  of  Secretary,  i.  9,  10. 

Closing  Debate,  i.  299. 

Council  and  Lieutenant-Governor,  i.  449-456. 

Council,  ii.  113;  iii.  269,  271,  272. 

Declaration  of  Rights,  iii.  419,  427,  475,  476. 

Encouragement  of  Literature,  ii.  544,  545 ;  iii. 
614. 

Frame  of  Government,  i.  950-952,  954,  955,  964. 

Governor,  i.  326-3-9. 

Habeas  Corpus,  (see  Declaration  of  Rights.) 

House  of  Representatives,  i.  90 1-904 ;  ii.  269, 
317,  373,  374,  382,  398. 

Imprisonment  for  Debt,  iii.  407-409,  489. 

Judiciary,  ii.  702,  703,  709-711,  759,  770-776,  795, 
796 ;  iii.  205,  206,  224,  225,  228,  229,  234,  237, 
63i,  635. 

Justices  of  the  Peace,  iii.  367,  372,  403. 

Lieutenant-Governor,  i.  346,  347. 

Loan  of  the  State  Credit,  ii.  115,  116,  302-306. 

Militia,  ii.  16,  17,  31,  32,  65,  66,  73-77,  112. 

Motions,  i.  9  ;  ii.  269 ;  iii.  372,  484,  647. 

New  Towns,  iii.  240,  241,  243. 

Oaths  and  Subscriptions,  i.  368-370  ;  ii.  568. 

Orders,  i.  12. 

Pardoning  Power,  i.  971,  972,  978,  979,  981-985. 

Pay  Roll,  ii.  327-329. 

Petitions,  i.  114,  216,  546. 

Place  of  Meeting,  i.  37,  65-72. 


Plurality,  i.  245-247,  306-310,  394,  398,  424,  426, 

427,434,  435;   iii.  138-140,  157-159,  161,  277, 

278. 

Printing,  i.  233. 

Protest  of  Colored  Citizens,  iii.  647. 
Qualifications  of  Voters,  i.  568,  569 ;  ii.  275,  276rf 

732-735. 

Reference  of  a  Petition,  i.  218. 
Reporting  and  Printing,  i.  161,  162. 
Rights  of  the  Jury,  iii.  443-445,  513,  514. 
Secretary,  Treasurer,  &c.,  ii,  531-533. 
Sectarian  Schools,  (see  Encouragement  of  Liteix 

atiue.) 

Senate,  i.  233,  231. 
Sp  cial  Assignment,  ii.  561,  562. 
K1NGMAN,  JOSEPH. 

Council  and  Lieutenant-Governor,  Vol.  i.  478. 

Declaration  of  Rights,  iii.  427. 

Frame  of  Government,  i.  793,  964. 

House  of  Representatives,  ii.  321,  322,  461,  462. 

Judiciary,  ii.  701,  702. 

Motions*  i.  448,  526,  778,  809,  964 ;  ii.  489,  552fr 

701,  776;  iii.  531. 

Oaths   and  Subscriptions,  ii.  487,  552, 
Orders,  i.  650. 

Qualifications  of  Voters,  ii.  752,  776>  777. 
Secretary,  Treasurer,  &c.,  i,  728.- 
Senate,  i.  229. 
KINSMAN,  HENRY  W. 
Adjournment,  Vol.  i.  214;  ii.  219. 
Berlin  Vacancy,  i.  49,  50. 
Closing  of  Debate,  i.  488, 
Governor,  i.  318. 

House  of  Representatives,  i.  876 ;  ii.  169-173,  612^ 
Judiciary,  iii,  235. 
Limiting  of  Debate,  iii.  130,  265. 
Motions,  i.  875,  949. 
New  Towns,  iii.  83,  84; 
Orders,  i.  49. 

Plurality,  i.  378-382,  396,  424, 
Senate,  i.  198,  232,  204-2C6. 
KNIGHT,  HIRAM. 
Orders,  Vol.  i.  233. 
KNIGHT,  JOSEPH. 

Leave  of  Absence.  Vol.  i.  629. 
KNOWLTON,  CHARLES  L. 
Presented  Credentials,  Vol.  i.  234. 
Leave  of  Absence,  iii.  603. 
KNOWLTON,  J.  S.  C. 
Judiciary,  Vol.  iii.  179,  180,  185,  226,- 
Limitation  of  Debate,  iii.  2, 
Lieutenant-Governor,  i.  533, 
Memorial,  i.  12. 
Motions,  i.  44,  298,  538,  819';  ii.  144,  735;  iii.. 27, 

179, 226,  247,  265. 
Mode  of  Procedure,  i.  44^ 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  715. 
Orders,  iii.  49,  50. 
Plurality,  i.  278. 
Reports,  ii.  218,  724-726, 
University  at  Cambridge,  iii.  28-36, 39,  41,  46, 47 f 

247- 


1853.] 


INDEX. 


789 


MEMBERS  AND  SUBJECTS. 


LADD,  JOHN  S. 

Elections,  Vol.  i.  99-101. 

Orders,  i.  44. 

Plurality,  iii.  101,  102. 

Rights  of  the  Jury,  iii.  446,  447. 

Loan  of  the  State  Credit,  iii.  10,  11. 

Town  of  Walpole,  i.  104. 
LAWTON,  JOB  G.,  JR. 

Motions,  Vol.  i.  337,  422,  627,  734. 
Laws,  Digest  of.     Vol.  i.  546. 
Legislative  Power.    Vol.  i.  234,  249,  250,  425,  526, 

651. 
Legislature,  Limiting  sessions  of.     Vol.  i.  93,  122 ; 

iii.  741. 
LELAND,  ALDEN". 

Distribution  of  Debates,  Vol.  iii.  639,  640,  722. 

Justices  of  the  Peace,  iii.  370. 

Motions,  i.  219,  559  ;  ii.  547  ;  iii.  370. 

New  Towns,  iii.  80. 

Orders,  i.  123,  160. 

Printing,  i.  249. 

Qualifications  of  Voters,  i.  559. 

Uniformity  of  Receiving  Votes,  iii.  338. 
Lieutenant-Governor.      Vol.  i.   177,   216,  340,  341, 
344-352,  435-445,   449-483,  514-526,    535-544; 
iii.  166..  290,  682. 

Literature.  Encouragement  of.     Vol.  i.  122,  203, 
216,  339;  ii.  482-484,  522,  569-576  ;  iii.  613-626, 
699. 
LIVERMORE,  ISAAC. 

Adjournment,  Vol.  i.  558. 

Banking,  iii.  336. 

Berlin  Vacancy,  i.  86. 

Census,  ii.  387. 

Compensation  to  Officers  of  Convention,  ii.  248. 

Declaration  of  Rights,  iii.  404,  405. 

Exchange  Reading  Room,  i.  50. 

Frame  of  Government,  i.  958. 

Governor,  i.  329-331,  335,  336. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  634-666,  718. 

Motions,  i.  449  ;  ii.  248,  325 ;  iii.  263,  646. 

Oaths  and  Subscriptions,  ii.  488. 

Orders,  i.  87,  93. 

Pay  Roll,  i.  493 ;  ii.  248,  325,  326 ;  iii.  86,   127, 
128,  570,  646,  647,  722. 

Place  of  Meeting,  i.  27- 

Question  of  Order,  iii.  647. 

Reports,  i.  493  ;  iii.  83,  570,  647,  721. 
LORD,  OTIS  P. 

Adjournment,  Vol.  i.  216. 

Amendments  and  Enrolment,  iii.  302,  304,  305, 
851. 

Berlin  Vacancy,  i.  169-177, 182. 

Closing  Debate,  i.  612 ;  iii.  360,  361. 

Corporations,  ii.  260-2G2,  265,  271,  272. 

Council,  iii.  268,  269,  271,  272. 

Constitutional  Conventions,  iii.  493-495,  517,  521, 
523-525,  533,  534. 

Declaration  of  Rights,  iii.  375,  381-383,  417,  426, 
427,  429,  431,  482,  483. 

Elections,  i.  101. 


House  of  Representatives,  ii.  534,  601,  627,  628- 

631. 
Imprisonment  for  Debt,  iii.  409,  410,  412,  485, 

486. 
Judiciary,  ii.  687  ;  iii.  181,  187,  188,  202-295,  209- 

211,  237,  238,  631,  632. 
Justices  of  the  Peace,  iii.  363-365,  368,  369,  317, 

395-397,  399,  400. 
Lieutenant-Governor,  i.  352. 
Limitation  of  Debate,  iii.  364. 
Loan  of  the  State  Credit,  iii.  24,  25. 
Morle  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  651,  651,  654,  6-57,  658,  661- 

664,  666,  667,  6/3,  675-678,  685,  689,  692-694, 

696. 

Motions,  I.  627  ;  ii.  556  ;  iii.  148,  364, 
New  Towns,  iii.  148,  242,  243. 
Pay  Roll,  iii.  129. 
Place  Of  Meeting,  i.  28,  29. 
Plurality,  iii.  111-115,  146,  148,  287,  547,  548,  562, 

565,  566,  569. 
Qualifications  of  Voters,  i.  573-581,  584,  606,608, 

627-638. 

Question  of  Order,  iii.  538-541,  552,  553,  644,  645. 
Rights  of  the  Jury,  iii.  459-461,  510-512. 
R-iles  and  Orders,  i.  55,  58,  59. 
Secretary,  Treasurer,  &c.,  ii.  478-481,  536-539, 

541-543. 

Special  Assignment,  ii.  556-561. 
LOTHROP,  SAMUEL  K. 
Encouragement  of  Literature,  Vol.  ii.  543,  544, 

571-574;  iii.  617,  618,  621. 
Final  Adjournment,  iii.  726. 
Orders,  i.  188,  189,  341. 
Place  of  Meeting,  i.  64, 
Prayer,  i.  7  ;  iii.  728. 
Qualifications  of  Votefs,  i.  746-751,  753,    754  ; 

ii.  251,  252. 

Sectarian  Schools,  (see  Encouragement  of  Lit 
erature.) 
University  at  Cambridge,  iii.  47,  48,  248-253,  254. 

MARBLE,  WILLIAM  P. 

Leave  of  Absence,  Vol.  iii.  603. 
MARCY,  LABAN. 

Leave  of  Absence,  Vol.  iii.  603. 
MARVIN,  ABIJAH  P. 

Encouragement  of  Literature,  Vol.  ii.  121. 

House  of  Representatives,  ii.  352-354,  397,  398. 

Motions,  ii.  252,  701,  738,  752. 

Orders,  i.  159,  359. 

Qualifications  of  Voters,  ii.  253,  73S,  744-752,  755, 

756 ;  iii.  27. 
MARVIN,  THEOPHILUS  R. 

Distribution  of  Debates,  Vol.  iii.  638. 

Final  Adjournment,  iii.  728. 

Mode  of  Submitting  to  People,  iii.  716-718.. 

Motion,  iii.  717. 
MASON,  CHARLES. 

Mode  of  Submitting  to  People,  Vol.  iii.  TOO,  701, 
711. 

Order,  i.  160. 


790 


INDEX. 


[1853. 


MEMBERS  AND  SUBJECTS. 


MEADER,  REUBEN. 

Leave  of  Absence,  Vol.  iii.  289. 
Members,  List  of.     Vol.  i.  3-7. 
Memorials  and  Petitions  of  Edwin  Lawrence   and 

Nehemiah  Flanders.    Vol.  i.  33. 
James  Russell,  i.  88. 
John  W.  Le  Barnes  et  al.,  i.  113. 
Francis  Jackson  et  al.,  i.  113,  114. 
Harriet  L.  Randall  et  al.,  i.  114. 
James  B.  Allen  et  al.,  i.  114. 
T.  W.  Higginson  et  al.,  i.  159. 
Citizens  of  Roxbury,    and  citizens  of  Egre- 
mont,  in  aid  of  that  of  J.  W.  Le  Barnes 
et  al.,  i.  159. 
Harriot  K.  Hunt,  i.  163. 
Benjamin  K.  Brown  et  al.,  i.  188. 
Wendell  Phillipps  et  al.,  i.  216. 
Abby  B.  Alcott  et  al.,  i.  216. 
Charles  Phelps  et   al.,   of  Munroe,   Joseph 
Proctor  et  al.,  Jacob  W.  Hinckley  et  al., 
George  W.  Todd  et  al.,  Frederic  W.  Fol- 
ger  et  al.,    in  aid  of  that  of  J.   W.   Le 
Barnes  et  al.,  i.  297. 
Josiah  Henshaw  et  al.,  i.  359. 
J.  A.  Saxton  et  al.,  i.  425. 
John  P.  Coburn  et  al.,  i.  425. 
Zilpha  W.  H.  Spooner  et  al.,  i.  493. 
Citizens  of  Massachusetts,  i.  546. 
Abby  Alcott  et  al.,  i.  612. 
Jonathan  E.  Field  et  al.,  i.  614. 
Timothy  Fletcher  and  others,  i.  758. 
Lucretia  Uphain  and  others,  i.  796. 
Abby  Alcott  and  others,  i.  796. 
Wendell  Phillips  and  others,  i,  796. 
Mary  E.  C.  Higginson  and  others,  i.  842. 
Emily  A.  Loveland  and  others,  i.  842. 
Nathaniel  T.  Johnson  and  others,  i.  907. 
Silas  Lamson  and  others,  i.  949. 
J.  F.  Evans  and  others,  li.  2. 
A.  T.  Willard  and  others,  ii.  70. 
Edward  A.  Newton  and  others,  ii.  71. 
J.  G.  Forman  and  others,  ii.  99. 
Josiah  Francis  and  others,  ii.  247. 
Betsey  T.  Heywood  and  others,  ii.  287. 
Abby  H.  Price  and  others,  ii.  287. 
C.  J.  J.  Ingersoll  and  others,  ii.  569. 
Otis  F.  R.  Waite  and  others,  ii.  657. 
James  Cain  and  others,  ii.  744. 
Meeting,  Place  of.      Vol.  i.  12,  14,  23-33,  36-39, 

51-53,  61-72,  87. 
Meeting,  Time  of.    Vol.  i.  33,  50,  53,  87,  148,  449, 

708,  731-734,  796,  936  ;  ii.  33-38,  656,  744. 
MILLER,  SETH,  JR. 

Constitutional  Conventions,  Vol.  iii.  526,  527. 

Council  and  Lieutenant-Governor,  i.  483, 542,  543. 

Governor,  i.  323  ;  ii.  63. 

Hour  of  Meeting,  i.  448,  449. 

Justices  of  the  Peace,  iii.  371,  372. 

Loan  of  the  State  Credit,  ii.  313. 

Militia,  i.  992  ;  ii.  32. 

Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  681,  697. 
Motions,  i.  449  ;  ii.  313;  iii.  371,  484. 


Rights  of  the  Jury,  iii.  497,  498. 
Secretary,  Treasurer,  &c.,  i.  720-722. 
Militia,  Vol.  i.  986-994;  ii.  2-32,  60-115;  iii.  698, 

711. 

MIXTER,  SAMUEL. 
Distribution  of  Books,  Vol.  iii.  384, 435, 437. 
Motions,  i.  891. 
Order,  iii.  384. 
Plurality,  iii.  561,  562. 
Mode  of  Proceeding.     Vol.  i.  35,  36, 44. 
Monitors.     Vol.  i.  89,  203  ;  ii.  248-251. 
MOREY,  GEORGE. 
Council,  Vol.  i.  513,  514. 
Contested  Seat  of  Delegate  from  Walpole,  i.  110, 

111,113. 

Judiciary,  iii.  636. 
Law  Library  Association,  i.  33. 
Motions,  iii.  471. 
Plurality,  iii.  102-105. 

Qualifications  of  Voters,  i.  560-562,  691,  693-695, 
MORSS,  JOSEPH  B. 
House  of  Representatives,  Vol.  ii.  165-167. 
Orders,  i.  178. 

Qualifications  of  Voters,  i.  603-605. 
MORTON,  ELBRIDGE  G. 
Frame  of  Government,  Vol.  i.  794,  795. 
Orders,  i.  11,  23,  50,  66,  67. 
Place  of  Meeting,  i,  25. 
Pay  Roll,  ii.  326. 
Request,  i.  12. 
Time  of  Meeting,  i.  50. 
MORTON,  MARCUS. 
Adjournment,  Vol.  i.  215. 

Amendments  and  Enrolment,  iii.  267,  350,  351, 
Berlin  Vacancy,  i.  48,  73-76,  79-81. 
Closing  Debate,  i.  298,  652. 
Council,  i.  527-531. 
Distribution  of  Debates,  iii.  639. 
Frame  of  Government,  i.  800,  801,  803-805,  807, 

808,  861. 

Governor,  i.  325,  326,  332,  333,  336. 

House  of  Representatives,  ii.  372,  373,  438,  442- 

450,  458,  459,  461,  462,  464,  577-588,  631,  632, 

637,  638;  iii.  472,  473,  570,  573,  580,  610,  611. 

Judiciary,  ii.  684-686,  693,  694,  696,  697,  714,  820- 

828  ;  iii.  632,  633,  635-637. 
Justices  of  the  Peace,  i.  493;  iii.  340. 
Loan  of  the  State  Credit,  ii.  309-312,  314,  642. 

664-669,  677,  679. 
Mo  !e  of  Organizing,  i.  8. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  666,  670-672,  701-706. 
Motions,  i.  7,  803;  ii.  458,  820,  828  ;  iii.  240,  267, 

387,  416,  580. 

Oaths  and  Subscriptions,  ii.  554. 
Orders,  iii.  416. 
Place  of  Meeting,  i.  30-32. 
Printing,  i.  67. 
Plurality,  i.  259-262,  275,  373-378,  389,  395,  424, 

427. 
Qualifications  of  Voters,  i.  653-656,  683,  743,  744; 

ii.  494-496,  532,  505,-507,  755. 
Question  of  Order,  iii.  465,  541,  542. 


1853.] 


INDEX. 


791 


MEMBERS  AXD  SUBJECTS. 


Reports  from  Committees,  i.  447;  ii.  267 ;  iii.  531, 

Resolutions,  ii.  314. 

Rights  of  the  Jury,  iii.  505-507,  510. 

Secretary  Treasurer,  &c.,  i.  770-772. 

Senate,  i.  223-226. 
MORTON,  MARCUS,  JR. 

Judiciary,  Vol.  iii.  632. 

Justices  of  the  Peace,  iii.  333,  370,  371. 

Motions,  i.  819,  961;  ii.  52,  273,744. 

Orders,  i.  163. 

Qualifications  of  Voters,  ii.  275. 
MORTON,  WILLIAM  S. 

Corporations,  Vol.  iii.  179. 

Constitutional  Conventions,  iii.  517,  518. 

Lieutenant-Governor,  i.  537. 

Motions,  i.  316,464,   540,  541,  891;  ii.  104,  109, 
533 ;  iii.  484. 

Militia,  ii.  110. 

Orders,  i   114,  493. 

Qualifications  of  Voters,  i.  562 ;  ii.  120,  276. 

Secretary,  Treasurer,  &c.,  i.  708 ;  ii.  534. 

NAYSON,  JONATHAN. 

Amendments  and  Enrolment,  Vol.  ii.  562-567, 
714-717,  723  ;  iii.  317. 

Banking,  iii.  358. 

Corporations,  ii.  125,  263,  264,  266,  269-271. 

Constitutional  Conventions,  iif.  494. 

Election  of  Officers,  i.  8. 

Frame  of  Government,  i.  804,  805. 

Memorials,  i.  33. 

Motions,  i.  8.  162,  218,  235,  464  ;  ii.  125,  266,  714. 

Place  of  Meeting,  i.  43,  52,  64,  65. 

Plurality,  i.  423. 

Reports,  ii.  280,  281. 

Senate,  i.  218. 

Secretary,  Treasurer,  &c.,  i.  718. 

Suspension  of  the  Rules,  i.  32. 

University  at  Cambridge,  iii.  233. 
NEWMAN,  CHARLES. 

Declaration  of  Rights,  Vol.  iii.  382,  383. 
NORTON,  ALFRED. 

Leave  of  Absence,  Vol.  iii.  196. 
NOYES  DANIEL. 

Motions,  Vol.  i.  50,  53,  216,  295. 

Oaths  and  Subscriptions,  Vol.  i.  233,  353-372,  408, 

731 ;  ii.  484-489,  550,  556,  588  ;  iii.  697,  698. 
Officers,  County  and  District.    Vol.  i.  104,  203,  489, 
703-731,  759-778 ;  ii.  468-482,  523-542,  547 ;  iii. 
700. 

Office,  Tenure  of.    Vol.  iii.  623-630,  637,  700. 
OLIVER,  HENRY  K. 
Adjournment,  Vol.  i.  385. 
Declaration  of  Rights,  iii.  434,  435. 
Election  of  Officers,  iii.  637. 
House  of  Representatives,  ii.  382,  383. 
Lieutenant-Governor,  i.  538. 
Militia,  i.  987-994 ;  ii.  2, 4-6,  28,  32, 81-88, 94, 100- 

103,  110-112,  248-250. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  665,  670,  683,  698,  711,  724. 
Motions,  i.  332,  627,  731,  734,  746 ;  ii.  834 ;  iii. 
118,  569,  724. 


Oaths  and  Subscriptions,  ii.  488. 
Personal  Explanation,  iii.  647. 
Plurality,  i.  271,  382,  383;  iii.  118. 
Qualifications  of  Voters,  i.  621,  625,  746. 
Reports  from  Committees,  i.  930,  987 ;  ii.  52,  71. 
Time  of  Meeting,  i.  731,  732,  734. 
Order,  Question  of.    Vol.  iii.  536-545,  550-554. 

PAIGE,  JAMES  W. 

Distribution  of  the  Debates  of  the  Convention, 

Vol.  iii.  724. 
PAINE,  BENJAMIN. 

Declination,  Vol.  i.  93. 
Pardoning  Power.     Vol.  i.  965-986. 
PARKER,  JOEL. 

Amendments  and  Enrolment,  Vol.  iii.  300,  305- 
337,  309,  310. 

Berlin  Vacancy,  i.  82-85,  141,  144-159,   162,  165, 
183. 

Closing  Debate,  i.  652,  653. 

Declaration  of  Rights,  iii.  425, 

Encouragement   of  Literature,  ii.  546;  iii.  337, 
485,472,614,623-525. 

House  of  Representatives,  i.  931-936. 

Judiciary,  ii.  792,  793-799. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  695. 

Motions,  i.  930 ;  ii.  792  ;  iii.  465,  472. 

Plurality,  i.  420,  432,  433. 

Qualifications    of   Voters,  i.  649,  670,  671,  680, 
744  ;  ii.  501-505,  510,  511,  517,  518. 

Rights  of  the  Jury,  iii.  456-463. 

Sectarian  Schools,  (see  Encouragement  of  Liter 
ature.) 

University  at  Cambridge,  iii.  46. 
PARSONS,  THOMAS  A. 

Berlin  Vacancy,  Vol.  i.  88. 

Frame  of  Government,  i.  782,  783. 

Judiciary,  iii.  633,  634. 

Militia,  ii.  3,  10-12. 

Place  of  Meeting,  i.  87. 

Plurality,  i.  236,  237. 

Pay  Roll.     Vol.  i.  123,  160,  217,  493;  ii.  248,  325- 
332  ;  iii.  86,  100,  125-129,  290,  570,  646, 721,  722. 
PENNIMAN,  JOHN. 

Motions,  Vol.  i.  425. 

Petitions,  i.  425. 
PERKINS,  DANIEL  A. 

Berlin  Vacancy,  Vol.  i.  81. 

Motions,  i.  730  ;  ii.  701 ;  iii.  626. 

Plurality,  i.  304  ;  iii.  569. 

Qualifications  of  Voters,  i.  563,  687,  668. 

Secretary,  Treasurer,  &c.,  i.  730,  731. 
Petitioning  the  Legislature.     Vol.  i.  425,  544-546. 
Petitions  to  Convention,  (see  Memorials.) 
PHELPS,  CfcLARLES. 

Adjournment,  Vol.  i.  42,  43. 

Closing  of  Debate,  i.  612,  613. 

House  of  Representatives,  i.  946 ;  iii.  573-576. 

Orders,  i.  487. 

Qualifications  of  Voters,  ii.  252,  253. 

Time  of  Meeting,  i.  732,  733,  796. 


792 


INDEX. 


[1853, 


MEMBERS  AND  SUBJECTS. 


PHINNEY,  SILVANUS  B. 
Adjournment,  Vol.  ii.  461. 
House  of  Representatives,  ii.  370. 
Loan  of  the  State  Credit,  ii.  308,  309. 
Motions,  i.  492,  494,  708,  734,  891 ;  ii.  461,  482. 
Secretary,  Treasurer,  &c.,  i.   715. 
PLUNKE1T,  WILLIAM  C. 
Banking,  Vol.  iii.  3-36. 
Declaration  of  Rights,  iii.  428. 
Elections,  i.  102. 
Motions,  iii.  356,  436,  613,  659. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  659. 

Plurality,  Elections  by.     Vol.   i.  87,  90,   124,   159, 
235-271,  274-316, 372-383,  385-424, 426-436,  445, 
464,437;  iii.  86-99,   101-118,131-166,275-239, 
534-56.1,  577-530,  695,  771. 
Population,  &c.     Vol.  i.  433,  445-447. 
POWERS,  PETER. 
Orders,  Vol.  i.  359. 
Prayer,  Opening.    Vol.  i.  7. 

Closing.    Vol.  iii.  728. 
Preliminary  Business.     Vol.  i.  10,  33. 
President,  Election  of.     Vol.  i.  9. 

Ad  .iress  of,  on  taking  the  chair  of  the  Con 
vention,  i.  9,  10. 

Resolution  of  thanks  to,  iii.  642,  643. 
Address  of,  on  Final  Adjournment,  iii.  728, 

729. 
Printing.    Vol.  i.  34,  66,  67,  123,  141-143,  160-162, 

233. 

Privileges,  Special.     Vol.  i.  650. 
Property,  right  to  hold.     Vol.  i.  92. 
PUTNAM,  JOHN  A. 

Motions,  Vol.  i.  950  ;  ii.  483. 

Railroad  Accidents.     Vol.  iii.  465,  468. 
RANTOUL,  ROBERT. 

Called  Convention  to  Order,"Vol.  i.  7. 

Census,  ii.  387. 

Election  of  President  pro  tempore  of  Convention, 
iii.  219. 

Encouragement  of  Literature,  ii.  516. 

House  of  Representatives,  i.  842-850. 

Motions,  i.  273  ;  iii.  219. 

New  Towns,  iii.  78. 

Pay  Roll,  iii.  127. 

Resolutions,  i.  89,  90. 

Rights  of  the  Jury,  iii.  502,  503. 

University  at  Cambridge,  iii.  40. 
Records,  Preservation  of.    Vol.  i.  13;  iii.  148,  274, 

275. 
REED,  SAMPSON. 

Leave  of  Absence,  Vol.  i.  407. 
Registering  of  Deeds.     Vol.  i.  590. 
Reporting.     Vol.  i.  141-143,  160-162,  777- 
Representation,  Plans  of.     Vol.  i.  89,  9,),  160,  273, 
590,  591,  777, 862,  876  ;  ii.  33,  268,  352,  384,  430, 
459. 

Resignations.    Vol.  i.  13,  103,  143,  217. 
RICE,  DAVID. 

Order,  Vol.  i.  122. 
Rights,  Declaration  of.     Vol.  i.  122,  178,  203 ;  iii. 


372-383,  404-465,    468-471,  474-484,    497-517, 
631-659. 
ROCKWELL,   JULIUS. 

House  of  Representatives,  Vol.  ii.  224-227. 

Petitions,  ii.  71. 

Rights  of  the  Jury,  iii.  514. 
ROCKWOOD,  JOSEPH   M. 

Plan  of  Representation,  Vol.  i.  876. 
Roll  Call.     Vol.  i.  796. 
Rules  and  Orders.    Vol.  i.  33,  34,  53-64 

SARGENT,  JOHN. 

Adjournment,  Vol.  i.  448. 

Amendments  and  Enrolment,  iii.  299. 

Berlin  Vacancy,  i.  47. 

Constitutional  Conventions,  iii.  490-493. 

Contested  Seat  for  Walpole,  i.  Ill,  112. 

Corporations,  iii.  54,59. 

Closing  Debate,  i.  4 08. 

Distribution  of  Books,  iii.  436,  437. 

Frame  of  Government,  i.  955,  957. 

Encouragement  of  Literature,  ii.  549. 

Governor,  i.  322. 

House   of  Representatives,   i.  862-870  ;    ii.  222- 

224;  iii.  58G. 

Lieutenant-Governor,  i.  518,  537. 
Militia,  ii.  106. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  650,  711. 
Motions,  i.  861. 

New  Towns,  iii.  80,  81,  246,  247. 
Oaths  and  Subscriptions,  ii.  483. 
Plurality,  i.  257-259,  420. 
Qualifications  of  Voters,  i.  626,  699,  700;  ii.  493, 

494,  500,  506,  510. 
Rules  and  Orders,  i.  57. 
Secretary,  Treasurer,  &c.,  i.  763-765. 
SCHOULER,  WILLIAM. 
Banking,  Vol.  iii.  326,  327. 
Berlin  Vacancy,  i.  184,  185. 
Closing  Debate,  ii.  438. 
Constitutional  Conventions,  iii.  494,  521,  524, 525, 

529,  530,  532,  533. 

Corporations,  iii.  58,  59,  61,  65,  72,  167,  168. 
Council,  iii.  274. 
Death  of  Mr.  Gourgas,  ii.  739. 
Declaration  of  Rights,  iii.  416,  431,435,  471,  483. 
Distribution  of  Debates,  iii.  639. 
Employing  Reporters,  i.  12. 
Frame  of  Government,  i.  782,  793,  959. 
Governor,  ii.  59,  60. 

Habeas  Corpus,  (see  Declaration  of  Rights.) 
House  of  Representatives,  i.  842,  850-853,  946 ; 

ii.  136,  419.  420.  438, 450,  454,  455,  601,  609-611, 

615 ;  iii.  589-591. 

Imprisonment  for  Debt,  iii.  486,  489,  629. 
Judiciary,  ii.  707,  708  ;  iii.  206,  223,  237,  311. 
Justices  of  the  Peace,  iii.  366,  367,  370. 
Lieutenant-Governor,  i.  518,  519,  642. 
Loan  of  the  State  Credit,  iii.  14-17. 
Militia,  ii.  103,  105,  106,  109-111. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  650,  654-656,  670,  672,  673, 

690,  711. 


1853.] 


INDEX. 


793 


MEMBERS  AND  SUBJECTS. 


Motions,  i.  90,  202,  464,  571,  614,  627,  9-53 ;  ii.  33, 
450,  776;  iii.  80,  84,  219,  237,  471,484,  521,  629. 
New  Towns,  iii.  84,  241,  244,  245. 
Oaths  and  Subscriptions,  ii.  487. 
Orders,  i,  296. 
Pardoning  Power,  i.  971. 
Pay  Roll,  iii.  126. 
Petitions,  i.  113. 
Place  of  Meeting,  i.  26,  27. 
Plurality,  i.  241-244,  289,  290,  303,  313-316,  416, 
417,  427,  428,  430,  431,  434,  435 ;  iii.  95,  96,  108- 
110,  115,  145,  158-160,  163,  275,  555,  556,  558- 
561, 563. 

Plan  of  Representation,  ii.  161,  433. 
Qualifications  of  Voters,  i.  571,  611, 612,  625,639- 

643,  678, 679,  757. 
Question  of  Order,  Hi.  550-552. 
Quorum  of  the  House,  ii.  836,  837 ;  iii.  318, 
Reporting  Proceedings,  i.  143,  161,  162. 
Rules  and  Orders,  i.  56,  57- 
Secretary,  Treasurer,  &c.,  i.  706,  707,  760;  ii.  535, 

540-542. 

Senate,  i,  208,  209. 
Time  of  Meeting,  i.  734. 
University  at  Cambridge,  iii.  40. 
Schools,  Sectarian.      Vol.  i.  359;  ii.  543-550;  iii. 

337,472,613-626,714. 
Seats,  Assignment  of.    Vol.  i.  103,  121. 
Secretary,   Treasurer,   &c.       Vol.  i.  489,  703-731, 
759-780,  875,  906  ;  ii.  385,  468-481, 523-542;  iii. 
683-685. 
Senate.    Vol.  i.  89,  93,  122,  123,  190-202,  204-213, 

218-233 ;  ii.  117 ;  iii.  667,  668. 
Senators  in  Congress.     Vol.  i.  383,  384. 
Sessions  of  Convention,  two  daily.     Vol.  i.  234, 

296. 

SHELDON,  LUTHER. 
Adjournment,  Vol.  i.  232,  385. 
House  of  Representatives,  ii.  413-419. 
Judiciary,  iii.  237. 
Motions,  i.  316.  385, 
Oaths  and  Subscriptions,  ii.  487. 
SIMMONS,  PEREZ. 
Amendments  and  Enrolment,  Vol.  ii.  567 ;  iii. 

299,  317. 

Berlin  Vacancy,  i.  44. 

Constitutional  Conventions,  i.  342,  343  ;  iii.  524. 
Elections,  i.  101,  102. 
Motions,!.  14;  iii.  299. 
SIMONDS,  JOHN  W. 
Amendments  and  Enrolment,  Vol.  i.  304 ;  iii. 

34 1,  345. 

House  of  Representatives,  i.  905,  906. 
Justices  of  the  Peace,  iii.  391. 
Motions,  i.  53,  906, 
Pay  Roll,  ii.  328. 
Plurality,  i.  302-304. 

Qualifications  of  Voters,  i.  554,  556,  562,  563. 
Resolutions,  i.  114. 
Senate,  i.  194,  195,  209-212. 
Time  of  Meeting,  i.  53. 

Speeches,  Limitation  of.    Vol.  ii.  99,  120,  435-437, 
793 ;  iii.  1,  2,  130,  265-267,  364,  365. 


SPRAGUE,  PELEG. 

Berlin  Vacancy,  Vol.  i.  86. 

Resignation,  i.  143. 
SPOONER,  SAMUEL  W. 

Adjournment,  Vol.  i.  232. 

Declaration  of  Rights,  iii.  425,  426. 

House  of  Representatives,  ii.  227-229. 

Militia,  i.  989  ;  ii.  74. 

Motions,  i.  425  ;  ii  332 ;  iii.  242. 

New  Towns,  iii.  242. 

Pay  Roll,  ii.  332. 

Place  of  Meeting,  i.  2i,  25. 

Plurality,  i.  421,  422 ;  iii.  564,  565. 

Secretary,  Treasurer,  &c.,  i.  725. 
State  Prison  Inspector.    Vol.  i.  340,  489,  703,  724, 

780. 

State  Credit,  Loan  of  the.     Vol.  i.  94,  234,  272. 
425,  445,  861  ;  ii.   115,  116,  121,  122,  281-314, 
523,  639,  656,  657-683 ;  Hi.  2-26. 
STETSON,  CALEB. 

Banking,  Vol.  iii.  334-336,  352,  357. 

Corporations,  ii.  125,  253,  254 ;  Hi.  73,  179. 

Council,  i.  534. 

Closing  Debate,  ii.  35,  36. 

Declaration  of  Rights,  iii.  483,  642. 

Encouragement  of  Literature,  ii.  545,  546. 

Frame  of  Government,  i.  803,  952,  953. 

Governor,  i.  317. 

Habeas  Corpus,  (see  Declaration  of  Rights.) 

House  of  Representatives,  ii.  190,  191,245,372; 
iii.  642. 

Judiciary,  iii.  234. 

Mode  of  Submitting  the  Amended  Constitution 
to  the  People,  iii.  705,  716,  717. 

Motions,  i.  652,  734  ;  ii.  36,  99,  245,  254,  392, 523, 
543,550,  639;  Hi.  165,642,724. 

New  Towns,  Hi.  243,  244. 

Orders,  i.  692. 

Pay  Roll,  ii.  329,  330. 

Place  of  Meeting,  i.  14,  15,  67,  68. 

Plurality,  i.  411 ;  iii.  98,  99,  165,  232,  283. 

Protest  of  Colored  Citizens,  Hi.  724. 

Resolutions,  ii.  433. 

Special  Assignment,  ii.  534. 

University  at  Cambridge,  iii.  75. 
STEVENS,  CHARLES  G. 

House  of  Representatives,  Vol.  ii.  161. 

Qualifications  of  Voters,  ii.  120,  510,  518-520. 
STEVENS,  GRANVILLE. 

Judiciary,  Vol.  ii.  793. 

Limitation  of  Debate,  Hi.  2. 

Motions,  ii.  793. 
STEVENS,  JOSEPH  L.,  JR. 

Orders,  Vol.  ii.  217. 
STEVENSON,  J.  THOMAS. 

Constitutional  Conventions,  Vol.  iii.  526. 

Judiciary,  iii.  232,  636. 

Justices  of  the  Peace, iii.  370-372,  383. 

Limitation  of  Debate,  iii.  130. 

Loan  of  the  State  Credit,  ii.  673,  674. 

Motions,  i.  862;  iii.  232,  372,  33*. 

Plurality,  iii.  87-93,  549,  556,  557,  566. 

Question  of  Order,  Hi.  536-539,  549,  550. 


794 


INDEX. 


[1853. 


MEMBERS  AND  SUBJECTS. 


Reports  from  Committees,  i.  861 ;  iii.  383. 
bTORROW,  CHARLES  S. 

Leave  of  Absence,  Vol.  i.  509,  612. 
STRONG,  ALFRED  L. 

Imprisonment  for  Debt,  Vol.  iii.  405-407,  409, 
411,  412. 

Judiciary,  iii.  208. 

Motions,  iii.  407. 

Orders,  i.  93,  558. 
STUTSON,  WILLIAM. 

Presented  Credentials,  Voh  i.  188. 
Suffrage.     Vol.  i.  891. 
SUMNER,  CHARLES. 

Constitutional  Conventions,  Vol.  iii.  490. 

Declaration  of  Rights,  iii.  373,  374,  376-378,  381, 
382,  417,  418,  422. 

House  of  Representatives,  ii.  588-597,  614,  615. 

Loan  of  the  State  Credit,  iii.  20,  21. 

Militia,  ii.  68,  69,  90-92,  "93. 

Reports  from  Committees,  i.  527 ;  ii.  638,  639. 

Resolutions,  i.  546. 
SUMNER,  INCREASE. 

Adjournment,  Vol.  i.  39,  40. 

Closing  Debate,  i.  488. 

Frame  of  Government,  i.  801,  802. 

Governor,!.  316,  321,337. 

Judiciary,  ii.  688,  689;  iii.  202,  229-222. 

Loan  of  the  State  Credit,  ii.  663,  664. 

Motions,  i.  489,  490 ;  iii.  140. 

Orders,  i.  233. 

Pardoning  Power,  i.  975,  976. 

Printing,  i.  233,  249,  250. 

Plurality,  iii.  140. 

Qualifications  of  Voters,  ii.  496-498. 

Resolutions,  i.  177 ;  ii.  70. 

Rights  of  the  Jury,  iii.  445,  446. 

Secretary,  Treasurer,  &c.,  ii.  471, 472. 
SWAIN,  ALANSON. 

Leave  of  Absence,  Vol.  iii.  603. 

TABER,  ISAAC  C. 

Leave  of  Absence,  Vol.  ii.  568. 
TAFT,  ARNOLD. 

Leave  of  Absence,  Vol.  i.  234,  614. 
Tax  Qualification.    Vol.  i.  94,  546. 
TAYLOR,  RALPH. 

Leave  of  Absence,  Vol.  iii.  337. 
THOMAS,  JOHN  W. 

Berlin  Vacancy,  Vol.  i.  49. 

Encouragement  of  Literature,  iii.  623,  625. 

Judiciary,  iii.  234. 

Loan  of  the  State  Credit,  iii.  24. 

Motions,  i.  23,  44,  103;  ii.  330;  iii.  24,  234,  623. 

Orders,  i.  48. 

Sectarian  Schools,  (see  Encouragement  of  Lit 
erature.) 
THOMPSON,  CHARLES. 

Adjournment,  Vol.  i.  297,  487,  558 ;  iii.  520,  521. 

Assignment  of  Seats,  i.  130. 

Closing  Debate,  i.  612,  652 ;  ii.  34,  35,  243. 

Death  of  Mr.  Gourgas,  ii.  744. 

House  of  Representatives,  ii.  243,  244,  247,  379- 
383,420. 

Judiciary, 


Justices  of  the  Peace,  iii.  370. 

Loan  of  the  State  Credit,  iii.  2,  3. 

Messenger,  i.  53. 

Memorials,  i.  33. 

Motions,  i.  66,  67,  130,  190, 218,  234,  249,  .'97  34% 
341,  421,  558,  612,  651,  653,  701,  875 ;  u.  248, 
330,  381,  567,  683,  744 ;  iii.  166. 

New  Towns,  iii.  166,  244. 

Orders,  i.  33,  92,  189. 

Organization,  i.  10,  11. 

Pay  Roll,  ii.  332. 

Plan  of  Representation,  ii.  217,  218,  248. 

Place  of  Meeting,  i.  71,  72. 

Qualifications  of  Voters,  i.  698, 699. 

Rules  and  Orders,  i.  54,  58-60. 

Secretary,  Treasurer,  &c.,  i.  706,  760. 

Time  of  Meeting,  i.  797. 
TILTON,  HORATIO  W. 

Leave  of  Absence,  Vol.  iii.  603. 
TOWER,  EPHRAIM. 

Petitions,  Vol.  i.  297. 

Towns,  Incorporation  of.     Vol.  iii.  77-86,  240-247. 
Towns,  Population  of,  &c.    Vol.  i.  92,  189. 
Towns,  List  of.    Vol.  i.  178,  189,  340. 
TRAIN,  CHARLES  R. 

Berlin  Vacancy,  Vol.  i.  114-116,  127. 

Council,  ii.  113;  iii.  269,  270. 

Distribution  of  the  Amended  Constitution  to  th* 
People,  iii.  627. 

Judiciary,  iii.  627-631. 

Justices  of  the  Peace,  iii.  371. 

Lieutenant-Governor,  i.  34-5,  346,  352. 

Motions,  i.  103;  iii.  145,  371,  577,  629. 

Orders,  i.  122. 

Plurality,  i.  337-310,  373,  422 ;  iii.  145,  154,  155, 
547,  554,  563,  564,  567-569,  577,  578. 

Rights  of  the  Jury,  iii.  500,  502. 
TURNER,  DAVID. 

Leave  of  Absence,  Vol.  iii.  603. 
TYLER,  WILLIAM. 

Adjournment,  Vol.  i.  449,  558. 

Appendix  to  Report  of  Debates,  iii.  219,  265. 

Closing  Debate,  i.  526. 

Encouragement  of  Literature,  ii.  483,  543. 

Governor,  i.  342. 

Lieutenant-Governor,  i.  542. 

Loan  of  the  State  Credit,  ii.  313. 

Motions,  ii.  332 ;  iii.  265. 

Orders,  i.  590  ;  iii.  219. 

Pay  Roll,  ii.  329. 

Qualifications  of  Voters,  i.  551,  553,  554,  672-674. 

UNDERWOOD,  ORISON. 

Distribution  of  Debates,  Vol.  iii.  638,  723. 

House  of  Representatives,  i.  448. 

Judiciary,  iii.  210. 

Militia,  ii.  103,  104. 

Motions,  i.  406,  448,  777;  ii.  287,  352;  iii.  101. 

Question  of  Order,  iii.  643. 

Resolutions,  i.  44S. 
University  at  Cambridge.   Vol.  i.  122,  143,  159, 188  ; 

ii.  724-726  ;  iii.  27-49,  75-77,  247-264,  699. 
UPHAM,  CHARLES  W. 

Encouragement  of  Literature,  Vol.  ii.  549,  550. 


1853.] 


INDEX. 


795 


MEMBERS  AXD  SUBJECTS. 


House  of  Representatives,  ii.  173-183. 
UPTON,  GEORGE  B. 

Amendments  and  Enrolment,  Vol.  iii.  299-302. 

Berlin  Vacancy,  i.  85,  86. 

Closing  Debate,  i.  651. 

Council,  iii.  273. 

Council  and  Lieutenant-Governor,  i.  459-462, 507, 

535,  540. 

Distribution  of  Debates,  iii.  640,  641. 
Frame  of  Government,  i.  803,  957,  958. 
House  of  Representatives,  ii.  317-321,  338;  iii. 

605-607. 

Judiciary,  iii.  211. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  664. 
Motions,  i.  626,  627  ;  iii.  131. 
New  Towns,  iii.  85,  246. 
Oaths  and  Subscriptions,  ii.  486,  487. 
Pardoning  Power,  i.  985,  986. 
Place  of  Meeting,!.  38,  39. 
Plurality,  iii.  131,  556,  557,  569. 
Qualifications  of  Voters,  i.  625,  665,  666,  690. 
Secretary,  Treasurer,  &c.,  i.  764,  765,  767-770. 

Vacancy,  Berlin.  Vol.  i.  44-50,  72-87,  90-92,  94- 
99,  103, 114-121,  124-141,  144-159,  162-188,  340. 

Vacancy,  Boston.     Vol.  i.  92,  143. 

Vacancy,  Concord.    Vol.  ii.  792  ;  iii.  125. 

Vacancies,  General.    Vol.  i.  49,  72-87,  104. 

VILES,  JOEL. 

Plan  of  Representation,  Vol.  ii.  384. 

Viva  Voce  Vote.    Vol.  i.  7,  160,  425,  513. 

Vote,  on  Act  calling  Convention,  iii.  732. 

on  Constitutional  Provisions,  iii.  756. 

Votes,  Counting  and  Recording  of.  Vol.  iii.  318, 
387,  388. 

Voters,  List  of.    Vol.  i.  708  ;  iii.  694. 

Voters,  Qualifications  of.  Vol.  i.  104,  114,  188, 
189,  204,  341,  359,  546-703,  734-758,  971 ;  ii.  32, 
117-120,  251-253,  272-278,  287,  489-522,  656, 
657,  726-738,  744-756, 776,  777 ;  iii.  27,  634-697. 

WALCOTT,  SAMUEL  B. 

Berlin  Vacancy,  Vol.  i.  98,  99. 

Council  and  Lieutenant-Governor,  i.  475-478. 

Secretary,  Treasurer,  &c.,  i.  778. 
WALES,  BRADFORD  L. 

Declaration  of  Rights,  Vol.  iii.  483. 

Motions,  iii.  483. 
"WALLACE,  FREDERICK  T. 

Orders,  Vol.  i.  122. 

Senate,  i.  236-208. 
WALKER,  AM  AS  A.. 

Adjournment,  Vol.  i.  50,  202,  233. 

Amendments  and  Enrolment,  ii.  563. 

Banking,  iii.  330-334. 

Census,  ii.  387-389. 

Closing  Debate,  i.  652,  653. 

Council  and  Lieutenant-Governor,  i.  473,   474, 
509,  522,  523,  533. 

Corporations,  iii.  59-62. 

Death  of  Mr.  Gourgas,  ii.  740. 

Distribution  of  the  Amended  Constitution,  &c., 
iii.  436,  630,  637, 638,  648. 


Distribution  of  the  Report  of  Debates,  iii.  638, 

648,  722. 

Encouragement  of  Literature,  ii.  522,  549. 
Frame  of  Government,  i.  788. 
House  of  Representatives,  i.  899-901;  ii.  58,  207, 

217,  399,  400,  427. 
Judiciary,  iii.  385,  634. 
Justices  of  the  Peace,  i.  iii.  365,  397. 
Lieutenant-Governor,  i.  (see  Council.) 
Limiting  Debate,  iii.  2. 
Militia,  ii.  18-20,  24,  83,  84. 
Motions,  i.  235,  627,  651 ;  ii.  287,  489,  656,  726, 

743,  906 ;  iii.  290,  365,  397,  463,  556,  630,  637, 

722,  728. 

Oaths  and  Subscriptions,  ii.  485,486. 
Orders,  i.  12,  178 ;  iii.  630,  638. 
Place  of  Meeting,  i.  12,  14,  22,  23,  25,  26,  43,  66. 
Plurality,  iii.  108,  110,  111,  283,  234,  562,  563. 
Qualifications  of  Voters,  ii.  726,  753,  754. 
Reports  from  Committees,  i.  14 ;  ii.  32  ;  iii  647, 

648. 

Rights  of  the  Jury,  iii.  463. 
WARD,  ANDREW  II. 
Declination,  Vol.  i,  93. 
Encouragement  of  Literature,  iii.  620. 
Imprisonment  for  Debt,  iii.  407. 
Judiciary,  iii.  237. 
Motions,  i.  249 ;  ii.  489 ;  iii.  407. 
Oaths  and  Subscriptions,  ii.  489. 
Plurality,  i.  250,  251. 

Sectarian  Schools,  (see  Encouragement  of  Lit 
erature.) 
WALKER,  SAMUEL. 

Justices  of  the  Peace,  i.  493. 
WARNER,  MARSHAL. 

Leave  of  Absence,  Vol.  iii.  603. 
WARNER,  SAMUEL,  JR. 
Declination,  Vol.  i.  273. 
Judiciary,  ii.  686,  687,  695,  696. 
Motions,  i.  341,  906  ;  ii.  483,  686. 
Secretary,  Treasurer,  &c.,  i.  906. 
WATERS,  ASA  H. 

Berlin  Vacancy,  Vol.  i.  49. 

Corporations,  iii.  174-179. 

House  of  Representatives,  ii.  236,  237. 

Justices  of  the  Peace,  i.  490-492 ;  iii.  392-394. 

Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  694,  695. 
Motions,  ii.  117;  iii.  543. 
Orders,  i.  203,  339. 
Printing,  i.  233. 
WEEKS,  CYRUS. 

House  of  Representatives,  Vol.  ii.  375,  376. 
Loan  of  the  State  Credit,  ii.  309,  665. 
Motions,  i.  445  ;  ii.  278,  466,  665  ;  iii.  569. 
Petitions,  i.  949. 
Printing,  iii.  721. 
WESTON,  GERSHOM  B. 
Adjournment,  Vol.  i.  558,  966. 
Closing  Debate,  ii.  245  ;  iii.  360,  361,  365. 
House  of  Representatives,  ii.  245,  314-317. 
Justices  of  the  Peace,  iii.    341,  361,   365,    370, 

371. 


796 


INDEX. 


[1853, 


MEMBERS  AND  SUBJECTS. 


Motions,  i.  51,  535,  541,  807,  891 ;  ii.  523 ;  iii. 
40,  351,  361,  363,  384. 

Qualifications  of  Voters,  i.  664,  665,  679,  683. 

Question  of  Order,  iii.  553,  554. 

Secretary,  Treasurer,  &c.,  i.  759,  764. 

Time  and  Place  of  Meeting,  i.  51. 

University  at  Cambridge,  iii.  40. 
WHEELER,  WILLIAM  F. 

Adjournment,  Vol.  ii.  220. 

Amendments  and  Enrolment,  ii.  715,  716. 

Closing  Debate,  ii.  2i5. 

Governor,  i.  341. 

House  of  Representatives,  ii.  420. 

Imprisonment  for  Debt,  iii.  497. 

Judiciary,  iii.  237,  238. 

Motions,  ii.  220 ;  iii.  127,  143,  237,  416,  497. 

Orders,  i.  160  ;  ii.  362,  383. 

Pay  Roll,  iii.  127. 

Senators  in  Congress,  i.  384,  385. 
WHITE,  GEORGK. 

Encouragement  of  Literature.  Vol.  iii.  614,  626. 

House  of  Representatives,  ii.  427-432,  657,  683. 

Motions,  ii.  247,  657,  683  ;  iii.  474. 

Plan  of  Representation,  i.  862. 

Plurality,  i.  398-400. 

Sectarian  Schools,  (see  Encouragement  of  Lit 
erature.) 
WHITiNEY,  DANIEL  S. 

Adjournment,  Vol.  i.  448,  487. 

Appointing  Members  of  Legislature  to  Office,  iii. 
635. 

Closing  Debate,  i.  613  ;  ii.  36. 

Constitutional  Conventions,  iii.  533. 

Council,  i.  506;  iii.  268. 

Declaration  of  Rights,  iii.  423,  424. 

Distribution  of  Debates,  iii.  641. 

Frame  of  Government,  i.  803. 

Governor,  i.  334. 

House  of  Representatives,  ii.  22t ;  iii.  576,  577. 

Justices  of  the  Peace,  iii.  371,  401. 

Limiting  Debate,  iii.  265. 

Loan  of  State  Credit,  ii.  312,  314. 

Militia,  ii.  63-65,  71,  72,  74,  75,  250,  251. 

Mode  of  Submitting  the   Amended  Constitution 
to  the  People,  iii.  690,  717. 

Motions,  ii.  314,  701. 

Oaths  and  Subscriptions,  i.  371,  372 ;  ii.  489,  554. 

Orders,  i.  731,  842. 

Place  of  Meeting,  i.  51.  70. 

Pardoning  Power,  i.  977,  978. 

Qualifications  of  Voters,!.  572,  573:  ii.  701,  735- 

738. 
WHITNEY,  JAMCS  S. 

Adjournment,  Vol.  i.  297 ;  ii.  218,  219. 

Amendments  and  Enrolment,  ii.  721,  722. 

Berlin  Vacancy,  i.  48. 

Closing  Debate,  i.  526,  527. 

Corporations,  ii.  122-126,  254,  256-259,  264,  265, 
269,  272 ;  iii.  50,  63-72,  179. 

Constitutional  Conventions,  iii.  525,  525. 

Encouragement  of  Literature,  iii.  622,  623. 

House  of  Representatives,  ii.  207-209,  466;  iii. 
596-^98. 


Judiciary,  iii.  203,  204,  234. 

Motions,  i.  526,  807 ;  ii.  266,  272,  466,  657,  683, 

756;  iii.  50,  234,540. 
Orders,  i.  144. 

Plurality,  iii.  141-144,  161-164,  558-560,563. 
Question  of  Order,  iii.  54),  541. 
Quorum  of  the  House,  ii.  837,  838. 
Reports,  i.  425,  426. 
Rules  and  Orders,  i.  58. 
Secretary,  Treasurer,  &c.,  i.  722,  723,   725-727, 

768,  770. 

Sectarian  Schools,  (see  Encouragement  of  Lit 
erature.) 
WILKINS,  JOHN  H. 

Boston  Vacancy,  Vol.  i.  92. 

Census,  ii.  388,  389. 

Frame  of  Government,  i.  798. 

House  of  Representatives,  ii.  268,  322. 

Lieutenant-Governor,  i.  345,  346,  349,  515,  516, 

519,535. 

Loan  of  the  State  Credit,  iii.  7-10. 
Militia,  i.  992. 
Motions,  i.  340,  341,  516. 
Secretary,  Treasurer,  &c.,  i.  724,  725,  727,  728, 

761-766,  768. 
WILKINSON,  EZRA. 
House  of  Representatives,  Vol.  ii.  322-324. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  673,  709. 
Motions,  i.  539  ;  ii.  510 ;  iii.  709. 
Qualifications  of  Voters,  ii.  510,  516,  520,  521. 
WILLIAMS,  HENRY. 
Choice  of  Secretary,  Vol.  i.  7,  8. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  ia.  705,  706. 
Motions,  iii.  705. 
Orders,  i.  974. 

Qualifications  of  Voters,  i.  547-551. 
WILSON,  HENRY. 
Adjournment,  Vol.  i.  12,  214,  215  272,  297,340; 

ii.  219-221 ;  iii.  646. 
Amendments  and  Enrolment,   ii.  716 ;  iii.  123- 

125,  472. 

Berlin  Vacancy,  i.  47,  48, 177-184. 
Chosen  President/>ro  temporc  of  Convention,  iii. 

219. 

Closing  Debate,  i.  488,  489 ;  ii.  34,  38,  38,  436. 
Commonwealth  of  Massachusetts,  i.  344. 
Corporations,  ii.  258-260,  262. 
Council  and  Lieutenant-Governor,  i.  478. 
Constitutional  Conventions,  iii.  472,  524,  527,  528. 
Death  of  Mr.  Gourgas,  ii.  738,  739. 
Declaration  of  Rights,  iii.  375,  382,  383,  419,  420, 

431,  474,  479,  480. 

Encouragement  of  Literature,  ii.  522,  545. 
Final  Adjournment,  iii.  728. 
Frame  of  Government,  i.  7^3-786,  792,  793. 
Governor,  i.  319,  322-324,  336,  337. 
Habeas  Corpus,  (see  Declaration  of  Rights.) 
House  of  Representatives,  ii.  420,  422,  424,  432, 

433;  iii.  473,  580-583,  599-631,  609,  613. 
Imprisonment  for  Debt,  iii.  489,  497. 
Instructing  Committees,  i.  758 ;  ii.  1. 


1853.] 


INDEX. 


797 


MEMBERS  AND  SUBJECTS. 


Judiciary,  ii.  684,  635,  701-707,  768. 
Lieutenant-Governor,  i.  345,  348,  349,  351,  352, 

516,517,537-540. 
Loan  of  the  State  Credit,  ii.  235-297,  3D7,  398  ; 

iii.  14,  28. 
Militia,  i.  993 ;  ii.  3,  17,  18,  28,  32,  66-68,  72-76, 

78-83,93,93,  114. 
Mode  of  Submitting  the  Amended  Constitution 

to  the  People,  iii.  683,  705. 
Motions.!.  11,12,33,69,  214.214,235.249,344,349, 

372,  497,  409,  527,  543,  558,  629,  733,  724,  748, 

758,  783,963.973,974,986;  ii.  2,  33,  71,  112, 

114,  115,  117,  121,  122,  126  251,  2-53,  272,  281, 

287,    383-385,  392.  468,   482,  483,    489,    522, 

542,  543,  556,  569,  657,703;  iii.  53,  77,  83,  125, 

148,  150,  375,  383,  437,  463,  471,  472,  497,  535, 

538,  577,  639,  613,  646,  647. 
New  Towns,  iii.  77.  78. 
Oaths  and  Subscriptions,  ii.  485,  486,  488,  489, 

553-556. 
Orders,  i.  14,  53,  92,  93,  103,  143,  163,  203,  271, 

349,  383,  445,  508,  731,  891 ;  ii.  162,  792 ;  iii. 

100. 

Pardoning  Power,  i.  973. 
Pay  Roll,  iii.  12-5-129,  646. 
Petitions,  i.  114,  159. 
Place  of  Meeting,  i.  16,  25,  37,  38,  43,  44,  65, 122, 

123. 
Plurality,  i.  293,  310-313,  414,  415,  422,  431,  432; 

iii.  115,  116,  145,  150,  151,  158,  534,  535,  547, 

577. 

Population  and  Representation,  i.  446,  447. 
Qualifications  of  Voters,  i.  581-587,  639,  648,  739- 

741. 

Question  of  Order,  iii.  538,  540,  643,  645. 
Reports  from  Committees,  i.  35,  36. 
Resignation  as  Delegate  for  Berlin,  i.  13. 
Resolutions,  i.  10-12,  337,  514;  ii.  71. 
Rights  of  the  Jury,  iii.  437. 
Rules  and  Orders,  i.  60. 

Senate,  i.  122,  123,  193,  191,  193,  196,  197,  211. 
Secretary,  Treasurer,  &c.,  i.  707,  708,  724,  729, 

767;  ii.  468,529-531,  542,  543. 
Special  Assignment,  ii.  556,  558,  559. 
University  at  Cambridge,  iii.  43,  76,  247,  248,  254- 

262. 

"WILSON,  MILO. 

Loan  of  the  State  Credit,  Vol.  ii.  116. 
New  Towns,  iii.  83. 
Wompn,  Married,  Property  of.    Vol.  i.  493;  ii.  384, 

385. 


WOOD,  NATHANIEL. 

Berlin  Vacancy,  Vol.  i.  49. 

Closing  Debate,  iii.  100,  101. 

Encouragement  of  Literature,  ii.  522;  iii.  616, 
617,  624. 

House  of  Representatives,  i.  926-930. 

Limitation  of  Debate,  iii.  364,  365. 

Motions,  i.  53,  937  ;  ii.  635  ;  iii.  629. 

Pardoning  Po*er,  i.  934,  985. 

Place  of  Meeting,  i.  23,  24. 

Qualifications  of  Voters,  ii.  508-510. 

Secretary,  Treasurer,  &c.,  ii.  523-525. 

Sectarian   Schools,  (see  Encouragement  of  Lit 
erature.) 
WOOD,  WILLIAM  H. 

House  of  Representatives,  Vol.  i.  858-861 ;  ii.  576. 

Judiciary,  ii.  697-699,  712-714. 
WRIGHT,  EZEKIEL. 

Petitions,  Vol.  ii.  2. 

Yeas  and  Nays  on  Form  of  Notice  to  town  of  Ber 
lin,  Vol.  i.  185-187. 

on  the  Senate,  i.  232. 

on  the  Governor,  i.  342-344. 

on  the  Council,  i.  532,  533. 

on  Qualifications  of  Voters,  i.  680-682,  701- 
703,  744-746. 

on  Secretary,  Treasurer,  &c.,  i.  778-780,  (gee 
Appendix,  iii.  769.) 

on  the  General  Court,  i.  964-966. 

on  the  Pay  Roll,  ii.  333-332. 

on  the  House  of  Representatives,  ii.  420—422, 
456-458,  464-468,  633-637. 

on  Loan  of  the  State  Credit,  ii.  681-683. 

on  the  Judiciary,  ii.  828-832. 

on  Loan  of  the  State  Credit,  iii.  25,  26. 

on  General  Laws  for  Corporations,  iii.  73-7-5. 

on  Plurality,  iii.  134-136,  149,  150,  284-289, 
578,  579,  (see  Appendix,  iii.  771.) 

on  the  Judiciary,  iii.  233-239. 

on  the  University  at  Cambridge,  iii.  263,  264. 

on  Banking,  iii.  359,  363. 

on  the  Bill  of  Rights,  iii.  431-433,  463-465. 

on  Amendments  to  Constitution,  iii.  495, 496, 
521-523. 

on  Rights  of  the  Jury,  iii.  515-517. 

on  a  Question  of  Order,  iii.  543-545. 

on  Adjournment,  iii.  548,  549. 

on  the  House  of  Representatives,  iii.  611, 
612,  678,  679. 

on  Revision,  iii.  709-711. 

on  Proposition  Number  One,  iii.  711-713. 


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